Citation Nr: 1334075 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 07-35 018 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for benign essential tremors of the left hand. 2. Entitlement to an initial disability rating in excess of 10 percent for benign essential tremors of the right hand. 3. Entitlement to initial disability rating in excess of 10 percent for a right wrist disability, status post fusion due to a fracture. 4. Entitlement to an initial compensable rating for surgical scars of the right wrist. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from September 1999 to June 2006. This matter comes before the Board of Veterans' Appeals (Board) from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In July 2011, the Board remanded these issues for further development. FINDINGS OF FACT 1. The weight of evidence shows that since June 24, 2006, the benign essential tremors of the left hand have been manifested by mild incomplete paralysis of the lower radicular group. 2. The weight of evidence shows that since June 24, 2006, the benign essential tremors of the right hand have been manifested by mild incomplete paralysis of the lower radicular group. 3. Since June 24, 2006, the Veteran has been receiving the maximum rating for limitation of motion of the right wrist. 4. The evidence is in equipoise as to whether Veteran's right wrist scar on the palmar aspect has been since June 24, 2006, a superficial painful scar. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 20 percent for benign essential tremors of the left hand since June 24, 2006, have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.10, 4.14, 4.21, 4.124a, Diagnostic Code 8512 (2013). 2. The criteria for an initial disability rating of 20 percent for benign essential tremors of the right hand since June 24, 2006, have been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.10, 4.14, 4.21, 4.124a, Diagnostic Code 8512. 3. The criteria for an initial disability rating in excess of 10 percent for a right wrist disability, status post fusion due to a fracture, since June 24, 2006, have not been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.10, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5215 (2013). 4. The criteria for a 10 percent disability rating for a surgical scar of the right wrist since June 24, 2006, have been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.118, Diagnostic Code 7804 (2013); 38 C.F.R. § 4.118, Diagnostic Code 7804 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran's claims arise from his disagreement with the initial evaluations of the disabilities on appeal following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required and 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). In any event, VA provided the appellant in May 2006 and November 2007 correspondence Veterans Claims Assistance Act of 2000 (VCAA) notice in accordance with the decision in Quartuccio v. Principi, 16 Vet. App. 183 (2002), and Dingess v. Nicholson, 19 Vet. App. 473 (2006), as well as 38 U.S.C.A. §§ 5102, 5103, and 5103A and 38 C.F.R. § 3.159(b), (c), that informed the appellant of the information and evidence necessary to substantiate his claim for a higher initial rating; notice of which evidence, if any, the claimant is expected to obtain and submit, and which evidence will be retrieved by VA; notice of what evidence is necessary for establishing an effective date; and notice that he should provide any evidence in his possession that pertains to the claims. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording a VA examination. The RO obtained the service and VA treatment records and afforded the appellant VA examinations, to include ones in August 2011 pursuant to the July 2011 Board remand. The Board notes that the VA examinations provided sufficient clinical findings so as to allow the Board to evaluate the severity of his service-connected disabilities. Therefore, the Board finds that these examinations are adequate on which to base a decision. In light of the above and the readjudication of the claims in the June 2012 supplemental statement of the case, VA complied with the directives of the July 2011 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998). Governing law and regulations Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the issues involve the assignment of an initial rating for a disability following the initial award of service connection for that disability, as is the case respect to the Veteran's claim for an increased initial rating, the entire history of the disability must be considered and, if appropriate, staged ratings may be applied. Fenderson v. West, 12 Vet. App. 119 (1999). Diagnostic Code 8515 (paralysis of the median nerve) provides a 70 percent disability rating for the major extremity, and a 60 percent rating for the minor extremity, if paralysis is complete. The factors indicative of complete paralysis consist of the following: 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); incomplete and defective pronation; absence of flexion of the index finger and feeble flexion of the middle finger; inability to make a fist; index and middle fingers remain extended; inability to flex the distal phalanx of the thumb; defective opposition and abduction of the thumb, at right angles to the palm; flexion of the wrist weakened; and pain with trophic disturbances. 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2013). If paralysis is incomplete, the diagnostic code provides a 50 percent disability rating for severe disability in the major extremity and a 40 percent disability rating for severe disability in the minor extremity. For moderate incomplete paralysis, a 30 percent disability rating applies for the major extremity and a 20 percent disability rating is warranted for the minor extremity. A 10 percent disability rating is applicable for mild incomplete paralysis of either extremity. Id. Diagnostic Code 8512 addresses paralysis of the lower radicular group. Where there is complete paralysis (all intrinsic muscles of the hand, and some or all of flexors of wrist and fingers, paralyzed (substantial loss of use of hand), a 70 percent evaluation is assigned for the major extremity and a 60 percent disability rating is warranted for the minor extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8512. If paralysis is incomplete, the diagnostic code provides a 50 percent disability rating for severe disability in the major extremity and a 40 percent disability rating for severe disability in the minor extremity. For moderate incomplete paralysis, a 40 percent disability rating applies for the major extremity and a 30 percent disability rating is warranted for the minor extremity. A 20 percent disability rating is applicable for mild incomplete paralysis of either extremity. Id. Diagnostic Code 8514 provides the rating criteria for paralysis of the musculospiral nerve (radial nerve), and therefore neuritis and neuralgia of that nerve. Complete paralysis of the that nerve, which is rated as 70 percent disabling for the major extremity and 60 percent disabling for the minor extremity, is indicated when there is drop of hand and fingers, wrist and fingers perpetually flexed, the thumb adducted falling within the line of the outer border of the index finger; cannot extend hand at wrist, extend proximal phalanges of fingers, extend thumb, or make lateral movement of wrist; supination of hand, extension and flexion of elbow weakened, the loss of synergic motion of extensors impairs the hand grip seriously; total paralysis of the triceps occurs only as the greatest rarity. 38 C.F.R. § 4.124a, Diagnostic Code 8514 (2013). If paralysis is incomplete, the diagnostic code provides a 50 percent disability rating for severe disability in the major extremity and a 40 percent disability rating for severe disability in the minor extremity. For moderate incomplete paralysis, a 30 percent disability rating applies for the major extremity and a 20 percent disability rating is warranted for the minor extremity. A 20 percent disability rating is applicable for mild incomplete paralysis of either extremity. Id. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a (2013). Limitation of motion of the wrist is evaluated under Diagnostic Code 5215. If dorsiflexion is less than 15 degrees or where palmar flexion is limited in line with the forearm, a 10 percent evaluation is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5215. The normal range of motion of the wrist is the following: dorsiflexion 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 (2013). The applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended effective October 23, 2008. The October 2008 revisions are applicable to claims rated by VA under the prior version that are still pending in the appeals process. 77 Fed. Reg. 2,909 (Jan. 20, 2012). In a February 2012 supplemental statement of the case, the RO considered the claim under amended rating criteria. Under these circumstances, the regulation as it existed prior to the change is applicable to the appellant's claim for the periods prior to and after the dates of the respective regulatory changes, and the revised regulations are applicable from the effective dates of the change forward. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). A 10 percent rating is warranted for scars (other than those involving the head, face, or neck) that are deep or that cause limited motion, provided that they cover an area or areas exceeding 6 square inches (39 sq. cm.). A 20 percent evaluation is warranted provided that they cover an area or areas exceeding 12 square inches (77 sq. cm.). A 30 disability rating is warranted provided that they cover an area or areas exceeding 72 square inches (465 sq. cm.). 38 C.F.R. § 4.118, Diagnostic Code 7801 (2008). Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Id. at Note (1). A deep scar is one associated with underlying soft tissue damage. Id. at Note (2). Revised Diagnostic Code 7801 was amended only slightly, providing for ratings for scars that are deep and non-linear and indicating that a higher 20 percent rating is available for such scars covering an area of "at least" six square inches. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2013). A 10 percent rating is also warranted for scars (other than those on the head, face, or neck) that are superficial and that do not cause limited motion, provided that they cover an area or areas of 144 square inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7803 (2008). A superficial scar is one not associated with underlying soft tissue damage. Id. at Note (2). Revised Diagnostic Code 7802 similarly provides for a maximum 10 percent rating for superficial and nonlinear scars over an area or areas of 144 square inches or greater. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2013). A 10 percent rating is also warranted for scars that are superficial and unstable. 38 C.F.R. § 4.118, Diagnostic Code 7803. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 3 Id. at Note (1). A 10 percent rating is also warranted for a superficial scar that is painful on examination. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2008). Revised Diagnostic Code 7804 provides for ratings for superficial scars, which are either unstable or painful. Under this diagnostic code, a 10 percent rating is warranted for one or two scars that are unstable or painful, a 20 percent rating is warranted for three or four scars that are unstable or painful, and a 30 percent rating is warranted for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2013). Other scars are rated based on the limitation of function of the affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2008). The revised Diagnostic Code 7805 provides that other scars (including linear scars) and other effects of scars evaluated under DCs 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2013). The provisions of 38 C.F.R. § 4.31 indicate that in every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation will be assigned when the required symptomatology is not shown. 38 C.F.R. § 4.31 (2013). Analysis Benign essential tremors of both hands The bilateral essential tremors of both hands are currently rated 10 percent disabling effective June 24, 2006, under Diagnostic Code 8515 (paralysis of the median nerve). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The August 2011 VA peripheral nerves examination report shows that the medial nerve was normal in both extremities and that there is no paralysis of the median nerve in either extremity. Therefore, the benign essential tremors of both hands should be rated under a diagnostic code other than Diagnostic Code 8515. In this case, the August 2011 VA examination report shows incomplete paralysis in the lower radicular group and the radial nerve in both upper extremities. Since the radial nerve is part of the lower radicular group, the Board cannot separately rate the impairments form the lower radicular group and the radial nerve without violating the anti-pyramiding provision of 38 C.F.R. § 4.14. Given that the Veteran's disabilities could be potentially be rated higher in the event of moderate incomplete paralysis under Diagnostic Code 8512 (lower radicular group) than in the event of moderate incomplete paralysis under Diagnostic Code 8514 (radial nerve), the Board will initially rate the bilateral essential tremors of the hands under that diagnostic code. In any event, the Board will address the applicability of Diagnostic Code 8514 (radial nerve) too. Moreover, the RO provided the rating criteria for rating disabilities involving the lower radicular group and radial nerve in an October 2007 statement of the case. Therefore, the Veteran is not prejudiced by the Board's consideration of these rating criteria. Bernard v. Brown, 4 Vet. App. 384 (1993). As noted by the Board in its July 2011 remand, the August 2006 VA examination report did not adequately address functional impact, and thus the neurological impairment, from the essential tremors. The August 2011 VA examination report shows that the examiner determined that there was incomplete paralysis in both radial nerves and that the paralysis was mild in severity. The weight of evidence shows that since June 24, 2006, the benign essential tremors of both hand have been manifested by mild incomplete paralysis of the lower radicular group. Therefore, 20 percent disability ratings for bilateral essential tremors of the hands for the period since June, 24, 2006, are in order. 38 U.S.C.A. § 5107. Turning to whether ratings in excess of 20 percent are warranted for the bilateral essential tremors of the hands since June 24, 2006, a review of the VA examination reports and VA and private treatment records reflects that since June 24, 2006, the bilateral essential tremors of the hands have not been manifested by moderate incomplete paralysis of either lower radicular group or either radial nerve. The August 2011 examiner did not indicate that the incomplete paralysis in both lower radicular groups was greater than mild in severity. Similarly, that examiner did not indicate that the incomplete paralysis in both radial nerves was greater than mild in severity. The examiner did not indicate that any other nerve was affected by the bilateral essential tremors of the hands. In an October 2013 post-remand appellant's brief, the representative argues that higher ratings are warranted for the bilateral essential tremors of the hands on the basis of the presence of severe paresthesias and dysesthesias in the right upper extremity and severe numbness in both upper extremities and pursuant to 38 C.F.R. §§ 4.7, 4.10, 4.21, and 4.40. The Board first notes that 38 C.F.R. § 4.40 applies to the musculosketal system and thus is not applicable to rating a neurological disorder. The examiner noted that the tremors affect his employment because he suffers from decreased manual dexterity. The examiner considered this symptomatology but still determined that the severity of the incomplete paralysis of both lower radicular groups and both radial nerves was no greater than mild in severity. The Board notes that there were no complaints of constant (at times excruciating) pain in either upper extremity. Even with consideration of 38 C.F.R. §§ 4.7, 4.10, and 4.21, the preponderance of competent and probative evidence shows that bilateral essential tremors of the hands since June 24, 2006, have not been manifested by moderate or greater incomplete paralysis of the lower radicular group or the radial nerve in either extremity. According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is 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 Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran'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 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. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability - moderate intermittent (usually dull) pain in both upper extremities, severe paresthesias and/or dysesthesias in the right upper extremity, severe numbness in both upper extremities, and decreased manual dexterity - with the established criteria shows that the rating criteria reasonably describe the level and symptomatology thereof. The criteria specifically provide for evaluation of the disability based upon impairment of the lower radicular group and radial nerve, and they practicably represent the average impairment in earning capacity resulting from the Veteran's service-connected disability. See 38 C.F.R. § 4.1. A right wrist disability, status post fusion due to a fracture While the Veteran has some limitation of motion of the right wrist in dorsiflexion and plantar flexion on both VA examinations, he is receiving the maximum rating for limitation of motion of the wrist. Accordingly, a higher rating under Diagnostic Code 5215 is not warranted. In the absence of ankylosis, consideration under Diagnostic Code 5214 is not warranted. While the appellant had 3/5 muscle strength in both right wrist flexion and extension, there is no medical evidence of a muscle group injury. Therefore, consideration under a muscle group diagnostic code is not warranted. An additional evaluation for pain on movement pursuant to 38 C.F.R. §§ 4.40, 4.40, and 4.59 and DeLuca v. Brown, 8 Vet. App. 202 (1995) or pursuant to 38 C.F.R. §§ 4.7, 4.10, and 4.21 is not authorized when the Veteran is receiving the maximum evaluation under the pertinent diagnostic code. See Johnston v. Brown, 10 Vet. App. 80 (1997). As to extra-schedular consideration, with respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability - limitation of palmar flexion and dorsiflexion, 3/5 muscle strength in wrist flexion and extension, decreased manual dexterity, an inability to lift or carry items, and weakened grip strength - with the established criteria shows that the rating criteria reasonably describe the level and symptomatology thereof. The criteria specifically provide for evaluation of the disability based upon impairment of the wrist based on limitation of motion and resultant disability from limitation of motion, and they practicably represent the average impairment in earning capacity resulting from the Veteran's service-connected disability. See 38 C.F.R. § 4.1. In summary, for the reasons and bases set forth above, the Board concludes that the most credible and probative evidence weighs strongly against finding that to a rating in excess of 10 percent for a right wrist disability, status post fusion due to a fracture is warranted. Therefore, the preponderance of the evidence is against the claim, and it is denied. Surgical scars of the right wrist A December 2007 private treatment record shows that the Veteran reported that he had occasional tenderness on the scar on the palmar aspect of the right wrist. The appellant is competent to report this symptomatology and the Board finds him credible. The August 2006 VA examination report does not address whether any right wrist surgical scar is painful or tender. The August 2011 VA examination report reflects that the surgical scars were not painful. Given that the claimant reported this symptomatology during the course of private treatment rather than at a VA examination for compensation purposes, the evidence is in equipoise as to whether Veteran's right wrist scar on the palmar aspect has been since June 24, 2006, manifested by a superficial painful scar. Thus, a 10 percent disability rating for surgical scars of the right wrist for the period since June, 24, 2006, is in order. 38 U.S.C.A. § 5107. Turning to whether a rating in excess of 10 percent disability rating is warranted for surgical scars of the right wrist for the period since June, 24, 2006, the August 2011 VA examiner indicated that the scars were superficial. There is no medical evidence that the scars cause limitation of motion of the right wrist. Therefore, a higher rating is not warranted under the old rating criteria for scars. The medical evidence shows that the Veteran only has two scars, and the August 2011 VA examiner specifically noted that there were no scars that were both painful and unstable. Thus, a higher rating is not warranted under the current rating criteria for rating scars. As to extra-schedular consideration, with respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability - tenderness of one scar - with the established criteria shows that the rating criteria reasonably describe the level and symptomatology thereof. The criteria specifically provide for evaluation of the disability based upon impairment of scars based on pain, and they practicably represent the average impairment in earning capacity resulting from the Veteran's service-connected disability. See 38 C.F.R. § 4.1. Total disability rating based on individual unemployability Given the Veteran's own acknowledgement that he works as a computer program analyst, the Board does not believe that he has raised a claim for TDIU. Rather, instead of intending to assert that he is totally incapable of substantial gainful employment, the Board interprets his reporting of his employment impairments as merely intending to demonstrate the degree of disability he has experienced so as to support his claim for higher schedular ratings. Accordingly, the Board concludes that the issue of TDIU has not been raised in this case. ORDER Entitlement to an initial 20 percent disability rating for benign essential tremors of the left hand since June 24, 2006, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial 20 percent disability rating for benign essential tremors of the right hand since June 24, 2006, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial rating in excess of 10 percent for a right wrist disability, status post fusion due to a fracture, since June 24, 2006, is denied. Entitlement to an initial 10 percent disability rating for surgical scars of the right wrist since June 24, 2006, is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs