Citation Nr: 1805383 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 13-07 193 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to special monthly compensation (SMC) on account of loss of use of the right upper extremity under 38 U.S.C. § 1114(k), on and after April 22, 2014. 2. Entitlement to a separate compensable disability rating(s) for an orthopedic / muscular disability of the fingers of the right hand, associated with the Veteran's service-connected right wrist disability. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD P.S. Rubin, Counsel INTRODUCTION The Veteran had active duty service in the U.S. Navy from February 1955 to June 1957 and in the U.S. Army from November 1958 to February 1962. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In September 2015, the Veteran and his spouse presented testimony at a Central Office Board hearing in Washington D.C., before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the Veteran's claims file. In an earlier December 2015 Board decision, the Board remanded the current appeal for further development. The case has since been returned to the Board for appellate review. In the same December 2015 decision, the Board adjudicated the issues of an increased rating for the right wrist and entitlement to SMC based on loss of use of the upper right extremity, for earlier time periods prior to July 1, 2014 and prior to April 22, 2014, respectively. Thus, these issues for these earlier time periods are no longer on appeal before the Board. In a November 2016 Board decision, the Board denied the matter on appeal. The Veteran appealed the November 2016 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2017 Order, the Court partially vacated and remanded the Board's decision on the increased rating and SMC issues, for proceedings consistent with an October 2017 Joint Motion for Partial Remand (hereinafter - Joint Motion). The October 2017 Joint Motion requested that the Court not disturb that portion of the Board's decision that granted a maximum 50 percent evaluation for the Veteran's service-connected right wrist disability for the period on and after July 1, 2014. In other words, the October 2017 Joint Motion left that issue undisturbed. Therefore, the Court considered the increased rating issue for the right wrist above 50 percent to have been abandoned on appeal. See Ford v. Gober, 10 Vet. App. 531, 535 (1997) (claims not argued on appeal are deemed abandoned); Bucklinger v. Brown, 5 Vet. App. 435, 436 (1993). The October 2017 Joint Motion did request however that the Board consider whether a separate compensable disability rating(s) is warranted for an orthopedic / muscular disability of the fingers of the right hand. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2017). The issue of a separate compensable disability rating(s) for an orthopedic / muscular disability to the fingers of the right hand is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT On and after April 22, 2014, the Veteran's service-connected right wrist disability is productive of loss of use of the right hand. That is, the Veteran's right wrist disability causes a level of impairment such that no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the elbow, with use of a suitable prosthetic appliance. CONCLUSION OF LAW On and after April 22, 2014, the criteria are met for entitlement to SMC benefits on account of loss of use of the right upper extremity. 38 U.S.C. §§ 1114(k), 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.350(b)(2), 4.63, 4.71a (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duty to Notify and Assist In the decision below, the SMC benefits sought on appeal for the right hand have been granted in full. Accordingly, regardless of whether the notice and assistance requirements have been met with regard to the SMC issue, no harm or prejudice to the Veteran has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. II. SMC - Loss of Use of Right Hand Pursuant to the October 2017 Joint Motion, the Court ordered the Board to provide adequate reasons and bases, when adjudicating the claim for entitlement to SMC on account of loss of use of the right upper extremity, on and after April 22, 2014. The October 2017 Joint Motion cited evidence of record that was favorable to loss of use of the right hand. The October 2017 Joint Motion instructed the Board to consider whether staged ratings were appropriate for loss of use of the right hand, in light of the favorable findings of a July 2016 private Sentara Orthopedics DO report. The Joint Motion also instructed the Board to discuss whether a new VA examination was warranted, in light of worsening of the right hand disability, as shown by the July 2016 private report. SMC is available when, as the result of service-connected disability, a veteran suffers additional hardships above and beyond those contemplated by VA's schedule for rating disabilities. See generally 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352; see also VA Gen. Coun. Prec. 5-89 (Mar. 23, 1989) (explaining that SMC is a supplementary statutory benefit based on noneconomic factors such as personal inconvenience, social inadaptability, or the profound nature of a disability). The rate of SMC varies according to the nature of the Veteran's service-connected disabilities. Basic levels of SMC are listed at 38 U.S.C. § 1114(k). Higher levels of SMC are provided at 38 U.S.C. § 1114(l), (m), (n), and (o). SMC is payable in addition to the basic rate of compensation otherwise payable for the degree of disability. SMC under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) as the result of service-connected disability is payable for each anatomical loss or loss of use of one hand, one foot, both buttocks, one or more creative organs, blindness of one eye having only light perception, deafness of both ears, having absence of air and bone conduction, complete organic aphonia with constant inability to communicate by speech or, in the case of a woman veteran, the anatomical loss of one or both breasts (including loss by mastectomy). "Loss of use of a hand or foot" is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. §§ 3.350(a)(2)(i), 4.63. An example under 38 C.F.R. § 3.350(a)(2) and 38 C.F.R. 4.63 which constitutes loss of use of a hand includes complete ankylosis of two major joints of an extremity. If loss of use of the hand is found to exist, a veteran is entitled to SMC in addition to the basic rate of compensation otherwise payable on the basis of degree of disability. 38 C.F.R. § 3.350(a); see also 38 C.F.R. § 4.71a, Diagnostic Code 5125. In Tucker v. West, 11 Vet. App. 369, 373 (1999), the Court stated that the relevant inquiry concerning loss of use is not whether amputation is warranted, but whether the claimant has had effective function remaining other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance. The Court also stated that in accordance with 38 C.F.R. § 4.40, the Board is required to consider the impact of pain in making its decision and to articulate how pain on use was factored into its decision. Id. The responsibility for determining whether there is loss of use rests with the adjudicator; the Board may not ask a clinician to determine whether there is "loss of use." See VBA Live Manual M21-1, IV.ii.2.H.1.b. The Board in its previous December 2015 decision denied SMC on account of loss of use of the right hand prior to April 22, 2014. The Veteran underwent surgery for his right wrist on April 22, 2014, and has alleged that his right wrist / hand is practically useless and has worsened after the April 22, 2014 surgery. He states that he is unable to grasp or hold anything with his right hand. He indicates he cannot move his fingers, write, or pick up a coin. It is difficult to button his shirt or tie his shoe laces. He cannot use his right hand for most daily activities; instead, he says he only uses his left hand. See August 2015 Veteran's faxed statement; August 2015 representative statement; September 2015 hearing testimony; November 2015 and June 2016 Veteran's statements; September 2015 VA emergency services nursing assessment. Upon review of the evidence of record, on and after April 22, 2014, SMC on account of loss of use of the right upper extremity under 38 U.S.C. § 1114(k) is warranted. In making this determination, the Board has considered both the lay and medical evidence of record. The evidence of record establishes that the Veteran's service-connected right wrist disability causes a level of impairment, such that no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the elbow, with use of a suitable prosthetic appliance. See 38 C.F.R. §§ 3.350(a)(2)(i), 4.63. At the outset, the Board notes there is no medical evidence of record showing complete ankylosis of two major joints of the right upper extremity. See 38 C.F.R. § 4.63. In this regard, under 38 C.F.R. § 4.45(f), for the purpose of rating disability from arthritis, only the wrist, shoulder, elbow, hip, knee, and ankle are considered to be major joints. The Veteran clearly has ankylosis of one major joint - the right wrist, but no ankylosis of a second major joint such as the shoulder or elbow. However, the following evidence of record is supportive of SMC on account of loss of use of the right upper extremity, on and after April 22, 2014: A May 2015 VA ER department note documents emergency treatment for worsening right hand pain. The VA physician observed that the Veteran's right wrist was "fixed in neutral position." A September 2015 VA emergency services nursing assessment indicated the Veteran has no grip, no movement, swelling, and discomfort in the right hand that keeps him awake at night. He was provided Vicodin for pain. At the September 2015 hearing, the Veteran credibly stated his belief and described how he has loss of use of the right wrist. He credibly described how he could no longer grasp objects with his right hand. He stated he could not use his right wrist, could not lift anything or pick anything up. He reported swelling. After his April 2014 right wrist surgery, the condition had worsened. He has pain and is not able to move his right wrist. At the hearing, the Veteran exhibited difficulty raising his right arm up, as observed by the undersigned. See testimony at page 19. The Veteran avoids using his right arm as much as possible, and uses his left arm instead. The Veteran has difficulty buttoning his shirt, and generally wears pullovers as a result. It is difficult to tie his shoes as well. At the March 2016 VA wrist examination, the Veteran credibly reported that he was unable to do yardwork, or hold a fork /spoon / toothbrush or any tool, due to his service-connected right wrist. Moreover, the VA examiner indicated that the Veteran had no range of motion in his right wrist, and stated that "there is no wrist motion." The Veteran was observed to have ankylosis, "favorable in 20 [degrees] to 30 [degrees] dorsiflexion." The VA examiner also indicated that the Veteran "is unable to use it at all to do yardwork, hold a fork/spoon or any tool. He can write his name. He has pain with any activity and pain with finger movement." The VA examiner also stated, "[h]e is unable to perform manual tasks requiring finger movement or hand strength as above due to pain in his dominant right hand." His range of motion for the right wrist was as follows: 0 degrees for palmar flexion, 0 degrees for dorsiflexion, 0 degrees for ulnar deviation, and 0 degrees for radial deviation. The VA examiner concluded the Veteran has no right wrist motion. There was no repetitive motion because there was no wrist motion to begin with. A July 2016 private Sentara Orthopedics DO report opined the Veteran "has had multiple surgeries for the right hand / wrist. [The Veteran] still has residual pain and weakness. No use of right upper extremity. No lifting, no fine motor movements." (Emphasis added). In so finding, the Board recognizes that no physician has specifically stated that no "effective function remains [in the right wrist] other than that which would be equally well served by an amputation stump at the site." However, the regulation defining "loss of use" clearly leaves the question open to some interpretation to the extent that it includes an intentionally non-exhaustive list of "example" situations which may reflect loss of use of the hand. Thus, the Board exercises its authority to interpret the immediate facts as being sufficiently similar to those examples presented as demonstrative of the regulatory definition of loss of use of the hand. The facts of this case demonstrate the Veteran has no effective function of the right hand that is any better than what a suitable prosthetic device would provide, as his ability to engage in grasping and manipulation with the right hand is severely limited. See Tucker, 11 Vet. App. 369. Accordingly, resolving doubt in the Veteran's favor, the Board concludes that the Veteran's service-connected right wrist disability has resulted in the equivalent of permanent loss of use of the right hand. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran is therefore entitled SMC on account of loss of use of the right hand under 38 U.S.C. § 1114(k). ORDER On and after April 22, 2014, entitlement to SMC on account of loss of use of the right upper extremity (right hand) under 38 U.S.C. § 1114(k) is granted. REMAND However, before addressing the merits of the issue of entitlement to a separate compensable disability rating(s) for an orthopedic / muscular disability of the fingers of the right hand, the Board finds that additional development of the evidence is required. Pursuant to the October 2017 Joint Motion, the Court instructed the Board to consider whether separate ratings are appropriate for limited or painful range of motion in the Veteran's fingers of the right hand, particularly with regard to diagnostic codes pertaining to orthopedic or muscular disabilities of the fingers. In general, evaluation of the same disability or the same manifestations of disability under multiple diagnoses (i.e., pyramiding) is to be avoided. 38 C.F.R. § 4.14. Where, however, separate and distinct manifestations have arisen from the same injury, separate disability ratings may be assigned where none of the symptomatology of the conditions overlaps. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board emphasizes that the critical inquiry in making such a determination is whether any of the disabling symptomatology is duplicative or overlapping. A veteran is entitled to a combined rating where the symptomatology is distinct and separate. Id. In this regard, a separate (orthopedic) disability rating for the fingers of the Veteran's right hand should be considered under 38 C.F.R. § 4.71a, Diagnostic Codes 5214-5230 - ankylosis or limitation of motion of single or multiple digits of the hand. In addition, a separate (muscle injury) disability rating for the fingers of the Veteran's right hand should be considered under 38 C.F.R. § 4.73, Diagnostic Codes 5307-5309 - muscle group injuries to the forearm and hand - Muscle Groups VII, VIII, and IX. At present, no recent VA examination of record adequately addresses the current severity and manifestations of the fingers of the right hand, secondary to the service-connected right wrist disability. In the October 2017 Joint Motion, the Court cited evidence of record of pain and limitation of motion in the fingers of the right hand. When a claimant asserts that the severity of a disability has increased since the most recent rating examination (or the evidence indicates it has), and the evidence of record is otherwise insufficient to evaluate the appeal, an additional VA examination is appropriate. 38 C.F.R. § 3.327(a) (2017). See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Therefore, the appropriate VA hand, thumb, and fingers examinations (both orthopedic and muscle examinations) are necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's fingers of the right hand, associated with his service-connected right wrist disability. Accordingly, the increased rating issue for the fingers is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. (Orthopedic Examination of the fingers of the right hand) - The AOJ should secure the appropriate VA hand, thumb, and fingers examination to ascertain the current severity and manifestations of the Veteran's fingers of the right hand, associated with his service-connected right wrist disability. Access to the VBMS and Virtual VA electronic claims files must be made available to the examiner for review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examination should include a statement as the effect of the Veteran's service-connected fingers of the right hand on the Veteran's occupational functioning and daily activities. The appropriate DBQ (orthopedic / joint) for the service-connected fingers of the right hand should be utilized. The explanation for all opinions expressed must be provided. 2. (Muscle Injury Examination of the fingers of the right hand) - The AOJ should secure the appropriate VA hand, thumb, and fingers examination to ascertain the current severity and manifestations of the Veteran's fingers of the right hand, associated with his service-connected right wrist disability. Access to the VBMS and Virtual VA electronic claims files must be made available to the examiner for review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examination should include a statement as the effect of the Veteran's service-connected fingers of the right hand on the Veteran's occupational functioning and daily activities. The appropriate DBQ (muscle injuries) for the service-connected fingers of the right hand should be utilized. The explanation for all opinions expressed must be provided. 3. The AOJ should notify the Veteran that it is his responsibility to report for any scheduled VA examinations and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled VA examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After steps 1-3 are completed, the AOJ should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After steps 1-4 are completed, the AOJ should consider all of the evidence of record and readjudicate the issue of entitlement to a separate compensable disability rating(s) for an orthopedic / muscular disability of the fingers of the right hand, associated with the Veteran's service-connected right wrist disability. (The Court's October 2017 Joint Motion ordered this development). * The AOJ should consider whether a separate (orthopedic) disability rating is warranted for the fingers of the Veteran's right hand under 38 C.F.R. § 4.71a, Diagnostic Codes 5214-5230 - ankylosis or limitation of motion of single or multiple digits of the hand. * The AOJ should also consider whether a separate (muscle injury) disability rating is warranted for the fingers of the Veteran's right hand under 38 C.F.R. § 4.73, Diagnostic Codes 5307-5309 - muscle group injuries to the forearm and hand - Muscle Groups VII, VIII, and IX. If the benefit sought is not granted, the AOJ should issue a SSOC and allow the Veteran an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs