Citation Nr: 1336817 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 11-21 503 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an increased rating for residuals of a scaphoid fracture of the right wrist, status post arthroscopy, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1991 to November 1993. This case is before the Board of Veterans' Appeals (Board) on appeal from a rating decision in May 2010 by a Regional Office (RO) of the Department of Veterans Affairs (VA). Records in the Virtual VA paperless claims processing system and Veterans Benefits Management System have been reviewed and considered. FINDINGS OF FACT 1. The Veteran's right wrist disability is manifested by complaints of pain, fatigue, weakness, stiffness, incoordination, locking episodes, flare-ups, limited motion, tenderness, swelling, warmth, and decreased range of motion; there is no objective evidence of ankylosis or neurological impairment. 2. The Veteran is right-hand dominant. 3. 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 Veterans Claims Assistance Act of 2000 (VCAA) 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 (2013). Duty to Notify When VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In a claim for increase, VA is required to notify the Veteran of the type of evidence needed to substantiate the claim, which is evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to effect on daily life and as to the Diagnostic Code under which the disability is rated). VA must also notify the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter in March 2010. The Veteran was notified of the evidence needed to substantiate the claim for an increased rating as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA, and information concerning how disability ratings and effective dates are assigned. Thus, VA has fulfilled its duty to notify. Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Service treatment records, post-service treatment records, and lay statements have been associated with the record. Additionally, during the appeal period the Veteran was afforded a VA orthopedic examination in April 2010. The Veteran has not argued that the April 2010 examination is inadequate. While the Veteran continues to complain of pain, the evidence does not show a material change in disability since the April 2010 VA examination, and a new examination under 38 C.F.R. § 3.327 is not warranted. (See May 2010 VA Nurse Intake Note.) The examiner conducted an examination and provided sufficient information such that the Board can render an informed determination. The Board finds that the orthopedic examination in conjunction with the other medical and lay evidence is adequate for rating purposes. Because there is no indication in the record that any additional evidence pertinent to the claim is available and unassociated with the claims file, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Rating Principles In evaluating the severity of a certain 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. 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). 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 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. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 the forearm. The Board observes that the 10 percent rating is the maximum rating provided under Diagnostic Code 5215. 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). In evaluating musculoskeletal disabilities, the VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See Deluca, at 206. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court has also recently held, that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination[, or] endurance." Id., quoting 38 C.F.R. § 4.40. Analysis In February 2010 the Veteran filed an increased rating claim for his service-connected right wrist disability. The Veteran submitted lay statements in September 2010 and October 2010. These statements contend that the Veteran's daily activities are limited due to his right wrist disability. On private examination in April 2010, the wrist was tender on palpation. Dorsiflexion was about 50 degrees, and there was full volar flexion. The Veteran was found to make a normal fist. Tenderness to forced dorsiflexion was noted. X-ray studies showed normal anatomy, no fracture, no pathologic process, and no dissociation. On examination in May 2010, the private physician noted a well healed scar over the dorsum of the wrist. Dorsiflexion was about 40 degrees, and volar flexion was 50 degrees. In a June 2010 MRI report, the private physician found that the Veteran's right wrist had a defect involving the mid scaphoid that "could represent postoperative change/ cyst formation." He also found dorsal tilting of the lunate that raises the possibility of instability. In a June 2010 chart note, the physician stated that the prior MRI "demonstrated some degenerative changes in the wrist seen on the far radial aspect of the wrist consistent with a radial styloidectomy along with degenerative changes seen in the [triangular fibrocartilage complex] TFCC region consistent with a TFCC tear." On examination in June 2010, dorsiflexion was about 35 degrees, volar flexion was 40 degrees, the Veteran made a normal fist, and the digits were sensate. On examination in August 2010, dorsiflexion was about 50 degrees, limited by tenderness, and volar flexion was about 40 degrees. X-ray studies "demonstrate some reactive changes in the scaphoid," which may be degenerative in nature. The August 2010 chart note indicated that the right hand makes a normal fist without deficiency, and each finger can reach the distal palmar crease. In a January 2011 private treatment record, the Veteran reported joint pain, redness or swelling, and heat in joints. The Veteran was afforded a VA orthopedic examination of his right wrist in April 2010. The Veteran reported that he continues to have pain, decreased range of motion, and occasional locking. The Veteran's symptoms include deformity, giving way, pain, stiffness, weakness, incoordination, and decreased speed of joint motion. The Veteran denied instability, episodes of dislocation or subluxation, effusions, and other symptoms. The Veteran also reported locking episodes happening daily or more often; inflammation manifested by warmth, swelling, and tenderness; and severe flare-ups occurring weekly for one or two days. His subjective impression of impairment includes pain that reduced joint movement by 50% and avoidance of activities requiring repetitious motion, lifting, and carrying. The general joint findings include tenderness, pain at rest, weakness, abnormal motion, and guarding of movement. There was objective evidence of pain with active motion. Right dorsiflexion was 0 to 65 degrees; right palmar flexion was 0 to 58 degrees; right radial deviation was 0 to 38 degrees; and right ulnar deviation was 0 to 28 degrees. There was objective evidence of pain following repetitive motion. The examiner reported that there was no joint ankylosis. The Veteran was diagnosed as having status post scaphoid fracture, healed but with chrondromalacia of scaphoid and radius, status post radial styloidectomy. The examiner found that the disorder had significant effects on employment as the Veteran had problems with lifting and carrying, weakness or fatigue, decreased strength of the upper extremity and pain. The disorder had no effect on traveling, feeding, bathing, toileting, and grooming but did have a mild effect on shopping, recreation, dressing, and driving. It also had a moderate effect on exercise and chores and a severe effect on sports. An August 2010 VA x-ray report provides an impression that no significant degenerative changes were identified. Virtual VA shows pertinent VA treatment records. In a June 2012 VA treatment record, the Veteran reported continued pain, paresthesias, and "crepitation in the wrist which occurs 1-2x per day, like 'cracking knuckles.'" Dorsiflexion and palmar flexion were 45 degrees. The assessment was chronic right wrist pain status post radial styloidectomy and PIN neurectomy in 2003 and wrist arthroscopy in 2005 with findings of grade I chondromalacia of the radioscaphoid joint and prominent scapholunate ligament. With respect to the applicable rating criteria, the Veteran is currently assigned a 10 percent disability rating under Diagnostic Code 5215. The Board has considered the criteria under Diagnostic Code 5215 and any additional functional loss due to pain, pain on movement, swelling, atrophy, fatigue, weakness, incoordination, to include during flare-ups and with repeated use. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). However, a 10 percent disability rating is the highest schedular rating available for limitation of motion of motion, accordingly consideration of whether a higher rating is warranted based on flare-ups, weakness, fatigability, incoordination or pain on movement is not warranted. See Johnson v. Brown, 9 Vet. App. 7 (1996). For this reason, the Board is unable to grant a higher schedular rating under Diagnostic Code 5215. The Board notes that higher disabilities ratings are contemplated for ankylosis of the wrist under Diagnostic Code 5214. 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)). The rating criteria also provide higher ratings for neurological impairments. The Board has considered the Veteran's statements that describe locking and paresthesias. The Veteran is certainly competent to describe his observations and the Board finds his statements are credible. However, the Board finds the objective medical findings by skilled medical professionals are more persuasive, and these do not support a finding of ankylosis or neurological impairment. The VA examiner found the joint was not ankylosed and a VA clinician in June 2012 found that Tinel's, Phalen and Compression testing was negative. Therefore, consideration of additional or higher ratings under other Diagnostic Codes is not warranted. The Board has also considered the potential applicability of scar ratings pursuant to 38 C.F.R. § 4.118, however, the scarring is not at least six inches (39 cm), unstable or painful. See VA examination report of July 2008, Diagnostic Codes 7801-7804, 38 C.F.R. § 4.118. The Veteran's private physician has also assessed the incisional scar as well healed. While he stated in an April 2010 chart note that "[t]here is a well healed incision over the dorsum of the wrist, which is tender to palpation," his June 2010 treatment record makes clear that the "tenderness to palpation [is] over the radial, dorsal and ulnar aspects of the wrist," and his August 2010 chart note indicates there is "tenderness to palpation over the dorsum of the scapholunate interval and over the radial aspect of the wrist" rather than with respect to the well healed scar. In addition, the Veteran has not asserted that the scarring is symptomatic. Accordingly, the ratings pertaining to compensable ratings for scarring are not applicable. As the disability manifestations and the Veteran's statements have been consistent throughout the current appeal period, staged ratings are not appropriate. At no point during the period of time that is covered by this claim have the criteria for a higher rating been met. On reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against finding that a rating in excess of 10 percent for the Veteran's right wrist disability is warranted, and the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107(b). Extraschedular consideration While the Board does not have authority to grant an extraschedular rating, the Board may decide whether the claim should be referred for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). To find for an extraschedular rating, the case must present such an exceptional or unusual disability picture, with related factors such as marked interference with employment or necessitated frequent periods of hospitalization, so as to render the regular schedular standards impractical. 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. Here, the rating criteria, including application of the DeLuca factors, fully describe the Veteran's disability levels and symptomatology pertaining to his service-connected right wrist disability. The Veteran's residuals of a scaphoid fracture of the right wrist, status post arthroscopy, is manifested by pain, swelling, weakness, stiffness, and incoordination, which ultimately results in decreased range of motion. The rating criteria contemplate these impairments, and therefore the assigned schedular rating is adequate. Thus, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to an increased rating for residuals of a scaphoid fracture of the right wrist, status post arthroscopy, currently evaluated as 10 percent disabling is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs