Citation Nr: 1336559 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 07-35 923 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for a right wrist disability. 2. Entitlement to an initial evaluation in excess of 10 percent for a right ankle disability. 3. Entitlement to an initial evaluation in excess of 10 percent for a left ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran had active service from April 2000 to April 2005. This matter comes before the Board of Veterans' Appeals (Board) from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The VA RO in Indianapolis, Indiana currently has jurisdiction over the Veteran's claims file. In May 2012, the Board remanded the claims for further development. FINDINGS OF FACT 1. Since April 26, 2005, the Veteran has been receiving the maximum rating for limitation of motion of the right wrist, and the weight of evidence shows no neurological impairment in the right wrist since April 26, 2005. 2. The weight of evidence shows that since April 26, 2005, the right ankle disability has not been productive of a marked limitation of motion. 3. The weight of evidence shows that since April 26, 2005, the left ankle disability has not been productive of a marked limitation of motion. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for a right wrist disability since April 26, 2005, have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5215-8515 (2013). 2. The criteria for an initial disability rating in excess of 10 percent for a right ankle disability since April 26, 2005, 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, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5271 (2013). 3. The criteria for an initial disability rating in excess of 10 percent for a left ankle disability since April 26, 2005, 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, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran's claims arise from her 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 October 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. Pursuant to the remand, VA obtained the Veteran's Social Security Administration disability claim records. 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 December 2012 supplemental statement of the case, VA complied with the directives of the May 2012 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). 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). Diagnostic Code 8515 (paralysis of the median nerve) provides a 70 percent disability rating for the major 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. For moderate incomplete paralysis, a 30 percent disability rating applies for the major extremity. A 10 percent disability rating is applicable for mild incomplete paralysis of either extremity. Id. For degenerative arthritis, in the absence of limitation of motion, a 10 percent disability rating is warranted when there is involvement of two or more major joint or two or more minor joints. When the limitation of motion of the affected part is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2013). The ankle is considered a major joint. 38 C.F.R. § 4.45. Diagnostic Code 5271 (ankle, limited motion of) calls for the assignment of a 10 percent disability rating for moderate limitation of motion and a 20 percent disability rating for marked limitation of motion. 38 C.F.R. § 4.71, Diagnostic Code 5271. Under 38 C.F.R. § 4.71, Plate II (2013), normal range of motion for the ankle is 20 degrees dorsiflexion and 45 degrees plantar flexion. Analysis Right wrist disability In the August 2006 rating decision, VA granted service connection for recurring right wrist strain effective April 26, 2005, and assigned a zero percent (noncompensable) disability rating effective that same day under Diagnostic Code 5215-8515. Later in a February 2010 rating decision, a 10 percent disability rating was assigned for the right wrist disability effective April 26, 2005. In that decision, the RO determined that the 10 percent was assigned for mild, incomplete paralysis of hand movements. While the Veteran has some limitation of motion of the right wrist in dorsiflexion and palmar flexion on the last two of the four VA examinations, she 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. 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) 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). The Board recognizes that the RO has rated the right wrist disability under Diagnostic Code 8515. Therefore, the Board must consider whether a higher rating is warranted under Diagnostic Code 8515. At the December 2008 VA general medical examination, the pinprick test revealed normal skin sensitivity, temperature, and vibration senses, and that there was no paralysis. At the July 2010 VA general medical examination, there were no affected nerves in the right upper extremity and vibration, position sense, pain or pinprick, and light touch were normal. There were no dysesthesias. The motor examination reflected that the right wrist flexion and extension had active movement against full resistance. At a November 2011 VA examination, the right wrist flexion and extension strength was 5/5, and the examiner noted that there were no other pertinent physical findings, complications, conditions, signs, or symptoms related to the right wrist. Thus, the weight of evidence shows no neurological impairment in the right wrist since April 26, 2005, certainly no degree impairment consistent with more than mild, incomplete paralysis, and a higher rating is not warranted under Diagnostic Code 8515. As the current disability rating was assigned by the RO under Diagnostic Code 8515, the Board has considered whether a separate disability may be warranted under Diagnostic Code 5215. However, as both codes contemplate impairment in movement of the wrist, the Board concludes that separate ratings would violate the provisions of 38 C.F.R. § 4.14. 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 - limitation of dorsiflexion and palmar flexion, taking breaks after 30 minutes of typing, and an intermittent inability to carry a gallon of milk - 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 limitation of motion of the wrist, 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 a rating in excess of 10 percent for a right wrist disability is warranted. Therefore, the preponderance of the evidence is against the claim, and it is denied. Bilateral ankle disabilities In the August 2006 rating decision, VA granted service connection for right ankle pain and left ankle effusion effective April 26, 2005, and assigned zero percent (noncompensable) disability ratings effective that same day. Later in a February 2010 rating decision, 10 percent disability ratings were assigned for both disabilities effective April 26, 2005. 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). An October 2006 VA magnetic resonating imaging (MRI) scan of the right ankle revealed early mild degenerative changes. Moreover, a VA podiatrist diagnosed rheumatoid arthritis based on the October 2006 VA MRI scan. On the other hand, the Veteran underwent a rheumatology consult in December 2007 by a VA nurse practitioner in which rheumatoid arthritis was not diagnosed. The remaining VA treatment records as well as the VA examination reports reflect no diagnosis of rheumatoid arthritis involving the right ankle. While the Board is not free to ignore the opinion of a treating physician, neither is it required to accord it additional weight. Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993). The United States Court of Appeals for the Federal Circuit (the Federal Circuit) has declined to adopt a "treating physician rule," which would give preference, i.e., additional evidentiary weight, to this type of evidence. White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The United States Court of Appeals for Veterans Claims (the Court) has also held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). A medical opinion may not, however, be discounted solely because a medical professional did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Rather, the question is whether the medical professional was informed of all relevant facts in rendering a medical opinion. Id. The Board gives greater weight to all the medical evidence showing no diagnosis of rheumatoid arthritis than the one diagnosis made by a podiatrist of rheumatoid arthritis. In particular, the Board gives great weight to the rheumatology consult showing no diagnosis of rheumatoid arthritis given the VA nurse practitioner's expertise in rheumatology. See Black v. Brown, 10 Vet. App. 279, 284 (1997) (an opinion may be reduced in probative value even where the statement comes from someone with medical training, if the medical issue requires special medical knowledge). Thus, the weight of evidence is against a finding that the Veteran has rheumatoid arthritis in the right ankle. As such, Diagnostic Code 5002 (rheumatoid arthritis) is not applicable to these claims. A review of the VA examination reports and VA treatment records (to include the ones in the Social Security Administration records) reflect that the weight of evidence shows that since April 26, 2005, the right ankle disability has not been productive of a marked limitation of motion, and that the weight of evidence shows that since April 26, 2005, the left ankle disability has not been productive of a marked limitation of motion. At the February 2006 VA examination, range of motion in both ankles was 20 degrees of dorsiflexion and 45 degrees of plantar flexion. While a February 2007 VA treatment record reflects that dorsiflexion was to 5 degrees and planar flexion was to 25 degrees bilaterally, the evidence reflects that this amount of limitation of motion is still moderate as opposed to marked because the total loss of motion was only 35 degrees out of a possible 65 degrees. See 38 C.F.R. § 4.71a, Plate II. Although a May 2007 VA treatment record reveals that ankle range of motion was 10 degrees out of 40 bilaterally, that treatment record apparently only addresses plantar flexion and does not provide a range of motion for dorsiflexion. See id. As such, this treatment record lacks complete range of motion testing and cannot be considered evidence showing a marked loss of range of motion. At the December 2008 VA examination, there was full range of motion in the right ankle. The December 2008 VA examiner did not report the range-of-motion testing in the left ankle. At the July 2010 VA examination, range of motion in both ankles was 20 degrees of dorsiflexion and 45 degrees of plantar flexion. Similarly, at the November 2011 VA examination, range of motion in both ankles was 20 or greater degrees of dorsiflexion and 45 or greater degrees of plantar flexion. The Board has considered the holding in DeLuca v. Brown, 8 Vet. App. 202 (1995) and 38 C.F.R. §§ 4.40, 4.45, and 4.59, but finds that a schedular evaluation in excess of 10 percent is not warranted in either ankle. At the February 2006 VA examination, repetitive range of motion testing did not reveal any pain, discomfort, fatigue, or weakness in either ankle. At the December 2008 VA examination, after repetitive motion, the Veteran had increased pain, easy fatigability, and lack of endurance in both ankles, but no change in range of motion in either ankle. At the July 2010 VA examination, there was no objective evidence of pain following repetitive motion and there were no additional limitations after three repetitions of range of motion testing. At the November 2011 VA examination, there was non-pitting edema/swelling bilaterally and a bony joint enlargement on the right medially. Nonetheless, the examiner noted that the Veteran was wearing inexpensive flip-flops at the examination. Moreover, when the Veteran reported chronic pain, there was no pain response to palpation or range of motion testing. The pedal pulses were strong. Furthermore, there was no additional limitation of motion following repetitive-use testing, nor was there less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, or pain on movement following repetitive-use testing. 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 disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability - limitation of plantar flexion and dorsiflexion, swelling/edema, pain, tenderness, a bony joint enlargement, and an inability to stand for longer than 15 minutes - 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 ankles 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 ratings in excess of 10 percent for the right and left ankle disabilities is warranted. Therefore, the preponderance of the evidence is against the claims, and they are denied. Total disability rating based on individual unemployability The Board notes that in a September 2010 rating decision VA granted a total disability rating based on individual unemployability. ORDER Entitlement to an initial rating in excess of 10 percent for a right wrist disability since April 26, 2005, is denied. Entitlement to an initial rating in excess of 10 percent for a right ankle disability since April 26, 2005, is denied. Entitlement to an initial rating in excess of 10 percent for a left ankle disability since April 26, 2005, is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs