Citation Nr: 1331269 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 09-08 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a disability rating in excess of 10 percent for residuals of a right wrist fracture, to specifically include neurological manifestations. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from February 1978 to October 1979. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Philadelphia, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for residuals right wrist fracture, evaluated as noncompensably (0 percent) disabling, effective June 13, 2006. A subsequent rating decision in November 2010 granted an increased disability rating of 10 percent, effective August 12, 2010. In September 2011, the Veteran appeared at a video conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is in the claims file. During the hearing, the Veteran submitted additional evidence for consideration, which was accompanied by a waiver of initial consideration by the RO. This claim was previously before the Board in December 2011, when an increased disability rating of 10 percent for residuals of right wrist fracture prior to August 12, 2010 was granted. The Veteran appealed the denial of a still higher disability rating to the United States Court of Appeals for Veterans Claims (Court), which in September 2012, granted a Joint Motion for Remand of the parties (VA Secretary and the Veteran), and vacated the Board's decision and remanded the case pursuant to 38 U.S.C. § 7252(a) for readjudication consistent with the Motion. In February 2013 the Board sought an advisory opinion from the Veterans Health Administration (VHA) on the question of whether the Veteran's additional neurological symptoms, such as ulnar neuropathy and carpal tunnel syndrome, as well as chronic pain and numbness and locking in certain positions, were caused or aggravated by his service-connected right wrist disability. The opinion was received in April 2013 and a copy was furnished to the Veteran and his representative; both were afforded the opportunity to submit additional evidence or argument in response to this opinion. The Veteran's representative submitted an additional response in July 2013. FINDINGS OF FACT 1. Throughout the entire claims period, the Veteran's orthopedic residuals of right wrist fracture have been characterized by some limitation of motion, painful motion, and some painful flare-ups, with no showing of ankylosis. 2. The Veteran's mild carpal tunnel syndrome and triangular fibrocartilage tear, equivalent to mild incomplete paralysis of the median nerve, are shown to be the result of his in-service right wrist injury. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent for orthopedic residuals of right wrist fracture for any portion of the rating period on appeal have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.10, 4.59, 4.71a Diagnostic Codes 5214, 5215 (2013). 2. The criteria for a separate disability rating of 10 percent for carpal tunnel syndrome of the right wrist have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.124a, Diagnostic Code 8515 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Duty to Notify Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's increased rating claim for his right wrist disability arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a September 2011 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Joint Motion, the Board requested an expert medical opinion through VHA on the question of whether the Veteran's neurological symptoms were related to his service-connected right wrist disability. The VHA opinion provided was mixed, but did indicate the need for additional considerations in the application of rating criteria. In addition, during the appeals period, the Veteran was provided a VA examination with respect to his disability on appeal. This examination contained all information needed to rate the disability. Indeed, the examiner reviewed the objective evidence of record and documented the Veteran's current complaints. Moreover, the VA examiner performed a thorough clinical evaluation, then offered opinions as to the nature of the claimed disabilities, accompanied by a rationale. Therefore, this examination is adequate for VA purposes. Further regarding the duty to assist, the United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). At his hearing the undersigned identified the issue, sought information as to treatment to determine whether all relevant records had been obtained, and sought information as to any changes in the disability since the last examination. Ultimately the claim was remanded for a new examination. The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Assigning Disability Ratings Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155. The record indicates that the Veteran is right-handed; therefore this is the major wrist for purposes of evaluation. See 38 C.F.R. § 4.69. 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 must be considered. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Normal ranges of motion of the wrist are dorsiflexion from 0 degrees to 70 degrees, and palmar flexion from 0 degrees to 80 degrees. 38 C.F.R. § 4.71, Plate I. Limitation of motion of the wrist is evaluated under Diagnostic Code 5251. 38 C.F.R. § 4.71a. This diagnostic code allows for a maximum 10 percent evaluation for palmar flexion limited in line with forearm or dorsiflexion less than 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5215. Higher evaluations for ankylosis of the wrist are available under Diagnostic Code 5214. 38 C.F.R. § 4.71a. Under Diagnostic Code 5214, favorable ankylosis of the wrist in 20 degrees to 30 degrees dorsiflexion is rated 30 percent disabling for the major wrist and 20 percent for the minor wrist. Id. Ankylosis of the wrist in any other position except favorable is rated 40 percent disabling for the major wrist and 30 percent for the minor wrist. Id. Unfavorable ankylosis of the wrist in any degree of palmar flexion, or with ulnar or radial deviation, is rated 50 percent disabling for the major wrist and 40 percent for the minor wrist. Id. A Note provides that extremely unfavorable ankylosis will be rated as loss of use of hands under Diagnostic Code 5215. Id. Additionally, under Diagnostic Code 5010, traumatic arthritis can be rated based on the same criteria as degenerative arthritis. 38 C.F.R. § 4.71a. Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated either based on the limitation of motion of the affected joint based on x-ray findings. Id. Although the Veteran's disability was not characterized as arthritis until August 2010, the Court has recently held that the provisions 38 C.F.R. § 4.59, which granted entitlement to at least the minimum compensable rating for the affected joint when painful motion is shown, are not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Carpal tunnel syndrome is rated, based on equivalent symptoms and manifestations, under the rating criteria applicable to paralysis of the median nerve. Under Diagnostic Code 8515, incomplete paralysis of the median nerve of the major hand warrants a 10 percent rating when mild, a 30 percent rating when moderate, and a 50 percent rating when severe. Complete paralysis of the median nerve of the major hand, with the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; and pain with trophic disturbances, warrants a 70 percent rating. Further, incomplete paralysis of the median nerve of the minor hand warrants a 10 percent rating when mild, a 20 percent rating when moderate, and a 40 percent rating when severe. Complete paralysis of the median nerve of the minor hand warrants a 60 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8515. The term "incomplete paralysis" indicates a degree of impaired function substantially less than the type of picture for "complete paralysis" given for each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating for incomplete paralysis should be for the mild, or, at most, the moderate degree. Id. Factual Background The Veteran underwent a VA medical examination in March 2007 in conjunction with his underlying service connection claim. At that time, he complained of intermittent severe pain occurring twice a week that lasted fifteen minutes at a time. He also endorsed difficulty pushing, pulling, or lifting objects weighing more than 25 pounds. Objectively, range of motion was from zero to 60 degrees dorsiflexion, with pain beginning at 50 degrees; zero to 60 degrees palmar flexion, with pain beginning at 50 degrees; zero to 20 degrees radial deviation, with pain beginning at 10 degrees; and zero to 30 degrees ulnar deviation, with pain beginning at 20 degrees. After three repetitions, range of motion was not additionally limited due to pain, fatigue, weakness, or lack of endurance. The Veteran denied any flare-ups. X-rays showed no arthritis. Private treatment records dated in November 2009 show complaints of worsening right wrist pain with ulnar aspect "popping out" upon quick pulling motions. There was also numbness of the fifth digit for six months. X-rays showed a normal wrist. The diagnosis was ulnar wrist pain. The Veteran underwent another VA examination in August 2010. At that time, he reported that he occasionally treated his wrist pain with over-the-counter medication, with no relief of symptoms. He complained of pain, weakness, stiffness, swelling, and instability of the right wrist. He further stated that he was unable to work because his wrist pain made him unable to hold a hammer, as required for his prior career as a carpenter, and was unable to sustain any other work. He wore a wrist splint. He reported chronic pain, but denied flare-ups. This disability did not affect his activities of daily living. Objectively, X-rays showed degenerative joint disease. Range of motion testing revealed dorsiflexion from zero to 45 degrees; palmar flexion from zero to 75 degrees; ulnar deviation from zero to 10 degrees, with pain throughout; and radial deviation from zero to 5 degrees, with pain throughout. With three repetitions, his range of motion was not additionally limited by pain, fatigue, weakness, or lack of endurance. There was no evidence of bone neoplasm. VA treatment records dated in October 2010 note complaints of right wrist pain that increased with bending or overuse. Additional treatment is seen in December 2010. Again, X-rays were normal. VA treatment records dated in April 2011 note longstanding complaints of wrist pain. The Veteran noted that his right hand would occasionally lock in place. Upon physical examination, no effusion was shown. The Veteran's right distal ulna styloid was tender to palpation and he had pain with ulnar deviation. There was no other bony tender to palpation. The associated radiology results showed no fracture, malunion, or nonunion. In May 2011, the Veteran underwent a VA MRI of his right wrist. This report indicated triangular fibrocartilage abnormality, which was thought to represent a combination of degenerative and traumatic changes. There was no joint effusion. Visualized flexor and extensor tendons appeared grossly intact, but there was some indication of a possible tear in the extensor carpi ulnaris tendon associated with tendinopathy and some fluid within the compartment 2 extensor tendon sheath which could represent a mild tenosynovitis. At his September 2011 hearing, the Veteran complained of numbness in the fingers of his right hand and constant aching of his wrist. He stated that he could not use a hammer now and that he avoided handshakes because they caused pain. He testified that he was able to lift small objects such as coffee cups. He was also able to type, button his shirt, tie a necktie, and pick up coins. However, these activities could be painful if his wrist turned in a certain position, in which case it would lock or pop out of place and send shooting pain through his body. Such pain would typically last for thirty minutes. He treated his wrist pain with over-the-counter medication and heating pads. He stated that he had not been employed since 2003. He had been working odd jobs as a carpenter until two years earlier, when his wrist prevented it. In January 2013, the Veteran underwent electrodiagnostic evaluation of his right arm because of his complaints of pain and numbness beginning two to three years prior. He reported numbness on the medial side of the hand, weakness, and neck pain. Physical examination showed no evidence of atrophy or cyanosis. Muscle strength was shown to be 4/5 due to pain and sensation to light touch was decreased on the ulnar side of the right hand. Tinel sign was positive over the ulnar nerves at the elbow. EMG and NCV findings were abnormal, showing "severe ulnar neuropathy at the elbow involving sensory more than motor with evidence of axonal loss" and mild carpal tunnel syndrome. The VHA expert medical opinion of March 2013 noted that the Veteran had been diagnosed with mild right carpal tunnel syndrome, severe right ulnar neuropathy, probable triangular fibrocartilage tear and mild tenosynovitis of the extensor tendons on the ulnar side of the right wrist. The expert offered the opinion that the Veteran's mild right carpal tunnel syndrome and triangular fibrocartilage tear of the right wrist were more likely than not related to the ulnar styloid fracture in service. These diagnoses accounted for the Veteran's reports of sharp pain in reaching for objects and some of the mild numbness in his index, long finger and thumb. However, the severe ulnar neuropathy, causing numbness in the ring and small finger and weakness in the hand was not due to the injury in service because it originated in the elbow joint. The expert also stated that the Veteran's ulnar neuropathy was the most severe of the Veteran's right wrist disabilities. Orthopedic Residuals of Right Wrist Fracture Based on the above, the Veteran's orthopedic residuals of right wrist fracture most nearly approximate the criteria for a 10 percent evaluation throughout the entire appeals period, not merely as of August 12, 2010. The Veteran has consistently complained of painful motion throughout the entire appeals period, supporting the currently assigned 10 percent evaluation. The record does not support a rating in excess of 10 percent, however. Indeed, the evidence does not show compensable limitation of motion, and, in any event, the 10 percent rating in effect represents the maximum available evaluation under Diagnostic Code 5215. Indeed, in order to warrant the next higher evaluation, the orthopedic residuals of wrist fracture would need to involve ankylosis of the wrist, or a comparable disability picture comparable. 38 C.F.R. § 4.71a, Diagnostic Code 5214. In this case, the Veteran's right wrist is not ankylosed, nor has the painful motion associated with this disability been shown to be the equivalent of ankylosis. As such, a higher evaluation based on ankylosis is not warranted. Thus, the disability picture does not most nearly approximate the next-higher 30 percent evaluation for residuals of wrist fracture under Diagnostic Code 5214. 38 C.F.R. § 4.7. Neurologic Residuals of Right Wrist Fracture Based on the VHA expert opinion obtained in March 2013, the Board finds that the residuals of the Veteran's right wrist fracture in service also include neurologic disability in the form of mild carpal tunnel syndrome and triangular fibrocartilage abnormality. Further, the VHA expert described the specific symptoms associated with these diagnoses, to include sharp pain in reaching for objects and the mild numbness in his index, long finger and thumb. Review of the record shows that the Veteran's report of such symptoms began approximately at the date of service connection for residuals of right wrist fracture. In light of the findings on neurologic testing that the Veteran has mild carpal tunnel syndrome in the right wrist, a 10 percent disability rating is warranted. As noted above, ratings for carpal tunnel syndrome are by analogy to the criteria for incomplete paralysis of the median nerve. This rating is applicable to the entire appeals period based on the specific symptoms reported by the Veteran. Entitlement to a higher rating for neurologic residuals of right wrist fracture is not shown by the evidence. Such rating is predicated on the existence of moderate incomplete paralysis of the median nerve. In this case, the medical evidence describes the Veteran's current carpal tunnel syndrome as mild. Moreover, the Veteran's disability picture with respect to residual injury to the median nerve does not include any atrophy of the musculature, impairment in making a fist or flexing any of the fingers, or any similar symptomatology. Therefore, the 10 percent disability rating assigned herein is appropriate and a higher evaluation is warranted by the evidence. In conclusion, the Board finds that the criteria for entitlement to a separate disability rating of 10 percent, but no higher, for the Veteran's right carpal tunnel syndrome, have been met under 38 C.F.R. § 4.124a, Diagnostic Code 8515. Extraschedular Rating Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology with respect to both orthopedic and neurologic residuals of right wrist fracture, and provide for higher ratings for more severe symptoms. As the disability pictures are contemplated by the Rating Schedule, the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to a disability rating in excess of 10 percent for orthopedic residuals of right wrist strain is denied. Entitlement to a 10 percent disability rating for carpal tunnel syndrome is granted, subject to the laws and provisions governing the award of monetary benefits. ____________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs