Citation Nr: 1330509 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 09-40 905 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an increased disability rating for degenerative joint disease of the right wrist, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, had active service from September 1955 to October 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Milwaukee, Wisconsin. The Veteran appeared at a hearing before a local hearing officer at the RO in November 2010. A transcript of the hearing is of record. In June 2013, the Board remanded this matter for further development to include performing an additional VA examination and obtaining any additional outstanding VA treatment records. The Veteran was afforded the VA examination in June 2013 and additional treatment records were associated with the appeal. The required actions have been complied with and the matter is now ready for appellate review. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT The Veteran's right wrist disorder has been shown to have degenerative joint disease, with limitations caused by pain; ankylosis or limitation of motion that is the equivalent to ankylosis is not demonstrated. CONCLUSION OF LAW The criteria for the assignment an evaluation in excess of 10 percent for degenerative joint disease of the right wrist have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b)(1) , 4.1, 4.40, 4.45, 4.59, 4.71, Diagnostic Codes 5003, 5214, 5215 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (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. 2012); 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) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Court has also held that 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 service connection 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 Veteran's status has been substantiated. In a January 2008 letter, the RO provided the Veteran with notice that informed him of the evidence needed to substantiate his claim. The letter also told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. The letter further told him to submit relevant evidence in his possession. The January 2008 letter also provided the Veteran with notice as to the disability rating and effective date elements of the claim. VA has a duty to assist a veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All pertinent treatment records, service and VA, have been obtained and associated with the claims folder. No other relevant records have been identified. VA treatment records were also associated with the appeal pursuant to the June 2013 Board remand. The Veteran was afforded VA examinations in February 2008, November 2010, and June 2013, the last examination being performed in conjunction with the June 2013 Board remand. These examinations provided a detailed history and sufficient information to properly rate the Veteran's claim for his degenerative joint disease of the right wrist. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments presented by his representative. He also appeared and gave testimony at a hearing in November 2010. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. Disability Rating Criteria Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is assigned where x-ray evidence shows involvement of two or more major joints or 2 or more minor joint groups. Where there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, a 20 percent evaluation is assigned. Note (1) to Diagnostic Code 5003 states that the 20 and 10 percent ratings based on x-ray findings, above, will not be combined with ratings based on limitation of motion. Id. Limitation of the wrist is rated under Diagnostic Code 5215. Palmar flexion limited in line with the forearm warrants a 10 percent rating. Dorsiflexion less than 15 degrees warrants a 10 percent rating. DC 5215 does not provide for a rating in excess of 10 percent. Under Diagnostic Code 5214, a 50 percent rating is assigned for ankylosis of the major wrist when ankylosis is unfavorable, in any degree of palmar flexion, or with ulnar or radial deviation. A 40 percent rating is assigned for ankylosis of the major wrist when there is ankylosis in any other position except favorable. A 30 percent rating is assigned for ankylosis of the major wrist that is favorable in 20 degrees to 30 degrees dorsiflexion. Extremely unfavorable ankylosis will be rated as loss of use of the hands under Diagnostic Code 5125. 38 C.F.R. § 4.71a, Diagnostic Code 5214. Under 38 C.F.R. § 4.71, Plate I, the standard range of motion for the wrist is extension from 0 to 70 degrees, palmar flexion from 0 to 80 degrees, forearm pronation 0 to 80 degrees, forearm supination 0 to 85 degrees, ulnar deviation from 0 to 45 degrees, and radial deviation from 0 to 20 degrees. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance. Weakness is as important as limitation of motion, and a part which becomes disabled on use must be regarded as seriously disabled. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is to be considered in evaluating the degree of disability, but a little-used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, the condition of the skin, absence of normal callosity, or the like. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. § 4.45 contemplate inquiry into whether there is crepitation, limitation of motion, weakness, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations. It is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as at least minimally compensable. See also DeLuca v. Brown, 8 Vet. App. 202 (1995) (indicates that pursuant to 38 C.F.R. §§ 4.40 and 4.45, pain may be the basis for a rating for a disability rated based on limitation of motion, regardless of whether or not the limitation of motion specified in the Diagnostic Code criteria is shown). With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints. The intent of the rating 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. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. 38 C.F.R. § 4.59. The Veteran maintains that the symptomatology associated with his degenerative joint of the right wrist warrants an evaluation in excess of that which has currently been assigned based upon pain and limitation of motion. Treatment records obtained in conjunction with the Veteran's claim reveal that at the time of a May 2006 VA outpatient visit, the Veteran was noted to have 30 degrees of dorsiflexion and 40 degrees of palmar flexion. The Veteran was also noted to hold his hand in a splinted position and he acted as if it were painful to move it at all. At the time of a February 2008 VA examination, the Veteran reported having increasing weakness in his wrist. He noted having difficulty with fine motor skills and difficulty dropping things. He reported constant 6/10 pain but denied flares. The Veteran used a right wrist splint. Since he was not working, his right wrist was not affecting employment. Examination of the wrist revealed that the Veteran was able to dorsiflex the right wrist to 35 degrees, volar flex to 40 degrees, radially deviate to 15 degrees, and ulnarly deviate to 20 degrees. All directions of range of motion were somewhat tender. The Veteran was able to make a fist and fully extend his fingers. Ranges of motion did not decrease with repetitive testing. X-rays of the right wrist revealed mild degenerative changes, unchanged from a 2006 x-ray. A diagnosis of stable right wrist degenerative joint disease was rendered. The examiner indicated that there was no additional functional impairment due to pain, pain on repetitive use, fatigue, weakness, lack of endurance, or incoordination. In his October 2009 substantive appeal, the Veteran indicated that he had constant pain, reduced range of motion, and weakness in his right wrist. At his November 2010 hearing, the Veteran testified that his whole wrist was numb and that he could hardly use it. He stated that he wore a brace which he took off at night. The Veteran was afforded an additional VA examination in November 2010. At the time of the examination, the Veteran complained of chronic right wrist pain. He noted that the pain was constant and that it could become sharp and stabbing with flare-ups. He indicated that the pain was flared-up by any motion of the wrist and any activity or lifting with the right hand. He stated that it was relieved by wearing the wrist brace and avoiding any lifting with the right upper extremity. The Veteran reported that he was not working as he would not be able to because of the numbness and weakness in his right arm and pain in the right wrist. The Veteran was not restricted from his completing his activities of daily living independently due to his wrist condition. Physical examination revealed a palpable volar cyst on the volar aspect of the right wrist consistent with a ganglion cyst. The Veteran had exquisite tenderness with palpation of the wrist throughout the entire wrist joint, but no isolated point specificity for the tenderness. Wrist extension was to 30 degrees with pain throughout this motion. Wrist flexion was from 0 to 20 degrees with pain throughout motion. Radial deviation was to 10 degrees with pain throughout motion and ulnar deviation was to 10 degrees with pain throughout motion. There was a palpable radial pulse. X-rays of the right wrist revealed no acute fractures, no malalignment, and no degenerative changes. The examiner indicated that there was no further loss of function or range of motion with three repetitions of use, fatigue, weakness, lack of endurance, or incoordination. The examiner stated that he could not specifically address range of motion during flares without resorting to speculation as no flares were occurring at the time of the examination. The examiner indicated that the pain the Veteran was experiencing in his wrist was out of proportion to the normal pain experienced with a ganglion. The examiner also noted that he did not appreciate any degenerative changes on x-ray. A diagnosis of right wrist ganglion cyst was rendered. In conjunction with the June 2013 Board remand, the Veteran was afforded an additional VA examination in June 2013. The examiner rendered a diagnosis of right wrist degenerative joint disease. The Veteran reported that there was localized pain along the dorsal aspect of the wrist. He rated the pain as 7/10 at rest, and up to 10/10 with rotation. His pain improved with the use of a brace and with pain medication. The Veteran also reported having pain with lifting even small objects. He denied any popping or catching in the wrist. The Veteran was not working and he stated that he needed help to clean the house but was otherwise independent with regard to his activities of daily living. He could not fish or do any activities that required repetitive wrist motion. The Veteran was noted to be right hand dominant. The Veteran reported having flares that impacted the function of his wrist. He indicated that the flares occurred daily and that the pain could be up to 10/10. It was brought on by any rotational motion or lifting with his right hand. His pain improved with pain medication and the flares lasted 15-20 minutes. Range of motion revealed palmar flexion to 65 degrees, with painful motion beginning at 55 degrees. Dorsiflexion was to 40 degrees, with pain beginning at 40 degrees. After repetitive testing, range of motion testing revealed palmar flexion to 40 degrees and dorsiflexion to 40 degrees. Functional loss was noted to be less movement than normal and pain on movement. There was no weakened movement, excess fatigability, incoordination, swelling, deformity, or atrophy from disuse. Muscle strength was 4/5 with flexion and extension. There was no ankylosis. The Veteran had maximal touch point tenderness over the dorsal radiocarpal joint and touch point tenderness centrally and ulnarly along the dorsal aspect of the wrist. There was also a small volar wrist ganglion which was not painful. The examiner noted that the Veteran had 4/5 strength due to poor effort. X-rays revealed degenerative joint disease. The examiner rendered a diagnosis of mild right wrist degenerative joint disease status post healed fracture sustained in the service. The examiner noted that as the Veteran did not have a flare-up at the time of the examination, he could not state whether pain, weakness, fatigability, or incoordination could significantly limit function during flare-ups or when used repeatedly over time as this would be conjecture. The Board finds that the weight of the lay and medical evidence demonstrates that a rating in excess of 10 percent for degenerative joint disease of the right wrist is warranted. The Veteran is now receiving the maximum 10 percent rating under DC 5215. The ranges of motion in the right wrist demonstrate that the Veteran has not had ankylosis or limitation of motion that is the equivalent of ankylosis, and VA examiners have did not found the presence of ankylosis at any time. The Board notes that ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Colayong v. West, 12 Vet App 524 (1999) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONALRY (28TH Ed. 1994) at 86). Thus, an increased evaluation is not warranted under Diagnostic Code 5214. The competent medical evidence reflects consideration of the Veteran's complaints of pain, weakness and fatigability by medical professionals. The Veteran is competent to report his symptoms. The VA examination reports include competent and probative clinical findings on examination of the Veteran regarding both his complaints and clinical manifestations of the wrist disability. Even when considering the additional limitation of motion caused by fatigue, weakness and flare-ups, neither the actual range of motion nor the functional limitation demonstrated warrants an evaluation in excess of 10 percent for limitation of motion based upon the appropriate codes governing limitation of motion. The Veteran is in receipt of the highest rating for limitation of motion and a higher rating requires ankylosis, which is not demonstrated. Thus, a rating higher 10 percent pursuant to the provisions of 38 C.F.R. §§ 4.40, 4.45 is not warranted. Extraschedular Consideration In addition to the foregoing, the Board has considered whether referral for an extraschedular evaluation is warranted for the Veteran's degenerative joint disease of the right wrist. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Veteran's disability has manifested in painful movement, limited range of motion, and arthritis. The schedular criteria for rating these disabilities specifically provide for ratings based on the presence of painful arthritis; limitations of motion and other orthopedic factors; see 38 C.F.R. §§ 4.40 , 4.45, 4.59; see also DeLuca. In this case, comparing the Veteran's disability level and symptomatology of the right wrist to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned ratings are, therefore, adequate. The Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). (CONTINUED ON NEXT PAGE) ORDER An evaluation in excess of 10 percent for degenerative joint disease of the right wrist is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs