Citation Nr: 1321121	
Decision Date: 07/01/13    Archive Date: 07/12/13

DOCKET NO.  06-06 401	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for left wrist, status post first dorsal compartment release, with regional pain syndrome of wrist and hand.

2.  Entitlement to service connection for a muscle or nerve injury of the left wrist secondary to a service-connected left wrist disability.  

3.  Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Veteran and his mother


ATTORNEY FOR THE BOARD

T. Blake, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 2000 to November 2003.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.  

In June 2007, the Veteran and his mother testified at a Board hearing held before a Veterans Law Judge in Phoenix, Arizona.  A copy of the transcript is of record.  

In January 2008 and December 2010, the Board remanded the left wrist claim for additional development and adjudicative action.  In July 2012, the Board remanded the claim in order to schedule the Veteran for a hearing which he subsequently withdrew.  In January 2013, the Board again remanded the claim for additional development and adjudicative action.  The case has been returned to the Board for further appellate review.

The issues of entitlement to service connection for a muscle or nerve injury of the left wrist secondary to the left wrist disability and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.



FINDING OF FACT

For the entire period on appeal, the left wrist disability more closely approximates manifestations of functional impairment due to pain, weakness, decreased strength, stiffness, guarding, less movement than normal, swelling, and fatigability.  


CONCLUSION OF LAW

The criteria for an initial rating in excess of 10 percent for left wrist, status post first dorsal compartment release, with regional pain syndrome of wrist and hand, have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5213 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity.  See U.S.C.A. § 1155 (West 2002).  Separate diagnostic codes identify the various disabilities.  In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability.  See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  

When entitlement to compensation has been established and a higher initial evaluation is at issue, the level of disability at the time entitlement arose is of primary concern.  Consideration must also be given to a longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted.  See Fenderson v. West, 12 Vet. App. 119 (1999). 

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 205 (1995).  It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.

The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology or evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 

The factors involved in evaluating, and rating disabilities of the joints include weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination (impaired ability to execute skilled movements smoothly); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); or pain on movement, swelling, deformity, or atrophy of disuse.  38 C.F.R. § 4.45.

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  38 C.F.R. § 4.59.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  Id.  Painful motion is considered limited motion at the point that pain actually sets in.  See VAOPGCPREC 9-98.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3.

Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal.

The left wrist disability is rated at 10 percent since November 27, 2003, under DC 5213 for functional impairment based on pain and weakness.  Thus, the currently-assigned 10 percent rating encompasses the Veteran's ongoing complaints and treatment for pain in the left hand, as documented in VA outpatient treatment records from March 2009 to August 2010.  Moreover, in June 2004, the RO separately granted service connection for residual scarring of the left wrist and assigned at 10 percent rating under DC 7804. 

After a full review of the record and consideration of whether the assignment of separate ratings for separate periods of time is warranted, the Board finds that a preponderance of the evidence is against the Veteran's appeal for an initial rating in excess of 10 percent for the entire time on appeal.  

At the VA examinations, the Veteran reported he is right-hand dominant, hence the left wrist represents the minor extremity.  Under DC 5213, the criteria for ratings for the minor extremity are as follows: 10 percent for limitation of supination to 30 degrees or less; 20 percent for limitation of pronation motion lost beyond last quarter of arc when the hand does not approach full pronation, limitation of pronation motion lost beyond middle of arc, loss of (bone fusion) the hand fixed near the middle of the arc or moderate pronation, or loss of (bone fusion) the hand fixed in full pronation; and, 30 percent, the highest available, for loss of (bone fusion) the hand fixed in supination or hyperpronation.

At an April 2009 Social Security Administration (SSA) case analysis physical evaluation, the Veteran demonstrated he could almost make a complete grip.  On an April 2009 physical evaluation, he exhibited guarding of the left hand and active range of motions in which the left hand could nearly make a complete grip and he moved his digits with moderate slowness but fully over several repetitions.  

Private treatment records from August 2005 to January 2008 reveal ongoing treatment for the left wrist disability, to include medications and left stellate ganglion block and left axillary block.  Upon physical examination, the Veteran was able to perform full composite fists bilaterally with full finger extension and left wrist full pronation.  

As limitation of pronation is not shown, a rating in excess of 10 percent is not warranted under DC 5213.

Next, the criteria for DC 5214 (ankylosis (a fixation) of the wrist) and DC 5003 (degenerative arthritis), do not support a higher rating.  Specifically, the January 2011 VA examination report does not show ankylosis of the thumb and/or fingers, and range of motion of the left wrist was shown.  Moreover, x-ray findings of the left wrist do not show arthritis, as noted in April 2004, October 2006, February 2009, and January 2011 VA records.  Therefore, the evidence does not support a higher rating under DCs 5214 or 5003.

The Board has also considered the Veteran's and his family and friends statements that his left wrist disability is worse.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 

Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

In this case, the Veteran and his family and friends are competent to report symptoms because this requires only personal knowledge as it comes through their senses and observations.  Layno, 6 Vet. App. at 470.  They are not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes.  In this decision, the Board has considered both the lay statements and medical opinions regarding the degree of impairment caused by the left wrist disability.

The Board has also considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, with respect to all the claims as required by the Veterans Claims Court.  See Schafrath, 1 Vet. App. at 594.  However, after careful review of the available diagnostic codes and the lay and medical evidence of record, the Board finds there are no other diagnostic codes that provide a basis to assign ratings higher than the currently assigned evaluation for the service-connected disability on appeal for any period.

The evidence of record indicates the service-connected disability more closely approximates manifestations of functional impairment due to pain, weakness, decreased strength, stiffness, guarding, less movement than normal, swelling, and fatigability.  Moreover, the evidence of record shows that physical findings of the Veteran's left wrist during the entire initial rating period do not demonstrate limitation of pronation motion or bone fusion of the hand to warrant the next higher rating.  

Next, the Board has applied Mittleider v. West, 11 Vet. App. 181 (1998) and has attributed all the Veteran's symptoms to his service-connected disability.  With that in mind, the Board has considered whether referral for extra-schedular consideration is warranted.  In exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation is made.  38 C.F.R. § 3.321(b)(1).  There is a three-step analysis for determining whether an extra-schedular evaluation is appropriate.  Thun v. Peake, 22 Vet. App. 111 (2008).  

First, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability and the established criteria found in the rating schedule to determine whether a veteran's disability picture is adequately contemplated by the rating schedule.  If not, the second step is to determine whether the claimants exceptional disability picture exhibits other related factors identified in the regulations as "governing norms."  See also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization).  

If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.

In this case, the Board finds that the schedular rating criteria adequately contemplate and describe the symptoms and functional impairment caused by the left wrist disability.  Specifically, the criteria contemplate pain and limitation of motion.  For this reason, the Board finds that the assigned schedular rating is adequate to rate the Veteran's left wrist disability, and no referral for an extraschedular rating is required.

Finally, the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes 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).  

When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and 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).  VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.

In addition, 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 a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  The Court held that the VCAA notice must include notice that a rating and an effective date of the award of benefits will be assigned if service connection was awarded.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  In the present appeal, a March 2006 letter included the type of evidence necessary to establish a rating and effective date for the disability on appeal.  

The Board finds that the VCAA notice requirements have been satisfied by January 2004 and March 2004 letters.  In these letters, VA informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show he had a current disability, a disease or injury in service, and evidence of a nexus between the post-service disability and the disease or injury in service, which was usually shown by medical records and medical opinions.  

As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed him it had to obtain any records held by any federal agency.  These letters also informed him that on his behalf, VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals.  Finally, the RO told him that he could obtain private records himself and submit them to VA.

The claim on appeal arises from the Veteran's disagreement with the initial rating assigned after the grant of service connection.  The courts have held, and VA's General Counsel has interpreted, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-03 (separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims).  See also 38 C.F.R. § 3.159(b)(3)(i) (there is no duty to provide VCAA notice upon receipt of a notice of disagreement).

Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

In connection with the claim on appeal, the evidence of record includes the Veteran's VA treatment records, private treatment records, SSA records, personal statements, and VA examination reports dated April 2004, February 2009, May 2010, and January 2011.  The VA examiners reviewed the claims file and medical history, recorded pertinent examination findings, and provided conclusions with supportive rationale.  The Board notes that the VA examination reports are probative.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 

The Veteran was provided an opportunity to set forth his contentions during the hearing before a Veterans Law Judge in June 2007.  In addition, pursuant to the Board's January 2008 remand instructions, the RO sent him additional VCAA notice in March 2008 and requested he submit the names and addresses of all medical care provides who treated him for the left wrist disability.  He was also afforded a February 2009 VA examination for the left arm.  

Pursuant to the Board's December 2010 remand instructions, the RO again contacted the Veteran in a January 2011 letter to identify medical care provides who treated him for the left wrist disability.  The RO received a release of information denial form to a private clinic attached with a required special release form.  The RO informed the Veteran in an August 2011 notice letter of the private clinic's response and requested that he complete and submit the attached special request.  

The Veteran was also scheduled for January 2011 VA examinations for hand and finger conditions and wrist conditions, and the examiner provided narrative results from the examinations in medical opinions.  These examination reports and medical opinions reflect that the examiner considered the evidence of record and the reported history of the Veteran, conducted a thorough examination, noting all findings necessary for proper adjudication of the matter, and provided a rationale for the opinions offered.  

Hence, the Board concludes that these examinations and opinions are probative, adequate, and substantially complied with the December 2010 remand instructions.  See Nieves-Rodriguez, 22 Vet. App. at 295; Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes); see also Dyment v. West, 13 Vet. App. 141 (1999) (a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there is substantial compliance with the Board's remand instructions).  

Pursuant to the Board's July 2012 remand instructions, the Veteran was scheduled for a September 2012 videoconference hearing before a Veterans Law Judge.  Prior to the hearing, he submitted a written request to withdraw the videoconference hearing request.  

Pursuant to the Board's January 2013 remand instructions, the Veteran's SSA records, which include treatment records from the private clinic, were obtained and associated with the record.  The RO also submitted notice to the Veteran in January 2013 in attempts to obtain and associate with the record the necessary authorization from him for the release of all private records.  In April 2013, he submitted a signed waiver of the 30 day waiting period which acknowledged, in pertinent part, he does not have any additional evidence regarding the appeal.

Therefore, all available records and medical evidence have been obtained in order to make an adequate determination as to this claim.  Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  


ORDER

An initial rating in excess of 10 percent for left wrist, status post first dorsal compartment release, with regional pain syndrome of wrist and hand, is denied.


REMAND

With respect to the remaining claims, a remand is required in this case to ensure there is a complete record upon which to decide the issues.  

VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2012); Ascherl v. Brown, 4 Vet. App. 371, 377 (1993).  

In this case, the evidentiary record provides inconsistent findings of atrophy and no neurological impairment of the left wrist.  An October 2005 MRI showed "nonenlargement of the medial nerve although the medial nerve shows normal intermediate signal and is somewhat flattened."   In November 2006, the Phalen's maneuver produced immediate pain in the wrist as well as in the palm in 10 seconds and numbness and tingling in all fingers in 15 seconds.  Impression was rule out median neuropathy bilaterally.

In a May 2010 VA examination, the Veteran was diagnosed with complex regional pain syndrome (CRPS).  The examiner noted the prior conflicting orthopedic opinions regarding the etiology of this diagnosis and concluded that "it is more likely than not that the CRPS . . . is a result of the injury sustained to the left wrist in 2001."  More recently, a January 2011 VA examiner noted that tape measurement did not reveal any arm or forearm atrophy and agreed with the May 2010 examination report which objectively found that all aspects of the left upper extremity are normal.  

As a result, the question of whether the Veteran has a muscle or nerve injury of the left wrist related to the left wrist disability should be addressed by the appropriately qualified medical professional.  See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim).  

With respect to TDIU, the Veteran informed the February 2009 VA examiner that he was unemployed because was trained as a mechanic and could not use both upper extremities, so was currently in school to learn a vocation that would not require the use of both arms.  The examiner opined that "this patient is not able to be employed in any occupation requiring bimanual dexterity."  

In January 2011, the Veteran informed the VA examiner that he had not worked in the last five years due to insomnia and mental health issues which reportedly are related to his left upper extremity problems over the years.  The examiner concluded the Veteran's problems of insomnia and mental health issues were the major cause of his unemployability at that time.  

The Board finds that the issue of TDIU due to the left wrist disability has been raised by the record and is properly before the Board.  

Accordingly, the issues of service connection for a muscle or nerve injury of the left wrist associated with the left wrist disability and TDIU are remanded for the following actions:
	
1.  Schedule the Veteran for an appropriate examination to determine the current severity and impairment, if any, of a muscle or nerve injury of the left wrist related to the left wrist disability.  Specifically, the examiner is asked to offer a medical opinion on the following:

* whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the Veteran has left wrist muscle or nerve damage that was caused or permanently worsened beyond its normal progress by a service-connected left wrist disability;

* whether impairment due to a left wrist disability is so severe as to preclude substantially gainful employment.  

The relevant documents in the claims file should be made available to the examiner for review.  All indicated studies and tests, deemed necessary by the examiner, should be performed and all pertinent symptomatology should be reported in detail.  A rationale should be given for all findings and conclusions expressed.  

If an opinion or the requested information cannot be provided without resorting to speculation, the examiner should state so and explain why it would be speculative to respond.  

2.  Provide the Veteran with additional VCAA notice on the issue of entitlement to TDIU.

3.  Thereafter, re-adjudicate the remaining issues on appeal.  If the benefits sought remain denied, the Veteran and the representative should be provided with a supplemental statement of the case (SSOC).  

The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include the applicable law and regulations considered pertinent to the issues as well as a summary of the evidence received since the issuance of the last SSOC.  An appropriate period of time should be allowed for response.  

The Veteran and representative have the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999). 

These claims must be afforded expeditious treatment.  The law requires that all claims 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).



____________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2012).
Department of Veterans Affairs