Citation Nr: 1724664 Decision Date: 06/29/17 Archive Date: 07/10/17 DOCKET NO. 13-34 228 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 10 percent for a right wrist disorder, including non-union of the scaphoid bone and traumatic arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1953 to October 1956. The matter before the Board of Veterans' Appeals (Board) is on appeal from a June 2011 rating decision issued by the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran requested a Board hearing in his VA Form-9. However, in a May 2016 correspondence, the Veteran withdrew his request for a hearing. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT Throughout the entire appeal period, the Veteran's right wrist disability has been characterized by painful motion and stiffness; ankylosis has not been shown. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a right wrist disability for the entire appeal period have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5010, 5215 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Increased Ratings In this case, the Veteran is seeking an increased rating for his service-connected right wrist disability, which has been rated as 10 percent disabling. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1 (2016). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2016). Although the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7 (2016). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2016). 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. 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 enervation, or other pathology, or it 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 that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2016); see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are as entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See 38 C.F.R. § 4.59 (2016). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is currently service-connected for a right wrist disability and has been assigned a 10 percent rating under 38 C.F.R. § 4.71a, DCs 5010 and 5215 (addressing traumatic arthritis and limitation of motion of the wrist). In order to warrant a rating in excess of 10 percent for a disability to the dominant wrist, the evidence must show favorable ankylosis in 20 to 30 degrees of dorsiflexion. 38 C.F.R. § 47.1a, DCs 5214, 5215 (2016). After a review of the evidence of record, the Board determines that a rating in excess of 10 percent is not warranted for the entire period on appeal. Specifically, at a December 2010 VA examination, the Veteran complained of pain, weakness, and abnormal motion. The Veteran indicated that his wrist disability did not cause any incapacitation, and that he did not wear any assistive devices. Upon examination, there was no sign of instability, effusion, weakness or edema. The range of motion of the right wrist was 45 degrees of dorsiflexion, 40 degrees of palmar flexion, 10 degrees of radial deviation, and 25 degrees of ulnar deviation with no evidence of ankylosis. The examiner reported that the Veteran's imagining studies revealed traumatic arthritic changes at the lateral aspect of the carpal bones. Additionally, the Veteran's treatment records for the period on appeal do no reveal any range of motion testing that would warrant a higher rating. Therefore, as ankylosis has not been shown, a rating in excess of 10 percent is not warranted for the Veteran's right wrist disability at any time during the appeal period. When rating the extent of the Veteran's disability, the Board also considered functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995). In this regard, the Board notes that the disability ratings adequately address all of the Veteran's symptoms, including pain. Simply stated, the Veteran's symptoms related to his wrist symptoms are considered within the context of the current finding and rating, and the mere fact that he experiences pain and weakness during motion of his wrist does not in and of itself support the assignment of a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Johnson v. Brown, 9 Vet. App. 7 (1996). The Board also considers whether a higher rating is warranted for his right wrist arthritis under 38 C.F.R. § 4.71a, DC 5010 (traumatic arthritis). In order to warrant a 20 percent rating under DC 5010, the evidence must show X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Id.; DC 5003. Additionally, Note (1) states that ratings based upon X-ray findings under DC 5003 will not be combined with ratings based upon limitations of motion. 38 C.F.R. § 4.71a. Here, while the Veteran was diagnosed with degenerative joint disease in his right wrist, the medical evidence does not indicate that the Veteran had any incapacitating right wrist exacerbations. Specifically, the Veteran's December 2010 VA examination did not document any incapacitating exacerbations. Similarly, the Veteran's treatment records did not reveal any such incapacitating episodes. Consideration has also been given to all other relevant diagnostic codes that allow for a higher rating, including DCs 5210-5213 (addressing injuries to the forearm and elbow). However, while the May 2010 private treatment records have identified a partial tear in the triangular fibrocartilage complex of the ulnar attachment, the records indicate that this injury was the result of a recent motor vehicle accident and not his service connected wrist disorder. Additionally, the Board notes that the Veteran was previously denied service connection under 5213 for a right elbow and arm disorder. In considering the appropriate disability rating, the Board has also considered the Veteran's statements that his wrist disability is worse than the ratings he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his wrist disability according to the appropriate diagnostic codes. 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"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's right wrist disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that the Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to the issues on appeal, including limitations to his activities of daily living, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). As such, the Veteran's symptoms are not which are so unusual that they are outside the schedular criteria. Moreover, even in the event that the schedular criteria were inadequate, there is no indication that the Veteran has ever been hospitalized for this condition, nor has there been any indication of missed periods of work. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board also acknowledges the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a total rating based on individual unemployability, due to service-connected disability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. In this case, while the Veteran quit his job many years prior to the period on appeal, he has never asserted and the record does not suggest, that his service-connected disability renders him unemployable. As such, Rice is inapplicable in this case. VA Duty to Notify and Assist The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA), which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016). The VCAA also redefines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. 38 U.S.C.A. §§ 5103, 5103A. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2016); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided notice letters informing him of both his and VA's obligations. Moreover, there is no indication of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Therefore, additional notice is not required and any defect in notice is not prejudicial. With respect to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C.A. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). The Board finds that all necessary assistance has been provided to the Veteran. Indeed, all VA treatment records and relevant private treatment records have been obtained. The Veteran has also been provided with VA examinations. Upon review of the examination reports, the Board observes that the examiners reviewed the Veteran's past medical history, recorded his current complaints and history, conducted appropriate evaluations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The VA examination reports are therefore adequate for the purpose of rendering a decision on appeal. 38 C.F.R. § 4.2 (2016); Barr v. Nicholson, 21 Vet. App. 303 (2007). Further, the Board acknowledges the Veteran's assertions that his VA examination for the issues on appeal is now over 6 years old. However, in the context of increased rating claims, the duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since this VA examination, and he has not contended otherwise. Additionally, the Board notes that the December 2010 VA examiner opined that the Veteran's wrist is a non-weight bearing joint. Moreover, a higher rating for the Veteran's wrist disability can only be obtained with evidence of ankylosis - which has not been demonstrated. Therefore, the Board finds that the VA examination is sufficient for purposes of complying with Correia v. McDonald, 28 Vet. App. 158, 168 (2016), especially in light of the fact that the Veteran did not raise any argument regarding the impact of the deficiencies in testing as noted in Correia. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015), cert. denied, 137 S. Ct. 33, 196 L. Ed. 2d 25 (2016) ("A veteran's interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution."); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying the exhaustion doctrine to uphold the Court's determination not to consider a duty to assist argument that the veteran had not raised before the Board). Overall, no further notice or assistance is required to fulfill VA's duty to assist in the development of the above-cited 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). ORDER A rating in excess of 10 percent for a service-connected right wrist disability for the entire appeal period is denied. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs