Citation Nr: 1318133 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 06-10 122 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to a rating in excess of 10 percent for right wrist arthralgia on an extraschedular basis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from April 1967 to January 1969. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a September 2005 rating decision, by the Albuquerque, New Mexico, Regional Office (RO), which denied the claim for a rating in excess of 10 percent for right wrist arthralgia. In February 2009, the Board remanded the case for evidentiary development. Following the requested development, a supplemental statement of the case (SSOC) was issued in April 2010. In September 2010, the Board again remanded the claim for further evidentiary development. Another SSOC was issued in February 2012. In August 2012, the Board once again remanded the issue of a higher rating for right wrist arthralgia on an extraschedular basis for procedural development. An SSOC was issued in January 2013. The Board finds there has been substantial compliance with the past remand. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board also notes that the Veteran has been awarded a total disability rating based on individual unemployability. FINDING OF FACT The competent and credible evidence of record, including a December 2010 opinion by the Director of VA's Compensation and Pension Service, indicates that the Veteran's arthralgia of the right wrist does not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. CONCLUSION OF LAW The criteria for the assignment of a rating in excess of 10 percent on an extraschedular basis for arthralgia of the right wrist have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321(b)(1) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VCAA Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; (see also 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a)), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Court's decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In May 2005, March 2006, March 2009, November 2009, and August 2012, VCAA letters were issued to the Veteran with regard to his increased rating claim. Collectively, the letters notified the Veteran of what information and evidence is needed to substantiate his extraschedular claim, what information and evidence must be submitted by the claimant, and what information and evidence will be obtained by VA. Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004). The March 2006 letter advised the Veteran of the evidence necessary to support an effective date. See also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Moreover, after issuance of VCAA notice, the extraschedular claim was readjudicated by way of a supplemental statement of the case in January 2013. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Board also finds that VA has complied with all assistance provisions of VCAA, to include compliance with the September 2010 and August 2012 Board Remands. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The evidence of record contains the Veteran's treatment records, and lay statements in support of his appeal. There is no indication of relevant, outstanding records which would support the Veteran's claim. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran underwent a VA examination in December 2009, and an opinion from the Director, Compensation and Pension Service was proffered subsequent to the September 2010 Remand. For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue in appellate status. II. Laws and Regulations Generally, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. Part 4 (2012). To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer a case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b) (1) (2012). In the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve, on the basis of the criteria set forth in this paragraph, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that 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. The Court has provided clear guidance for determining whether a Veteran is entitled to have his case referred for an extraschedular rating. See Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Court provided a sequential three-step analysis. Step one, determine whether the schedular rating adequately contemplates a claimant's disability picture. 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 to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration of an extraschedular rating is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then on step two, determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second step, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. Regarding extraschedular consideration, the Court has consistently held that the Board may not assign an extraschedular rating in the first instance. See Floyd v. Brown, 9 Vet. App. 88 (1996). The Court, however, has also noted that "an extra-schedular rating issue is always part of the same [increased rating] claim" and is not an independent issue from that of an increased rating. Id. at 96. Thus, the Board concludes it retains appellate jurisdiction over the present issue of entitlement to an increased rating on an extraschedular basis, and it may review the Director's decision not to provide an extraschedular award. 38 U.S.C.A. § 1704(a). III. Factual Background and Analysis Service connection was established for right wrist arthralgia in an August 2003 rating decision, and a 10 percent disability rating was assigned, effective March 25, 2003. In April 2005, the Veteran filed a claim for an increased rating for his right wrist disorder. A September 2005 rating decision continued the 10 percent rating. In his substantive appeal, received in February 2006, the Veteran maintained that his condition had become worse. In conjunction with his claim, the Veteran was afforded a VA examination in December 2009, at which time it was noted that the separation examination indicated that the Veteran had chronic recurrent left shoulder dislocations at the time of his discharge on January 31, 1969. The Veteran noted gradual onset of aching and pain in both wrists beginning in 2000 without specific history of trauma. On examination, the right wrist had a dorsiflexion to 10 degrees. Palmar flexion was 30 degrees. Radial deviation was 10 degrees, and ulnar deviation was 15 degrees. No additional limitation of motion was found after three repetitive movements. The examiner noted that the Veteran had mild facial grimacing with repetitive activity of both wrists. X-ray study of the right wrist revealed mild degenerative changes of the first CMC joint and STT joint; there was ulnar positive variance; degenerative changes of the third metacarpal phalangeal joint, and chondrocalcinosis was noted as well. The pertinent diagnosis was chronic strain/sprain of the wrists with limited motion and degenerative joint disease of both wrists. The examiner noted that both wrists present with marked limitations of motion with pain on repetitive activity, and this would certainly markedly limit the Veteran with respect to manual dexterity and functional capabilities with respect to activities of everyday living. The examiner further stated that the Veteran would obviously not be employable in any capacity on the basis of pain, weakness and limited motion with functional loss of his wrists as presented at this time. Pursuant to the Board's September 2010 remand order, the claims file was referred to the Director, Compensation and Pension Service of the VA, who responded in a December 2010 written statement. The Director noted that the Veteran was afforded a December 2009 VA medical examination, the result of which was an opinion by the VA examiner that the Veteran was unable to be employed in any capacity due to disabilities of the left shoulder and the bilateral wrists. The Veteran's right hand was also noted to be his dominant hand, and his left hand was non-dominant. The Director further noted, however, that although the Veteran experienced impairment in his daily activities due to his right wrist disability, this disability alone did not result in marked interference with all forms of employment. By the Veteran's current 10 percent schedular evaluation, a certain level of impairment was acknowledged by VA, and the evidentiary record did not suggest a degree of impairment in excess of that acknowledged by the assigned schedular rating. The record did not reflect such unique symptoms or other circumstances which differentiated the Veteran from other veterans similarly situated. For this reason, the Director concluded that entitlement to an extraschedular evaluation was not established. After considering the totality of the record, the Board finds the preponderance of the evidence to be against the award of an increased rating on an extraschedular basis for the Veteran's service-connected right wrist disability. The Board first acknowledges the December 2009 VA examination report, which concluded the Veteran was unable to work "in any capacity" due to his bilateral wrist disabilities. This opinion was based, however, on bilateral wrist disabilities, and not on the Veteran's right wrist disability alone. The evidence of record also does not indicate the Veteran's right wrist significantly impairs his ability to live independently, and perform most tasks of daily living. His right wrist disorder has not required any hospitalization, excessive or burdensome medical care, or similar impairment in daily life. As was also acknowledged in the December 2009 VA examination report, the Veteran does retain at least some range of motion of the right wrist across palmar flexion, dorsiflexion, and ulnar and radial deviation, and has not lost all functional use of the right hand; ankylosis of the right wrist was not reported. Thus, the Board finds the preponderance of the evidence is against the award of a disability rating in excess of 10 percent on an extraschedular basis for the Veteran's right wrist disability. The Board agrees with the denial by the Director, Compensation and Pension Service, of a disability rating in excess of 10 percent on an extraschedular basis for the Veteran's right wrist arthralgia. As a preponderance of the evidence is against the award of increased rating on an extraschedular basis, the benefit-of-the-doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). (CONTINUED ON NEXT PAGE) ORDER Entitlement to an increased rating for arthralgia of the right wrist, on an extraschedular basis pursuant to 38 C.F.R. § 3.321(b), is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs