Citation Nr: 1336890 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 08-04 219 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an increased rating for status post fracture of the right wrist with degenerative joint disease, rated as 10 percent disabling prior to July 24, 2012, and as 50 percent disabling from that date. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1983 to February 1989. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2010, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. In September 2010 and November 2011, the Board remanded the claim for further development. A September 2012 rating decision by the Appeals Management Center increased the evaluation for the Veteran's right wrist disability to 50 percent, effective July 24, 2012. In February 2013, the Board remanded the claim for further development. In addition, in September 2013, the Board obtained a Veterans Health Administration (VHA) opinion in connection with the appeal. The Board thereafter provided the Veteran with a copy of the VHA opinion and an opportunity to respond. In light of the physical examination findings all showing some motion and the opinion of the orthopedic specialist, the Board will leave it to the discretion of the RO whether corrective action is needed pursuant to 38 C.F.R. § 3.105(a). FINDINGS OF FACT 1. The most probative evidence indicates that the Veteran's right wrist is not ankylosed. 2. The preponderance of the evidence shows that the Veteran does not have neurologic impairment of the right wrist. CONCLUSIONS OF LAW 1. Prior to July 24, 2012, the criteria for an evaluation in excess of 10 percent for status post fracture of the right wrist with degenerative joint disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 4.71a, Diagnostic Codes 5214, 5215 (2013). 2. From July 24, 2012, the criteria for an evaluation in excess of 50 percent for status post fracture of the right wrist with degenerative joint disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 4.71a, Diagnostic Codes 5215 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). In this case, in letters dated March 2007 and May 2008, the Veteran was provided compliant VCAA notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letters also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The case was last adjudicated in May 2013. VA also has a duty to assist the Veteran in the development of the claim. The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Records associated with the Veteran's claims file include service treatment records, post service treatment records, VA examination reports, a VHA opinion and hearing testimony. The Veteran was afforded a hearing before a Veterans Law Judge (VLJ) in August 2010, in which he presented oral argument in support of his increased rating claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the VLJ identified the issue and the Veteran testified as to his current symptomatology and treatment history. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim and the Veteran testified as to those elements. As such, the Board finds that there is no prejudice to the Veteran in deciding this case and that no further action pursuant to Byrant is necessary. Additionally, this case was remanded by the Board in September 2010, November 2011 and February 2013 for additional development, to include requesting outstanding VA and non-VA treatment records and providing VA examinations. These directives have been accomplished. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has not indicated the existence of additional pertinent evidence. Hence, 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). Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2013); see also 38 C.F.R. §§ 4.45, 4.59 (2013). However, the Veteran is already in receipt of the maximum rating for limitation of motion of a wrist, and pain and functional impairment cannot service to assign a higher rating. See Johnston v. Brown, 10 Vet. App. 80, 5 (1997) (even though there was evidence that the appellant had some functional loss due to pain in his wrist, a remand for to consider functional loss due to pain was not appropriate because the appellant was already receiving the maximum disability rating available for limitation of motion of the wrist). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran seeks higher disability rating for his service-connected status post fracture of the right wrist with degenerative joint disease, rated as 10 percent disabling prior to July 24, 2012, and as 50 percent disabling from that date. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. 38 C.F.R. § 4.69. The evidence in this case consistently shows that the Veteran is right-handed. Therefore, his right wrist disability is evaluated as the major extremity. Disabilities of the wrist are rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5214 (ankylosis) or Diagnostic Code 5215 (limitation of motion). Under Diagnostic Code 5214, pertaining to ankylosis of the major wrist, a rating of 30 percent is warranted for favorable ankylosis of the major wrist in 20 degrees to 30 degrees of dorsiflexion; 40 percent is warranted for ankylosis of the major wrist in any other position, except favorable; and a maximum 50 percent rating is warranted for unfavorable ankylosis of the major wrist in any degree of palmar flexion, or with ulnar or radial deviation. 38 C.F.R. § 4.71a, Diagnostic Code 5214. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Under Diagnostic Code 5215, a 10 percent rating is warranted for the major wrist when there is dorsiflexion less than 15 degrees, or when palmar flexion is limited in line with the forearm. A 10 percent disability rating is the maximum schedular rating provided for limitation of motion of the wrist. 38 C.F.R. § 4.71a. Normal range of motion of the wrist is: radial deviation from 0 to 20 degrees; ulnar deviation from 0 to 45 degrees; dorsiflexion from 0 to 70 degrees; and palmar flexion from 0 to 80 degrees. 38 C.F.R. § 4.71a, Plate I. The Veteran was afforded a VA examination in March 2007. The Veteran reported that he experienced weakness, stiffness, swelling, lack of endurance and fatigability in his right wrist. He said that he suffered from intermittent pain, three or four hours a week and that the pain traveled up to his shoulders. The pain was described as aching and pressing and was an 8/10. The pain was relieved with Tylenol, massage and compression. It was noted that when the Veteran experienced pain in his right wrist, he could function without medication and that there was no incapacitation. Upon examination, the Veteran's dorsiflexion was to 60 degrees, with pain beginning at that point. Palmar flexion was to 50 degrees with pain beginning at that point. Radial deviation was to 20 degrees with pain beginning at 10 degrees. Ulnar deviation was to 45 degrees with pain beginning at 30 degrees. The examiner reported that after repetitive use on the right wrist, the Veteran experienced fatigue, weakness, lack of endurance and incoordination. He was diagnosed with status post fracture right wrist and degenerative joint disease based on history and abnormal findings on examination. The Veteran underwent a VA examination in September 2009. The Veteran reported flare-ups, occurring up to three times a week. The flare-ups would last for 12 hours and the severity of pain was a 9/10. The pain was alleviated by rest and a wrist splint. During the flare-ups, the Veteran experienced pain on flexing, twisting or bending of the wrist, loss of strength and limitation of motion. The Veteran reported that pulling, pushing or lifting objects was painful and activities such as writing or typing were limited to five minutes due to pain. Upon examination, the Veteran's dorsiflexion was to 30 degrees, with pain beginning at 20 degrees. Palmar flexion was to 20 degrees with pain beginning at 15 degrees. Upon repetition, the Veteran's dorsiflexion was to 30 degrees and his palmar flexion was to 20 degrees. The Veteran's radial deviation was 0 degrees. The Veteran's ulnar deviation was to 20 degrees with pain at 15 degrees. Upon repetition, the Veteran's ulnar deviation was 20 degrees. The examiner found tenderness and guarding of movement. There were no signs of edema, instability, abnormal movement, effusion or subluxation. The examiner found that the right wrist joint function was additionally limited after repetitive use by lack of endurance and pain. At the August 2010 videoconference hearing, the Veteran reported constant pain and fatigue in his right wrist. The Veteran stated that his wrist locked and that he had to "break" it to have it move again. He also stated that he felt a radiating pain when he tried to force his wrist into a position. In November 2010, the Veteran was afforded a VA joint examination. Upon examination, the Veteran's dorsiflexion was to 8 degrees and the Veteran's palmar flexion was to 12 degrees. The Veteran's radial deviation was to 15 degrees. The Veteran's ulnar deviation was to 24 degrees. The examiner checked off the box indicating ankylosis. There was objective evidence of pain with active motion and following repetitive motion. There were no additional limitations after repetitive use. The Veteran was also afforded a VA neurological examination in November 2010. The Veteran was diagnosed with carpal tunnel syndrome of the right wrist. The examiner stated that the neurologic symptoms appeared to be located on the opposite side of the hand from the injury and were more in line with carpal tunnel syndrome rather than degenerative joint disease. The rationale provided was that the fracture of the wrist was located on the radial side, while the symptoms were on the opposite side. In addition, the Veteran had been working for some time with computers, using a keyboard as well as a mouse, reporting symptoms highly suggestive of carpal tunnel syndrome. The examiner determined that it was unlikely that his parasthesias was related to his prior injury, but rather to an on-going problem with carpal tunnel syndrome. The Veteran was afforded a VA peripheral nerve examination in April 2012. Upon examination, it was found that all upper extremity nerve evaluations were normal. The Veteran was also afforded a VA joint examination in April 2012. The Veteran reported flare-ups during cold weather and overexertion. The Veteran's dorsiflexion was to 10 degrees with pain at 5 degrees. The Veteran's palmar flexion was to 15 degrees with pain at 10 degrees. Upon repetition, there was no loss of motion found. The examiner noted that there was functional loss of less movement than normal, weakened movement, excess fatigability, pain on movement and deformity. There was also localized tenderness or pain on palpation found. The examiner reported that ankylosis was present and that the Veteran's right wrist was extremely unfavorable. In a July 2012 addendum, the April 2012 VA examiner stated that since the Veteran is right handed and working with a keyboard as a computer engineer, the Veteran expressed that this limitation of motion of the right wrist as "extremely unfavorable" and that he needed to wear a wrist splint. The examiner stated that it was felt that the Veteran's ankylosis was at most unfavorable (not extremely). The Veteran was afforded a VA examination in February 2013. The same examiner noted that the Veteran's dorsiflexion was to 20 degrees. The Veteran's palmar flexion was to 8 degrees. The examiner noted that the Veteran's wrist was deformed but not fixed in one position, although the range of motion was very limited by pain and also by healing from the wrist fracture. It was reported that it was at least likely as not unfavorable for the Veteran. In March 2013 the Veteran submitted photographs showing the difference in motion in each plane between the right wrist and the uninjured left wrist. Of note, the photographs reveal the Veteran is able to move his wrist, albeit in a limited manner, in almost all planes. As the ability to move the wrist appears to be inconsistent with a finding of ankylosis, the Board requested an opinion from a VHA orthopedic specialist. In September 2013, VA obtained a VHA opinion addressing the presence of ankylosis in the Veteran's right wrist. After extensively reviewing the evidence in the Veteran's claims file, the specialist opined that "clearly and unmistakab[ly]" there was no ankylosis present in the Veteran's right wrist. The specialist noted that ankylosis can be idiopathic, iatrogenic, pathologic or post-traumatic. The specialist reported that the Veteran's sustained scaphoid fracture non-union likely has led to the characteristic arthritic findings described in his x-rays. However, he determined ankylosis is not shown as wrist motion is present on all VA examination reports. The specialist also noted that the x-rays did not show ankylosis. Upon review of the record, the Board finds that the Veteran is not entitled to higher disability ratings for his service-connected right wrist disability at any time during the course of the claim. Prior to July 24, 2012, the Veteran was receiving the maximum rating for limitation of motion of the wrist under Diagnostic Code 5215. To warrant a higher rating, ankylosis in 20 to 30 degrees of dorsiflexion is necessary. As of July 24, 2012, the Veteran is in receipt of a 50 percent rating for his wrist, based on the 2012 VA examiner's statement that the Veteran's wrist was ankylosed and that it was unfavorable for him. However, the basis for an award of 50 percent for unfavorable ankylosis is not a veteran's subjective conclusion as to the impact of the disability; rather, it is based on the wrist being fixed at an unfavorable angle. To warrant an evaluation in excess of 50 percent, the ankylosis must be extremely unfavorable and analogous to loss of use of the hand under 38 C.F.R. § 4.71a, Diagnostic Code 5125. 38 C.F.R. § 4.71a, Diagnostic Code 5214, Note. Thus, the question in this case is whether the Veteran's right wrist is actually ankylosed and if so, whether it is ankylosed at a favorable, unfavorable, or extremely unfavorable angle. The Board acknowledges that in his August 2010 videoconference hearing, the Veteran stated that his wrist would "lock" and that he had to "break" it to have it move. Additionally, in the November 2010 and April 2012 VA medical reports, the examiners diagnosed the Veteran with ankylosis. The examination reports, however, also show that the Veteran had motion, albeit limited, in his right wrist. While the 2012 VA examiner diagnosed ankylosis and concluded it was unfavorable, she further conceded that the right wrist was not fixed in one position. Upon review of the record, the VHA specialist opined that the record clearly and unmistakably shows the Veteran's right wrist is not ankylosed as the ability to move the wrist was shown on all VA examinations. This physician is a specialist in the field of orthopedics, and his conclusion is consistent with the objective evidence of motion in the wrist shown in the record as well as the other VA examiner's concession that the right wrist was not fixed in one position; thus, the Board accords this opinion greatest probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). This opinion is also consistent with photographs the Veteran submitted showing that he has the ability to move his wrist into different positions, although with significantly less motion than normal. The Board finds that the most probative evidence of record reveals that the Veteran does not, in fact, suffer from ankylosis resulting in his wrist being fixed in any plane of motion. Thus, there is no basis for an evaluation in excess of 10 percent prior to July 24, 2012. Moreover, as the most probative evidence indicates the Veteran's wrist is not actually ankylosed, it therefore follows that the Veteran's right wrist is not ankylosed in an extremely unfavorable position such that a rating in excess of 50 percent is warranted from July 24, 2012. In summary, as the most probative evidence indicates the Veteran has movement of his wrist and that it "clearly and unmistakab[ly]"was not ankylosed during the course of the claim, the claim for higher ratings for his wrist disability is denied. The Board has also considered whether the Veteran's right wrist disability results in neurological impairment. In his August 2010 videoconference hearing, the Veteran stated that he felt radiating pain when he tried to force his wrist into a position. However, the November 2010 VA examiner stated that the neurologic symptom appeared to be located on the opposite side of the hand from the injury and are more in line with carpal tunnel syndrome rather that degenerative joint disease. The examiner considered the Veteran's reported history, the records in the claims file, and the examination findings, and an adequate rationale was provided. Thus, the opinion is entitled of greater probative value, than the Veteran's lay assertions as to the nature and etiology of his radiating pain. See Nieves-Rodriguez, supra. There is no medical evidence to the contrary. Moreover, the April 2012 VA examiner found that all upper extremity nerve evaluations were normal. Accordingly, a higher or separate ratings for neurological manifestations of the wrist is not warranted at any time. As a final matter, the Board has considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2013); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria describe the Veteran's disability level and symptomatology, and provide for more severe symptoms such as varying degrees of ankylosis and loss of use of the hand, which is not currently shown by the evidence. Thus, the Board finds his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. As a final matter, the Board notes that at his August 2010 videoconference hearing, the Veteran stated that he had been terminated from a job after a 90 day probationary period. However, prior to and since then, the evidence of record reflects that the Veteran has been employed, working with computers. The Veteran has not alleged that he is unemployable due to his right wrist disability. Thus, no action pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) is warranted. ORDER Entitlement to an evaluation in excess of 10 percent for status post fracture of the right wrist with degenerative joint disease, prior to July 24, 2012, is denied. Entitlement to an evaluation in excess of 50 percent for status post fracture of the right wrist with degenerative joint disease, from July 24, 2012, is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs