Citation Nr: 1428343 Decision Date: 06/23/14 Archive Date: 07/03/14 DOCKET NO. 10-41 285 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an increased rating for service-connected right wrist tendonitis, currently assigned a noncompensable evaluation from December 29, 2006, and a 10 percent disability evaluation from February 27, 2009. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from May 2004 to December 2006 with 1 year and 5 months of prior active service. This matter came to the Board of Veterans' Appeals (Board) from a February 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in February 2013 and January 2014 for further development. A review of the record shows that the RO has complied with all remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran testified at a hearing before the Board at the RO in April 2013. A transcript is of record. In the February 2008 rating decision, the RO granted service connection, and assigned a 0 percent disability rating, effective December 29, 2006. The Veteran appealed the initial disability rating assigned. By rating decision in May 2009, the RO assigned a 10 percent disability rating, effective February 27, 2009. Although an increased rating has been granted, the issue remains in appellate status, as the maximum schedular rating has not been assigned. AB v. Brown, 6 Vet. App. 35 (1993). This appeal was processed using the Virtual VA and VBMS paperless claims processing system. FINDINGS OF FACT 1. Prior to February 27, 2009, the Veteran's service-connected right wrist tendonitis was not manifested by dorsiflexion less than 15 degrees, palmar flexion limited in line with forearm, or ankylosis. 2. From February 27, 2009, the Veteran's service-connected right wrist tendonitis has not been manifested by ankylosis. CONCLUSION OF LAW The criteria for entitlement to an increased rating for service-connected right wrist tendonitis, assigned a noncompensable evaluation from December 29, 2006, and a 10 percent disability evaluation from February 27, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Code 5215 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Duty to Notify Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by a letter dated in January 2007. The RO provided the appellant with additional notice in April 2008, March 2009 and December 2009, subsequent to the initial adjudication. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. While the April 2008, March 2009 and December 2009 notices were not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in an April 2014 supplemental statement of the case, following the provision of notice in April 2008, March 2009 and December 2009. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained VA treatment records, assisted the Veteran in obtaining evidence, requested Social Security Administration (SSA) records (which were unavailable), afforded the Veteran VA examinations, and afforded the Veteran the opportunity to give testimony at an April 2013 Travel Board hearing. The examinations were based on consideration of the history of the disorder, to include the Veteran's account of all of his symptoms. The reports contain all information necessary to properly evaluated the disability under the applicable diagnostic code. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and his representative have not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Increased Ratings The present appeal involves the Veteran's claim that the severity of his service-connected right wrist tendonitis warrants a higher disability rating. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 126. VA examination reports show that the Veteran is right-hand dominant. The Veteran's service-connected right wrist tendonitis has been rated by the RO under the provisions of Diagnostic Code 5215 for limitation of motion of the major wrist. Under this regulatory provision, a maximum rating of 10 percent is warranted for palmar flexion limited in line with forearm or dorsiflexion less than 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5215. In the present case, it should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Factual Background When the Veteran was afforded a VA examination in April 2007, he reported pain, flare-ups, weakness of grip, stiffness and swelling. At the time of the examination, his low back pain, knee pain and wrist pain occasionally interfered with his work as a farmer. Upon physical examination, palmar flexion was from 0 to 80 degrees, and dorsiflexion was from 0 to 70 degrees. Throughout the range, the Veteran experienced slight discomfort and pain noted at the extreme extension and palmar flexion. He was able to make a complete fist and had good functional grip. Repetitive movement failed to show any change in range. The examiner diagnosed residual right wrist sprain, and strain with residual right wrist tendonitis. A March 2009 VA examination shows the Veteran's complaints of pain when gripping or squeezing, weakness in making a grip, and flare-ups after strenuous work in his landscaping business. The Veteran denied use of over-the-counter medications and assistive devices. Upon physical examination, range of motion was from 0 to 62 degrees of dorsiflexion and after repetitive motion with objective pain but after repetitive motion this decreased to subjective pain. Palmar flexion was from 0 to 58 and after repetitive motion from 0 to 54 degrees. Regarding DeLuca, the examiner was unable to estimate function in a flare-up without undue speculation. In a March 2009 statement, the Veteran reported that it "hurts or become weak when use for gripping anything while working." He reported not having total strength in his hand. In a statement received in December 2009, the Veteran reported aggravation of the right wrist when driving, squeezing, making a fist, being in a push-up position, and opening and closing rapidly. The Veteran was afforded a VA examination in January 2010 and reported sharp radiating pain for which he took no medication. The pain worsened when he waved his right hand or drove a car. Upon physical examination, palpitation of the wrist was subjective and painful. Range of motion was from 0 to 40 degrees dorsiflexion and after repetitive motion. Palmar flexion was from 0 to 62 degrees, and from 0 to 56 degrees after repetitive motion. The examiner diagnosed right wrist tendonitis. A June 2012 VA treatment record shows that the Veteran works as a tree surgeon. At the gym, he bench pressed 185 pounds, did curl ups to 50 pounds but did not grip weight. He used a "hook" grip. Strength was 5/5 in the wrist but there was loss of grip strength. He was unable to tolerate grip testing as his hands would "cramp up." He grabbed everything with a hook grip and did not want to grasp tightly. He was able to make a full fist. It was noted that occupational therapy cannot provide grip strengthening as the Veteran cannot tolerate one repetition of grip testing. The assessment was as follows: "?Unsure what diagnosis is. Has full ROM and normal strength in all but hands. Denies numbness and tingling-? Blood flow issues but has no discoloration or temperature issues." At the April 2013 Travel Board hearing, the Veteran reported not being able to fully grip. He further testified to doing manual labor cutting trees with chainsaws and hiring help for the work he is unable to do. He took off from work for a day or two after a full workday if he knew his hands were going to hurt. He further testified that "when I do have an incident with my hand, it probably might take a week or two weeks for it to get better that I could begin to go back..." He additionally stated that he was issued "some type of wrist splint, brace, to wear it whenever it's hurting to kind of keep it straight." He also noted that when it gets cold "my hand will begin to go out." He reiterated that he had been seeing a hand doctor "but they can't find anything." The Veteran further testified to pain and "a bone sticking out." The Veteran was afforded another VA examination in January 2014. The examiner noted right wrist tendonitis. Upon physical examination, right wrist palmar flexion was from 0 to 80 degrees; right wrist dorsiflexion was from 0 to 70 degrees or greater with painful motion at this point. The Veteran was unable to perform repetitive use testing with three repetitions, and asked/stopped the examiner from going any further as he reported that he will end up not being able to use his hands/wrists. The examiner noted no additional limitation of ROM of the wrist following repetitive-use testing. He did note functional loss and/or functional impairment of the wrist; and the contributing factor was pain on movement. Muscle strength testing showed 4/5 (active movement against some resistance) in right wrist flexion and extension. The examiner noted no ankylosis, and noted no degenerative/traumatic arthritis on imaging studies. The examiner further noted that the Veteran's wrist did not impact his ability to work. Overall, the examiner found no change in past examinations. He noted that the Veteran was still actively employed and attends to his own activities of daily living. The Veteran mentioned feeling the need to stop working in landscaping/farming business. The examiner found that with a computer science degree, if the Veteran were to leave his current occupation, he would most likely be gainfully employed in a sedentary position. He noted that DeLuca provision would require mere speculation during any flare up as one would expect to see increased pain/discomfort, as well as decreased ROM. In a statement received in March 2014, the Veteran complained of pain and weakness when driving. He complained that his hand hurt, and pushups and work aggravated it. He had to "take the proper medication to control the pain." Analysis Overall, an increased rating for service-connected right wrist tendonitis (currently assigned a noncompensable evaluation prior to February 27, 2009) is not warranted. Here, palmar flexion was to 80 degrees and dorsiflexion was to 70 degrees. Thus, dorsiflexion was not less than 15 degrees, and palmar flexion was not limited in line with forearm to warrant a 10 percent rating under Diagnostic Code 5215. In addition, with range of motion, Diagnostic Code 5214 for ankylosis of the wrist is not for application. Thus, a compensable rating prior to February 27, 2009 is denied. Additionally, an increased rating in excess of 10 percent disability evaluation from February 27, 2009 is not warranted. Under Diagnostic Code 5215, the Veteran is rated at the maximum rating and cannot be assigned a higher rating. Turing to the other applicable diagnostic code of the wrist, Diagnostic Code 5214 for ankylosis is not for application as there was range of motion in the wrist. There was no favorable ankylosis in 20 degrees to 30 degrees dorsiflexion to warrant a minimum rating of 30 percent for the major side. Additionally, in the most current VA examination report, the examiner expressly stated that there is no ankylosis. Thus, an increased rating from February 27, 2009 is denied. The Board acknowledges that the Veteran has chronic pain and thus, recognizes the application of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca. Nevertheless, a higher rating prior to February 27, 2009 is not warranted under these provisions because there is no persuasive evidence of additional functional loss due to pain, weakness, fatigue, or incoordination which would limit motion to such a degree so as to warrant a compensable rating. As for a higher disability evaluation from February 27, 2009, the Board notes that where a musculoskeletal disability is currently evaluated at the highest schedular evaluation available based upon limitation of motion, a DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). Thus, since the Veteran has been granted the maximum rating possible under Diagnostic Code 5215, from February 27, 2009, the analysis required by DeLuca, supra, would not result in a higher schedular rating. The preponderance of the evidence is against the claim for entitlement to an increased rating for service-connected right wrist tendonitis, currently assigned a noncompensable evaluation from December 29, 2006, and a 10 percent disability evaluation from February 27, 2009. Should the disability increase in severity in the future, the Veteran may always file a new claim for an increased rating. Other Considerations Finally, the Board has considered whether extraschedular consideration is warranted. The discussion above reflects that the rating criteria reasonably describes and contemplates the severity and symptomatology of the Veteran's service-connected right wrist tendonitis. The Veteran's disability was manifested by reports of stiffness (prior to February 27, 2009), pain and flare-ups, which are contemplated by DeLuca and range of motion measurements reflected in the applicable diagnostic codes. However, the Board acknowledges the swelling reported prior to February 27, 2009 and gripping problems throughout the appeal period for which the schedular criteria does not contemplate. Even if the Board were to find that the rating criteria were not adequate, referral for extraschedular would still not be warranted because the Board also finds that Thun step two is not satisfied. See Johnson v. Shinseki, 26 Vet. App. 237, 247 (2013) (en banc) (error in Thun step one analysis is harmless were Board makes an adequate finding that Thun step two is not satisfied). The Veteran's disability does not present an exceptional disability picture. 38 C.F.R. § 3.321(b)(1). The Veteran has not been hospitalized for this condition. As to employment, the right wrist is not the sole disability that affects his ability to work. At the April 2007 VA examination, the Veteran stated that low back, knee pain, and wrist pain interfered with his work as a farmer. A January 2010 VA examination shows that his service-connected left knee disability also affected employment as he could not work in marketing like he did in the past "because of his inability to walk for a long period of time required in that job." Further, the Veteran testified at the hearing that both wrists are causing problems at work. Looking at only the impairment attributable to the service connected right wrist disorder, the Board finds that marked interference with employment is not shown. Although the Veteran may have lost some time at work and may be limited with respect to doing certain tasks, he nevertheless remains employed and working regularly. Thus, referral for an extraschedular rating is unnecessary here. See Thun v. Peake, 22 Vet. App. 111 (2008). A total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised where a Veteran : (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). However, TDIU is not raised in an increased rating claim unless the Roberson requirements are met. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). At the April 2013 Travel Board hearing, the Veteran testified to taking as much as two weeks off after using his hands at work. At the January 2014 VA examination for his wrist, the Veteran expressed belief that he needed to stop working in landscaping/farming business. Overall, the Veteran has not asserted (and the evidence does not show) unemployability due to his service-connected disabilities. As noted at the most current VA examination, if the Veteran were to leave his current employment, the Veteran would most likely be gainfully employed in a sedentary position. Hence, further consideration of TDIU is not warranted. ORDER Entitlement to an increased rating for service-connected right wrist tendonitis, currently assigned a noncompensable evaluation from December 29, 2006, and a 10 percent disability evaluation from February 27, 2009 is denied. ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs