Citation Nr: 1433744 Decision Date: 07/29/14 Archive Date: 08/04/14 DOCKET NO. 11-23 376 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to an increased evaluation for degenerative joint disease of the right wrist (dominant), currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from January 2002 to January 2006. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, which denied a compensable evaluation for residual right wrist pain, status-post excision of a dorsal wrist ganglion. During the pendency of the appeal, an August 2012 rating decision recharacterized the disability as degenerative joint disease right wrist, and assigned a 10 percent evaluation, effective June 1, 2009. This date was the effective date of an earlier decrease of the evaluation of the disability from 10 percent to noncompensable, as implemented by a March 2009 rating decision. FINDING OF FACT The competent medical evidence, and competent and credible lay evidence, does not demonstrate that the Veteran's degenerative joint disease of the right wrist results in any ankylosis. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for degenerative joint disease of the right wrist (dominant) have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5215 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also 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); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In an increased rating claim, VA must notify the Veteran to submit evidence showing (1) a worsening or increase in severity of the disability and (2) the effect that worsening has on the claimant's employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). Notice was provided by a November 2009 letter. Accordingly, the duty to notify has been fulfilled. With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, VA medical records, private medical records, VA examination reports and statements by the Veteran. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. In November 2009 correspondence, the Veteran indicated that he had no other information or evidence to give VA to support his claim and asked that VA decide the claim as soon as possible. The Veteran was afforded VA examinations of the right wrist in November 2009, February 2011 and July 2012. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Although only the February 2011 and July 2012 VA examinations included a review of the Veteran's claims file, the purpose of the evaluations was to assess the current levels of the disability, not determine its etiology. Overall, the examiners considered the Veteran's medical history, including his lay reports of his symptomatology; described the Veteran's disability in sufficient detail; and fully described the functional effects caused by the Veteran's disability. Stefl v. Nicholson, 21 Vet. App. 120 (2007). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to this issue has been met. 38 C.F.R. § 3.159(c)(4). In sum, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the appellant in developing the facts pertinent to his claim. Accordingly, the Board finds that VA's duty to assist has been met. 38 C.F.R. § 3.159(c) (4); Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Legal Analysis With respect to the claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where an increase in an existing disability rating based upon established entitlement to compensation is at issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran's right wrist disability is evaluated under Diagnostic Code 5215. This Diagnostic Code does not provide an evaluation in excess of 10 percent. Diagnostic Code 5214 provides that a 30 percent evaluation is warranted for favorable ankylosis of the major wrist in 20 to 30 degrees dorsiflexion. When evaluating joint disabilities rated on the basis of limitation of motion, VA may consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40 , 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Based on a thorough review of the evidence, the Board finds that the preponderance of the evidence is against an evaluation in excess of 10 percent for right wrist disability. There is simply no evidence that the Veteran's limitation of motion of the right wrist warrants a higher evaluation. The November 2009, February 2011 and July 2012 VA examination reports each demonstrate that the Veteran has no ankylosis of the right wrist. The July 2012 VA examination report specifically states that the Veteran does not have ankylosis. Private treatment records dated in 2009 also demonstrate that the Veteran has no ankylosis. In fact, there is no evidence that the Veteran's service-connected right wrist disability results in ankylosis, and in fact the Veteran does not so contend himself. Diagnostic Code 5214. The Board is aware of the Veteran's reported symptoms of pain, flare-ups and reduced range of motion, as set forth in the VA examination reports. As a general matter, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). Lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed Cir. 2009). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report right wrist symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. The Veteran is not, however, competent to identify a specific level of disability of his disability according to the appropriate diagnostic code. See Robinson v. Shinseki, 557 F.3d 1355 (2009). Competent evidence concerning the nature and extent of the Veteran's disability has been provided by the medical personnel who examined him during the current appeal. The medical findings (as provided in the medical records) directly address the criteria under which the Veteran's disability is evaluated. The observable symptoms that the Veteran described during the VA examinations do not satisfy the criteria for an evaluation in excess of 10 percent. As noted above, the foregoing evidence does not support a higher evaluation under Diagnostic Codes 5214 or 5215. Moreover, the foregoing evidence does not show that pain, even after repetitive use testing, causes functional loss similar to ankylosis that would warrant an evaluation in excess of 30 percent under Diagnostic Code 5214. 38 C.F.R. §§ 4.40, 4.45; DeLuca, supra. The discussion above reflects that the rating criteria reasonably describe and contemplate the severity and symptomatology of the Veteran's service-connected disability. The Veteran described limited range of motion and pain. The rating criteria and Deluca, supra, contemplate this impairment. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). The Board finds that the record does not raise a claim of entitlement to a total rating for compensation based on individual unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has not asserted that his right wrist disability renders him unable to secure and follow a substantially gainful occupation. The Board is aware that the VA examination reports reflect that the Veteran reported that he could no longer work as a mechanic, due to his service-connected right wrist disability. However, the VA examination reports also reflect that the Veteran is in Voc-Rehab for a career change, obtaining a Bachelor's degree in Health Science. This fact suggests to the Board that the Veteran is in fact employable. Moreover, the November 2009 and February 2011 VA examination reports specify that the Veteran's disability resulted in no functional orthopedic impairment. In sum, the preponderance of the evidence is against an evaluation in excess of 10 percent for degenerative joint disease of the right wrist (dominant), and therefore the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER An evaluation in excess of 10 percent for degenerative joint disease of the right wrist (dominant) is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs