Citation Nr: 1339172 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 08-00 370A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for service-connected status post right (major) scaphoid fracture with degenerative joint disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from June 1998 to August 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the RO in Muskogee, Oklahoma, which granted service connection and a 10 percent rating for status post right scaphoid fracture with degenerative joint disease, effective from June 9, 2006. The Veteran appealed for a higher initial rating. The Veteran requested a videoconference hearing before a Veterans Law Judge of the Board in his January 2008 VA Form 9 (see also January 2008 correspondence provided by his representative). Although a videoconference hearing was scheduled for early October 2011, the Veteran did not appear. Neither the Veteran nor his representative has provided an explanation for the failure to appear. In fact, the Veteran's representative submitted correspondence in late October, after the date of the scheduled hearing, and did not note the Veteran's failure to appear or provide an explanation. As such, the Board concludes that the Veteran wishes to proceed without a personal hearing and considers his hearing request to be withdrawn. This case was remanded to the RO via the Appeals Management Center (AMC) in November 2011, for additional development, and the case was subsequently returned to the Board. FINDINGS OF FACT 1. The Veteran's service-connected right wrist disability (status post right scaphoid fracture with degenerative joint disease) is manifested by arthritis, pain and limitation of motion. The Veteran is in receipt of the maximum evaluation allowed for limitation of motion of a dominant or non-dominant wrist. 2. Ankylosis of the right wrist is not objectively shown. CONCLUSION OF LAW The criteria are not met for a rating higher than 10 percent for status post right scaphoid fracture with degenerative joint disease. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5214, 5215 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). By a letter dated in July 2006, the Veteran was provided with VCAA notice regarding his initial claim for service connection, prior to the November 2006 rating decision on appeal. However, in cases such as this, where service connection has been granted and an initial disability rating and effective date has been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 473; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). Neither the appellant nor his representative has advanced any such arguments. The provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case (SOC) if the disagreement is not resolved. And this has been done; the Veteran has received both an SOC and supplemental statements of the case, most recently in June 2012, discussing the downstream disability rating element of his claim, citing the applicable statutes and regulations, and discussing the reasons and bases for assigning the initial rating for his service-connected right wrist disability. Thus, based on the record as a whole, the Board finds that a reasonable person would have understood from the information that VA provided to the appellant what was necessary to substantiate his claim, and as such, that he had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication was not affected. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). Here, the Veteran's VA medical treatment records have been associated with the claims file. The appellant was afforded VA medical examinations in November 2006 and December 2011. A medical opinion is adequate when it is based upon consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). These examinations were conducted by medical professionals, and the associated reports reflect review of the appellant's prior medical history. The examinations included a report of the symptoms for the right wrist and demonstrated objective evaluations. The examiners were able to assess and record the clinical status of the Veteran's right wrist disability. Physical examination was accomplished. The Board finds that the examination reports were each sufficiently detailed with recorded history, impact on employment and daily life, and clinical findings. In addition, it is not shown that the examinations were in any way incorrectly conducted. Further, the VA examination reports addressed the applicable rating criteria. As a result, the Board finds that additional development by way of another examination would be redundant and unnecessary. See 38 C.F.R. § 3.326; 38 C.F.R. § 3.327; Green v. Derwinski, 1 Vet. App. 121 (1991). A Court or Board remand confers upon a veteran the right to substantial, but not strict, compliance with that order. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In this case, the AMC arranged for a VA medical examination as directed by the Board's November 2011 remand, and VA treatment records were obtained. Therefore, substantial compliance has been achieved. VA has complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. Analysis The Veteran contends that his right wrist disability is more disabling than currently evaluated. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Both the use of manifestations not resulting from service-connected disease or injury and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). In Esteban, the United States Court of Appeals for Veterans Claims (Court) found that when a Veteran has separate and distinct manifestations from the same injury he should be compensated under different Diagnostic Codes. In this regard, the Board notes that the Veteran is also service-connected for tenosynovitis of the right thumb, rated 10 percent disabling, and that his thumb symptoms may not be considered when rating the service-connected right wrist disability. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. (1991). This case arises from an appeal of the initial grant of service connection and assignment of disability ratings for the service-connected right wrist disability. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a Veteran appeals his initial rating, VA must consider whether to "stage" the rating to compensate him for times since the effective date of his award when his disability may have been more severe than at others). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. However, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system. 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. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Throughout the pendency of this appeal, the Veteran's right wrist disability (status post right scaphoid fracture with degenerative joint disease) has been rated as 10 percent disabling, effective from June 9, 2006, the date of his initial claim for service connection, under Diagnostic Code 5215, pertaining to limitation of motion of the wrist. Normal ranges of motion include wrist dorsiflexion of 0 to 70 degrees, wrist palmar flexion of 0 to 90 degrees, wrist ulnar deviation of 0 to 45 degrees, and wrist radial deviation of 0 to 20 degrees. 38 C.F.R. § 4.71, Plate I (2012). The medical evidence demonstrates that the veteran has degenerative joint disease of the right wrist. Governing regulation provides that arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joints involved. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2012). Service treatment records show that during service, the Veteran suffered a fracture of the right scaphoid (navicular) bone. On VA examination in November 2006, the Veteran reported that he was right-handed, and the examiner indicated that he was right-hand dominant. The Veteran reported that his right wrist disability did not bother him much until two years ago, when he began to have right wrist pain on stressful movements and situations at work. He said that he took pain medication, but that this did not fully relieve his pain. He said his wrist swelled some each day. He reported that he had to climb cellular telephone towers in his job, and repair electronics. He said his right wrist and hand had become more painful in this job, and he knew he had to find a different job. He said his right wrist and hand tired easily. He said his right wrist became painful on use. At the time of pain, he could function with medication. On examination of the right wrist, there were signs of edema, weakness, tenderness, heat, abnormal movement and guarding of movement. There was point tenderness over the right "anatomic snuff box." Range of motion of the right wrist was as follows: dorsiflexion to 50 degrees with pain at 39 degrees, palmar flexion to 36 degrees with pain at 43 degrees, radial deviation to 16 degrees with pain at 14 degrees, and ulnar deviation to 20 degrees with pain at 15 degrees. Joint motion was additionally limited by pain after repetitive use, but was not limited by fatigue, weakness, lack of endurance or incoordination. Pain additionally limited motion by 25 degrees on average. An X-ray study of the right wrist showed a small defect of healing fracture of the scaphoid (navicular) bone at the mid-point. The examiner stated that the scaphoid bone had healed, but that there was considerable traumatic arthritis in this bone. The examiner diagnosed degenerative joint disease of the right scaphoid (navicular) bone, post-traumatic. There was significant weakening of the right wrist and the associated grip strength of the right hand as compared to the left wrist and hand. The Board notes that throughout the rating period on appeal, the Veteran has incurred superimposed right wrist injuries, and has been diagnosed with sprains and tendonitis. VA outpatient treatment records dated from 2009 to 2011 reflect treatment for right wrist pain. A March 2009 primary care note reflects that the Veteran reported that his right wrist had been reinjured when he was lifting weights. The diagnostic assessment was right wrist sprain status post fracture. A wrist splint was prescribed. Subsequent medical records reflect multiple episodes of treatment for complaints of wrist pain after lifting weights. The Veteran received physical therapy. A May 2009 physical therapy note reflects that right wrist flexion was to 40 degrees, extension was to 40 degrees, radial deviation was to 20 degrees, and ulnar deviation was to 25 degrees. In July 2009, he said his wrist disability was better but not back to where it was. A November 2009 orthopedic surgery consultation reflects that the Veteran reported that he injured his right wrist when lifting weights in early November 2009. He was bench pressing 185 pounds. The Veteran reported that since his original scaphoid fracture and treatment, he had occasional right wrist problems. He complained of pain in the radial aspect of his right wrist. He related that at age 14, he had a penetrating injury to his right hand, with a retained foreign body (a BB). On examination, the Veteran had tenderness to palpation about his radial carpal joint. He had minimal tenderness to palpation about his first dorsal extensor compartment. He did not have any tenderness to palpation over Lester's tubercle or over his distal radius. He did not have any gross instability. He had negative Watson scaphoid shift test. His right wrist range of motion was 60 degrees of extension, 40 degrees of flexion, 10 degrees of radial deviation, and 30 degrees of ulnar deviation. A November 2009 X-ray study showed that his carpus was in good alignment in the coronal and sagittal plane, and he did not have any definite evidence of scapholunate diastasis. He had a normal scapholunate angle at 50 degrees. No acute fracture or dislocation was identified. The diagnostic impression was right wrist sprain. A December 2009 VA orthopedic consultation reflects that the Veteran reported that he was doing much better, but complained of pain. On examination, he was not wearing a splint and had no swelling. Range of motion of the right wrist was as follows: 65 degrees of extension, 60 degrees of flexion, 15 degrees of radial deviation, and 15 degrees of ulnar deviation, with discomfort. The diagnostic impression was right wrist sprain/tendinitis. The examiner opined that the findings suggested de Quervain's stenosing tenosynovitis. He noted that the Veteran was a football coach and did quite a bit of activity, particularly throwing a football. He gave him a corticosteroid injection. In late December 2009, he continued to complain of pain but said his motion was much improved. The diagnostic impression was right wrist tendinitis. Medication was prescribed. Subsequent VA outpatient treatment records reflect complaints of chronic right wrist pain. A February 2010 orthopedic note reflects that the Veteran reported that he had been doing well until the past weekend. He had not been doing any inciting activities. He had not been working out or doing any heavy lifting, but he had tightness and discomfort over the dorsum of his right distal forearm. Up until that point, he was doing much better following the steroid dosepak. He was otherwise without complaint. On examination, there was no swelling of the right hand and wrist. He had tenderness to palpation over his second dorsal compartment much greater than that over the first dorsal extensor compartment. He had discomfort where his outcropping muscles passed over the dorsum of his radial wrist extensors that was consistent with intersection syndrome. He had intact wrist flexion, extension, and radial deviation. The diagnostic impression was right wrist tendinitis, possible intersection syndrome. The physician recommended modification of activity. On VA examination in December 2011, the Veteran complained of right wrist pain, and that lots of movement caused pain. He reported that he sometimes felt stiffness and weakness and some tingling, especially when he typed emails. He had wrist pain when playing football. He denied wrist surgery, and did not wear a wrist brace. He reported that he was right-handed and worked as a football coach. He did not report that flare-ups impacted the function of the wrist. On examination, dorsiflexion was to 50 degrees, and palmar flexion was to 60 degrees, radial deviation to 35 degrees, and ulnar deviation to 40 degrees, all with no objective evidence of painful motion. The examiner indicated that range of motion appeared normal. After repetitive-use testing with three repetitions, range of motion was unchanged. The examiner indicated that the Veteran had no additional limitation of right wrist motion after repetitive-use testing, and no functional loss and/or functional impairment of the wrist. There was localized tenderness or pain on palpation of the joints/soft tissues of the right wrist. There was normal strength of the wrist, and no ankylosis of the right wrist. On examination of the right wrist, there were no abnormal findings. There was no swelling, edema or effusion. There was no weakness or instability, no abnormal movements or guarding, and no ankylosis. There were no neurovascular defects, no pain during the movements, and range of motion was within normal limits. A December 2011 X-ray study of the right wrist showed no bone or joint abnormality, and no scaphoid fracture or avascular necrosis of the scaphoid was seen. The VA examiner diagnosed possible old healed fracture of scaphoid, right wrist, with no residuals. There was no evidence of any radiological abnormality, specifically, no scaphoid fracture or avascular necrosis of the scaphoid was seen. As to either the major or minor wrist, a 10 percent evaluation is provided for limitation of dorsiflexion to less than 15 degrees or for limitation of palmar flexion in line with the forearm. 38 C.F.R. § 4.71a, Diagnostic Code 5215 (2012). A higher rating is not in order under this code as the Veteran is already in receipt of the maximum rating. Moreover, since this is the maximum schedular rating for limitation of motion, any pain on motion does not affect the rating. Johnston v. Brown, 10 Vet. App. 80 (1997); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran, as a lay person, is competent to provide such evidence of how his disability affects his everyday life. See Layno v. Brown, 6 Vet. App. 465, 469-470 (1994) (finding lay testimony competent when it concerns features or symptoms of injury or illness). He is competent to report that which he can experience or observe and is deemed credible, in this regard. However, as a lay person lacking in medical training and expertise, the Veteran cannot provide a competent medical opinion regarding the severity of his disability including clinical evaluation and laboratory studies, and to that extent, his reports are outweighed by the detailed opinions provided by the medical professionals who evaluated the Veteran's service-connected disability and provided the relevant clinical testing to rate the claim. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Higher evaluations are available under 38 C.F.R. § 4.71a, Diagnostic Code 5214, which requires the presence of ankylosis. Ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). However, in this case, there is no objective evidence of ankylosis of the right wrist. The Veteran is able to move his right wrist, albeit with pain upon certain motions. As the medical evidence does not show that the Veteran has ankylosis of the right wrist, a higher rating is not warranted under 38 C.F.R. § 4.71a, Diagnostic Code 5214 (2012). Additionally, even with consideration of factors such as a sensation of weakness and pain on use, as well as the prior objective findings of functional loss and limitation of motion, the Board finds that the symptomatology manifested by the Veteran's right wrist disability does not closely approximate ankylosis, particularly in light of the most recent VA examination findings in December 2011. At that time, the examiner indicated that the Veteran had no additional limitation of right wrist motion after repetitive-use testing, and no functional loss and/or functional impairment of the wrist. In this case, the objective evidence has shown that the Veteran has maintained motion in his right wrist throughout the course of the appeal period. The Board concludes that a higher rating based on those factors is not warranted. The Board has also considered whether separate ratings are warranted for any associated conditions such as weakened grip strength (which was noted in 2006 but not since then), under 38 C.F.R. § 4.124a , Diagnostic Codes 8515 and 8516. However, the evidence of record does not support the assignment of such a separate rating. It has neither been alleged nor shown that there is any associated neurological disorder. Subsequent medical records do not show reduced grip strength, and in fact, the Veteran has been able to lift rather heavy amounts of weight when weight-lifting, and frequently throws a football in his job of football coach. The December 2011 VA examination indicated that there were no neurovascular defects, and there was normal strength of the wrist. Moreover, as the symptomatology considered in the ratings for paralysis of the radial, median or ulnar nerve (under Diagnostic Codes 8514, 8515 and 8516), overlaps with the symptomatology considered in a rating for orthopedic limitation of the wrist or hand, in the same anatomical region, to combine these ratings would constitute pyramiding and is not permitted. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). And, the Board notes again that the Veteran already has a separate rating for a right thumb disability, the symptoms of which affect his grip strength in the right hand. The preponderance of the evidence is against the veteran's claim for a higher rating in excess of 10 percent for the service-connected right wrist disability. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West Supp. 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extra-schedular Considerations The Board has considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). An extra-schedular rating is warranted if a case presents such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, that it would be impracticable to apply the schedular standards. Analysis under this provision involves a three-step inquiry, and extra-schedular referral is necessary only if analysis under the first two steps reveals that the rating schedule is inadequate to evaluate the claimant's disability picture and that such picture exhibits such related factors as marked interference with employment or frequent periods of hospitalization. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Here, the manifestations of the Veteran's right wrist disability are fully contemplated by the schedular rating criteria of Diagnostic Codes 5215 and 5214. Thus, the evidence does not support referring this case for an extraschedular evaluation. ORDER A higher initial rating in excess of 10 percent for status post right scaphoid fracture with degenerative joint disease is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs