Citation Nr: 1316526	
Decision Date: 05/20/13    Archive Date: 05/29/13

DOCKET NO. 03-00 041	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1. Entitlement to an initial extraschedular rating for reflex sympathetic dystrophy and ulnar hyperesthesia of the right upper extremity, currently evaluated on a schedular basis as 70 percent disabling.

2. Entitlement to an extraschedular rating for residuals of blunt force trauma of the right ring and little fingers, currently evaluated on a schedular basis as 10 percent disabling.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. B. Mays, Counsel

INTRODUCTION

The Veteran served on active duty from January 1974 to December 1976. 
Effective January 2006, the Veteran is in receipt of a total disability evaluation based on individual unemployability.

The appeal arises from the Veteran's disagreement with a September 2002 Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO) rating decision that denied entitlement to a rating in excess of 10 percent for residuals of blunt trauma to the ring and little fingers of the right upper extremity, and the Veteran's disagreement with an August 2003 RO rating decision that granted service connection for reflex sympathetic dystrophy and ulnar hyperesthesia of the right upper extremity and assigned an initial rating of 20 percent, increased to 70 percent by the Board in May 2011. 

In March 2009, the Veteran and VA filed a Joint Motion for Remand (Joint Motion) with the United States Court of Appeals for Veterans Claims (Court) to vacate and remand the Board's March 2008 decision regarding the Veteran's claims for a higher initial rating for reflex sympathetic dystrophy of the right upper extremity and a higher rating for residuals of blunt force trauma of the right ring and little fingers. The Court issued an Order granting the motion, thereby vacating the Board's decision, and remanding the matters to the Board for compliance with the instructions in the Joint Motion.

In February 2010, the case was returned to the Board and the Board remanded the claims to the RO for additional development. 

The Board issued a decision in May 2011 which, in pertinent part, granted a 70 percent schedular rating for reflex sympathetic dystrophy and ulnar hyperesthesia of the right upper extremity, effective for the full period of the claim from December 24, 2002, and denied entitlement to a schedular rating greater than 10 percent for residuals of blunt trauma of the right ring and little fingers. This decision is final. See 38 U.S.C.A. § 7104 (West 2002) (providing that Board decisions are final); 38 C.F.R. § 20.1100 (2012) (finality of Board decisions). However, the Board remanded the matter of entitlement to extraschedular ratings for these disabilities to the Appeals Management Center (AMC) for further development and adjudication. 

The AMC undertook the development directed by the Board in its May 2011 remand, including referral to the Director of the Compensation and Pension Service for extraschedular consideration. The Director issued an August 2012 Memorandum setting forth his findings. However, a September 2012 Supplemental Statement of the Case (SSOC) issued by the AMC did not consider VA treatment records dating from June 1998 to March 2012 that had then recently been added to the Virtual VA paperless claims processing system, many of which reflect treatment for the disabilities at issue. Moreover, the AMC only adjudicated the issue of entitlement to extraschedular ratings prior to January 31, 2006, but did not address whether extraschedular ratings were warranted for the period dating from January 31, 2006 forward. Although the Veteran has been in receipt of a total disability rating based on individual unemployability (TDIU) effective January 31, 2006, he is entitled to an adjudication of his claims for higher schedular and extraschedular ratings. See Colayong v. West, 12 Vet. App. 524, 537 (1999).

Accordingly, the Board remanded these claims in October 2012 with instructions to the AMC to issue a new SSOC taking into account the VA treatment records that had been newly associated with the virtual claims file. 

This case was then recertified and transferred to the Board without the required action being completed. However, in February 2013, the Board remanded these extraschedular claims to ensure compliance with its remand directives and that the Veteran has been afforded due process. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); 38 C.F.R. 
§ 19.31 (2012) (setting for requirements for issuing an SSOC, including for the purpose of consideration of additional material evidence and when a defect in a prior SOC or SSOC is discovered). Again, the Board again directed the RO/AMC to obtain additional evidence and readjudicate the issues of entitlement to extraschedular consideration both for the period prior to January 31, 2006, and from January 31, 2006 to the present. Such was accomplished in a March 2013 SSOC, and the extraschedular claims have since returned to the Board once again. 

In the August 2012 Memorandum, the Director of VA's Compensation and Pension Service noted that the June 2011 rating decision of the Appeals Management Center (AMC) contained duplicate entries for ratings for loss of teeth (assigned Diagnostic Code "8212-9912"), loss of the maxilla (assigned Diagnostic Code 9913), and post-traumatic damage to the palatal nerve, supplying sensation of the left side of the hard palate, and indentation of the left oral hard palate (assigned Diagnostic Code 9915). The Board again refers these matters to the RO/AMC for any corrective action as indicated by the Director. 


FINDING OF FACT

The established schedular criteria to evaluate the Veteran's reflex sympathetic dystrophy and ulnar hyperesthesia of the right upper extremity, and the residuals of blunt force trauma of the right ring and little fingers, contemplate the manifestations of such disability and does not present 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. 


CONCLUSIONS OF LAW

1. The criteria for entitlement to an initial rating in excess of 70 percent for reflex sympathetic dystrophy and ulnar hyperesthesia of the right upper extremity, on an extra-schedular basis, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321(b)(1) (2012).



2. The criteria for entitlement to a rating in excess of 10 percent for residuals of blunt force trauma of the right ring and little fingers, on an extra-schedular basis, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321(b)(1) (2012).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

I. Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

The VCAA duty to notify was satisfied by way of letters sent to the Veteran dated in July 2005, February 2010, October 2012, and February 2013. In compliance with the duty to notify the Veteran of what information would substantiate his claims and his and VA's responsibilities in obtaining evidence to substantiate the claims. The Veteran has also been advised as to how disability ratings and effective dates are assigned. See Dingess, supra. Subsequently, the increased rating claims on an extraschedular basis were readjudicated in a March 2013 SSOC.

VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 

Sufficient development has been accomplished for appellate review to proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The record contains service treatment records, VA outpatient treatment records, and private medical records. The Veteran has been afforded VA examinations, and to the extent higher ratings may be available for the Veteran's service-connected disabilities of the right arm and right hand on an extraschedular basis, further development and adjudication, including referral to the Director of C&P, has been accomplished, as directed by the March 2009 Order granting a Joint Motion for Remand. Pursuant to the last remand in February 2013, the RO/AMC sought to obtain any additional VA treatment records from March 2012 to the present, as requested; however, none were found.

No further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In fact, in response to the latest SSOC, the Veteran indicated in April 2013 that he had no other information or evidence to submit and asked that his case be returned to the Board for further appellate consideration as soon as possible. 

The Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published at Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).

II. Whether an Extraschedular Rating is Warranted

In its May 2011 decision the Board addressed the applicability of the relevant schedular criteria for the reflex sympathetic dystrophy and ulnar hyperesthesia of the right upper extremity, and residuals of blunt force trauma of the right ring and little fingers. The Board determined that the criteria for an initial schedular rating of 70 percent for reflex sympathetic dystrophy and ulnar hyperesthesia of the right hand had been approximated for the full period from December 24, 2002, forward. The Board also determined that a schedular rating in excess of 10 percent for disability of the right ring and little fingers had not been met. The sole matter before the Board at the present time is the question of whether there is a basis for an extraschedular rating for either disability. The preponderance of the evidence is against the claim and the appeal will be denied. 

In exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 

In his August 2012 review, the C&P Director reviewed the Veteran's claims file to include private medical records and VA examination reports dated in April 2002, July 2003, and July 2006. He then determined that an extraschedular rating was not warranted for reflex sympathetic dystrophy and ulnar hyperesthesia of the right upper extremity, or the residuals of blunt force trauma of the right ring and little fingers, under the circumstances presented. Specifically, the Director found that no unusual or exceptional disability pattern had been demonstrated that would render application of the regular rating criteria impractical, and that the symptoms and corresponding functional loss and economic impairment contained in the evidentiary record are contemplated by the schedular rating presently assigned for the service-connected right arm and right hand disabilities.

As indicated in the May 2011 decision, the Veteran injured his right hand during active service when a vehicle engine fell on his right hand, and as a result of that injury, he was diagnosed in due course as having reflex sympathetic dystrophy or Complex Regional Pain Syndrome (CRPS) of the right arm. In February 2002, the Veteran sought treatment for complaints of tingling, numbness, pain, and stiffness in the right hand and forearm. An April 2002 medical record revealed findings consistent with a right carpal tunnel syndrome. In May 2002, C.H., M.D. opined that the Veteran had carpal tunnel syndrome and ulnar tunnel syndrome. During an April 2002 VA examination, the Veteran's hand was weak with the index to thumb finger and he had fairly good strength of the hands, compared with the last finger. 

In February 2003, the Veteran underwent an impairment evaluation with a physical therapist to determine the extent of his reflex sympathetic dystrophy and ulnar hyperesthesia. A March 2003 letter from the S.W., M.D. rated the Veteran's impairment based on the measurements taken at the February 2003 evaluation. A May 2003 record from the VA Plastic Surgery Clinic noted that the Veteran has a right arm total impairment of 24% and a right hand impairment of 17%. These combine for a whole person impairment of 14%. In a follow-up letter from Dr. S.W., dated in June 2003, Dr. S.W. stated that he gave the Veteran a permanent impairment rating, as a result of the injury sustained in service. 

During a July 2003 VA examination, the Veteran was noted to have significant functional limitations of the hand; that the pain level was "5" out of a "10." The examiner noted that the Veteran's right wrist was in a splint; but there was no difference in color or temperature of the hand and no muscle atrophy. The Veteran demonstrated very slow movements of the right hand, and there was a 2 centimeter distance between the tip of the index finger and the median transverse fold of the palm when he attempted to fully flex the fingers. He was noted to have strong radial and ulnar pulse in the right hand. VA treatment records from June 2004 refer to "significant impairment" of the right hand - essentially these records indicate that the Veteran has limited movement of the right hand and wrist due to continued pain. 

In February 2006, the Veteran underwent surgical release of the right carpal tunnel; right cubital tunnel with anterior subcutaneous transposition of the ulnar nerve and right tennis elbow release with partial lateral epicondylectomy and extensor fascia lengthening.  A February 2006 VA examiner opined that the Veteran had complete loss of left median nerve function distal to the wrist, as evidence by his EMG and nerve conduction studies, as well as severe cubital tunnel syndrome of his ulnar nerve at the elbow, and some brachial plexopathy possible at the axilla/shoulder region. He elaborated that time would tell if surgery had improved these conditions, "though with this much chronicity, they are likely permanent." 

A July 2006 VA examiner found that the Veteran's service-connected disability of the right upper extremity prevented him from shopping and participating in sports; moderately impaired his ability to exercise, travel, toilet, feed himself and groom; and severely affected his ability to bathe and dress. 

A December 2006 VA examiner stated that the Veteran had nearly full power in his right arm, and full range of motion with pain of the elbow and wrist and shoulder abduction of 90 degrees without pain, but opined that the Veteran had severe functional impairment of the right arm and hand in terms of mechanics and also in terms of pain. 

In its May 2011 decision the Board concluded that the Veteran's reflex sympathetic dystrophy and ulnar hyperesthesia of the right upper extremity from December 24, 2002, forward is primarily productive of severe pain, weakness, and slow movement. The Board noted that the disability severely impacted the Veteran's function on a daily basis. The 70 percent rating currently assigned under Diagnostic Code 8511 contemplates evidence of complete paralysis of the middle radicular group. See 38 C.F.R. § 4.124a (2012). Although complete paralysis was not been objectively demonstrated in this case, the Board nonetheless considered the Veteran's pain and severe functional impairment to be prominent factors in evaluating the disability. See 38 C.F.R. §§ 4.40, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). Therefore, after comparing the Veteran's right arm disability picture with its assigned rating of 70 percent, the Board finds that the established rating criteria under Diagnostic Code 8511, in addition to consideration of 38 C.F.R. §§ 4.40 and 4.59, adequately describe the Veteran's disability picture. (Also noteworthy is that a 70 percent rating is also warranted under Diagnostic Code (DC) 5124 for amputation of the major extremity below insertion of pronator teres, which is not shown).

The Veteran's disability of the right ring and little fingers is primarily productive of pain and functional impairment, which the Board in May 2011 approximated to be more analogous with favorable ankylosis. As found by the Director, C&P, the Veteran is actually being compensated at a level higher than the regular rating schedule standard for his impairment level because he does not have ankylosis in his fingers. Although painful, he does exhibit motion in his fingers.    

In its May 2011 decision, the Board also recognized that the Veteran's symptoms affecting both the right arm and wrist overlap, but that combining ratings for overlapping symptoms would constitute impermissible pyramiding. Esteban v. Brown, 6 Vet. App. 259 (1994); 38 C.F.R. § 4.14 (2012). Consequently, the Board finds that the Veteran's symptomatology and functional limitations attributable to his service-connected right arm and right hand disabilities are reasonably contemplated by the rating schedule. 

As noted, the Veteran has been in receipt of a TDIU since January 31, 2006. The Court has recognized that "the effect of a service-connected disability appears to be measured differently for purposes of extraschedular consideration under 38 C.F.R. § 3.321(b)(1) . . . and for purposes of a TDIU claim under 38 C.F.R. § 4.16." See Kellar v. Brown, 6 Vet. App. 157, 162 (1994). The former requires marked interference with employment; whereas the latter requires evidence of unemployability. Id.; see also Thun v. Peake, 22 Vet. App. 111 (2008), ("[E]xtraschedular consideration [under § 3.321] may be warranted for disabilities that present a loss of earning capacity that is less severe than one where the Veteran is totally unemployable.")

However, there is no probative (competent and credible) evidence that the service-connected right arm and right hand disabilities have caused marked interference with the Veteran's employment - meaning above and beyond that contemplated by its schedular rating. See 38 C.F.R. § 4.1, indicating that, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (reiterating that the disability rating, itself, is recognition that industrial capabilities are impaired). 

Moreover, even considering the Veteran's February 2006 surgery (right ulnar nerve release at the elbow - cubital tunnel release), there is no evidence of frequent hospitalization on account of his service-connected right arm and right hand disabilities.

In conclusion, since the rating schedule adequately addresses the symptomatology for reflex sympathetic dystrophy and ulnar hyperesthesia of the right upper extremity and the residuals of blunt force trauma of the right ring and little fingers, and these disabilities are not shown to affect employment in ways not contemplated by the rating schedule, the Board finds that an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is unwarranted for either disability. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); and Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996).


ORDER

Entitlement to an initial rating in excess of 70 percent, on an extraschedular basis, for reflex sympathetic dystrophy and ulnar hyperesthesia of the right upper extremity is denied.

Entitlement to a disability rating in excess of 10 percent, on an extraschedular basis, for residuals of blunt force trauma of the right ring and little fingers is denied.




____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs