BVA9505448 DOCKET NO. 91-47 513 ) DATE ) ) Certified for appeal by the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUE Entitlement to an increased evaluation for residuals of a left wrist fracture with degenerative changes, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD L. Jennifer Lane, Associate Counsel INTRODUCTION The veteran had active service from February 1983 to December 1989. The appeal arises from a October 1990 rating decision in which the Regional Office (RO) in St. Louis, Missouri granted a 10 percent evaluation for the left wrist disability. The veteran filed a notice of disagreement in January 1991, disagreeing with the evaluation assigned. The Board subsequently remanded the case in March 1992, July 1993 and March 1994. The case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that an evaluation higher than 10 percent is warranted for his left wrist disability. He maintains that he experiences numbness after using heavy equipment that requires long-term high grip strength and carrying heavy tools. Additionally, the veteran contends that there has been a serious degree of strength loss and that loss of coordination has greatly increased. It is also asserted that the VA examiners did not obtain an employment history from the veteran and that the RO did not address the provisions of 38 C.F.R. § 4.40 (1994). DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for entitlement to an increased evaluation for residuals of a left wrist fracture with degenerative changes. FINDINGS OF FACT 1. All relevant information necessary for an equitable disposition of the appeal has been developed. 2. Residuals of the left wrist fracture with degenerative changes include two scars which are not painful or tender on objective demonstration. 3. The veteran's left wrist disability is productive of no more than pain, minor weakness and limitation of motion. 4. The veteran's left wrist disability does not present an unusual or exceptional disability picture so as to render impractical the application of the regular schedular standards. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for residuals of a left wrist fracture with degenerative changes are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.2, 4.7, 4.10, 4.40, Part 4, Diagnostic Code 5010, 5214, 5215, 7804 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the claim for entitlement to an increased evaluation for residuals of a left wrist fracture with degenerative changes is "well-grounded" within the meaning of 38 U.S.C.A. § 5107, that is, the claim is plausible, meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). The Board further finds that the Department of Veterans Affairs (VA) has met its duty to assist in developing the facts pertinent to that claim. 38 U.S.C.A. § 5107. The Board initially notes the veteran's representative's concern that VA examiners did not obtain an employment history from the veteran. However, review of the record discloses that the veteran did identify what type of work he was engaged in at a VA examination in December 1992. Disability ratings are based on schedular requirements which reflect the average impairment of earning capacity occasioned by the current state of a disorder. 38 U.S.C.A. § 1155. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. An evaluation of the level of disability present must also include consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. § 4.10. Also, where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The history of the veteran's left wrist disability may be briefly described. According to the report of a service Medical Board, the veteran fell from a balcony and landed on his left wrist in September 1988. He initially complained of left wrist pain, and the diagnosis was "Closed Left Transscaphoid, Transcapitate, Perilunate Fracture Dislocation of the Wrist". The veteran was taken to the cast room where a closed reduction was performed and later to the operating room where he underwent open reduction and internal fixation of his fractures and ligament injuries, including bone grafting. The postoperative course was uncomplicated. The veteran was provided with a volar wrist splint in January 1989. The veteran later underwent a range of motion and strengthening program. Range of motion and strength improved but the veteran continued to complain of pain. Also, an April 1989 service medical record shows that the veteran had several well-healed surgical scars. A rating decision dated in May 1990 granted service connection for residuals of a left wrist fracture (minor) and assigned a noncompensable evaluation for that disability under the provisions of Diagnostic Code 5215 (on the rating decision the RO mistakenly cited Diagnostic Code 5251) of the VA Schedule for Rating Disabilities, effective in December 1989. 38 C.F.R. Part 4. As noted above, the RO subsequently assigned a 10 percent evaluation for residuals of a left wrist fracture with degenerative changes, effective in December 1989. However, the veteran contends that an evaluation higher than 10 percent is warranted for his left wrist disability. The Board finds the recent objective medical evidence, especially the reports of VA examinations in April 1992 and April 1994 where the veteran's records were available for review by the examiners, more probative than the veteran's subjective complaints in evaluating the current severity of the veteran's left wrist disability. Under Diagnostic Code 5010, arthritis, due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. Degenerative arthritis is evaluated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. Part 4, Diagnostic Code 5003. In this case, the veteran's disability is evaluated on the basis of limitation of motion of the wrist Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. Part 4, Diagnostic Code 5003. Under Diagnostic Code 5215, a 10 percent evaluation is warranted when dorsiflexion of the wrist is less than 15 degrees or when palmar flexion of the wrist is limited in line with the forearm. 38 C.F.R. Part 4. The Board notes that 10 percent is the highest schedular evaluation available under Diagnostic Code 5215. Higher schedular evaluations are provided for under Diagnostic Code 5214 when there is ankylosis of the wrist. 38 C.F.R. Part 4. However, there is no medical evidence that the veteran's left wrist is ankylosed. There is evidence that the residuals of the veteran's left wrist fracture with degenerative changes include scars. Under Diagnostic Code 7804, a 10 percent disability evaluation is warranted for scars which are tender and painful on objective demonstration. 38 C.F.R. Part 4. The April and December 1992 VA examinations revealed a well-healed scar across the dorsum of the left wrist and another smaller scar vertical over the distal portion of the left radius. Both scars were nontender. As such, there is no objective evidence that the scars are tender and painful. Therefore, an additional 10 percent evaluation for scars under Diagnostic Code 7804 is not warranted. 38 C.F.R. Part 4. The Board has also considered the various other provisions of 38 C.F.R. Parts 3 and 4 in accordance with Schafrath v. Derwinski, 1 Vet.App. 589 (1991), but finds that they do not provide a basis upon which to grant an evaluation higher than 10 percent. 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. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 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 innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. At a July 1990 VA examination, examination of the left wrist revealed there was decreased flexion of 20 to 25 degrees and extension of 40 degrees. Also, there was full medial bend, but lateral bend was markedly decreased to approximately 10 degrees. According to 38 C.F.R. § 4.71, Plate I, the standard range of motion of the wrist is 0 to 70 degrees for dorsiflexion (extension) of the wrist and 0 to 80 degrees for palmar flexion of the wrist. 38 C.F.R. Part 4. Significantly, in his assessment, the examining physician described the loss of range of motion as minimal. Also, according to a medical record dated in January 1991, there was mild tenderness but no edema and no erythema. At the December 1992 VA examination, there was limitation of dorsiflexion and plantar flexion, about 50 percent from normal, and some discomfort on supinating and less on pronating the left wrist. At the December 1992 VA examination, there were calluses indicating use of the left hand and at the April 1992 VA examination, both hands were well callused. Moreover, the December 1992 examination report shows that the veteran displayed no atrophy. There was good grip strength and no sensory changes at the July 1990 VA examination, and there was good grip with the left hand at the December 1992 VA examination. Also, according to the report of a VA examination in April 1992, motor strength, tone and sensory examination were within normal limits. At that examination, reflexes were hypoactive in the upper extremities but the impression was traumatic left wrist injury with no significant neurological deficits. The Board also notes that the April 1994 VA examiner ordered an electromyogram which was conducted in May 1994 and which was negative. At a VA examination performed in April 1994, the veteran complained of problems with pain and range of motion in the left wrist and weakness secondary to the pain. Objective examination revealed some weakness upon dorsiflexion of the wrist secondary to pain. While weakness is important and a part which becomes painful on use must be regarded as seriously disabled, the examiner described the weakness as minor. Furthermore, strength in the left arm proximally appeared to be completely normal Sensory examination was nonspecific, and there were some patchy areas where the veteran reported a loss of sensation but it was not dermatomal in nature. While the VA examiner in April 1992 related that the veteran had good use of all his four extremities, the April 1994 VA examiner felt that most of the veteran's problems in the wrist were related to the fracture and subsequent arthritic changes and that the disability did appear to affect the veteran's ability to use both his hands properly. Significantly, the latter examiner concluded that "the disability [the veteran] seem[ed] to have [was] what appear[ed] to be pain in the left wrist upon mostly extension." Thus, the physician who examined the veteran and found that the veteran's disability interfered with his ability to use his hands, indicated that the disability was primarily productive of pain. Additionally, the veteran asserts that there has been a serious degree of strength loss and that loss of coordination has greatly increased. However, the Board finds that in light of the normal strength and minor weakness shown on examination, a 10 percent evaluation adequately reflects the degree of disability produced by the residuals of a left wrist fracture with degenerative changes, primarily pain. 38 C.F.R. §§ 4.7, 4.40. Also, when the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards, an extra-schedular evaluation is warranted. 38 C.F.R. § 3.321(b). However, there is no evidence that the residuals of a left wrist fracture with degenerative changes have caused marked interference with employment. According to the report of a VA examination in April 1992, the veteran worked in maintenance at a golf course and was attending school. Thus, despite his orthopedic disability, the veteran is able to maintain employment in the maintenance field. Also, while the veteran contends that he experiences numbness after using heavy equipment that requires long-term high grip strength and carrying heavy tools, the most recent medical examination revealed normal left arm strength and the examiner described left wrist weakness upon dorsiflexion as minor. Thus, the preponderance of the evidence is against finding that the residuals of a left wrist fracture with degenerative changes cause marked interference with employment. Furthermore, the left wrist disability has not required frequent hospitalizations. Therefore, an extra-schedular evaluation for that disability is not warranted. 38 C.F.R. § 3.321(b). When after consideration of all evidence and material of record, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving such matter shall be given to the claimant. 38 U.S.C.A. § 5107(b). However, the preponderance of the evidence is against the veteran's claim for entitlement to an increased evaluation for residuals of a left wrist fracture with degenerative changes. Therefore, the resolution of doubt is not necessary, and that claim is denied. Finally, the Board notes the assertion by the veteran's representative with regard to the RO not specifically addressing the provisions of 38 C.F.R. § 4.40. When the Board addresses in its decision a question that has not been addressed by the RO, it must consider whether the claimant has been given adequate notice to respond, and if not, whether the claimant has been prejudiced thereby. Bernard v. Brown, 4 Vet.App. 384 (1993). While the RO did not specifically discuss 38 C.F.R. § 4.40, the RO did consider the April 1994 VA examination findings of weakness and pain in its August 1994 rating decision and concluded that there was no impairment which was more than 10 percent disabling. Thus, the RO did in essence consider the provisions of 38 C.F.R. § 4.40, and the veteran is not prejudiced by the Board's addressing said provisions. Bernard, 4 Vet.App. 384. ORDER An increased evaluation for residuals of a left wrist fracture with degenerative changes is denied. U. R. POWELL Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.