Citation Nr: 1635792 Decision Date: 09/13/16 Archive Date: 09/20/16 DOCKET NO. 07-34 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to an initial rating in excess of 10 percent for a ganglion cyst of the right wrist. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Stephen LoGerfo, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1996 until December 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In April 2014, the Board remanded this case for further development. In June 2015, the Board denied both claims. In February 2016, a Joint Motion for Remand (JMR) was filed in the Court of Appeals for Veterans Claims (CAVC). The motion remanded both claims back to the Board for further development. FINDINGS OF FACT 1. The Veteran's currently diagnosed low back disability was not first manifested during active duty or the first post-service year, and is not related to military service. 2. The Veteran's right-wrist disability limits his ability to function under the ordinary conditions of daily life and to perform the normal working movements of the body with normal speed and endurance. 3. The Veteran has a scar on his right wrist that is stable, does not measure greater than 6 square inches (39 sq. cm.), and does not limit function, but is painful. CONCLUSIONS OF LAW 1. The criteria for service connection of a low back disability are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2015); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). 2. The criteria for a two separate 10 percent disability ratings for a service-connected right-wrist disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 7819-5015 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Service Connection Generally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a) (2015). The JMR found that the Board's previous denial of this claim did not include an adequate statement of reasons or bases fully addressing the probative value of relevant evidence. Specifically, the JMR noted that the Board did not consider the Veteran's lay reports in a November 2007 VA Form 21-4138 that treating physicians informed him that his military service caused his current low-back disability. The JMR noted that the Board did not analyze the competency or credibility of such a report but only rejected it based on absence of supporting medical records. Furthermore, the JMR noted that the Board failed to analyze two VAMC treatment records from October 2007 and March 2007. The JMR found that the Board erred in failing to fully explain its findings on element (3), a nexus between the in-service incurrence and the current disability, and therefore that portion of the decision was vacated and remanded. The Board notes that it initially found that the Veteran satisfied both elements (1) and (2) of service connection and that those findings were not vacated by the JMR. In brief, the Veteran has a current disability from a November 2005 back surgery. There is also a service treatment record that shows a May 2000 complaint for low back pain around the spine. In terms of element (3), the Board will summarize its previous findings and incorporate an appropriate analysis of the undeveloped evidence from the prior decision. First and foremost, the Board noted the November 2007 VA examination opinion. This opinion stated that the Veteran's "current low back pain is less likely as not relative to his episode of acute low back pain while in the military service." The examiner's conclusion was based, in part, on the fact that the Veteran, following his in-service back injury, "had no pain and his physical examination was normal on his discharge examination." The examiner also noted that, "according to [the Veteran's] medical record, he was not seen by a physician for his low back pain until December 2004, where an MRI showed a herniated disk and he was operated [on] by [Dr. P.]." The examiner found significance in the fact that this happened "4-1/2 years after his initial episode of low back pain while he was in the service." Thus, the VA medical examiner offered a negative nexus opinion based on the implicit reasoning that symptoms associated with the Veteran's in-service back injury would be expected to have manifested earlier than over four years following discharge from military service. The examiner also noted the lack of symptoms at the time of the Veteran's discharge examination. The Board continues to find this opinion to be highly probative on the medical question at issue in this case. It was rendered on the basis of a review of the record and the history of the Veteran. The examiner provided a rationale for the conclusion reached. No contrary, competent nexus opinion is of record. The contrary evidence of record includes some evidence already analyzed by the Board and other evidence that was noted by the JMR. The Board re-considered the Veteran's lay statements. The Veteran contends in a May 2014 lay statement that ""prolonged and repetitive abuse that I had to put my back to, from carrying 60 to 80 lbs. packs on my back" were related to his current back disability. In assessing the credibility of testimony and the weight of the evidence, the Board originally noted that the Veteran offers varied explanations as to how he hurt his back. In his December 2006 Notice of Disagreement, the Veteran cited damage caused by lifting materials on a construction site while serving in the Marines. Regardless, the Veteran's currently diagnosed back condition is different from injuries such as a broken arm or dislocated shoulder, which are readily observable by a lay person. Rather, it involves the internal workings of the spine. As such, the Veteran, as a layperson, is not competent to establish its etiology. Accordingly, the statements offered by the Veteran in support of his claim are not competent evidence of a nexus. The Board also re-considered evidence that other physicians had opined or concluded that the Veteran's current back disability was related to his in-service back pain. In a November 2007 statement, the Veteran states, "I have spoken to doctors [,] . . . and they have all stated that my condition cannot be considered a degenerative condition . . . [and] is a direct consequence of my injury during my tenure in the service." He has also asserted in his October 2007 VA Form 9 appeal that "My VA physician has stated that due to my age, this condition cannot be a degenerative disease as stated . . . on the SSOC." The JMR noted that the Board did not previously discuss an October 2007 treatment record which stated "19 year old male with lower back pain s/p surgery, and wrist pain secondary to trauma to both areas while in service". Furthermore, there was a March 2007 treatment record which stated "Assessment: 1. Lower back pain: chronic s/p injury while in-service s/p surgery 2005". The Board notes that, while a physician certainly could have made the statements indicated by the Veteran, those physicians did not have access to the Veteran's full claims file and were not asked to opine, for VA purposes, on whether it was more likely than not that the Veteran's current back disability was related to his in-service report of back pain. Similarly, in terms of the October and March 2007 treatment records, these statements were made in the course of treatment and were once again not nexus statements supported by a full analysis of the Veteran's clinical history. Rather, they appear, on their face, to be recitations of the history as conveyed by the Veteran. That history, as noted, is inconsistently stated, is not persuasive and is not corroborated by the service treatment records. Therefore, they are all of significantly limited probative weight in comparison to the Veteran's November 2007 examination that elicited a negative nexus opinion. Additionally, the record contains a November 2012 statement by an employer of the Veteran to the effect that the Veteran's back pain has negatively affected his job performance. The statement speaks to the issue of current disability but is not material to the issue of whether the Veteran's current disability is connected to an event in service. Based on the above, re-analyzed per the directives of the JMR, the Board finds once again that the weight of the evidence is against finding a nexus between the current condition and any in-service injury. The Board also finds that, under the facts of this case, the Veteran's back disability cannot be service-connected on a presumptive basis as a chronic disease. See 38 C.F.R. §§ 3.307, 3.309 (2014). The record does not contain medical evidence showing any manifestation of arthritis of the lumbar or cervical spine during service or during the one-year presumptive period after the Veteran's separation from service. Indeed, the Veteran has not persuasively described continuity of symptomatology since service and, at times, has stated that the disability had a later onset. In particular, he has stated, "My back injury was incurred during my active duty service. During my exit exam I did not report any abnormalities on back because there were none at that time. After my release from active service, I began to experience pain on my back. The pain was not severe enough to complain about until about November 2005 [when] I had surgery for this condition. This injury was incurred while on active duty and as time progressed, it became more severe." See October 2007 Form 9 appeal. In this regard, the Board also notes a VA treatment record of December 2006 stating that "Pt reports hx of back injury 2000 and then no issues until 2004 when started to have back pain radiating to L lower extremity with numbness and tingling". In addition, a private treatment record of the physician who operated on the Veteran's back in 2005 states that the Veteran "has had back pain since 12/2004." See October 2005 private treatment record (emphasis added). As such, continuity of symptomatology is not established. In light of the negative nexus opinion of the VA medical examiner and the evidence indicating that the Veteran's current low back disability began in 2004, not 2000, element (3) is not met. The Board concludes that a preponderance of the evidence is against finding that the Veteran's back condition is related to his military service. Service connection for a low back disability is not warranted, and the benefit sought on appeal is denied. II. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. The Veteran has been rated 10 percent for a ganglion cyst on his right wrist under Diagnostic Codes 7819-5015. The RO in October 2008 granted a 10 percent rating under DC 5015 for limitation of motion. The Board, in its decision, granted a 10 percent rating under DC 7819 for a painful scar. The JMR remanded this case partially for a determination over whether this change by the Board constituted a reduction under 38 C.F.R. § 3.344. However, the Board will not discuss this issue because it finds that the Veteran is entitled to separate ratings under 7819 and 5015. The JMR noted that the Board failed to explain why the Veteran was not entitled to separate disability ratings for painful joint movement and a painful tender scar. Diagnostic Code (DC) 7819 provides that benign skin neoplasms are to be rated as scars under DCs 7801-7805, or as impairment of function. See 38 C.F.R. § 4.118, DC 7819 (2014). Referable to scars, DC 7801 provides for ratings based on the surface area of a deep and nonlinear scar, meaning one that is associated with the underlying tissue. The minimum area for the scar to receive a rating under this code is at least 6 square inches. DC 7802 provides one rating for superficial and nonlinear scars based on having a surface area of at least 144 square inches. DC 7804 provides that, when there are one or two scars that are unstable or painful, a 10 percent rating is warranted. Twenty percent is assigned when there are three or four such scars, and 30 percent when there are 5 or more such scars. DC 7805 provides that the rater is to evaluate any disabling effects not considered in the prior codes under the appropriate code. Referable to impairment of function, DC 5015 addresses bones, new growths of, benign, and directs that such will be rated on limitation of motion of affected parts. In this case, the affected part is the wrist. Limitation of motion of the wrist is evaluated under DC 5215, which provides for the assignment of a 10 percent disability rating with dorsiflexion less than 15 degrees or palmar flexion limited in line with forearm. See 38 C.F.R. § 4.71a, Diagnostic Code 5215 (2014). It is the sole rating available under that code. However, the Board notes that § 4.59 directs the assignment of "at least the minimum compensable rating for the joint" when "painful, unstable, or maligned". The Veteran underwent surgery of the right wrist during service following an injury during military training. He maintains that he continues to have residual pain to the present and that the pain is most pronounced during activities such as prolonged typing at work, when playing sports such as racquetball, and during other strenuous activities. A supplemental statement of the case of October 2008 assigned a 10 percent evaluation from July 26, 2006, for painful or limited motion of a major joint or group of minor joints. The Veteran was afforded a compensation examination for his right wrist in June 2014. The report notes that the Veteran "has service-connected right wrist condition, following excision of ganglion cyst in April 2004 in the service." The Veteran reported "no swelling or limitation of motion," no "flare-ups impacting the function of the wrist," and "no functional loss or functional impairment of the joint or extremity." Initial range of motion (ROM) measurements were made for the right wrist. Palmar flexion ROM was 80 (normal endpoint is 80 degrees); dorsiflexion ROM was 70 (normal endpoint is 70 degrees); ulnar deviation ROM was 45 (normal endpoint is 45 degrees); and radial deviation ROM was 20 (normal endpoint is 20 degrees). The Veteran was able to perform repetitive-use testing, and there was no additional limitation in ROM after repetitive-use testing. While ROM movements were painful on active, passive and/or repetitive-use testing, the pain was not found to contribute to functional loss or additional limitation of ROM. The examiner also found there to be pain when the wrist is used in weight-bearing or non-weight-bearing, but the pain did not contribute to functional loss or additional limitation of range of motion. The examiner stated, "The pain is only on extreme motions, and only on excessive motion [prolonged typing] or in some sports [racquetball]. The examiner also found no functional loss (not associated with limitation of motion) during flare-ups or when the joint is used repeatedly over a period of time. The examiner noted the Veteran's arthroscopic surgery of April 2000 in which the ganglion was excised. The residuals of that surgery were noted to be "pain on excessive activities [prolonged typing] or some sports [racquetball]." The examiner noted that the Veteran has a scar that is not painful or unstable and does not have a total area equal to or greater than, 39 square cm (6 square inches) or located on the head, face, or neck. The Veteran's scar is located at "dorsum of the wrist" and measures "length 1.5 cms. cm X width 1/2 mm. cm. [sic]." The Veteran had movement in the wrist; therefore, there was no ankylosis of the wrist, nor was there objective evidence of crepitus. Imaging studies indicated no degenerative or traumatic arthritis. The Veteran did not use an assistive device. With regard to muscle strength of the right wrist, both the flexion rate strength and the extension rate strength were 5/5 (normal). There was no reduction in muscle strength, and the Veteran has no muscle atrophy. The conditions listed in the diagnosis section of the report were found "not to impact the Veteran's ability to perform any type of occupational task (such as standing, walking, lifting, sitting, etc.)." In November 2012, the Veteran's employer filed a statement attesting to the fact that the Veteran "is a good, reliable, and knowledgeable worker but suffers from pain in his back and wrist, and these conditions restrict the speed with which he performs his job. I, as his employer, have had to make the decision of not giving him a raise, because he simply does not work as fast as my other carpenters." The Veteran also received a VA medical examination for his right wrist in November 2007. The diagnosis was "status post excision of ganglion cyst of the right wrist with residual symptoms. Two small cysts adjacent to the scaphoid bone seen on MRI." The examiner described the history of the injury as follows: "In April 2000, [the Veteran] was diagnosed as having a ganglion cyst over the dorsum of this right wrist. He underwent excision of this ganglion on April 21, 2000." The examiner noted the symptoms as follows: "At the present time, the patient complains of intermittent pain over the site of the excised ganglion. The pain is precipitated on extreme movements of his wrist. . . . The pain also is brought about by excessive typing on the computer. No limitation of motion, but minimal weakness in the hand grip. During flare-ups, the pain in the wrist is estimated at 7/10. . . . The pain does not interfere with his ADL and work in an office. However, occasionally he has to stop typing using the computer after working for some time. No incapacitating episodes for . . . the wrist pain in the last one year [sic]." Upon examination of the Veteran, the examiner found a "well-healed 1.5 -cm transverse incision over the dorsum of the wrist at the site of the excised ganglion. No swelling or redness. Minimal tenderness over the operative scar." Range of motion (ROM) measurements were taken. The range of motion of the wrist showed "dorsiflexion from 0-70 degrees [out of 80 degrees] with pain starting at 60 degrees. Palmar flexion was 80 degrees with pain at 70 degrees. Radial deviation was 20 degrees over the radial aspect of the wrist. There was no crepitation. Repeated motion does not produce additional limitation of motion due to pain, weakness, fatigue, lack of endurance, or incoordination. The sensations in the hand were normal." The examiner noted that "the hand grip is minimally weaker than the left hand because of the pain at the site of the excised ganglion." The x-rays of the right wrist were "normal." In a November 2007 filing, the Veteran stated with regard to his right wrist, "I continue to experience constant pain and uncomfort [sic]. This pain is magnified with the everyday tasks that I must perform as part of my duties at work. Extensive typing, prolonged use of a hammer, writing for extended periods of time, are some of the activities that intensify the pain and sometimes make it almost unbearable to perform any activities with my right hand." The Board found in its prior decision that " [R]egarding the codes applicable to scars, the VA medical examination report of June 2014 indicated that the wrist scar is smaller than six square inches, does not limit function, and is superficial, stable, non-painful, and well-healed. According to the November 2007 examiner, however, there was "minimal tenderness over the operative scar." The Veteran has also made competent and credible statements concerning pain over the scar. Although the evidence is conflicting as to whether the scar is painful, the Veteran more nearly approximates the 10 percent rating of DC 7804 for a painful scar. The criteria of DC 7804 do not provide for a higher rating than 10 percent for the Veteran's one, stable but tender scar. See 38 C.F.R. § 4.118, DC 7804 (2014). The remaining scar codes do not apply, as they require larger surface areas to be involved". The Board, however, declined to grant a higher evaluation based on impairment of function. The Board found that "[T]he competent and probative evidence of record does indicate that the Veteran's right-wrist disability is manifested by pain and functional limitation of motion that interferes to some extent with daily activities. The November 2007 VA medical examination report found painful palmar flexion and dorsiflexion movement at slightly less-than-normal endpoints. In addition, the Veteran's employer has stated that the Veteran does not work as fast as other carpenters in his employ, at least in part because of his wrist disability. Furthermore, the Veteran asserts that his wrist pain acts to limit his level of performance of "everyday tasks" such as "extensive typing, prolonged use of a hammer, [and] writing for extended periods of time."" Furthermore, "The Board finds that the Veteran's wrist disability manifests as an inability to perform the normal working movements of the body with normal speed and endurance. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 4.40 (2014). In making this finding, the Board has also given consideration to evidence of weakened movement, excess fatigability, and pain on movement. See 38 C.F.R. § 4.45 (2014)." The Board noted, however, that "[E]ven considering the functional loss, however, the Veteran's disability does not meet or approximate the criteria for a higher rating under DC 5215, relating to limitation of the motion of the wrist. None of the Veteran's ROM measurements, even when taking into account the limitation of motion based on pain, meets the criteria of DC 5215 (0 palmar flexion or less than 15 dorsiflexion). Indeed, his function is much higher than contemplated by the rating criteria". The Board did not consider whether separate ratings could be granted for both the painful scar and the limitation of range of motion. Moreover, the Board notes, again, that § 4.59 directs the assignment of "at least the minimum compensable rating for the joint" when "painful, unstable, or maligned". In this instance, there are ample findings of painful motion in the joint, separate and distinct from the painful scar symptoms, to necessitate the minimum 10 percent rating available under DC 5215. Therefore, the Veteran is entitled to separate 10 percent ratings under both DC 5215 and 7804. Because the Veteran is entitled to 10 percent ratings under both codes, there is no longer a reduction that needs to be explained by the Board. The Board has considered whether an extraschedular rating may be appropriate for the Veteran's right-wrist disability. See Bagwell v. Brown, 9 Vet. App. 157 (1966). The Board determines that referral of this case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. Ordinarily, the VA Rating Schedule will apply unless exceptional or unusual factors render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating may be warranted for an exceptional or unusual disability with related factors such as marked interference with employment or frequent periods of hospitalization that make applying the regular schedular standards impractical. See 38 C.F.R. § 3.321(b)(1) (2014). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture that has related factors such as marked interference with employment or frequent periods of hospitalization, the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating should be assigned. Here the first Thun element is not satisfied. The Veteran has not identified any factors that may be considered to be exceptional or unusual. His symptoms are a painful scar and slightly diminished range of motion on extreme use. These symptoms are contemplated by the rating criteria applied. The Board also notes that a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance in which the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. See Johnson v. McDonald, 762 F.3d 1362 (2014). The Veteran is currently assigned a 10 percent disability rating for tinnitus in addition to the 10 percent rating for his right-wrist disability. The Veteran has at no time during the period under consideration indicated that he believes the assigned schedular rating for his other service-connected disability is inadequate or that the schedular criteria for his other disability does not adequately describe or reflect his symptomatology. Nor has the Veteran indicated at any point during the current appeal that his right-wrist disability results in further disability when looked at in combination with his other service-connected disability. Accordingly, this case does not represent an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple service-connected conditions. ORDER Entitlement to service connection for a low back disorder is denied. Entitlement to an initial rating of 10 percent under DC 5215 and a separate initial rating under DC 7804 is granted. ____________________________________________ M. Tenner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs