Citation Nr: 1328984 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 09-10 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to a disability rating in excess of 20 percent for a left wrist disability prior to June 13, 2012; and a disability rating in excess of 60 percent for a left wrist disability from June 13, 2013. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1975 to February 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Des Moines, Iowa Department of Veterans Affairs (VA) Regional Office (RO). In May 2011, the Veteran appeared and provided testimony before the undersigned Acting Veterans Law Judge. A transcript of that hearing is associated with the record. This case was previously before the Board in September 2011, at which time the Board denied entitlement to a disability rating in excess of 20 percent for a non-united scaphoid fracture with ankylosis and traumatic arthritis, left wrist. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In August 2012, the Court granted a joint motion of the parties, vacated the Board's decision, and remanded the case to the Board for action consistent with the joint motion. In accordance with the joint motion, the Board remanded the Veteran's claim in May 2013 for a new VA examination, which was afforded to the Veteran in June 2013. In a June 2013 rating decision, the Appeals Management Center (AMC) in Washington, DC, granted the Veteran a 60 percent disability rating for his left wrist disability, effective June 13, 2013. The issue has now returned to the Board for appellate consideration. Also as an initial matter, the Board notes that it has reviewed not only the Veteran's physical claims file, but also the "Virtual VA" system. A review of the documents in Virtual VA found that they are either duplicates of evidence in the paper claims file or are not relevant to the issue on appeal. FINDINGS OF FACT 1. Prior to February 2, 2011, the Veteran's left wrist disability manifested in ankylosis in an inadequate position with 5 degrees of dorsiflexion. 2. Beginning February 2, 2011, the Veteran's left wrist disability manifested in ankylosis in a fixed position with pain, reduced grip strength, and loss of use of the hand. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 30 percent for a left wrist disability, prior to February 2, 2011, have been met or approximated. 38 U.S.C.A. §§ 1155, 5103A, 5107(a) (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5214 (2012). 2. The criteria for a disability rating of 60 percent for a left wrist disability, beginning February 2, 2011, have been met or approximated. 38 U.S.C.A. §§ 1155, 5103A, 5107(a) (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5125 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. VA is also required to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The record reflects that prior to the initial adjudication of the claim, the Veteran was mailed a letter in August 2007 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The August 2007 letter also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claim. The Board also finds the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service treatment records (STRs) are on file, VA Medical Center treatment notes have been obtained, and the Veteran has been afforded the appropriate VA examinations. The Board notes that of record are reports for VA examinations in October 2007, May 2009, January 2011, February 2009, and June 2013. As will be discussed in more detail below, these VA examinations were conducted after a full reading of the claims files, physical examination of the Veteran, and provide an explanation of rationale for the opinions stated; and therefore, the Board finds the examinations adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further, the Board notes that the June 2013 VA examination was conducted in accordance with the Board's May 2013 remand, and the Board notes that the VA examiner complied with the May 2013 remand directives. Therefore, no additional remand is required and the Veteran will not be prejudiced by the Board adjudicating the claim at this time. See D'Aries v. Peake, 22 Vet. App. 97, 104-106 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Also, 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) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They 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. In this case, during the May 2011 Board hearing, the Acting VLJ fully explained the issue on appeal, and asked questions focused on the functional impairment of the disability in question, specifically as to the past and current severity of the symptoms caused by the Veteran's service-connected left wrist disability The Veteran was assisted at the hearing by an accredited representative from The American Legion. In addition, the Acting VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked, or was outstanding, that might substantiate the claim. The Veteran did not identify any outstanding evidence and the Board notes that neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the Acting VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. Significantly, neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. II. Legal Criteria and Analysis The Board has reviewed all of the evidence in the claims folders. 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 these claims. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). 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. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See, in general, DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. 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. 38 C.F.R. § 4.59. 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. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's left wrist disability was initially evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5214, which provides for ankylosis of the wrist. Diagnostic Code 5214 provides the following ratings for a minor extremity: 20 percent for favorable ankylosis in 20 degrees to 30 degrees dorsiflexion; 30 percent for ankylosis in any other position except favorable; and 40 percent for unfavorable ankylosis in any degree of palmar flexion or with ulnar or radial deviation. Diagnostic Code 5214 notes that extremely unfavorable ankylosis will be rated as loss of use of hands under diagnostic code 5125. 38 C.F.R. § 4.71a. Normal range of motion for the wrist is 80 degrees palmar flexion and 70 degrees dorsiflexion. 38 C.F.R. § 4.71, Plate I. In a June 2013 rating decision, the AMC reevaluated the Veteran's left wrist disability under 38 C.F.R. § 4.71a, Diagnostic Code 5125 which provides for a 60 percent disability rating for the loss of use of the minor hand. The Veteran was afforded a VA examination in October 2007. At that time, he reported that he had constant pain in his left wrist, particularly when he tried to do any lifting, pushing, or pulling type of activities. Examination of the left wrist showed a thickening of the synovium about the wrist and the Veteran was noted to be very tender along the radial carpal junction, to even light palpation. Range of motion measurements were as follows: extension to 5 degrees, with pain at 2 degrees; palmar flexion to 5 degrees, with pain at 3 degrees; and radial and ulnar deviation to 3 degrees with pain throughout. June 2007 X-ray showed severe degenerative changes throughout the wrist; the scaphoid was significantly distorted due to degeneration; multiple carpal bones showed cystic changes; and there was no radial carpal joint space remaining. It was noted that the Veteran's left hand grip strength was 1/5; his intrinsic muscle of the hand was 4/5 without fatigue or lack of endurance after continuous resistance greater than gravity; and there was no clubbing, cyanosis, or pedal edema. The examiner diagnosed left carpal bone fracture with residual pain, degenerative arthritis, and loss of motion with severe functional limitations. The Veteran was afforded another VA examination in May 2009. At that time, he reported symptoms of pain, stiffness, lack of endurance, and swelling in his left wrist. He reported flare-ups of his left wrist disability that caused increased pain that was severe. He reported that these flare-ups occurred occasionally, lasted a few hours, were typically precipitated by bumping his wrist, or a similar trauma, and that they caused moderate impairment to his daily activities. On examination, range of motion measurements were as follows: dorsi-flexion to 30 degrees, with pain at 20 degrees; palmer flexion to 30 degrees, with pain at 20 degrees; radial deviation to 20 degrees, with pain at 1 degree; and ulnar deviation to 20 degrees, with pain at 20 degrees. On repetitive testing, the Veteran's dorsi-flexion and palmer flexion was further limited to 20 degrees, with pain at 10 degrees. The Veteran was noted to have painful motion, edema, weakness, tenderness, and guarding of movement. The examiner diagnosed left wrist strain and post traumatic carpal distortion with radiocarpal and intercarpal osteoarthritis. The Veteran was afforded another VA examination in January 2011. At that time, he reported symptoms of pain, weakness, stiffness, swelling, and locking associated with his left wrist disability. He reported that he took Oxycodone every 8 hours to control his symptoms. He reported flare-ups that occurred once a month, causing severe pain and swelling for 1 to 2 weeks at a time. He reported that rest and medication helped alleviate the flare-ups. On examination, the Veteran was noted to have painful ankylosis of the left wrist. Ankylosis was noted to occur at 5 degrees of dorsi flexion, 5 degrees of palmar flexion, 5 degrees of radial deviation, and 5 degrees of ulnar flexion. The examiner diagnosed residuals of fracture of the left navicular bone with severe degenerative arthritis and limited motion. The Veteran was afforded another VA examination on February 2, 2011. At that time, he reported daily, constant pain, weakness of his left hand grip, and that he was unable to move his left wrist. He reported that his wrist was tender in some spots and that he had some swelling constantly. He reported that he took Oxycodone as needed for pain and ibuprofen, 800 milligrams daily. He denied any flare-ups and reported that the pain was steady. He reported that the weakness in his grip affected his occupation and daily activities as he tended to avoid heavy lifting and was unable to lift more than 15 pounds. On physical examination, the Veteran was noted to have limited opposition of his left hand; he was able to oppose his left thumb to his left index finger only, with pain in the radial wrist. In contrast, he was able to oppose his right thumb to the tip of each right finger and the base of his fifth right finger in his palm. He had limited grip strength, 4/5, in his left wrist, without fatigue or incoordination, but with pain. The Veteran had no range of motion in his left wrist in any direction (dorsi flexion, palmar flexion, ulnar deviation, and radial deviation). All ranges of motion were noted to be 0, and it was noted that the Veteran had pain in his left wrist with attempts to move. The examiner noted that there was mild soft tissue swelling and tenderness in the left wrist and that the joint was ankylosed in a favorable "neutral or zero" position. The examiner diagnosed a non-united scaphoid fracture with ankylosis and traumatic arthritis of the left wrist. The examiner noted that there was functional impaired with limited motion noted in the objective findings, as well as additional functional impairment due to pain and reduced grip strength. The Veteran was afforded another VA examination in June 2013. At that time, he reported that his left wrist hurt all the time, and that he had no movement in the wrist. He reported that if he bumped or hit his wrist, the pain was worse. On physical examination, the Veteran had no range of motion in palmar flexion or dorsiflexion. All range of motion measurements were noted to be 0. The Veteran was noted to have functional loss and/or functional impairment of his left wrist in that he had less movement than normal, weakened movement, incoordination, and pain on movement. He was noted to have localized tenderness and pain on palpation of the join in his left wrist and he had not muscle movement on extension or flexion in his left wrist. His left wrist joint was noted to be ankylosed in an extremely unfavorable position. November 2010 X-ray of the left wrist revealed scapholunate advanced collapse; non-united old facture of the scaphoid; and a small well corticated bony density adjacent to the ulnar styloid. The examiner noted that the Veteran's left wrist disability impacted his ability to work in that he had limited motion in his left wrist which impaired his ability to manipulate objects. On June 2013 VA examination, the examiner was also asked to provide an opinion as to whether the Veteran's diagnosed left wrist carpal tunnel syndrome (CTS) was caused by or related to his service-connected left wrist disability. After examining the Veteran, and reviewing the claims files, the examiner opined that the Veteran's CTS was less likely than not proximately due to or the result of the Veteran's service-connected left wrist disability. The examiner explained how CTS is caused, the examiner stated that the Veteran's CTS is actually on his right side and therefore was not related to his service-connected left wrist disability. Also of record are VA treatment records that show the Veteran has received intermittent treatment for his left wrist disability. These records do not indicate that the Veteran's left wrist disability is more severe than what is reflected in the various VA examination reports of record. Additionally, the Veteran testified at a Board hearing on May 5, 2011 before the undersigned acting VLJ. At that time he reported that his left wrist disability had continued to worsen and that he was unable to move his wrist in any direction and that he had constant pain. He testified that his left wrist disability impacted his ability to work as it made it difficult for him to pick up or hold certain objects, but that he was still working. He further testified that he was able to touch his thumb to his index finger, but could not touch his thumb to any other fingers. The Board finds that for the prior to February 2, 2011, the Veteran is entitled to a disability rating of 30 percent for his left wrist disability. In this regard, the Board notes that at the Veteran's January 2011 VA examination, his left wrist joint was noted to be ankylosed and his range of motion was limited to 5 degrees in every direction. The Board notes that while the findings on the May 2009 VA examination indicate the Veteran had more range of motion than indicated at his January 2011 VA examination, the findings reflected at the October 2007 VA examination also show that his range of motion was limited to only 5 degrees in all directions. Further, the May 2009 VA examination report indicated that on repetitive testing, the Veteran had decreased range of motion by 10 degrees, as well as additional pain and weakness. The Board considers these findings to more nearly reflect the criteria for ankylosis in a position other than favorable or unfavorable for which a higher rating must be conceded. The Board thus resolves the benefit of the doubt in favor of the Veteran by finding that the clinical evidence more nearly approximates the criteria for a 30 percent disability rating for left wrist ankylosis under 38 C.F.R. § 4.71a, Diagnostic Code 5214. The Board has considered assigning the Veteran a higher disability rating for his left wrist disability for the period prior to February 2, 2011. However, under the rating criteria set forth in Diagnostic Code 5214, the Veteran does not meet the criteria for a higher rating of 40 percent as it has not been shown that he has unfavorable ankylosis in any degree of palmer flexion. Further, there is no evidence that the left wrist is ankylosed in an unfavorable position with ulnar or radial deviation. In addition, the Board finds that the 30 percent rating contemplates the Veteran's reports, and the findings at the VA examinations, of additional functional loss due to pain, weakness, fatigability, and incoordination. Therefore, a disability rating in excess of 30 percent for the period prior to February 2, 2011 is not warranted. Id. The Board finds that for the period beginning February 2, 2011, a disability rating of 60 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5125 for the Veteran's left wrist disability is warranted. In this regard, the Board notes that in June 2013, the AMC awarded the Veteran a 60 percent disability rating under Diagnostic Code 5125 based on the findings of the June 2013 VA examination. A review of that examination report shows that the physical findings reported were essentially the same as the physical findings that were reported at the time of the February 2, 2011 VA examination. Specifically, at the time of the February 2, 2011 VA examination, the Veteran was found to have no range of motion, in any direction, in his left wrist, he had limited grip strength, pain, and limited opposition in his wrist and could only oppose his left thumb to his left index finger (with pain). He reported at the February 2, 2011 examination that his grip was weakened and he was unable to lift objects heaver than 15 pounds. The Board notes that at the time of the February 2, 2011 VA examination, the examiner noted the Veteran's wrist was ankylosed in a "favorable neural or zero" position; however, the physical findings reflected in the February 2, 2011 VA examination report indicate that the Veteran's functional impairment, i.e. difficulty in the act of grasping and manipulation, more nearly approximated loss of use. Therefore, a 60 percent disability rating under Diagnostic Code 5125 is warranted for the period beginning February 2, 2011. The Board has considered whether a higher disability rating is warranted for the period beginning February 2, 2011. However, the Board notes that under diagnostic Code 5125, 60 percent is the maximum rating allowable for a minor hand. The Board will address entitlement to an extra-schedular rating below. Extra-Schedular Consideration The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The Court has held that the threshold factor for extra-schedular consideration is a finding on 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 disabilities at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the disability with the established criteria provided in the rating schedule for the disabilities. If the criteria reasonable describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluations are therefore adequate, and no referral for extra-schedular consideration is require. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidentiary record does not show any manifestations of, or functional impairment due to, the Veteran's left wrist disability that is not encompassed by the scedular criteria. In this regard, the Board notes that there is no indication that the Veteran seeks emergency or inpatient treatment for his left wrist disability. The Veteran's noted functional impairment of pain, weakness, stiffness, incoordination, and limitation of motion, self-reported by the Veteran and noted on the Various VA examination reports of record is fully contemplated by the schedular criteria, and the ratings assigned herein. Consequently, those criteria are not inadequate, and referral for extra-schedular consideration is not warranted. See 38 C.F.R. § 3.321(b); Thun, 22 Vet. App. 111. Further, the Board acknowledges that the Veteran has asserted that the symptoms of his left wrist disability impact his ability to work. Indeed, in a July 2013 statement he indicated that it made it "very hard to work." However, the record indicates that the Veteran is employed in a maintenance department, and that while his left wrist disability may make some aspects of his employment difficult, it does not appear as though it has rendered him unable to secure or follow a substantially gainful occupation as a result of service-connected disability; nor has the Veteran alleged as such. Hence, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER The Veteran's left wrist disability warrants a 30 percent disability rating, but no higher, prior to February 2, 2011; and a 60 percent disability rating, but no higher, from February 2, 2011; the benefit sought on appeal is granted to this extent and subject to the criteria applicable to the payment of monetary benefits. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs