Citation Nr: 1327759 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 11-06 687 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for post operative residuals of a left wrist fracture with radial styloidectomy to include whether a separate compensable evaluation is warranted for neurological manifestations. 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from August 1977 to February 1984. This matter before the Board of Veterans' Appeals (Board) is on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Providence, Rhode Island. The case was certified to the Board by the Baltimore, Maryland RO In August 2012 and February 2013, the Board remanded the case. The Veteran testified at a hearing before the undersigned Veterans Law Judge in June 2011. A transcript of that hearing is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). The issue of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders 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. FINDING OF FACT The Veteran is in receipt of the maximum schedular evaluation for post operative residuals of a left wrist fracture with radial styloidectomy based upon limitation of motion; the left wrist disorder is not manifested by ankylosis of that joint or organic nerve dysfunction. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for post operative residuals of a left wrist fracture with radial styloidectomy have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.7la, Diagnostic Code 5215 (2012). 2. The criteria for the assignment of a separate compensable evaluation for neurological manifestations of the Veteran's for post operative residuals of a left wrist fracture with radial styloidectomy have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.124a, Diagnostic Codes 8510 to 8519 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matter Pursuant to the Board's February 2013 Remand, the Appeals Management Center (AMC) sent a letter to the Veteran asking him if he was receiving Social Security disability benefits due to his service-connected left wrist disability, scheduled an examination to determine the current severity of his service-connected left wrist disability, readjudicated the Veteran's claim, and issued a Supplemental Statement of the Case. Based on the foregoing actions, the Board finds that there has been compliance with the Board's February 2013 Remand. Stegall v. West, 11 Vet. App. 268 (1998). Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in January 2009 of the information and evidence needed to substantiate a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The case was most recently readjudicated in July 2013. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. During the June 2011 Board hearing, the undersigned explained the issues on appeal and asked question designed to elicit evidence that may have been overlooked with regard to the claim. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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, as here, the Veteran is claiming entitlement to a higher rating for an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. 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 and evidenced by visible behavior of the claimant undertaking the motion. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part that becomes disabled on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example. The provisions of 38 C.F.R. §§ 4.45 and 4.59 contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing, and weight-bearing are also related considerations. The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; Johnson v. Brown, 9 Vet. App. 7 (1997); and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The Veteran's residuals of left wrist injury have been evaluated under 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5215. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2012). Under 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010, degenerative and traumatic arthritis are rated based upon the nature and extent of any limitation of motion. If the limitation of motion of the joint involved is noncompensable, a rating of 10 percent is applicable. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Diagnostic Code 5215 provides ratings based on limitation of motion of the wrist. A limitation of palmar flexion in line with the forearm is rated 10 percent disabling for the major and minor wrist. Limitation of dorsiflexion to less than 15 degrees is rated 10 percent disabling for the major and minor wrist. 38 C.F.R. § 4.7la. The standardized description of joint measurements is provided in Plate I under 38 C.F.R. § 4.7la. For VA purposes, normal dorsiflexion of the wrist is from 0 to 70 degrees, and normal palmar flexion is from 0 to 80 degrees. Normal radial deviation of the wrist is from 0 to 20 degrees, and normal ulnar deviation is from 0 to 45 degrees. At the outset, the Board notes that the Veteran is already in receipt of the maximum 10 percent evaluation allowable under Diagnostic Code 5215 for limitation of motion of the left wrist. Therefore, this code would not assist the Veteran in obtaining a higher evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5215. A higher rating is available under 38 C.F.R. § 4.71a, Diagnostic Code 5214; however, that provision requires the presence of ankylosis, a manifestation not present in the Veteran's case. Ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992). A private medical record dated August 7, 2008 noted that the range of wrist motion was mildly restricted. A VA orthopedic surgery noted dated in December 2008 notes that the Veteran had reduced left wrist range of motion with extension to 60 degrees and flexion to 45 degrees. At VA examination in January 2009, the Veteran demonstrated active and painful left wrist dorsiflexion from zero to 40 degrees, palmar flexion from zero to 35 degrees, ulnar deviation from zero to 30 degrees, and radial deviation from zero to 17 degrees. The January 2009 VA examiner noted an additional 5 degree functional loss due to pain after repetitive use. A private medical record dated in January 2013 noted flexion and extension of the left wrist was 50 degrees with significant pain with further stretch. At VA examination in April 2013, the Veteran demonstrated palmar flexion to 35 degrees with pain beginning at 30 degrees, and dorsiflexion to 30 degrees with pain beginning at 25 degrees. After repetitive use, the Veteran demonstrated palmar flexion to 30 degrees and dorsiflexion to 25 degrees. The examiner noted an additional 5 degree loss of palmar flexion and dorsiflexion due to pain on use and during flare-ups. As the Veteran has demonstrated range of motion in the left wrist, i.e., as the wrist is not ankylosed (i.e., immobile) a higher evaluation is not warranted for under Diagnostic Code 5214. The April 2013 VA examination report specifically noted that the Veteran did not have ankylosis of either wrist joint. The Board considered whether a higher disability evaluation is warranted due to functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 , 4.45, 4.59. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Although both VA examiners determined that the Veteran had an additional functional loss of 5 degrees, there is still motion, albeit reduced motion, in the Veteran's left wrist. Thus, any additional functional loss due to pain is encompassed in the current evaluation. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012). In summary, the Board finds that an evaluation in excess of 10 percent is not warranted for the Veteran's service-connected residuals of a left wrist injury. During the entire appeal period, the Veteran has demonstrated motion in his left wrist; as such, such staged ratings are not warranted. The United Court of Appeals for Veterans Claims (Court) has held that VA must consider whether a Veteran's service-connected disabilities warrant separate ratings for orthopedic, neurological, and scar impairment. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994) (permitting separate evaluations for separate problems arising from the same injury if they do not constitute the same disability or manifestation under 38 C.F.R. § 4.14). The Board has considered whether a separate compensable evaluation is warranted for any neurological impairment related to the Veteran's service-connected left wrist disability. Disability ratings with respect to neurological conditions ordinarily are assigned in proportion to the impairment of motor, sensory, or mental function. 38 C.F.R. § 4.120. In evaluating peripheral nerve injuries, attention therefore is given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory. Id. Special consideration is given to complete or partial loss of use of one or more extremities. 38 C.F.R. § 4.124a. Neuritis, whether cranial or peripheral, is rated on the scale provided for injury of the nerve involved. 38 C.F.R. § 4.123. The maximum evaluation for neuritis characterized by organic changes such as loss of reflexes, muscle atrophy, sensory disturbances, and constant pain which is at times excruciating is equal to that for severe incomplete paralysis of the nerve. Id. The maximum rating for neuritis not characterized by such organic changes is equal to that for moderately severe incomplete paralysis for the sciatic nerve and moderate severe incomplete paralysis for all other nerves. Id. Neuralgia, whether cranial or peripheral, characterized usually by a dull and intermittent pain also is rated on the scale provided for injury of the nerve involved. 38 C.F.R. § 4.124. Partial loss of use of one or more extremities from neurological lesions further is rated by comparison with mild, moderate, and severe incomplete paralysis or complete paralysis of the peripheral nerves. 38 C.F.R. § 4.124a. The Veteran underwent VA Peripheral Nerve Examination in September 2012. The examiner determined that the Veteran did not have a peripheral nerve condition or peripheral neuropathy. Muscle strength of the left wrist was normal. There was no muscle atrophy. Deep tendon reflexes and sensory examination were normal. The Veteran demonstrated no trophic changes. Phalen and Tinel signs were negative. The examiner noted normal radial, median, ulnar, musculocutaneous, circumflex, and long thoracic nerves were normal as well as the upper, middle, and lower radicular group. The examiner stated that it was less likely than not that the Veteran's wrist fracture and surgery had produced any significant nerve damage. The examiner explained that the Veteran had normal neurological examination of left upper extremity without evidence of neuropathy. Private medical record dated in January 2013 noted that the Veteran reported symptoms of left wrist weakness and tingling. On VA examination in April 2013, the Veteran reported mild constant pain and moderate intermittent left upper extremity pain. Muscle strength of the left wrist was normal. There was no muscle atrophy. Deep tendon reflexes and sensory examination were normal. The examiner noted that the Veteran alleged numbness of the left 4th and 5th fingers but that on examination, the whole hand was numb to the wrist in a non-anatomic distribution. The Veteran demonstrated no trophic changes. Phalen and Tinel signs were negative. The examiner noted normal radial, median, ulnar, musculocutaneous, circumflex, and long thoracic nerves were normal as well as the upper, middle, and lower radicular group. The examiner noted that there were no findings of organic nerve dysfunction of the left wrist. The Board acknowledges the Veteran's statement that the peripheral nerve injury examination did not consist of any modern medical testing procedure or medical testing equipment. In this case, the Board notes that there have been two separate peripheral nerve examinations conducted by two different physicians in neurology. All tests produced the same results on both examinations. There is no objective and competent evidence to the contrary. Therefore, the Board finds that these examinations are adequate upon which to base a decision. Accordingly, the Board finds that a separate compensable evaluation is not warranted for left wrist neurological impairments. The Board is aware that an extraschedular rating is a component of an increased rating claim. Barringer v. Peake, 22 Vet. App. 242 (2008). The threshold factor for extraschedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). If so, factors for consideration in determining whether referral for an extraschedular rating is warranted include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable. Thun, citing 38 C.F.R. § 3.321(b)(1) (2012). In the present case, the Board finds no evidence that the Veteran's service-connected left wrist disability presents such an unusual or exceptional disability picture at any time so as to require consideration of an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1). The criteria pertaining to wrist joint disorders in the Rating Schedule focus on limitation of wrist motion; and the criteria pertaining to neurological disorders in the Rating Schedule focus on whether symptoms result in paralysis or incomplete paralysis of a nerve. As discussed above, some such symptomatology describes the Veteran's current disability picture. Thus, it appears that the schedular criteria adequately compensate for any loss in earning capacity, and referral for extraschedular consideration is not warranted. Id. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Entitlement to an evaluation in excess of 10 percent for post operative residuals of a left wrist fracture with radial styloidectomy is denied. Entitlement to a separate compensable evaluation for left wrist neurological manifestations is denied. REMAND In Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Court held that a request for a total rating based on individual unemployability, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate 'claim' for benefits, but rather, can be part of a claim for increased compensation. In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a total disability evaluation based on individual unemployability due to service connected disorders is warranted as a result of that disability. In this case, the April 2013 VA examiner noted that the Veteran was not able to perform physical work or sedentary work because he could not use the "right" hand and wrist at all. The Board notes that service connection has been established for a left wrist disability, not a right wrist disability. Given the fact that the April 2013 examiner did not diagnose a right wrist disorder it is the Board's opinion that the VA examiner incorrectly identified the "right" wrist in his statement. As such, for the sole purpose of determining whether a claim for individual unemployability has been raised, the Board will view the examiner's April 2013 statement as pertaining to the left wrist. The Board notes that on remand, the AMC is free to develop the case as appropriate. See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (although individual unemployability and increased rating issues are best analyzed as part of the same claim, bifurcation of the individual unemployability and increased rating aspects of the claim is generally within the Secretary's discretion). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Development contemplated by the VCAA should be undertaken, including, but not limited to, informing the Veteran of the information and evidence not of record (1) that is necessary to substantiate the claim for a total disability evaluation based on individual unemployability due to service connected disorders; (2) that VA will seek to obtain; and (3) that the claimant is expected to provide. In addition, the Veteran should be informed of how VA determines disability ratings and effective dates. 2. After all necessary development has been undertaken, the case should be reviewed on the basis of any additional evidence. If the benefit sought is not granted in full, the Veteran, and his representative, should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs