Citation Nr: 1316081 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 09-40 087 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a rating in excess of 10 percent for a ganglion cyst of the dorsal aspect of the left wrist. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1960 to September 1963. This matter comes before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran is service connected for a ganglion cyst on the dorsal aspect of the left wrist, and the question of entitlement to a higher rating for this disability is addressed in the decision below; however, in a September 2004 report of examination, a VA clinician noted that the Veteran had arthritis of the left wrist that may be related to military service. Given this comment, the Board finds that a claim of service connection for left wrist arthritis is raised by the record. Such a claim is referred to the RO for appropriate action. FINDING OF FACT The Veteran's ganglion cyst of the dorsal aspect of the left wrist has not caused ankylosis and does not involve any deep, large, or otherwise symptomatic scarring. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a ganglion cyst of the dorsal aspect of the left wrist have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5214-5215 (2012), 4.118, Diagnostic Codes (DCs) 7800-7802 (2008), 7819 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a pre-adjudication letter dated in April 2008, the RO notified the Veteran of the evidence needed to substantiate his claim for an increased rating for a ganglion cyst of the dorsal aspect of the left wrist. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist him in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The claimant's veteran status has been substantiated. He was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claim, in the April 2008 letter. The Court held in Vazquez-Flores v. Peake that 38 U.S.C.A § 5103(a) requires, at a minimum, that the Secretary notify the Veteran that, to substantiate an increased rating claim, the Veteran must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated sub nom, Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Additionally, the Veteran must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment. Id. Furthermore, the Court directed that as with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Id. The April 2008 letter told the Veteran that evidence of worsening could substantiate the increased rating claim. He was notified in the letter that medical or lay evidence could be submitted to substantiate his increased rating claim and was provided with specific examples. The letter also stated that the Veteran could submit letters from individuals who could describe the manner in which his disability had worsened. The April 2008 letter also explained that disability ratings are determined by applying VA's rating schedule under which the RO would assign a rating from 0 to 100 percent, and that it would consider evidence of the nature of the symptoms of the condition, their severity and duration, and their impact upon employment. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA obtained the Veteran's service treatment records and all of the identified relevant post-service VA treatment records. The Veteran has not reported, and the evidence does not otherwise reflect, that he has received any relevant post-service private medical treatment for a ganglion cyst of the dorsal aspect of the left wrist. In addition, he was afforded a VA examination to assess the severity of this service-connected disability. Although the most recent VA examination for the Veteran's service-connected ganglion cyst took place in 2008, he has not reported any change in his disability since that time, and the record does not otherwise suggest any changes. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (mere passage of time does not trigger need for a new VA examination, absent evidence of a change in the disability). Thus, a new VA examination for the service-connected left wrist disability need not be conducted. During a September 2004 VA examination, the Veteran reported that he had begun receiving Social Security Administration (SSA) benefits approximately 2 years prior to the examination. In March 2005, the agency of original jurisdiction (AOJ) contacted the SSA and requested all available records pertaining to the Veteran's claim. The SSA responded that it could not send the requested records because the Veteran had not filed for any disability benefits. Hence, any further efforts to obtain SSA disability records would be futile and VA has no further duty to attempt to obtain any such records. 38 C.F.R. § 3.159(c)(1). Analysis Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32, 43-4 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's ganglion cyst of the dorsal aspect of the left wrist is currently rated under 38 C.F.R. §§ 4.71a, 4.118, DCs 7819-5215. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27 (2012). Here, the use of DCs 7819-5215 reflects that the Veteran's left wrist disability is rated as a benign skin neoplasm under DC 7819 and that the rating assigned is based on limitation of motion of the wrist under DC 5215. Under DC 7819, a benign skin neoplasm is rated as disfigurement of the head, face, or neck under DC 7800, scars under DCs 7801-7805, or impairment of function. 38 C.F.R. § 4.118, DC 7819. Under DC 5215, a 10 percent rating is warranted for the minor extremity (the Veteran is right handed) if palmar flexion is limited in line with the forearm or if dorsiflexion is less than 15 degrees. 38 C.F.R. § 4.71a, DC 5215. This is the maximum schedular rating for limitation of wrist motion available under this diagnostic code. Id. A higher rating under DC 5214 requires evidence of ankylosis. In this case, the Veteran reported during an April 2008 VA examination that he was right handed and that he experienced left wrist pain, numbness, stiffness, locking, fatigability, heat/redness, and restricted movement due to pain. The wrist pain was intermittent, aching in nature, and 4/10 in intensity and generally lasted for a couple of hours on a daily basis. There was no swelling of the wrist. The Veteran did not take any medications for the pain, but he used a brace to alleviate the pain and support the wrist. He did not use any other assistive devices. The symptoms associated with the wrist were aggravated by any "wrong movement" of the wrist, pushing, or pressure on the wrist and there was aching of the wrist joint during winter months, but there were no specific flare ups of symptoms. He had not experienced any fracture or traumatic injury of the wrist, he did not have a prosthetic joint, there were no episodes of dislocation or subluxation, and there was no fever, weight loss, or other symptoms of inflammatory arthritis. He had been retired since 2002 and his left wrist disability did not affect his daily activities. Examination of the left wrist revealed that there was mild tenderness and weakness, but no ankylosis, edema, instability, abnormal movement/guarding of movement, effusion, redness/heat, or signs of inflammatory arthritis. Ranges of motion of the wrist were recorded as dorsiflexion to 65 degrees, palmar flexion to 70 degrees, radial deviation to 20 degrees, and ulnar deviation to 45 degrees. There was tenderness associated with all ranges of motion, but no additional limitation of joint function due to pain, fatigue, weakness, lack of endurance, or incoordination. X-rays revealed posttraumatic and degenerative changes with mild overlying soft tissue edema. The Veteran was diagnosed as having residuals (scar) secondary to a posttraumatic wrist injury postoperative ganglionic cystectomy. The above evidence reflects that there is a left wrist disability with tenderness, weakness, and limitation of motion. Also, the Veteran has provided subjective reports of numbness, stiffness, locking, fatigability, and heat/redness. However, there is no evidence of left wrist ankylosis and the April 2008 VA examination report specifically noted the absence of ankylosis. Where, as here, a veteran is in receipt of the maximum schedular rating based on limitation of motion of the wrist and a higher rating requires ankylosis, the regulations pertaining to functional impairment (38 C.F.R. §§ 4.40, 4.45, 4.59) are not for application. See Johnston, 10 Vet. App. at 85. A 10 percent rating has been assigned under DC 5215 on the basis of limitation of left wrist motion. As the evidence does not reflect that there is any ankylosis of the wrist, a rating in excess of 10 percent for a ganglion cyst of the dorsal aspect of the left wrist under DCs 5214 and 5215 is not warranted at any time during the claim period. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.71a, DCs 5214, 5215. The April 2008 VA examination report includes a diagnosis of a left wrist scar. The Board notes that on September 23, 2008, VA amended the criteria for evaluating scars. See 73 Fed. Reg. 54,708 (Sept. 23, 2008). The amendments, however, are only effective for claims filed on or after October 23, 2008, although a claimant may request consideration under the amended criteria. In this case, the Veteran has not requested such consideration. As his claim for an increased rating was received in February 2008, the amendments are not applicable in this instance and will not be applied in this case. In order to warrant a rating in excess of 10 percent under the criteria for rating scars in effect prior to September 23, 2008, a scar would need to involve the head, face or neck and have additional characteristics (DC 7800) or be deep or cause limited motion and affect an area or areas exceeding at least 12 square inches (77 square centimeters) (DC 7801). Additionally, more than one 10 percent rating is potentially warranted if there are multiple scars, other than on the head, face, or neck, that are superficial, do not cause limited motion, affect an area or areas of 144 square inches (929 square centimeters) or greater, and are in widely separated areas (as on two or more extremities or on anterior and posterior surfaces of extremities or trunk) (DC 7802). 38 C.F.R. § 4.118, DCs 7800-7802 (effective August 30, 2002). The reported left wrist scar clearly does not involve the head, face, or neck. Additionally, there is no evidence that there are multiple left wrist scars or that the reported scar is deep or affects an area or areas exceeding at least 12 square inches. In light of the foregoing, a separate compensable rating is not warranted for the ganglion cyst of the dorsal aspect of the left wrist on the basis of scars under the applicable criteria at any time during the claim period. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.118, DCs 7800-7802 (2008). Pursuant to 38 C.F.R. § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2012). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). The Board must specifically address whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242, 244 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). There is no allegation or evidence of exceptional factors in this appeal with regard to the Veteran's service-connected ganglion cyst of the dorsal aspect of the left wrist. All the symptoms experienced by the Veteran are contemplated by the appropriate diagnostic criteria as set forth above. Although a September 2004 VA examiner has indicated that arthritis of the left wrist has caused the Veteran to be unemployable for the type of work he previously held, the question of unemployability due to the ganglion cyst has not been raised. The Veteran's disability has been rated on the basis of limited motion, just as arthritis is, but he is not service connected for arthritis of the left wrist. (As noted in the introduction, this issue has been referred to the RO for further action.) Consequently, further analysis of whether the ganglion cyst has caused the Veteran to be unemployable is not required. ORDER Entitlement to a rating in excess of 10 percent for a ganglion cyst of the dorsal aspect of the left wrist is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs