Citation Nr: 1333604 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 07-20 387 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased rating for a radial collateral ligament injury of the right wrist, currently evaluated 10 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1988 to January 1992. This matter is before the Board of Veterans' Appeals (the Board) on appeal of a February 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the Veteran's claim for an increased disability rating in excess of 10 percent for her service-connected right wrist disability. The Veteran testified at a June 2010 hearing held at the RO before the undersigned Acting Veterans Law Judge (AVLJ). A transcript of the hearing has been associated with the Veteran's claims folder. In August 2010 and December 2012, the Board remanded the Veteran's appeal for additional evidentiary development. Such was achieved, and the Appeals Management Center (AMC) readjudicated the Veteran's increased rating claim in November 2011 and March 2013 supplemental statements of the case (SSOCs). The Veteran's claims folder has been returned to the Board for further appellate review. The Board notes that in a March 2013 rating decision, the RO denied the Veteran's claim of entitlement to a total rating based on unemployability due to service-connected disability (TDIU). A review of the record reveals that the Veteran has not filed a notice of disagreement as to the denial of this claim at this time. As such, this issue will not be discussed herein. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) (pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA). The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. FINDINGS OF FACT 1. The competent and credible evidence of record indicates that the Veteran's right wrist disability is currently manifested by pain and limitation of motion; ankylosis of the right wrist is not shown. 2. The evidence does not show that the Veteran's service-connected right wrist disability is so exceptional or unusual that referral for extraschedular consideration by designated authority is required. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for the service-connected right wrist disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5215 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. A July 2006 letter 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). This letter 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). Finally, the Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning in a May 2008 letter. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in a March 2013 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; although the Veteran identified additional potentially relevant private records from Dr. RDH, she failed to respond to VA requests for records or authorization to obtain them on her behalf following the Board remands. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration disability determination, and the records considered in that determination, were obtained in compliance with Board remand directives. 38 C.F.R. § 3.159(c)(2). AN updated VA examination was conducted in February 2013; the Veteran was additionally examined in October 2010. The examiners made all clinical findings and performed all testing necessary for application of the rating criteria, and hence they are adequate for adjudication. The Veteran has not argued that the examinations are inadequate. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). 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). Analysis In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the Veteran's complaints and the clinical findings related to the wrist have been consistent throughout the appellate period, and no staged ratings are appropriate. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. 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 the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The Veteran's service-connected right wrist disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5215 (wrist, limitation of motion), which provides for the assignment of a 10 percent disability rating with dorsiflexion less than 15 degrees or palmar flexion limited in line with forearm. The Board observes that the 10 percent rating is the maximum rating provided under Diagnostic Code 5215. The Board notes that Diagnostic Code 5214 (wrist, ankylosis of), which is the only other diagnostic code which specifically references the wrist, is not appropriate for application in this case because, as is discussed below, there is no evidence of ankylosis in the record. Ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). In evaluating any disability on the basis of limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran was provided a VA examination in May 2007. She complained of right wrist pain which was increased from using a computer at work. She used a splint when she worked. She also reported a weak grip and that she drops objects such as pans at home. She did not do many chores at home, although she drove a car. She did not report flare-ups or incoordination. However, she had weakened endurance and fatigue. She used Aleve for treatment. Upon examination, the VA examiner reported no swelling or heat of the Veteran's right wrist. She had tenderness over the radial styloid process and this pain extended up about 5 cm proximal. Range of motion testing revealed 25 degrees dorsiflexion and extension of 25 degrees without pain. She had 20 degrees of radial deviation and 25 degrees of ulnar deviation without pain. She had a negative Finkelstein's sign. She was able to adduct the thumb 25 degrees and abduct the thumb 50 degrees without pain. She could approximate the thumb to the pads of each finger. She could flex the metacarpophalangeal joints 90 degrees, the distal interphalangeal joints 90 degrees, and the proximal interphalangeal joints 45 degrees, with zero degrees of extension. With repetitive motion, there was no change in range of motion, coordination, fatigue, endurance, or pain level. An X-ray report revealed negative findings. The examiner reported an impression of radial collateral ligament strain with chronic pain. The Board adds that a VA treatment record dated January 2010 notes the Veteran's complaint of right wrist pain which she stated started at the palm and radiated to the upper arm. She took ibuprofen with no improvement. She used a wrist brace at her home. She was assessed with right wrist pain and noted to be in stable condition. The Veteran was provided a subsequent VA examination in October 2010. She continued her complaints of right wrist pain which radiated to her shoulder and fingers. The examiner noted that she was left hand dominant. The Veteran also reported use of a brace at night. She specifically noted difficulty using a mouse on her computer. She also noted a weak grip, although she continued to drive. She used ibuprofen for treatment which offered her modest relief. She had no flare-ups or incoordination but had lack of endurance and fatigue. She had no surgery or injections. Upon examination, the VA examiner reported tenderness on palpation of the carpal bones. Range of motion testing revealed 15 degrees dorsiflexion with pain, volar flexion of 20 degrees without pain, 5 degrees of ulnar and radial deviations with pain, 30 degrees abduction of the thumb and no adduction. When the Veteran attempted adduction she experienced pain. She was able to flex the metacarpophalangeal joints 90 degrees, the proximal interphalangeal joints 90 degrees, and the distal interphalangeal joints 45 degrees with full extension. She had a weak grip strength as well as weak pushing and pulling on the right. With repetitive motion times three there was no change in range of motion, coordination, fatigue, endurance, or pain level. The examiner noted that since her last VA examination, she had a decrease in her range of motion and increase in the level of pain. The Veteran was afforded an additional VA examination in February 2013. The Veteran continued her report of right wrist pain and weakness as well as numbness in her fingers. She did not report flare-ups. She noted that she last worked in July 2011, and was on disability due to her posttraumatic stress disorder (PTSD) and depression. Upon examination, range of motion testing revealed right wrist palmer flexion to 45 degrees with pain at zero degrees and dorsiflexion to 70 degrees or greater with pain at zero degrees. The Veteran was able to perform repetitive-use testing with three repetitions with no additional limitation in range of motion. The examiner reported that the Veteran had functional loss and/or functional impairment of the wrist which was manifested by less movement than normal, weakened movement, and pain on movement. She also had localized tenderness or pain on palpation of the joints and soft tissue. Muscle strength testing was 4/5 for right wrist flexion and extension. The examiner did not report ankylosis of the right wrist. He also did not find functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The Board also notes the Veteran's statements of record detailing her right wrist symptomatology. Notably, she testified at the June 2010 Board hearing that she experienced numbness and tingling in her fingers as well as flare-ups and sleep impairment. She also indicated decreased right wrist strength and was not able to perform activities such as typing. Furthermore, she has stated that she is not able to open cans or jars or pick up objects. Additionally, the Veteran's son submitted statements dated June 2008 and August 2010 which document the Veteran's difficulty opening and lifting objects. Thus, a careful review of the record therefore demonstrates that the Veteran experiences functional loss and limitation of motion due to her right wrist disability; however, ankylosis of the right wrist is not shown. With respect to the applicable rating criteria, the Veteran is currently assigned a 10 percent disability rating under Diagnostic Code 5215. A 10 percent disability rating is the highest schedular rating available. As such, the Board is unable to grant a higher schedular rating under these criteria. While higher disabilities ratings are contemplated for ankylosis of the wrist under Diagnostic Code 5214, the evidence does not show that the Veteran's right wrist has been manifested by symptoms consistent with ankylosis at any time during the course of the appeal, even upon consideration of the actual degree of functional impairment due to factors such as pain, weakness, fatigability, incoordination, and lack of endurance. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board stresses that the assigned evaluation represents impairment of the wrist joint, and does not encompass the reports of pain, weakness, and tingling of the fingers. A claim for this aspect of disability was separately adjudicated in a May 2013 rating decision, and denied; the time in which to appeal that determination has not yet expired. Consideration has been given to the possibility of assignment of an extraschedular evaluation under 38 C.F.R. § 3.321. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology. Id. At 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. At 116. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The criteria here are adequate, as they fully address the complaints of limitation of motion of the wrist joints, to include under application of the DeLuca factors. They do not address complaints such as loss of grip strength, but as is noted, such are part of a separate claim for a hand disability, and are not considered as part of the wrist. The preponderance of the evidence is against the claim; there is no doubt to be resolved. An evaluation in excess of 10 percent for a right wrist disability is not warranted. ORDER Entitlement to an increased rating for a radial collateral ligament injury of the right wrist, currently evaluated 10 percent disabling is denied. ____________________________________________ WILLIAM .H. DONNELLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs