Citation Nr: 0002166
Decision Date: 01/28/00	Archive Date: 03/02/00

DOCKET NO. 93-01 305               DATE JAN 28, 2000

On appeal from the Department of Veterans Affairs (VA) Regional
Office (RO) in Fort Harrison, Montana

THE ISSUES

1. Entitlement to an evaluation in excess of 30 percent for the
service-connected post operative residues, fractured right
navicular with arthritic changes, for the period September 1, 1991,
through March 14, 1993.

2. Entitlement to an evaluation in excess of 50 percent for the
service-connected post operative residuals, fractured right
navicular with arthritic changes, for the period October 1, 1993,
through November 2, 1993.

3. Entitlement to an evaluation in excess of 50 percent for the
service-connected post operative residuals, fractured right
navicular with arthritic changes, for the period commencing March
1, 1994.

4. The propriety of the initial 10 percent evaluation assigned for
the service- connected donor site scar of the right hip.

REPRESENTATION 

Appellant represented by: The American Legion 

WITNESS AT HEARING ON APPEAL 

The veteran 

ATTORNEY FOR THE BOARD 

Julie L. Salas, Associate Counsel

INTRODUCTION

The veteran served on active duty from April 1983 to May 1985.

This matter initially came to the Board of Veterans' Appeals
(Board) on appeal of rating decisions of the RO.

The Board remanded this case for additional development of the
record in November 1994 and December 1997.

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FINDINGS OF FACT

1. All relevant evidence necessary for an equitable disposition of
the veteran's appeal has been obtained.

2. For the period September 1, 1991, through March 14, 1993, the
veteran's service-connected post operative residuals, fractured
right navicular with arthritic changes, have not been shown to be
productive of disability in excess of that more nearly
approximating favorable ankylosis of the wrist of the major upper
extremity in 20 degrees to 30 degrees dorsiflexion; ankylosis of
the wrist of the major upper extremity in any other position except
favorable was not demonstrated.

3. For the period October 1, 1993, through November 2, 1993, and
commencing again as of March 1, 1994, the veteran's service-
connected post operative residuals, fractured right navicular with
arthritic changes, have not been shown to be productive of
disability in excess of that more nearly approximating unfavorable
ankylosis of the wrist of the major upper extremity, in any degree
of palmar flexion or with ulnar or radial deviation; extremely
unfavorable ankylosis of the wrist of the major upper extremity has
not been demonstrated.

4. At no time during the periods of March 21, 1993, through June 'I
3, 1995, and commencing again as of August 1, 1995, has the
veteran's service-connected donor site scar of the right hip been
shown to have been demonstrated by a level of impairment in excess
of that consistent with superficial scarring which is tender and
painful on objective demonstration.

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CONCLUSION OF LAW

1. The criteria for the assignment of a rating in excess of 30
percent for the service- connected post operative residuals,
fractured right navicular with arthritic changes, for the period
September 1, 1991, through March 14, 1993, have not been met. 38
U.S.C.A. 1155, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. 4.1,
4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a including Diagnostic Code
5214 (1999).

2. The criteria for the assignment of a rating in excess of 50
percent for the service- connected post operative residuals,
fractured right navicular with arthritic changes, for the period
October 1, 1993, through November 2, 1993, and commencing as of
March 1, 1994, have not been met. 38 U.S.C.A. 1155, 5107, 711)4
(West 1991 & Supp. 1999); 38 C.F.R.  4.1. 4.2, 4.7, 4.10, 4.40,
4.45, 4.59, 4.71a including Diagnostic Code 5214 (1999).

3. The criteria for an evaluation greater than 10 percent for the
service-connected donor site scar of the right hip for the periods
of March 21, 1993, through June 13, 1995, and commencing again as
of August 1, 1995, have not been met. 38 U.S.C.A.  1155, 5107, 7104
(West 1991 & Supp. 1999); 38 C.F.R. 4.7, 4.118 including Diagnostic
Code 7804 (1999).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Increased rating for the service-connected residuals, fractured
right navicular with arthritic changes.

The Board finds that the veteran's claim for increased compensation
benefits for his service-connected residuals, fractured right
navicular with arthritic changes, is well grounded within the
meaning of 38 U.S.C.A. 5107(a). When a veteran claims that

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a service-connected disability has increased in severity, the claim
is well grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992).
Where entitlement to compensation has already been established and
an increase in the disability rating is at issue, the present level
of disability is of primary concern. Francisco v. Brown, 7 Vet.
App. 55 (1994). The Board further finds that the matter has been
adequately developed for the purpose of appellate review.

In accordance with 38 C.F.R.  4.1, 4.2, 4.41 and Schafrath v.
Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the
service medical records and all other evidence of record pertaining
to the history of the service-connected post operative residuals,
fractured right navicular with arthritic changes. The Board has
found nothing in the historical record which would lead to the
conclusion that the current evidence of record is not adequate for
rating purposes.

Disability ratings are determined by applying the criteria set
forth in the VA Schedule for Rating Disabilities, found in 38
C.F.R. Part 4. The Board attempts to determine the extent to which
the veteran's disability adversely affects his ability to function
under the ordinary conditions of daily life, and the assigned
rating is based, as far as practicable, upon the average impairment
of earning capacity in civil occupations. 38 U.S.C.A. 1155; 38
C.F.R. 4.1, 4.10.

Where there is a question as to which of two evaluations is to 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.

VA regulations require that disability evaluations be based upon
the most complete evaluation of the condition that can be feasibly
constructed with interpretation of examination reports, in light of
the whole history, so as to reflect all elements of disability.
Medical as well as industrial history is to be considered, and a
full description of the effects of the disability upon ordinary
activity is also required. Functional impairment is based on lack
of usefulness and may be clue to pain, supported by adequate
pathology and evidenced by visible behavior during motion.

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Many factors are considered in evaluating disabilities of the
musculoskeletal system and these include pain, weakness, limitation
of motion and atrophy,. Painful motion with the joint or
periarticular pathology which produces disability warrants the
minimum compensation. 38 C.F.R. 4.1, 4.2, 4.10, 4.40, 4.45, 4.59.

A. September 1, 1991, through March 14, 1993

From September 1, 1991, through March 14, 1993, the veteran's
service-connected right wrist disability was rated as 30 percent
disabling under the provisions of 38 C.F.R. 4.71a, Diagnostic Code
5214. Under this Diagnostic Code a 30 percent evaluation is
warranted for favorable ankylosis of the wrist of the major upper
extremity in 20 degrees to 30 degrees dorsiflexion. A 40 percent
evaluation is warranted for ankylosis of the wrist of the major
upper extremity in. any other position except favorable. A 50
percent evaluation is warranted for unfavorable ankylosis of the
wrist of the major upper extremity in any degree of palmar flexion,
or with ulnar or radial deviation. 38 C.F.R. 4.71a, Diagnostic Code
5214. Extremely unfavorable ankylosis is to be rated as loss of use
of the hands under Diagnostic Code 5125. Id.

38 C.F.R. 4.71, Plate 1 (1999) provides that full wrist
dorsiflexion or extension is zero degrees to 70 degrees. Full wrist
palmar flexion is zero degrees to 80 degrees. Full wrist ulnar
deviation is zero degrees to 45 degrees. Full wrist radial
deviation is zero degrees to 20 degrees. 38 C.F.R. 4.71, Plate I.

The veteran was afforded a VA examination in November 1991. At that
time, the veteran presented with complaints of pain over the radial
aspect of his right wrist, as well as some limitation of motion. On
examination, he was noted to have a well- healed scar over the
radial aspect of the right thumb and wrist. He was tender over the
snuff box. Range of motion was recorded as 40 degrees of palmar
flexion; 60 degrees of dorsiflexion; 20 degrees, radial deviation;
and, 40 to 45 degrees, ulnar deviation. Pronation and supination
were described as normal. The final diagnosis was that of status
post navicular fracture, right wrist, and subsequent surgeries. The

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examining physician commented that the veteran did have significant
limitation of motion, particularly with respect to palmar flexion.

The Board concludes that a rating in excess of 30 percent is not
warranted for the veteran's right wrist disorder for the period
extending from September 1, 1991, through March 14, 1993, because
such rating already takes into account all the manifestations of
the veteran's disability to the extent authorized under the
regulations, including functional loss and his assertions of pain.
The Board notes that private medical evidence submitted in support
of the veteran's claim indicated continued problems with range of
motion during this period, but did not demonstrate that the
veteran's right wrist was ankylosed in any maimer. Consequently,
the clinical findings present during this time period do not even
support the assignment of a compensable rating under Diagnostic
Code 5214 as there is no indication that the veteran was suffering
from ankylosis of the right wrist as required for evaluation under
this Code.

Hence, the preponderance of the evidence is against an evaluation
greater than 30 percent for the service-connected post operative
residuals, fractured right navicular with arthritic changes,
pursuant to Diagnostic Code 5214 for the period September 1, 1991,
through March 14, 1993.

B. October 1, 1993, through November 2, 1993, and commencing as of
March 1, 1994

For the periods designated above, the veteran's service-connected
right wrist disability was rated as 50 percent disabling under the
provisions of Diagnostic Code 5214 for unfavorable ankylosis of the
wrist of the major upper extremity in any degree of palmar flexion,
or with ulnar or radial deviation, which is the maximum evaluation
available under that Code. 38 C.F.R. 4.71a, Diagnostic Code 5214.
As noted above, however, extremely unfavorable ankylosis is to be
rated as loss of use of the hands under Diagnostic Code 5125. Id.

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Private medical evidence contained in the veteran's claims file
indicates that in March 1993, he underwent surgery for arthrodesis
of the right wrist. A statement from the veteran's treating
physician, Frank W. Humberger, M.D., dated in February 1994, noted
that since the surgery, the veteran had seen significant
improvement in his pain and function, but was affected by permanent
decreased range of motion secondary to the arthrodesis. He further
indicated that the veteran was incapable of working as a direct
result of his injury and subsequent surgical treatment for his
nonunion of the carponavicular from February 22, 1993, through
September 15, 1993, and from November 2, 1993, through March 1,
1994.

The veteran underwent a VA examination in March 1995. At that time,
the veteran presented with complaints of pain that shoot up his
forearm on the ventral side and down into his thumb. He also
reported numbness over the radial side of his hand on the palmar
surface and some right wrist weakness with working for extended
periods of time.

Physical examination revealed a well-healed scar over the ventral
side of the right wrist extending down through the carpal tunnel of
the wrist area. There was also a well-healed scar over the back of
the wrist extending over from the third metacarpal upward two
inches. On the back of the hand, he had a hyperosseous formation
where the navicular bone was effused, which was nontender. On the
ventral side of the wrist, there was tenderness over the radial
side with pressure. In addition, he experienced total numbness with
no sensation to pain or soft touch over the thenar eminence of the
right hand. He did report a normal feeling in the fingertips and
thumb. He had zero range of motion; wrist was totally fused. He was
noted to have accommodated well, however, and was stated to have
good dexterity of his fingers. The final diagnoses included that of
fusion ankylosis, complete, of the right wrist; possible nerve
entrapment of the radial side of the carpal tunnel; and, continued
numbness of the thenar eminence of the right hand, probably due to
innervation and/or nerve trauma.

The veteran was afforded another VA examination in February 1999.
At that time, he complained of pain in his right wrist increasing
with overuse. Examination

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revealed a dorsal 9 centimeter surgical incision extending over the
right wrist. There was also a z-shaped incision of approximately 12
centimeters in length on the radial volar aspect of the wrist.
Range of motion testing demonstrated no volar flexion,
dorsiextension, ulnar deviation or radial deviation. Pronation was
to 70 degrees and supination was to 85 degrees. There was no
increased skin warmth, effusion or crepitation noted. X-ray studies
showed a solid fusion of all the carpal bones with a slight
irregularity at the metacarpal tunnel junction, but no significant
deterioration. The final diagnoses included that of status post
solid fusion, right wrist.

In May 1999, the examining physician submitted an addendum to the
original February 1999 VA examination report. In this addendum, the
examiner clarified that the veteran had 12 degrees of ulnar
deviation built into the fusion of the right wrist, but no active
motion was possible. It was his opinion that the right wrist fusion
had attained a favorable result.

Based on a review of the evidence as a whole, the Board concludes
that a rating in excess of 50 percent is not warranted for the
veteran's right wrist disorder for the period extending from
October 1, 1993, through November 2, 1993, and commencing as of
March 1, 1994, because such rating already takes into account all
the manifestations of the veteran's disability to the extent
authorized under the regulations, including functional loss and his
assertions of pain. The Board notes that the clinical findings
relevant to these time periods do not even support the assignment
of a 50 percent rating under Diagnostic Code 5214, as there is no
indication that the veteran is suffering from unfavorable ankylosis
of the right wrist, let alone extremely unfavorable ankylosis which
must be demonstrated in order to warrant evaluation for loss of use
of the hand under Diagnostic Code 5125.

Hence, the preponderance of the evidence is against an evaluation
greater than 50 percent for the service-connected post operative
residuals, fractured right navicular with arthritic changes, for
the period extending from October 1, 1993, through November 2,
1993, and commencing as of March 1, 1994.

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II. Initial 10 percent evaluation of the service-connected donor
site scar of the right hip

As a preliminary matter, the Board finds that the veteran's claim
is plausible and capable of substantiation, and thus well grounded
within the meaning of 38 U.S.C.A. 5107(a). When a veteran claims
that a service-connected disability is more severely disabling than
as rated, the claim is well grounded. Proscelle v. Derwinski,, 2
Vet. App. 629 (1992); Shipwash v. Brown, 8 Vet. App. 218 (1995).
When a veteran submits a well-grounded claim, VA must assist him in
developing facts pertinent to that claim. 38 U.S.C.A. 5107(a).

As noted above, disability ratings are determined by applying the
criteria set forth in the VA Schedule for Rating Disabilities
(Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to
determine the extent to which the veteran's disability adversely
affects his ability to function under the ordinary conditions of
daily life, and the assigned rating is based, as far as
practicable, upon the average impairment of earning capacity in
civil occupations. 38 U.S.C.A. 1155; 38 C.F.R. 4.1, 4.10.
Regulations require that where there is a question as to which of
two evaluations is to 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 veteran's service-connected donor site scar of the right hip
has been rated as 10 percent disabling under the provisions of
Diagnostic Code 7804 for superficial scars which are tender and
painful on objective demonstration, since the RO granted service
connection for such condition in April 1995 and assigned an
effective date of March 21, 1993, except for a period of temporary
total disability extending from June 14, 1995, through July 31,
1995. 38 C.F.R. 4.118, Diagnostic Code 7804. This is the maximum
evaluation available under that Code. Scars may also be evaluated
on the basis of any related limitation of function of the body
part, which they affect. 38 C.F.R. 4.118, Diagnostic Code 7805
(1999)

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On VA examination in March 1995, the veteran reported that the
donor site of his right wrist arthrodesis located on his right hip
had a lump on it and was quite painful at times, including with
weather changes. Evaluation of the right hip donor site revealed a
well-healed transverse incisional scar on the anterolateral side.
There was also a slight depression at the tip of the scar and a
bony protuberance lateral to the scar, which was elevated and
tender. The examiner opined that this might have been a
hyperosseous calcification, probably forming on the donor site for
the wrist graft. The final diagnosis relative to the right hip was
hyperosseous calcification of the posterolateral site on the right
ileum, which was the donor site for the bone graft.

The veteran subsequently testified at a hearing at the RO in July
1995 as to his complaints regarding his right hip scar. According
to the veteran, he experienced some itching in the region of the
scar, but it was mostly painful. He stated that he had had to
change his sleeping habits, because he was no longer able to lie on
his right side, and that he also had to frequently change his
position while sitting due to discomfort. He indicated that his
belt line also fell over the area of the scar and caused him pain.
He @er noted that he had recently undergone surgery to remove the
calcium deposit that had developed following bone graft surgery for
his right wrist condition.

The veteran's right hip was also examined during the February 1999
VA examination. At that time, he complained of the right hip
"wanting to go out." He noted that he sought treatment from a
chiropractor on a monthly basis in order to place it back into
position. Examination of the hip revealed a 9 centimeter surgical
scar over the right iliac crest. There was no neuromatous-like
sensitivity or hyperinitability to percussion along the incision;
however, the incision was minimally tender to palpation. Range of
motion of the hips was equal, bilaterally. Flexion was to 110
degrees, bilaterally, with full extension. Internal rotation was to
20 degrees, bilaterally, and external rotation was to 35 degrees,
bilaterally. (The examining physician later supplemented these
findings in the addendum dated in May 1999, noting extension to 20
degrees, bilaterally; abduction to 35 degrees, bilaterally; and
adduction to 20 degrees, bilaterally.)

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In addition to the above, the examiner noted that there was no
crepitation on range of motion testing. He further commented that
there was no loss of motion in either hip and no pain demonstrated
with range of motion testing or ambulation. He also stated that the
area of discomfort was over the iliac crest area at the donor site
and did not appear to have any involvement in the hip joint
function. Finally, he noted that there was no indication that there
had been any interval change in the hip since the previous surgery,
nor did he anticipate any future deterioration as a consequence of
the surgery performed.

Based on the evidence of record, the Board finds that the clinical
picture demonstrated by the veteran's donor site scar of the right
hip, has at no time during the periods of March 21, 1993, through
June 13, 1995, and commencing again as of August 1, 1995, evidenced
a level of impairment greater than that required for a 10 percent
evaluation under Diagnostic Code 7804 for superficial scarring
which is tender and painful on objective demonstration. The Board
notes, significantly, that the findings on VA examination do not
support that the veteran has demonstrated a limitation of function
of the right hip which is necessary for evaluation under Diagnostic
Code 7805. Consequently, a rating in excess of 10 percent is not
warranted in this case for the applicable periods of March 21,
1993, through June 13, 1995, and commencing as of August 1, 1995.

The Board has considered whether the veteran was entitled to a
"staged" rating for his service-connected disability as the United
States Court of Appeals for Veterans Claims noted in Fenderson v.
West, 12 Vet. App. 119 (1999). As noted hereinabove, however, at no
time during the periods of March 21, 1993, through June 13, 1995,
and commencing as of August 1, 1995, has the veteran demonstrated
a level of impairment consistent with an evaluation in excess of 10
percent for his service-connected donor site scar of the right hip.

The preponderance of the evidence is against the veteran's claim
for a higher evaluation for his service-connected donor site scar
of the right hip during the

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periods of March 21, 1993, through June 13, 1995, and commencing as
of August 1, 1995.

ORDER

An increased rating greater than 30 percent for the service-
connected post operative residuals of a fractured right navicular
with arthritic changes for the period of September 1, 1991, through
March 14, 1993, is denied.

An increased rating greater than 50 percent for the service-
connected post operative residuals, fractured right navicular with
arthritic changes, for the period October 1, 1993, through November
2, 1993, and commencing as of March 1, 1994, is denied.

An evaluation in excess of 10 percent for the service-connected
donor site scar right hip for the periods of March 21, 1993,
through June 13, 1995, and commencing as of August 1, 1995, is
denied.

STEPHEN L. WILKINS 
Member, Board of Veterans' Appeals

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