Citation Nr: 1824933 Decision Date: 04/24/18 Archive Date: 05/03/18 DOCKET NO. 09-36 729 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a psychiatric disorder other than posttraumatic stress disorder (PTSD), to include depression. 2. Entitlement to a rating in excess of 10 percent for residuals of right forearm crush injury with tendonitis (right forearm disability). 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: David Gregory Rogers, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Dupont, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1986 to February 1998. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Atlanta, Georgia, Department of Veterans Affairs (VA) Regional Office (RO). In November 2012, a videoconference hearing was held before the undersigned; a transcript is associated with the record. In April 2013, August 2014, and July 2015, the case was remanded for additional development. Generally the scope of a claim of service connection for a specific psychiatric diagnosis (as claimed here, major depression) encompasses all psychiatric disability entities shown, however diagnosed. Clemons v. Shinseki, 23 Vet. App. 1 (2009). However, a May 2005 unappealed rating decision had separately denied service connection for PTSD, and new and material evidence to reopen the claim is required before it may be considered de novo. Accordingly, the scope of the instant claim/appeal is limited to psychiatric diagnoses other than PTSD. In its July 2015 decision, the Board referred to the Agency of Original Jurisdiction (AOJ) the issue of service connection for right hand carpal tunnel syndrome (to include as secondary to the service-connected right forearm disability) raised in an October 2014 claim. A review of the claims file found no action taken on the referral. [An earlier final January 2008 rating decision had denied service connection for bilateral carpal/cubital tunnel syndrome, so the claim would now be one to reopen.] Furthermore, an issue of whether new and material evidence has been received to reopen a claim of service connection for PTSD was been raised in a November 2015 statement, but has not been adjudicated by the AOJ. Accordingly, the issues of whether new and material evidence has been received to reopen claims of service connection for PTSD and right hand carpal tunnel syndrome are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issues of service connection for a psychiatric disorder other than PTSD, to include depression and entitlement to a TDIU rating are being remanded to the AOJ. VA will notify the Veteran if action is required. FINDINGS OF FACT Throughout, orthopedic residuals of a right forearm crush injury (non-displaced fracture of distal one-third of radius) with tendinitis have been manifested by tendinitis and painful wrist motion; right wrist dorsiflexion less than 15 degrees, palmar flexion limited in line with the forearm, and ankylosis have not been shown; related compensable elbow or radius or ulna impairment, such as ankylosis, compensable limitations of elbow flexion ore extension, flail joint, nonunion or malunion, loss of bone, or limitations of supination and pronation are not shown. CONCLUSION OF LAW A rating in excess of 10 percent for orthopedic residuals of a right forearm crush injury with tendinitis is not warranted. 38 U.S.C. §§1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (Codes) 5024, 5205-5215 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. VA's duty to notify was satisfied by correspondence in September 2006. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159. The Veteran and his representative have not raised any issues with VA's duties to notify and assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). "Staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See 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, including regarding degree of disability, is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran's right (major) forearm disability has been assigned a 10 percent rating under Codes 5024-5215 for tenosynovitis with limitation of wrist motion. Code 5024 provides that tenosynovitis will be rated on limitation of motion of the affected parts, as degenerative arthritis. Code 5215 provides for a (maximum) 10 percent rating if palmar flexion is limited in line with the forearm or if dorsiflexion is less than 15 degrees. A higher rating is available under Code 5214 (for ankylosis of the wrist). Under Code 5214, a 30 percent rating is warranted for favorable (in 20 degrees to 30 degrees dorsiflexion) ankylosis of the major wrist. [Normal range of motion (ROM) of the wrist is palmar flexion to 80 degrees, dorsiflexion extension to 70 degrees, ulnar deviation to 45 degrees, and radial deviation to 20 degrees.] 38 C.F.R. § 4.71, Plate I. In determining the degree of limitation of motion, the provisions of 38 U.S.C. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. An increased rating may be assigned for up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred during that period. 38 C.F.R. § 3.400(o)(2). Consequently, the evaluation period for consideration here is from August 2005 (a year prior to the August 24, 2006 date of claim) to the present. Factual Background The Board has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the relevant evidence is summarized as deemed appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. On July 24, 2006, the Veteran fell six to eight feet off scaffolding at his job. He reported bilateral wrist pain. See Department of Labor (DOL) Form WH-380. Following examination, the impression was right wrist strain. See August 16, 2006 DOL Form CA-17. September 1, 2006 x-rays of the right wrist were unremarkable. Examination showed tenderness to palpation on the dorsum of the wrist, grip strength 4/5, and intact neurovascular status. A September 1, 2006 MRI of the right wrist was negative. There were no signs of fracture or significant bone contusion. A January 2007 private orthopedic treatment record (noted as initial visit) notes complaints of right hand pain (and low back pain) since July 24, 2006, when the Veteran fell from scaffolding at work. Examination of the right upper extremity found no evidence of atrophy or asymmetry, no tenderness to palpation, and no evidence of crepitation, laxity, or instability. ROM was full and strength was 5/5 throughout, including the intrinsic hand muscles. On February 2007 VA (fee basis) forearm/elbow, wrist, and hand examination, the Veteran reported constant right forearm and wrist pain, as well as right hand pain and cramping. [Hand examination was normal; there was no pathology to render a diagnosis.] The Veteran rated his forearm and wrist pain as 7/10 and reported that it was brought on by physical activity and relieved by rest and medication. On examination, the right radius and ulna were normal. The right elbow showed signs of tenderness to palpation on the lateral epicondylar region. ROM testing of both elbows showed flexion to 145 degrees (full), extension from 0 degrees (full), supination to 85 degrees, and pronation to 80 degrees. Repetitive use testing showed that neither elbow joint function was additionally limited by pain, fatigue, weakness, or lack of endurance or incoordination. Right wrist examination showed tenderness in the dorsum of the wrist. ROM testing showed palmar flexion to 74 degrees, dorsiflexion to 65 degrees, ulnar deviation to 45 degrees (full), and radial deviation to 20 degrees (full). Pain at the ends of the flexion and dorsiflexion motions was noted. [For comparative purposes, left wrist ROM was normal.] Repetitive use testing showed that right wrist joint function was additionally limited by pain, fatigue, weakness, and lack of endurance. The examiner noted such "additionally limit the joint function by 6 degrees." He opined that the Veteran's right wrist disability causes weakness and difficulty gripping, holding, and with repetitive motion. A May 14, 2007 independent medical rehabilitation examination report notes complaints of right hand pain and numbness. On examination, right wrist and elbow ROM were full. The impression was right hand sprain. On October 2007 VA (fee basis) forearm/elbow and wrist examination, the Veteran reported constant right forearm and wrist pain. He rated the pain as 6/10 and reported that it was elicited by physical activity and stress. On examination, the Veteran's right radius and ulna were normal. The right elbow did not show signs of edema, effusion, weakness, tenderness, redness, heat, subluxation, or guarding of movement. ROM testing showed right elbow flexion to 145 degrees (full), extension from 0 degrees (full), supination to 85 degrees, and pronation to 80 degrees. Repetitive use testing showed that the elbow joint function was not additionally limited by pain, fatigue, weakness, or lack of endurance or incoordination. Right forearm x-rays were negative. ROM of the right and left wrists were normal, with pain reported at the end of movements on the right. Repetitive use testing showed that right wrist joint function was additionally limited by pain, but not by fatigue, weakness, lack of endurance, or incoordination. Right wrist x-rays were normal. The examiner found no change in the diagnosis of tendonitis with pain and stiffness. He opined that the Veteran's right wrist disability limits his capacity to carry, lift, and hold. A November 24, 2009 Georgia DOL Disability examination report notes that the Veteran's right wrist and elbow/forearm ROM were normal; right grip strength was also normal. In July 2011, the Veteran underwent right carpal tunnel release surgery. On September 2013 VA right wrist examination, the Veteran reported right wrist stiffness as well as pain that comes and goes depending on activity. He denied flare-ups. ROM testing showed palmar flexion to 70 degrees and dorsiflexion to 60 degrees, both with pain at the end of the motion. Repetitive motion testing did not result in additional limitation in range of motion; there was no additional functional loss or impairment. He denied pain on palpation. Muscle strength was full 5/5 in flexion and extension in both wrists. The right wrist was not ankylosed. X-rays showed "suggestion of old ulnar styloid evulsion fracture." Otherwise, the x-rays were "unremarkable." The examiner indicated that there was objective evidence of degenerative or traumatic arthritis. He opined that the Veteran's right wrist examination was "near normal" and that the Veteran could accomplish the normal activities of daily living, such as dressing, preparing food, and using the bathroom. Regarding the impact his right wrist disability has on his ability to work, the examiner noted that the Veteran was able to work on industrial machines post service, and stated that his 2006 postservice work injury "prevented him from working." January and April 2014 private medical examination reports note that the Veteran's right upper extremity showed normal strength, motor function, and reflexes. Elbow and wrist joint stability was normal. There was no tenderness to palpation, edema, or ecchymosis. A February 14, 2014 private independent medical examination from Dr. Jerry W. Bush notes decreased right wrist ROM; actual measurements were not provided. The assessment was chronic right wrist pain, status post crush-type injury. In its July 2015 remand, the Board noted that the Veteran's right forearm disability was rated under Code 5215 for limitation of motion. As the December 2013 VA examination report did not consider ROM or impairment of the elbow or forearm (under the criteria of Codes 5205 through 5213), the claim was remanded for an updated examination to assess the Veteran's right forearm disability in accordance with all potentially applicable rating criteria. On May 2016 VA elbow and forearm examination, the Veteran reported pain along the side of the right forearm, wrist, and hand. He reported difficulty typing, holding, writing, and lifting. He reported intermittent swelling and the use of tramadol to treat his pain, with partial improvement. He endorsed flare-ups of worsening pain caused by repetitive use of the forearm/wrist. ROM testing showed right elbow flexion to 130 degrees, extension to 0 degrees (full), forearm supination to 75 degrees, and forearm pronation to 70 degrees; pain was reported at rest, on movement, and with weight bearing. There was mild tenderness to palpation along the lateral epicondyle. Repetitive motion testing did not result in additional limitation in range of motion. Muscle strength was full 5/5 in flexion and extension; there was no muscle atrophy; the elbow was not ankylosed. X-rays did not show acute fracture or displacement; the trabecular pattern was grossly intact and the soft tissues were within normal limits. On wrist examination, ROM testing showed palmar flexion to 55 degrees, dorsiflexion to 60 degrees, ulnar deviation to 40 degrees, and radial deviation to 20 degrees (full). There was evidence of pain with weight bearing, including tenderness to palpation at the medial aspect of the wrist. Repetitive motion testing did not result in additional limitation in ROM. Muscle strength was full 5/5 on both flexion and extension. The wrist was not ankylosed, and the Veteran did not use an assistive device. X-rays did not show an acute wrist injury; the bony trabecular pattern was grossly intact and the soft tissue was within normal limits. A subcentimeter well-corticated bony fragment off the ulnar styloid (which may be related to remote injury) was noted; there was no significant change compared to prior examinations. Based on the objective findings, the examiner rated the Veteran's elbow/forearm condition as "mild in severity." He stated that the forearm/wrist motor examination was "normal without objective weakness." The examiner opined that the Veteran's disability would limit his ability to perform physically strenuous jobs that involve heavy lifting and repeated pulling/pushing. He opined, however, that the Veteran can perform sedentary employment with periodic breaks from typing or writing due to wrist symptoms. Analysis On review of the record, the Board finds that a rating in excess of 10 percent for orthopedic wrist residuals of the right forearm crush injury with tendonitis is not warranted at any time during the appeal period. On February 2007, October 2007, September 2013, and May 2016 VA examinations, palmar flexion was to at least 55 degrees and dorsiflexion was to at least 60 degrees. There was no evidence of ankylosis. Clinical records from January 2007, May 2007, and November 2009 note that right wrist ROM was full. While a February 2014 private examination report noted decreased ROM; actual measurements were not provided, and that report does not provide an adequate basis for rating the disability. VA wrist examination reports in September 2013 and May 2016 describe the Veteran's right wrist as "near normal" and "normal without objective weakness," respectively. These findings do not reflect compensable limitations. The current 10 percent rating acknowledges the complaints of pain/painful motion noted at the ends of ROM. A rating in excess of 10 percent is not warranted at any time during the appeal period. As the Veteran's right forearm disability implicates the forearm and elbow (as well as the wrist), the Board has considered whether he is entitled to a separate compensable rating under the criteria in Codes 5205 through 5213. Throughout, the Veteran's radius and ulna have been noted to be normal, without impairment. See February 2007, October 2007, and May 2016 VA examination reports; see also November 2009 Georgia DOL examination report and January and April 2014 private clinical records. Elbow/forearm ROM (including flexion, extension, supination, and pronation) was normal/full on February 2007 VA examination, October 2007 VA examination, May 2007 clinical evaluation, and November 2009 Georgia DOL evaluation; ROM was nearly full on May 2016 VA examination, including with consideration of pain on repetitive use testing. Other compensable elbow disability such as ankylosis or flail joint is not shown. Accordingly, a separate compensable rating for forearm/elbow impairment under Codes 5205 through 5213 is not warranted. The preponderance of the evidence is against this claim. Therefore, the benefit of the doubt rule does not apply; the appeal in this matter must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A rating in excess of 10 percent for orthopedic residuals of a right forearm injury is denied. REMAND The Board is aware that this case has been previously remanded several times and regrets the delay inherent with yet another remand. However, new medical evidence received during the development of this appeal, presents further medical questions in the matter of service connection for a psychiatric disability other than PTSD which are not adequately addressed by the medical evidence already in the record. Accordingly, further development of medical evidence is necessary . In its April 2013 and August 2014 remands, the Board sought an adequate medical advisory opinion regarding the nature and etiology of any diagnosed psychiatric disability, including whether such it is secondary to a service-connected disability. A December 2014 addendum opinion adequately addresses the diagnosis of depressive disorder. [It was noted that the opinion was based on the evidence of record, as "multiple documents remain to be scanned" into the Veteran's electronic record.] The Veteran has not since submitted any evidence regarding the etiology of his depressive disorder that conflicts with the opinion provided . However, the medical evidence received since shows the Veteran has been assigned additional psychiatric diagnoses (including: schizophrenia, paranoid type (in a February 2012 psychological assessment from Dr. Jennifer E. Fennell (received in May 2014)); anxiety (in a February 2014 independent medical examination report by Dr. Jerry W. Bush (received in September 2014)); and bipolar II disorder (in January 2016 VA treatment records)). Dr. Fennell's report suggests that the diagnosis of schizophrenia is related to events in the Veteran's service, but is unaccompanied by adequate rationale . As the December 2014 addendum medical opinion did not address psychiatric diagnoses other than depressive disorder, further development for a medical opinion that adequately addresses the further psychiatric diagnoses (whether they are related to service or a service-connected disability) is necessary. The issue of entitlement to a TDIU rating is inextricably intertwined with the claim of service connection for a psychiatric disability, and appellate consideration of that issue must be deferred pending resolution of the other remanded claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Veteran receives ongoing VA treatment. As records of any psychiatric treatment are pertinent evidence in the matters at hand, and VA records are constructively of record, updated treatment records must be secured. Accordingly, the case is REMANDED for the following: 1. The AOJ should secure for the record updated (to the present, those not already associated with the record) complete clinical records of all VA psychiatric evaluations and treatment the Veteran has received since December 2017 (when the most recent VA treatment records in the record are dated). The AOJ should also ask the Veteran to provide identifying information regarding all private psychiatric evaluations or treatment he has received (records of which are not already in the record) and to provide the authorizations necessary for VA to secure for the record complete clinical records of all such evaluations and treatment. The AOJ should secure for the record complete clinical records (those not already associated with the record) from all providers identified. If any records sought are unavailable, the reason for their unavailability must be noted in the record. If a private provider does not respond to the AOJ's request for identified records sought, the Veteran must be so notified, and reminded that ultimately it is his responsibility to ensure that private treatment records are received. 2. After the above development is completed, the AOJ should arrange for the Veteran to be examined by an appropriate psychologist or psychiatrist for an advisory medical opinion regarding the nature and likely etiology of his variously diagnosed psychiatric disability. Based on review of the record (to include this remand and all records received pursuant to the development sought above), the examiner should respond to the following: (a) Identify (by diagnosis) each psychiatric disability entity found (or shown by the record during the pendency of this claim), to specifically include schizophrenia, paranoid type. If schizophrenia is not diagnosed on examination, please reconcile such finding with the diagnosis provided in the February 2012 private psychological assessment discussed above. (b) Identify the likely etiology of each psychiatric disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or greater probability) that it is related to the Veteran's service/events therein? The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as deemed appropriate. 3. The AOJ should then review the record, arrange for any further development (suggested by the results of the development sought above), and readjudicate the claims (TDIU, upon review of the extended record, and in light of the determination on the service connection for psychiatric disability claim). If either remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his attorney opportunity to respond, and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs