Citation Nr: 1814697 Decision Date: 03/09/18 Archive Date: 03/19/18 DOCKET NO. 15-38 615 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for service-connected residuals of scaphoid nonunion, right wrist, currently evaluated as 40 percent disabling. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T.S.E., Counsel INTRODUCTION The Veteran had active service from June 1958 to March 1965. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied a claim for an increased rating for service-connected residuals of scaphoid nonunion, right wrist, currently evaluated as 40 percent disabling. In January 2018, the Veteran was afforded a hearing at the RO before Matthew W. Blackwelder, who is the Veterans Law Judge rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C. § 7102(b) (2012). 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) (2012). FINDING OF FACT The Veteran's service-connected residuals of scaphoid nonunion, right wrist, are shown to have been productive of ankylosis in a neutral position, but not unfavorable ankylosis of the wrist, in any degree of palmar flexion, or with ulnar or radial deviation. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for service-connected residuals of scaphoid nonunion, right wrist, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.71a, Diagnostic Codes 5214, 5215 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts that he is entitled to an increased rating for his service-connected residuals of scaphoid nonunion, right wrist. During his hearing, held in January 2018, the Veteran testified to the following: he is right-handed. He cannot perform any turning or bending motions with his right wrist. He is also unable to perform repetitive tasks, or to use a computer keyboard. He reported experiencing right wrist pain that is aggravated by cold or damp weather. He can move his hand, but not his right wrist. He asserted that he has unfavorable ankylosis of his right wrist. As for the history of the disability in issue, the Veteran's service treatment records show that in January 1964, he underwent a bone graft from his right crest to his right ulnar wrist, to treat an old fracture of his right navicular bone. A January 1965 physical evaluation board report shows that he was determined to be unfit for duty due to a nonunion fracture, right carponavicular, and arthritis, right wrist, secondary to trauma. Following separation from service, a March 2002 VA examination report noted right wrist pain and a limited range of motion, directly related to a scaphoid nonunion, secondary to a scapular fracture sustained in 1964. A January 2007 VA examination report noted severe degenerative ischemic and probable posttraumatic changes involving the carpal bony structures as well as the articular surface of the distal right radius. A September 2008 VA examination report noted severe degenerative and possibly posttraumatic and ischemic changes particularly involving the scaphoid and lunate of the right wrist, marked degenerative change of the radiocarpal joint with two small bony fragments about the joint space (loose body should be considered), and mild increased sclerosis degree along the region triquetrum and hamate. An old triquetral fracture was also suggested; there were vascular calcifications. A September 2011 VA examination report noted decreased manual dexterity, problems with lifting and carrying, weakness or fatigue, and pain. An X-ray showed chronic change of the scaphoid and lunate bones consistent with remote trauma, and a fracture through the waist of scaphoid bone without definite avascular necrosis. There was no ankylosis. The diagnosis was scaphoid nonunion fracture right wrist with residuals. See 38 C.F.R. § 4.1 (2017). In January 1966, the RO denied the Veteran's claim for service connection for a right wrist disability. There was no appeal, and the RO's decision became final. See 38 U.S.C. § 7105(c). In January 2001, the Veteran filed to reopen the claim. In March 2002, the RO determined that new and material evidence had not been presented to reopen the claim. The Veteran appealed, and in March 2004, the Board granted the claim for service connection. That same month, the RO effectuated the Board's decision, and evaluated the Veteran's residuals of scaphoid nonunion, right wrist, to include degenerative changes, as 10 percent disabling under diagnostic codes (DCs) 5215-5010. In April 2007, the RO increased the Veteran's rating to 30 percent, under DCs 5215-5214. In September 2011, the RO increased the Veteran's rating to 40 percent, under DCs 5215-5214. Following each rating decision, there was no appeal, and the RO's decisions became final. See 38 U.S.C. § 7105(c). In August 2013, the Veteran filed a claim for an increased rating. In July 2014, the RO denied the claim. The Veteran has appealed. Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the VA's Schedule for Ratings Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. § Part 4 (2017). Higher ratings are assigned if the disability more nearly approximates the criteria for that rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence the benefit of the doubt is to be resolved in a veteran's favor. 38 U.S.C. § 5107(b). The Veteran's right wrist disability is currently rated as 40 percent disabling, pursuant to 38 C.F.R. § 4.71a, DC 5215-5214 (2017). See 38 C.F.R. § 4.27 (2017) (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen; the additional code is shown after the hyphen). This hyphenated diagnostic code may be read to indicate that limitation of wrist motion is the service-connected disorder, and it is rated as if the residual condition is ankylosis of the wrist, under DC 5214. However, the U.S. Court of Appeals for Veterans Claims held that hyphenated codes are only appropriate for diseases, and that they are inappropriate for injuries. Tropf v. Nicholson, 20 Vet. App. 317 (2006). Under the circumstances in this case, the use of the hyphenated code did not result in any prejudice to the Veteran. The Board has analyzed the claim under the appropriate diagnostic codes, as noted below. Under 38 C.F.R. § 4.71a, DC 5215, a 50 percent rating is warranted for: Wrist (major), ankylosis of: Unfavorable, in any degree of palmar flexion, or with ulnar or radial deviation. As set forth at 38 C.F.R. § 4.71, Plate I, the normal range of motion of the wrist is dorsiflexion from 0 to 70 degrees, and palmar flexion from 0 to 80 degrees, and ulnar deviation is 0 to 45 degrees and radial deviation is 0 to 20 degrees. "Ankylosis" is defined as "immobility and consolidation of a joint due to disease, injury or surgical procedure." See Colayong v. West, 12 Vet. App. 524, 528 (1999); Shipwash v. Brown, 8 Vet. App. 218, 221 (1995); see also Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint). A VA wrist conditions disability benefits questionnaire (DBQ), dated in April 2014, shows that the examiner indicated that the Veteran's VBMS file had been reviewed. The DBQ notes the following: the Veteran denied receiving any treatment since his last rating. He experienced frequent pain with activity, sometimes affected by the weather. He takes Tylenol a couple of times a week. He has hand weakness and drops things and he cannot pick up coins. He reported having used a wrist brace for approximately ten years, as occasion requires. He is right-handed. He denied flare-ups. On examination, his right wrist had palmar flexion, and dorsiflexion, ending at 0 degrees. In both cases, there was painful motion at 0 degrees. The Veteran could not perform repetitive use testing. There was less movement than normal, and pain on movement. Strength of flexion and extension was 0/5. There was ankylosis in "any other unfavorable position." His right wrist was noted to be fused in the neutral position, with no movement in any direction, including radial and ulnar deviation. There was not functional impairment such that no effective function remains other than that which would be equally well-served by an amputation with prosthesis. The Veteran was noted to be unable to use his right hand for fine motor activity due to loss of dorsiflexion of the wrist. The diagnoses were scaphoid nonunion fracture, right wrist with residuals, and ankylosis right wrist secondary to traumatic arthropathy. The Board finds that the evidence is insufficient to show that the Veteran has unfavorable ankylosis of his right wrist, in any degree of palmar flexion, or with ulnar or radial deviation, such that a rating in excess of 40 percent is warranted. As an initial matter, the "unfavorable ankylosis" is not defined in the VA Schedule for Rating Disabilities. In such a case, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2017). In this case, notwithstanding the indication (an "X" mark) that there was ankylosis in "any other unfavorable position" in the April 2014 VA DBQ, the Veteran was shown to have palmar flexion, and dorsiflexion, "ending at 0 degrees." The DBQ notes that his right wrist was noted to be fused in the neutral position, with no movement in any direction, including radial and ulnar deviation. This evidence clearly indicates that his right wrist is ankylosed in a neutral position, i.e., at 0 degrees. See 38 C.F.R. § 4.71, Plate I. There is no evidence to show ankylosis at any degree of ulnar deviation or radial deviation. Id. The Board's conclusion is consistent with the fact that unfavorable ankylosis is not shown at any time by history; it is also consistent with the undersigned's observation of the Veteran's demonstrated right wrist motion during his hearing. See Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001) (recognizing the Board's inherent fact-finding ability); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995). Accordingly, the Board finds that the criteria for a rating in excess of 40 percent under DC 5214 have not been met, and that the claim must be denied. As the applicable criteria at DC 5214 are predicated on the type of ankylosis, and not on loss of range of motion, 38 C.F.R. §§ 4.40 and 4.45, as interpreted in DeLuca v. Brown, 8 Vet. App. 202 (1995), do not apply. Johnson v. Brown, 9 Vet. App. 7, 9 (1996). The Board has considered the Veteran's statements that he should be entitled to an increased rating. The Board is required to assess the credibility and probative weight of all relevant evidence. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007). The Veteran is competent to report his right wrist symptoms, as these observations come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also acknowledges the Veteran's belief that his symptoms are of such severity as to warrant an increased rating. However, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, Board finds that the medical findings, which directly address the criteria under which the disability is evaluated, are more probative than the Veteran's assessment of the severity of his disability. The examination also took into account the Veteran's competent (subjective) statements with regard to the severity of his disability. Duties to Notify and Assist There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Pursuant 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 condition 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)). In this case, the Veteran has not identified any such records, and it appears that all pertinent records have been obtained. The Veteran has been afforded an examination. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and any violation of the duty to assist is no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER A rating in excess of 40 percent for service-connected residuals of scaphoid nonunion, right wrist, is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs