Citation Nr: 1319796 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 07-20 273 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a disability rating greater than 30 percent for a right (major) scaphoid fracture with traumatic arthritis to include on an extraschedular basis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran had active service from October 1967 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida that continued a 10 percent rating for the Veteran's right wrist disability. A Travel Board hearing was held at the RO in January 2009 before a Veterans Law Judge who subsequently retired from the Board and a copy of the hearing transcript has been added to the record. In October 2011, the Veteran was provided with an opportunity to request another Board hearing before a different Veterans Law Judge. He did not respond. See 38 U.S.C.A. § 7107; 38 C.F.R. §§ 20.707, 20.717. In April 2009 the Board remanded the Veteran's appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development, to include obtaining outstanding pertinent treatment records as well as a VA examination. The Board also instructed the RO/AMC to determine whether or not the Veteran was potentially entitled to an extraschedular rating under 38 C.F.R. § 3.321(b). In a December 2009 rating decision, the RO/AMC assigned a 30 percent rating effective from June 8, 2005 (the date it was factually shown the Veteran's right wrist disability increased in severity). The RO/AMC also determined that referral for an extraschedular determination was not warranted. Although the RO assigned a 30 percent rating, as this rating does not represent the highest possible benefit, this issue has remained in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). In March 2012, the Board again remanded this issue to the RO via the AMC for additional development, to include a contemporaneous VA examination. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal. The virtual file contained some additional medical evidence. This evidence has been carefully reviewed by the Board. FINDINGS OF FACT 1. Throughout the period of appellate review, the Veteran's right scaphoid fracture with traumatic arthritis reasonably approximates favorable ankylosis of the dominant wrist. 2. The Veteran's symptomatology is described by the relevant rating criteria; a higher disability evaluation is available upon a showing of worsening symptomatology. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for right scaphoid fracture with traumatic arthritis, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5214, 5215 (2012). 2. The criteria for demonstrating a need to refer this claim to the Director of the Compensation and Pension Service have not been met. 38 C.F.R. § 3.321(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in February 2006 that fully addressed all notice elements. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, a February 2007 letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file, to include the Veteran's electronic file, contains the Veteran's available service treatment records, post-service reports of private and VA treatment and examination. The Veteran's complete Social Security Administration (SSA) records also have been obtained and associated with the claims file. Moreover, the Veteran's statements, to include testimony taken at the January 2009 Board hearing, in support of the claim are of record. The Board has carefully reviewed such statements and concludes that there is no available outstanding evidence pertinent to the claim that must be obtained. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) (2012) requires that any Veterans Law Judge who chairs a hearing fulfill two duties to comply with the VCAA. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant, 23 Vet. App. at 488. Here, during the January 2009 Board hearing, the Veterans Law Judge adequately explained the claim on appeal and suggested evidence that may support this claim, including evidence that the Veteran might submit that may have been overlooked. The Veteran was also specifically asked questions concerning the severity of his right wrist disability. The Board accordingly concludes that the notice requirements under Bryant were effectively satisfied. To the extent any such notice may have been inadequate, this was effectively cured both by actual knowledge as evidence by statements and questions of the Veteran's authorized representative at the hearing, as well as by the Board providing such explanation of the issue and suggesting submission of evidence in the subsequent remands the Board issued to develop this claim. Accordingly, the Board finds that all reasonable efforts have been undertaken by VA with respect to the instant appeal, and no further development is required under these circumstances. Additionally, the Veteran was afforded VA examinations in June 2006, and pursuant to the April 2009 Board remand, an examination in July 2009, and pursuant to the March 2012 Board remand, an examination in May 2012 to evaluate the severity of his right wrist disability. The Board finds that the VA examinations are adequate because, as shown below, they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because it describes the right wrist disability in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Furthermore, he has not asserted, and the evidence does not show, that his symptoms have materially worsened since the May 2012 evaluation. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect.); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board accordingly finds no reason to remand for further examination regarding the issue decided herein. The Board also finds that there was substantial compliance with the most recent March 2012 remand directives which was intended to ensure that all previous directives had been accomplished. A remand by the Board confers upon the claimant, as a matter of law, the right to substantial compliance with a remand order. See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to the internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). Specifically in this case, the Board directed the AMC/RO to obtain and associate all outstanding VA treatment records, and then afford the Veteran a VA examination to determine the current severity of his right wrist disability. A review of the claims and electronic file reveals VA treatment records dated through February 2012 have been associated with the claims file; and as noted, the Veteran was afforded a VA examination in May 2012. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. 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). II. Analysis Initially, the Board notes all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In rating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45. In claims for increased ratings, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). As the 30 percent disability rating represents the greatest level of severity throughout the period of appellate review, "staged" ratings are not for consideration. Historically, a November 2001 rating decision granted the Veteran service connection for a right wrist disability and assigned a noncompensable disability rating. An April 2004 rating decision increased the disability rating to 10 percent. In January 2006, the Veteran submitted his claim for increase. On a June 2005 VA occupational therapist report, it was noted that a custom molded doral long forearm brace/splint was made for the Veteran with 5 degrees of wrist extension. Subsequent VA treatment records dated through February 2012 include intermittent treatment for the right wrist; however, other than the noted examinations, there were no range of motion studies performed. On June 2006 VA examination, the Veteran reported increased pain that was relieved by cortisone injections. He reported that he experiences at least 2 flare-ups a month. The Veteran indicated that his right wrist disability affects his daily activities as it interferes with cooking. Right wrist range of motion revealed radial deviation was 0 to 10 degrees; ulnar deviation was 0 to 20 degrees; exterior dorsiflexion was 0 to 50 degrees; flexion/palmar was 0 to 60 degrees. There was pain with flexion and radial deviation. X-ray of the right wrist showed radioscaphoid osteoarthritis with a cyst in capitates. Physical examination showed weakened movement, excess fatigability, pain with use, and additional loss of 20 degrees of functional range of motion in flexion with repetitive use. In an August 2006 medical report, Dr. R.R.H. reported in pertinent part that the Veteran's multiple medical problems prevent him from carrying his normal duties as a mechanical technician that obviously requires a lot of bending, heavy lifting, climbing ladders and use of his extremities. In a September 2006 medical report, Dr. R.R.H. opined in pertinent part that the Veteran has a permanent partial disability due to an inoperable abdominal hernia/wound. In a March 2007 statement, the Veteran reported that he was awarded SSA disability due to several disabilities to include his right wrist disability. During the January 2009 Board hearing, the Veteran testified that his service-connected right wrist fracture was more disabling than currently evaluated. On July 2009 VA examination, the Veteran reported that he experiences giving way of his right wrist; instability; pain; stiffness; weakness; tenderness; severe monthly flare-ups lasting 1 to 2 days. Right wrist range of motion revealed dorsiflexion was 0 to 25 degrees; right palmar flexion was 0 to 30 degrees; right radial deviation was 0 to 5 degrees; and right ulnar deviation was 0 to 30 degrees. There was no objective evidence of pain following repetitive motion. There was no additional limitation with three repetitions of range of motion; there was no joint ankylosis. The Veteran reported that he retired in 2006 due to medical problems related to his hernias and back. On May 2012 VA examination, the Veteran reported that he wears his right wrist immobilizer for small chores around the house. The right wrist was not tender on palpation during the examination; however, the Veteran reported more pain than normal because he had been putting together a swing set for a friend for the past 2 days. The Veteran reported that he was still able to make bird houses. The Veteran reported that he continues to experience flare-ups every 2 months, pain is moderate and will last for a few days. Range of motion testing revealed right wrist palmar flexion was to 35 degrees with pain beginning at 0; dorsiflexion was to 20 degrees with pain beginning at 20 degrees. The Veteran was able to perform repetitive-use testing with 3 repetitions. There was no additional limitation in range of motion of the wrist following repetitive testing. There was functional loss and/or functional impairment of the wrist in that there was less movement than normal and there was pain on movement. There was no noted neurological disability. The right wrist was not ankylosed. The examiner noted that the Veteran's right wrist disability impacted his ability to work as he would need to avoid occupations that involved repetitive fine motor skills of the hands such as sewing/power tools/typing. Disabilities of the wrist are rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5214 (ankylosis) or Diagnostic Code 5215 (limitation of motion). Under Diagnostic Code 5215 (limitation of motion), 10 percent is the maximum rating available, regardless of whether the limitation is of the major (dominant) extremity or the minor (non-dominant) extremity. Diagnostic Code 5214 (ankylosis) distinguishes between major and minor extremity. The Veteran in this case is shown to be right-handed, so the criteria for the major extremity apply, as follows. A rating of 30 percent is assigned for favorable ankylosis in 20-30 degrees of dorsiflexion. A rating of 40 percent is assigned for unfavorable ankylosis. A rating of 50 percent is assigned for unfavorable ankylosis in any degree of palmar flexion or with ulnar or radial deviation. For reference, normal range of motion of the wrist is dorsiflexion (extension) to 70 degrees, palmar flexion to 80 degrees, ulnar deviation to 45 degrees and radial deviation to 20 degrees. 38 C.F.R. § 4.71a, Plate I. On review of the evidence above, the Board finds the Veteran's right wrist disability approximates favorable ankylosis. The Veteran asserts, and medical evidence supports, that he has a right wrist immobilizer, which is to say that it is functionally ankylosed due to pain. Accordingly, the currently assigned rating of 30 percent is appropriate under DC 5214. The Board has considered whether a rating higher than 30 percent may be assigned, but a higher rating requires unfavorable ankylosis or functional loss that more closely approximates unfavorable ankylosis. As discussed above, the Veteran does not have ankylosis of the right wrist but functional impairment associated with the disability is more closely analogous with ankylosis. Given that the Veteran's wrist is braced in a neutral (favorable) position, the "ankylosis-like" impairment is more closely analogous to favorable ankylosis than unfavorable ankylosis. Accordingly, the criteria for a higher evaluation are not met. The Board has also considered VA regulations regarding pain. In this instance, it is pain that causes the Veteran's wrist to be functionally (not actually) ankylosed, and the currently assigned 30 percent rating is essentially the result of wrist pain and associated functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). III. Extraschedular Evaluation and Total Disability Rating Consideration The rating schedule represents as far as practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2012). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran'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." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The Veteran's symptoms associated with his service-connected right wrist disability include pain and limitation of motion. However, such impairment is contemplated by the rating criteria. See 38 C.F.R. § 4.71a, Diagnostic Codes 5214-5215. These codes allow for a higher disability evaluation upon a showing of worsening symptomatology. Therefore, the rating criteria reasonably describe the Veteran's disability. The evidence also does not suggest that the Veteran's right wrist disability has resulted in marked interference with employment above and beyond that considered by the assigned disability evaluation, as a 30 percent disability evaluation envisions a significant degree of occupational impairment. The Board is not disputing that the Veteran suffers a significant amount of occupational impairment, as evidence by the numerous statements and medical records in the claims file. However, the evidence also demonstrates that the Veteran medically retired in 2006 due, in part, due to hernias and low back disability. There also is no evidence of frequent hospitalization. Therefore, referral for consideration of an extraschedular rating is not warranted. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim seeking referral for consideration of entitlement to a disability evaluation in excess of 30 percent for a right wrist disability on an extraschedular basis must be denied. The Court has recently held that a request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. There must be cogent evidence of unemployability in the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). In this case, the Veteran retired in 2006 due to medical disabilities that included low back problems and hernias; the Board finds that a claim for TDIU is not raised by the issue on appeal. In sum, the Board has found the criteria are not met for an evaluation in excess of 30 percent for the service-connected right wrist disability. Accordingly, the claim must be denied. Because the evidence preponderates against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. ORDER Entitlement to a disability rating greater than 30 percent for a right (major) scaphoid fracture with traumatic arthritis to include on an extraschedular basis is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs