Citation Nr: 1330717	
Decision Date: 09/25/13    Archive Date: 09/30/13

DOCKET NO.  09-34 801	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Honolulu, Hawaii



THE ISSUES

1. Entitlement to service connection for bilateral hearing loss.  

2. Entitlement to service connection for a right ankle disability (right tarsal tunnel syndrome with ganglion cyst).  

3. Entitlement to an increased rating for the service-connected left wrist disability (residuals, fracture of left navicular bone) greater than 10 percent.  



REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.




ATTORNEY FOR THE BOARD

H.J. Baucom, Counsel


INTRODUCTION

The Veteran had active service from April 1977 to August 1985. 

These matters come before the Board of Veterans' Appeals (Board) from rating decisions dated May 2008 and March 2009 of the RO.  

The Board notes that per Rice v. Shinseki, 22 Vet. App. 447 (2009) a claim for an increased rating contains an implicit claim for total compensation rating based on individual unemployability (TDIU) when the Veteran presents evidence of unemployability.  As the Veteran has not presented evidence of unemployability due to his service-connected disabilities, including based upon the disability on appeal, the issue is not considered to be on appeal.

The Veteran's virtual VA file has been reviewed. 



FINDINGS OF FACT

1. The Veteran does not have right ear hearing loss disability for VA compensation purposes. 

2.  The Veteran is not shown to have manifested complaints or findings referable to a left ear hearing loss in service or for many years thereafter.   

3.  The currently demonstrated left ear hearing loss disability is not shown to be due to an event of incident of the Veteran's period of active service.   

4.  The currently demonstrated right ankle right tarsal tunnel syndrome with ganglion cyst is not shown to be due to an injury or other event or incident of the Veteran' period of active service.  A right ankle disability (right tarsal tunnel syndrome with ganglion cyst) is not attributable to service. 

5.  The service-connected left wrist disability is shown to be manifested by the postoperative residuals of a fracture of the left navicular bone with resulting limited and painful limitation of dorsiflexion and palmar flexion of the wrist, but ankylosis of that joint is not demonstrated.   



CONCLUSIONS OF LAW

1.  The claim of service connection for a right ear hearing loss must be denied by operation of  law.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013).

2.  The Veteran's left ear hearing loss disability is not due to disease or injury that was incurred in or aggravated by service; nor may be presumed to have been incurred therein.  .  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013).
 
3.  The Veteran's right ankle disability manifested by tarsal tunnel syndrome with ganglion cyst is not due to disease or injury that was incurred in or aggravated by service.  38 U.S.C.A. §§ 1101, 1110, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2013).

4. The criteria for the assignment of an rating greater than 10 percent for the service-connected left wrist disability (dominant hand) have not been met.  38 U.S.C.A. § 1155  (West 2002); 38 C.F.R. §§ 3.102 , 3.159, 4.20, 4.71a including Diagnostic Codes 5214, 5215 (2013). 




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Notice and Assistance

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  

The letters dated in August 2007 and July 2008 satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional private or VA treatment records pertinent to the appeal.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  

The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159 (c)(2).  

VA examinations were conducted in October 2007, January 2009, May 2009, July 2011 and November 2012; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes.  38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  

The January 2009 and July 2011 examinations were adequate as the examiners reviewed the record, evaluated the Veteran and provided an opinion with supporting rationale as to the cause of the Veteran's current disabilities.  The October 2007, May 2009 and November 2012 examinations were adequate as the examiners evaluated the Veteran's current disability level and provided findings to allow for proper application of the rating criteria.

There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). 

All of the evidence in the Veteran's claims file has been thoroughly reviewed.  Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81(Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed).  

The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the matter on appeal.  The Veteran should not assume that pieces of evidence, not explicitly discussed, have been overlooked.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed).


Service Connection

Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).  

Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366   (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

Continuous service for 90 days or more during a period of war, or peace time service after December 31, 1946, and post- service development of a chronic disease, such as organic diseases of the nervous system (sensorineural hearing loss), to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service.  See 38 C.F.R. §§ 3.307, 3.309(a).

The right ankle condition, tarsal tunnel syndrome with ganglion cyst, is not a "chronic disease" listed under 38 C.F.R. § 3.309(a), therefore 38 C.F.R. § 3.303(b) does not apply.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  

Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.


Hearing Loss 

For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155 (1993). Even though disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service.  Hensley v. Brown, 5 Vet. App. 155.

The Veteran contends that he has a hearing loss disability due to the exposure to acoustic trauma in service.   Specifically, he reports being subjected to noise from live fire due to tank gunnery that was so loud in one instance that his helmet was blown off.  The Board concedes that the Veteran likely experienced acoustic trauma in service.   

The service treatment records demonstrate that the Veteran's hearing was within normal limits upon entry to service, during service and upon exit from service.  Moreover, at the time of the separation examination, the Veteran expressly denied having or having had any ear, nose or throat trouble or hearing loss.    

The Veteran asserts that the exit examination was not correct as his recorded hearing results appeared to have improved from his entry audiogram.  

Multiple audiograms were conducted during service, there is no evidence of abnormal hearing, described as a hearing threshold greater than 20 decibels, during service.  Hensley v. Brown, 5 Vet. App. 155.   

Nor is there evidence of a threshold shift in hearing acuity during service.  The in service audiogram results are listed below.  

A November 1976 audiogram had the following results: 


HERTZ

500
1000
2000
3000
4000
RIGHT
20
10
10
10
20
LEFT
20
15
10
10
15

A November 1979 audiogram had the following results: 


HERTZ

500
1000
2000
3000
4000
RIGHT
15
10
5
5
10
LEFT
15
10
5
0
0

A May 1982 audiogram had the following results: 


HERTZ

500
1000
2000
3000
4000
RIGHT
10
5
5
5
10
LEFT
15
5
5
5
5

A June 1984 audiogram had the following results: 



HERTZ

500
1000
2000
3000
4000
RIGHT
15
10
5
10
15
LEFT
15
10
10
10
15

A July 1985 exit examination audiogram had the following results: 


HERTZ

500
1000
2000
3000
4000
RIGHT
15
10
10
5
10
LEFT
0
0
0
0
10


In January 2009 a VA examination was conducted.  The examiner reviewed the Veteran's claims file, noting that he was exposed to acoustic trauma while in service.  The examiner also noted that the Veteran had no significant occupational noise exposure and very limited recreational noise exposure after service.  

The examiner found that under VA standards, 38 C.F.R. § 3.385, the Veteran did not have hearing disability for VA compensation purposes in the right ear and a hearing disability in the left ear manifested by a 40 decibel threshold at 4000 hertz.  

The VA examiner concluded that the Veteran's left ear disability was not the result of acoustic trauma in service, providing  the rationale that the retirement examination in July 1985 had shown normal hearing. 

The January 2009 VA audiogram results were as follows. 


HERTZ
 CNC

500
1000
2000
3000
4000

RIGHT
15
10
10
20
35
 100%
LEFT
15
15
15
20
40
 96%


As to the right ear, the testing showed that there is no right ear hearing loss disability for VA compensation purposes as defined under 38 C.F.R. § 3.385. Only one pure tone threshold was over 26 decibels, and no threshold exceeded 40 decibels.  Maryland CNC speech recognition score was 100 percent.  As such, the claim of service connection a for right ear hearing loss must be denied under the law. 

There is a current left ear hearing disability for VA compensation purposes.
The Board does not dispute that the Veteran had acoustic trauma in service.  Post service, there is little, if any, noise exposure.  However, the weight of the evidence is against a finding that the current left ear hearing disability was caused by his exposure to acoustic trauma or otherwise began during service.   

The Veteran contends that the exit examination was incorrect as his hearing acuity improved between the entry examination and the exit examination.  However, slight variations in testing are not unusual.  During the Veteran's eight years in service five audiograms were conducted and each of them demonstrated normal hearing at every level.  There was no indication at any time during service of any degree of hearing loss. 

As a general matter, the Board must consider whether a veteran's particular disability is the type of disability for which lay evidence is competent.  Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011).  

Here the Veteran is competent to report experiencing a decrease in hearing acuity, but his assertions alone are not found to be credible for the purpose of linking the current left ear hearing loss to excessive noise exposure or another event of his period of active service.     

Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran had a hearing disability for VA purposes in service, or whether his in service acoustic trauma caused a hearing loss disability 25 years later, falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).

Significantly, at the time of the final service examination in July 1985, the Veteran specifically denied having any ear trouble or hearing loss.

To the extent that the VA medical opinion is against the Veteran's claim, service connection for a left hearing loss disability must be denied.


Right ankle disability 

The Veteran contends that he has a current right ankle disability is the result of right ankle sprain injuries sustained during service.  

Upon entry to service the Veteran's feet and lower extremities were noted to be normal.  In April 1978, he sought treatment after he fell from a rock and sprained his right ankle.  An examination noted mild effusion and tenderness, and a secondary sprain.  The Veteran was told to return to the clinic in the morning for a an x-ray study.  

The next day, the Veteran had no swelling, but he did have painful range of motion and tenderness.  He was diagnosed with mild sprain and prescribed an ace bandage. The Veteran reported that he did not have an x-ray study done in service.  Upon exit from service in July 1985, the Veteran reported having "no" foot trouble.  His lower extremities were noted to be normal at that time.  

A March 2010 MRI of the right foot showed increased signal intensity and edema around the 5th metatarsal heal both laterally and plantarly that were clinically asymptomatic.  The MRI of the right ankle was positive for increased signal intensity on the posterior tibial and perineal tendons.  There is also a ganglionic cyst in the region of the head of the talus. The foot clinic treatment records showed right ankle pain, diagnosed as right ankle tarsal tunnel. 

In July 2011, a VA examination was conducted. The examiner reviewed the claims file, noting the Veteran's in service right ankle sprain in April 1978 after falling from a rock.  The examiner's review of the VA treatment records noted the April 2009 complaint of right foot pain on April 3, 2009, that started at night with slight pain while driving.  

A May 2009 podiatry evaluation diagnosed of left heel bone spur and right foot neuroma.  A September 2009 podiatry evaluation noted diagnosis of right ankle tarsal tunnel.  A March 2010 evaluation noted edema to right ankle, posterior and plantar heel spurs, an MRI showing increased signal intensity posterior tibial and perineal tendons anda  ganglionic cyst in the region of the head of the talus.

The Veteran reported that, since his in service ankle sprain, he has had a "weak ankle."  He reported that his ankle felt unstable in low cut shoes and was better in boots.  He also stated that he has had constant ankle pain rated three to four out of ten with flares up to ten out of ten that lasted up to three to four days in duration.  Prolonged standing and walking aggravated his ankle pain.  He also reported a popping sensation in his ankle.  The Veteran did not use a brace and reported no surgery. 

An examination of the right ankle found tenderness and guarding of movement, but no edema, effusion, instability, redness, heat, abnormal movement, deformity, malalignment, drainage or weakness. 

The examiner concluded that the Veteran had right foot tarsal tunnel syndrome with ganglion cyst.  He reported that the causes of tarsal tunnel syndrome on review of the medical literature included those of  flat feet, ganglion cysts, systemic disease, and trauma.  

The VA examiner opined that, as the Veteran's right ankle injury in service did not have any residual sequelae on his separation physical and the first complaints of right foot pain were not documented until 2009, 30 years after service, the right foot tarsal tunnel syndrome with ganglion cyst was less likely as not caused by or the result of his injury in service. 

The Veteran is competent to report experiencing ankle pain in service, and afterwards.  The Board finds his assertions alone are not credible for the purpose of linking the current right ankle disability to the episode of injury or another event or incident of service.  

Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran's service ankle sprain was the cause of his current tarsal tunnel syndrome, falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). 

In sum, in 1979 in service, the Veteran had a right ankle sprain, but there were no further right ankle complaints during service or at the time of the separation from service.  The first post service treatment of any right ankle complaints was in 2009 when right tarsal tunnel syndrome with ganglion cyst was diagnosed.  To the extent that he relates his current ankle disability to the ankle sprain during service, his lay assertions are of limited probative value.  The only medical opinion of record is against the claim.  

As the weight of the evidence is against the claim, service connection must be denied. 


Increased Rating

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.

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 veteran's entire history is to be considered when making disability evaluations.  See generally 38 C.F.R. § 4.1 ; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

Separate ratings can be assigned for separate periods of time, based on the levels of disability manifested during each separate period of time, from the effective date of service connection.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).

The left wrist disability is rated by analogy since there are no diagnostic codes that set forth criteria for assigning disability evaluations for the exact disabilities experienced by the Veteran. 

When an unlisted condition is encountered, it is permissible to rate that condition under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology, are closely analogous.  See 38 C.F.R. § 4.20. 

When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built-up" by using the first two digits of that part of the rating schedule which most closely identifies the part, or system, of the body involved and adding "99" for the unlisted condition.  See 38 C.F.R. § 4.27. 

The Veteran contends that his left wrist disability should be assigned a 20 percent rating in consideration of his pain, fatigue, weakness, incoordination and lack of endurance in his hand.  He reports having constant wrist pain that limits his ability to move it. 
 
The service-connected left wrist disability is currently rated as 10 percent disabling under Diagnostic Code 5215, based on limitation of motion.  Under this code, 10 percent is the highest evaluation is assignable for palmar flexion that is limited in line with the forearm or when dorsiflexion is less than 15 degrees regardless of whether the major or minor extremity is affected.  38 C.F.R. § 4.71a.

Normal range of motion of the wrist is: dorsiflexion (extension) to 70 degrees, palmar flexion to 80 degrees, ulnar deviation to 45 degrees and radial deviation to 20 degrees.  38 C.F.R. § 4.71, Plate I.

The only other diagnostic code that relates to a wrist disability is Code 5214, which is evaluated based on ankylosis. 

Under these criteria, a 30 percent evaluation is assigned for favorable ankylosis between 20 degrees to 30 degrees of dorsiflexion.  A 40 percent evaluation is available for ankylosis in any other position, except favorable, and a 50 percent evaluation is available for unfavorable ankylosis, in any degree of palmar flexion, or with ulnar or radial deviation of the wrist.  38 C.F.R. § 4.71a.

Diagnostic Codes 5214 and 5215 distinguish between the major (dominant) and the minor (non-dominant) arm.  The rating criteria noted above pertain to the dominant arm as the Veteran is shown to be left handed. 

Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination.  Only one hand shall be considered dominant.  The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes.  38 C.F.R. § 4.69. 

The Schedule provides for consideration of additional functional impairment due to pain, weakness, fatigue, incoordination, and lack of endurance when assigning evaluations.  38 C.F.R. § 4.40, 4.45, 4.59; see DeLuca v. Brown, 8 Vet. App. 202   (1995), Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011).

Under 38 C.F.R. § 4.59, 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. 

A March 2007 x-ray study showed scaphoid nonunion with mild humpback deformity at the scaphoid. 

In October 2007 a VA examination was conducted.  The examiner noted that the left wrist pain was due to nonunion of the left scaphoid.  Recent surgery in June 2007 was noted to have led to improvement in extension and grip strength, but no change in flexion.  

The Veteran reported having loss of range of motion since the surgery and increased in pain with motion.  The X-ray study noted an old non-united scaphoid fracture with posttraumatic osteoarthritis.  The examiner found there was a decrease in range of motion with pain and weakness with repetitive motion.  When asked to express the additional limitation in degrees, the examiner reported "limitations due to weakness and pain with flare." 

A November 2008 post surgical wrist consultation noted that the Veteran denied having any issues, including paresthesia and that he was neurovascularly intact.  

In May 2009, a VA examination was conducted.  The Veteran reported having constant pain of four out of ten with flares of eight or nine out of ten that occurred daily and lasted up to eight hours a day.  Any motion of the wrist could aggravate the pain.  

The Veteran reported having pain, stiffness, fatigability and lack of endurance, but no swelling, heat, redness, instability or locking.  The range of motion testing revealed dorsiflexion to 20 degrees with pain at 20, palmar flexion to 2 degrees with pain at 2 degrees, radial deviation with pain at 9 degrees and ulnar deviation with pain at 18 degrees.  With repetitive motion, there were no changes in the range of motion; he had pain but no fatigue, weakness, incoordination or lack of endurance.  An examination of left wrist noted painful motion, tenderness of wrist joint on palpation, abnormal movement and guarding of movement, but no edema, effusion, instability, weakness, redness or heat.  The X-ray study showed moderate soft tissue swelling at the dorsum. 

In November 2012 a VA examination was conducted.  The Veteran reported having severe pain flare ups when he was not able to use his arm until the pain subsided. 
Range of motion testing results noted palmar flexion to 20 degrees with pain at 20 and dorsiflexion to 15 degrees with painful motion at 15.  There was no additional limitation in the range of motion of the wrist following repetitive use testing.  

The examiner did find that there was functional loss or impairment due to less movement and pain on movement.  There was localized tenderness or pain on palpation of the joints.  Muscle strength testing found wrist flexion and extension to be five out of five.  The examiner found there to be no ankylosis. 

There were noted to have been scars related to the two surgeries; however, the examiner found that the scars were not painful and/or unstable and that the total area was not more than six square inches.  The examiner also concluded that the wrist did not impact his ability to work.  The associated x-ray study found post traumatic/post-surgical changes of the carpus. 

The only diagnostic code relative to the wrist that provides for a rating in excess of 10 percent is based on the presence of ankylosis.  

Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, surgical procedure.  Lewis v. Derwinski, 3 Vet. App. 259  (1992) (memorandum decision); Nix v. Brown, 4 Vet. App. 462, 465(1993); and Shipwash v. Brown, 8 Vet. App. 218, 221   (1995).  

Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint.  Dinsay v. Brown, 9 Vet. App. 79, 81   (1996). 

The Veteran is competent to report pain in his left wrist and difficulty moving it, as this is something he experiences, and the Board finds his reports to be credible.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  

However, the Veteran is not shown to report that he has ankylosis of the wrist.  The Board notes the Veteran's complaints of having constant wrist pain and pain on motion. However, there is no evidence of immobility, stiffening or fixation of the left wrist.  VA physicians found there was pain with repetitive use, but no additional functional loss due to such pain.   There was not showing of ankylosis.  

Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether there is ankylosis of the left wrist, falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).

The findings do not demonstrate that any of the additional limitations of the left wrist would equate with the level of incapacity consistent with or approaching that of ankylosis of the left wrist.  A higher rating under Diagnostic Code 5214 is not warranted.

As there are no related neurological manifestations 38 C.F.R. § 4.124a, Diagnostic Code 8516 is not applicable.


Extraschedular 

The Board has also considered whether referral for an extraschedular rating is indicated. See 38 C.F.R. § 3.321(b) ; Thun v. Peake, 22 Vet. App. 111, 115   (2008). 

Thun outlines a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. 

First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. 

In the present case, the service-connected left wrist condition is not shown to be productive of an unusual or exceptional disability picture as to render the application of the established rating criteria impractical. 

The Veteran's primary symptoms associated with the service-connected left wrist disability are pain and limitation of motion, both of which are contemplated in the assigned rating.  Although a degree of pain appears to be present with motion of the wrist, the demonstrated disability picture does not equate with ankylosis so as to permit the assignment of a rating higher than 10 percent.  The rating schedule takes into consideration limitation of motion as well as functional loss due to pain.  Thus, when comparing the Veteran's left wrist findings and the various degrees of impairment compensated in the rating criteria, the disability picture is contemplated by the rating schedule.


ORDER

The claim of service connection for a right ear hearing loss is denied by law.

Service connection for a left ear hearing loss disability is denied.  

Service connection for a right ankle condition (right tarsal tunnel syndrome with ganglion cyst) is denied.

An increased rating for the service-connected left wrist disability (residuals, fracture of left navicular bone) greater than 10 percent is denied.


____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs