Citation Nr: 1320554 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 09-46 234 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an increased rating for post-operative residuals of recurrent left (minor) wrist ganglion cyst, currently rated at 10 percent disabling. 2. Entitlement to a compensable rating for right spermatocele. 3. Entitlement to a total disability evaluation on the basis of individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from January 1975 to February 1981. This appeal to the Board of Veterans' Appeals (Board) arose from rating decisions by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Nashville, Tennessee. A December 2008 rating decision, in pertinent part, denied increased ratings for the left wrist cyst and the spermatocele, and an August 2009 rating decision denied a TDIU. The Veteran has a Virtual claims file, which is a highly secured paperless repository, associated with his appeal. The Board has reviewed the documents in the Virtual file, and they are duplicative of those in the paper file. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's post-operative ganglion left wrist cyst residuals are manifested by pain on wrist motion, pain and stiffness, and a slight decrease in grip strength as compared to the right side. 2. The Veteran's spermatocele is asymptomatic. CONCLUSIONS OF LAW 1. The requirements for an evaluation 20 percent for post-operative residuals of left (minor) wrist ganglion cyst are met. 38 U.S.C.A. § 1155, (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 8514 (2012). 2. The requirements for a compensable rating for spermatocele are not met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.10, 4.31, 4.155, 4.155(b), DC 7529 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The 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. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice 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 ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2005). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Court Of Appeals For Veterans Claims 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 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). The United States Court for Veterans Appeals (veteran's court or court) had held that at a minimum, adequate VCAA notice in an increased rating claim required that VA notify the claimant that, to substantiate such a claim: (1) the claimant must provide, or ask VA 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 and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Vazques-Flores v. Peake, 22 Vet. App. 37 (2008). The Federal Circuit vacated the Court's decision, overturning the requirement that VA provide notice that the claim could be substantiated by evidence of a disability's impact on daily life and that VA provide notice with regard to potential diagnostic code criteria (element 2). Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The generic first, third, and fourth elements (contained in the veteran's court's decision) were not disturbed by the Federal Circuit's decision. Prior to issuance of the rating decision on appeal, in a letter issued in August 2008, the RO notified the Veteran of the evidence needed to substantiate his claim for increased ratings. The letter also satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. The letter further informed the Veteran of the rating criteria for his disabilities and how disability evaluations and effective dates are determined. The Board finds the August 2008 letter was time- and content-compliant. See 38 C.F.R. § 3.159(b); see also Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd 580 F.3d 1270 (Fed. Cir. 2009), and Dingess/Hartman, supra. Hence, the Board finds VA complied with the VCAA notice requirements. The Duty to Assist 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 has obtained available records of treatment reported by the Veteran afforded him a VA examination. Neither the Veteran nor his representative asserts that there are additional records to be obtained and there is no evidence of a change in the Veteran's disabilities since the last examination. Hence, the Board finds VA complied with the duty to assist the Veteran with his claims, and there is no issue that precludes the Board from addressing the merits of the Veteran's appeal. See 38 C.F.R. § 3.159(c). Applicable Law and Regulation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. VA must also interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA must resolve any reasonable doubt regarding the degree of disability in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. Where there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7, see also 38 C.F.R. § 4.21. VA must also evaluate functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10; see Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). Analysis By way of history, an April 1994 rating decision granted service connection for the post-operative residuals of the recurrent left wrist ganglion cyst and right spermatocele and assigned noncompensable ratings for each, effective in March 1994. A July 1996 rating decision awarded a compensable rating of 10 percent for the left wrist, effective in June 1996. The Veteran submitted claims for increased ratings in July 2008. Left Wrist In an August 2008 statement (VA Form 21-4138) submitted in support of his claim, the Veteran asserted his left wrist and hand hurt almost constantly, and he did not have the grip strength he once had. The December 2008 rating decision reflects the RO evaluated the left wrist ganglion cyst residuals under DC 5299-5020, which means it was rated analogous to synovitis. See 38 C.F.R. § 4.20. Synovitis is rated under DC 5020, which requires the disorder to be rated as degenerative arthritis. 38 C.F.R. § 4.71a. Arthritis demonstrated on X-ray is rated on the basis of limitation of motion (LOM) of the affected joint. If the LOM is noncompensable, then a 10 percent rating is warranted for each major joint. 38 C.F.R. § 4.71a, DC 5003. Aside from the presence of arthritis, however, VA policy is to rate actually painful motion as warranting at least the minimum compensable rating. 38 C.F.R. § 4.59; see also Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011) and Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court Of Appeals For Veterans Claims has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional ROM loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 38 C.F.R. § 4.59 (2012). However, the provisions of 38 C.F.R. §§ 4.40, 4.45 are not for consideration where, as in this case, the veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). LOM of the wrist on dorsiflexion less than 15 degrees or on palmar flexion limited in line with the forearm warrant a 10 percent rating for either the major or minor side. 38 C.F.R. § 4.71a, DC 5215. The November 2008 examination report reflects the Veteran reported stiffness, pain, swelling, and repeat effusion of his left wrist. He reported further that the episodes of swelling lasted one to two days. Physical examination revealed tenderness. ROM on dorsiflexion was to 0 to 70 degrees with pain at that end point. Palmar flexion was 0 to 80 degrees with pain at that end point. Radial deviation was 0 to 20 degrees, and ulnar deviation was 0 to 40 degrees, with pain at the end points of each motion. The examiner noted that there was no additional loss of ROM after repetitive use testing. Left hand grip was 4/5. X-rays were read as having shown early degenerative changes at the carpal joint but no evidence of fracture, dislocation, or other acute pathology. The examiner noted the Veteran's left wrist symptoms had no significant effect on occupational activity and moderate effect on chores and traveling. Otherwise, the left wrist symptomatology had no impact on activities of daily living. The Veteran is in receipt of the maximum rating for limitation of motion of the wrist. He retains significant motion in the wrist, and thus is not entitled to a higher rating on the basis of ankylosis. See Colayong v. West, 12 Vet App 524 (1999) (noting that ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure") (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONALRY (28TH Ed. 1994) at 86). Higher or separate ratings are also potentially available on the basis of scars, but the examination did not show tenderness at the site of the ganglion cyst removals and the Veteran has reported no complaints related to scarring. Cf. 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2008 & 2012). Rather, he has reported symptoms affecting the function of the wrists and hand grip. He is in receipt of a rating that compensates him for the loss of wrist function, but does not contemplate loss of grip strength. The Board may choose to evaluate a disability under a diagnostic code different from that chosen by the RO. See Butts v. Brown, 5 Vet. App. 532, 538 (1993); cf. Murray v. Shinseki, 24 Vet App 420 (2011) (prohibing changing a diagnostic code that had been in effect for more than 20 years). The Veteran's complaints of impaired hand grip are buttressed by findings on the VA examination. The Veteran was noted to have a mild, 4/5. loss of grip strength. The provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8514 contemplate loss of hand grip and wrist motion. Under that code a 20 percent rating is provided for mild incomplete paralysis of the radial nerve. A rating under this code would compensate the Veteran for his documented loss of hand and wrist motion and is accordingly, more appropriate than the current rating, which contemplates only the limitation of motion of the wrist. Accordingly, a 20 percent rating is granted under Diagnostic Code 8514. A higher rating under Diagnostic Code 8514 is not warranted, because the loss of hand grip is mild, the Veteran is able to achieve most of the normal wrist motion, and no wrist weakness. Although complaints of stiffness and swelling were noted, additional resulting impairment was not identified; hence moderate incomplete paralysis is not approximated. A separate rating for limitation of motion of the wrist and loss of strength on the wrist and hand would constitute prohibited pyramiding because the symptomatology contemplated by these diagnostic codes overlaps. Esteban v. Brown, 6 Vet. App. 259 (1994); 38 C.F.R. § 4.14 (2012). The Board acknowledges the Veteran's assertions that, while he was able to perform the ROM movements at the examination, it did not reflect the true severity of his disability. He asserted further that his symptoms were increased as a result of the examination. There is no documentation of any more severe impairment. The Board also notes an outpatient entry of May 2009 that notes the Veteran had good ROM in all of his joints. Thus, the Board finds the Veteran's left wrist disorder more nearly approximates the assigned 20 percent rating under Diagnostic Code 8514; and the evidence is against a rating in excess of 20 percent. 38 U.S.C.A. § 5107(b). Spermatocele The RO rated the Veteran's spermatocele under DC 7529 as benign neoplasm, which is rated as a voiding dysfunction. See 38 C.F.R. § 4.115b, DC 7529. Voiding dysfunction should be rated as a particular condition as urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115. Continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day warrants a 60 percent disability rating. Id. Continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence requiring the wearing of absorbent materials which must be changed 2 to 4 times per day warrants a 40 percent disability rating. Id. Continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence requiring the wearing of absorbent materials which must be changed less than 2 times per day warrants a 20 percent disability rating. Id. Urinary frequency with daytime voiding interval less than one hour, or; awakening to void five or more times per night warrants a 40 percent disability rating. Id. Urinary frequency with daytime voiding interval between one and two hours, or; awakening to void three to four times per night warrants a 20 percent disability rating. Id. Urinary frequency with daytime voiding interval between two and three hours, or; awakening to void two times per night warrants a 10 percent disability rating. Id. Obstructed voiding with urinary retention requiring intermittent or continuous catherization warrants a 30 percent disability rating. 38 C.F.R. § 4.115a . Id. The October 2008 examination report reflects the examiner noted review of the claims file revealed the onset of a right-sided spermatocele in the 1970s. The Veteran reported his symptoms had progressively worsened since. The examiner noted there was no history of prior surgery, neoplasm, or urinary symptoms. The Veteran denied urinary leakage, urinary tract infection, or obstructive voiding or retention. There was a history of urinary tract stones but no special diet had been prescribed. The Veteran also denied erectile dysfunction, and he reported he had normal ejaculation. Physical examination revealed no flank tenderness or peripheral edema. Urethra examination, perineal sensation, pedis pulses, tibial pulses, penis, testicle, and prostate examinations were all normal. The epididymis-spermadic cord-scrotum examination also was normal. The seminal vesicles were not palpable, which indicates normal. The examination report reflects the Veteran denied all symptomatology that would meet or approximate a compensable rating for voiding dysfunction. 38 C.F.R. § 4.115. Inasmuch as no current symptoms were identified, ratings under other potentially applicable diagnostic codes would not yiled an increased or compensable rating. Hence, the preponderance of the evidence is against a compensable rating. Id.; 38 C.F.R. §§ 4.1, 4.10, 4.31. Staged Ratings The Board noted earlier that a claimant is entitled to a staged rating for periods where a disability may manifest with greater severity than at other times. As discussed above, however, the evidence of record shows the Veteran's disabilities have manifested with the same severity throughout the entire rating period on appeal. Hence, there is no factual basis for an increased rating. Hart, supra. Extraschedular Ratings The Board has also considered the Veteran's assertions that his left wrist symptoms impact his ability to perform his work as a mechanic and construction worker. This raises the issue of referral for consideration of a higher rating on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1); See Barringer v. Peake, 22 Vet. App. 242 (2008) (Board must discuss whether referral for extraschedular consideration is indicated where raised by the evidence of record). The Statement of the Case (SOC) reflects the RO hearing official found no basis for referral. As noted earlier in the discussion of the application of the rating criteria to the Veteran's left wrist disability, the Veteran's main complaint is pain, stiffness, and weakness. Those are the very symptoms on which the rating criteria are based, which means the rating criteria describe and anticipate the Veteran's disability. Because the rating criteria contemplate the Veteran's disability referral for extrascheudular consideration is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). In the absence of an exceptional disability picture, there is no basis for referral for extraschedular consideration. 38 C.F.R. § 3.321(b)(1). The right spermatocele is not shown to be symptomatic; hence there is no symptomatology that is outside of that contemplated in the rating schedule. Referral of this issue for extraschedular consideration is also not warranted. On the basis of the same rationale, the Board likewise finds no basis for referral of the spermatocele disorder claim for extraschedular consideration. See Johnson v. Shinseki, --Vet. App.--, 2013 WL 1224810 ( March 27, 2013, No. 10-1785) (disabilities are not considered for extraschedular referral on a cumulative basis). In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to an increased, 20 percent, rating for post-operative residuals of recurrent left (minor) wrist ganglion cyst is granted. Entitlement to a compensable rating for right spermatocele is denied. REMAND An August 2009 rating decision denied a TDIU. A fair reading of the Veteran's Form 9 reflects that he articulated his disagreement with the decision. A statement of the case has not been issued. The Court has held; however, that TDIU is an element of all increased rating claims. Rice v. Shinseki, 22 Vet. App. 447 (2009). Hence the TDIU issue is before the Board as part of the appeal of the increased ratings for the Veteran's service connected disabilities. The Court has held that in the case of a claim for total rating based on individual unemployability, the duty to assist requires that VA obtainin an opinion on what effect the appellant's service-connected disability has on his ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). The October 2008 examination included opinions as to the individual impacts of the service connected disabilities on the Veteran's ability to work, but did not include an opinionas to the combined effect. Absent such an opinion, a Board decision on the TDIU question would likely not withstand judicial review. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to complete a formal application for TDIU. 2. Afford the Veteran an examination to assess whether the combined effects of his service connected disaiblities; ganglion cyst residuals and right spermatocele; render him incapbable of gainful employment for which his education and occupational experience would otherwise qualify him. The examiner should consider the effects of any medication the Veteran takes for these disabilities. The examiner should review the claims folder. The examiner should provide reasons for the opinion as to the Veteran's employability. 3. If there is evidence of unemployability due to service connected disabilities, the case should be referred to VA's Director of Compensation and Pension for consideration of entitlement to TDIU under the provisions of 38 C.F.R. § 4.16(b). 4. If the appeal remains denied, the agency of original jurisdiction should issue a supplemental statement of the case. The appeal should be returned to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs