Citation Nr: 0002444 Decision Date: 01/31/00 Archive Date: 02/02/00 DOCKET NO. 99-01 829 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana THE ISSUES 1. Entitlement to an increased evaluation for disease of the auditory canal of the right ear, currently evaluated as 10 percent disabling. 2. Entitlement to an increased evaluation for residuals of a fracture of the right wrist with spurring and post-traumatic arthritis, currently evaluated as 30 percent disabling. 3. Entitlement to special monthly compensation based on the loss of the use of the right hand. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L.J. Bakke, Associate Counsel INTRODUCTION The veteran served on active duty from April 1943 to March 1947. This appeal arises before the Board of Veterans' Appeals (Board) from rating decisions which denied increased ratings for right ear otitis externa and right wrist fracture, and special monthly compensation for the loss of use of the right hand. The Board remanded this matter in May 1999 to afford the veteran an opportunity for a hearing before the Board. The veteran testified in July 1999 before the undersigned member of the Board. The transcript of this hearing is of record. The Board thus finds that the terms of the May 1999 remand have been fulfilled. In Floyd v. Brown, 9 Vet. App. 88 (1996), the U.S. Court of Veterans Appeals (now the United States Court of Appeals for Veterans Claims, hereinafter the Court) held that the Board does not have jurisdiction to assign an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. The Board is still obligated to seek out all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the laws and regulations. In Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court clarified that it did not read the regulation as precluding the Board from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1) or from reaching such a conclusion on its own. Moreover, the Court did not find the Board's denial of an extraschedular rating in the first instance prejudicial to the veteran, as the question of an extraschedular rating is a component of the appellant's claim and the appellant had fully opportunity to present the increased-rating claim before the RO. Bagwell, at 339. Consequently, the Board will consider whether this case warrants the assignment of an extraschedular rating. In his July 1999 hearing the veteran claimed service connection for bilateral hearing loss and tinnitus. These matters are referred to the RO for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary for a fair and informed decision has been obtained by the originating agency. 2. In July 1999, prior to the promulgation of a decision in the appeal, the veteran requested withdrawal of his appeal concerning the issue of increased evaluation for disease of the auditory canal of the right ear. 3. The veteran is right-handed. 4. The veteran's service-connected residuals of a fracture of the right wrist with spurring and post-traumatic arthritis are currently manifested by no swelling or abnormality, and by an ability to move the joint, albeit limited and with pain. 5. The service-connected residuals of a fracture of the right wrist do not meet or closely approximate complete loss of use of the right hand. CONCLUSION OF LAW 1. The criteria for withdrawal of a Substantive Appeal by the appellant have been met. 38 U.S.C.A. § 7105(b)(2) (West 1991); 38 C.F.R. §§ 20.202, 20.204(b),(c) (1999). 2. The criteria for an evaluation greater than 30 percent for the residuals of a fracture of the right wrist with spurring and post-traumatic arthritis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.31, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5213 (1999). 3. The criteria for an award of special monthly compensation for loss of use of the right hand are not met. 38 U.S.C.A. §§ 1114(k), 5107 (West 1991); 38 C.F.R. §§ 3.350(a)(2), 4.63 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Withdrawal of Appeal for Increased Evaluation for Disease of the Auditory Canal of the Right Ear Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b) (1999). Withdrawal may be made by the appellant or by his or her authorized representative, except that a representative may not withdraw a Substantive Appeal filed by the appellant personally without the express written consent of the appellant. 38 C.F.R. § 20.204(c) (1999). The appellant has withdrawn his appeal as to the issue of an increased evaluation for disease of the auditory canal of the right ear and, hence, there remain no allegations of errors of fact or law for appellate consideration concerning this issue. Accordingly, the Board does not have jurisdiction to review this issue and it is dismissed without prejudice. II. Increased Evaluation for Residuals of Fracture of Right Wrist The veteran has presented a well-grounded claim for increased disability evaluation for his service-connected disabilities within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); cf. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (where veteran asserted that his condition has worsened since the last time his claim for an increased disability evaluation for a service-connected disorder had been considered by VA, he established a well-grounded claim for an increased rating). The veteran has not alleged that any records of probative value that may be obtained, and which have not already been associated with his claims folder, are available. Accordingly, the Board finds that all relevant facts have been properly developed and the duty to assist him, as mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. The veteran has contended that the most recent VA examination was inadequate. The examination report, however, contains sufficient findings with which to rate this disability, and it is neither contended nor otherwise shown that the criteria for the assignment of an additional or a higher disability evaluation are present. In considering the severity of a disability, it is essential to trace the medical history of the disability. 38 C.F.R. §§ 4.1, 4.2 (1999). A rating decision dated in June 1958 originally granted service connection for the residuals of a fracture, right wrist, with limitation of motion and weakness. A 10 percent evaluation was assigned for this disability, effective in August 1957. In July 1975, the veteran underwent further examination, which revealed marked tenderness and pain upon motion, warmth, and swelling in the right wrist. Range of motion was recorded at 15 degrees radial deviation, 15 degrees ulnar deviation, 15 degrees flexion, and 15 degrees extension. The examiner noted that the right wrist measured 21 centimeters, due to swelling in the joint, whereas the left measured only 17 centimeters. Results of X-rays taken at the time evidence narrowing of the radial carpal joint spaces and the radial ulna articulation, as well as an osteophyte between the radius and ulna. The report reflects a diagnosis of degenerative arthritis in the right wrist with marked limitation of motion. Based on this evidence, the evaluation was increased to 30 percent in an August 1975 rating decision, effective in March 1975. This evaluation has been confirmed and continued to the present and, as it has been in effect for more than 20 years, may not be reduced absent a showing of fraud, which is not herein contended. 38 C.F.R. § 3.951 (1999). The veteran has appealed the assignment of the 30 percent rating for his service-connected right wrist disability. Specifically, he contends that he experiences pain and numbness due to his right wrist disability, that he has difficulty writing and picking up objects with his right hand, and that he has lost strength and dexterity in his right hand. However, the medical evidence of record does not show that the criteria for an evaluation higher than 30 for this condition are met. Service-connected disabilities are rated in accordance with the VA's Schedule for Rating Disabilities (Schedule). The ratings are based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § Part 4 (1999). The basis of disability evaluations 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. Evaluations are based upon a lack of usefulness of these systems in self- support. 38 C.F.R. § 4.10 (1999). 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 for the higher rating. 38 C.F.R. § 4.7 (1999). The veteran's right wrist disability has been evaluated under Diagnostic Code 5010-5213, for post-traumatic arthritis evaluated on the basis of impairment of supination and pronation. See 38 C.F.R. § 4.27 (1999). A VA examination report, dated in October 1998, shows that the veteran is right-handed, so the evaluations provided for the major hand and wrist will be here considered. Under Diagnostic Code 5213, the Schedule affords a 40 percent evaluation where bones are fused such that the major hand is fixed in a position of supination or hyperpronation. However, the medical evidence does not show that the required manifestations are present. The October 1998 report shows that the veteran can move his wrist, albeit with complaints of pain and stiffness. Range of motion measurements are reported at 30 degrees dorsal flexion, 30 degrees palmer flexion, 5 degrees radial deviation, and 20 degrees ulnar deviation. In addition, the report shows objective observations of no swelling, subluxation, dislocation, or other abnormality. Higher evaluations can also be warranted for unfavorable ankylosis of the wrist under Diagnostic Code 5214. However, as discussed immediately above, the medical evidence simply does not show that the veteran's right wrist has been fused or ankylosed, either by surgery or disease. Rather, the medical evidence demonstrates that he is able to move his right wrist. After consideration of the evidence, the Board finds that the criteria for a rating higher than 30 percent are not met under Diagnostic Codes 5213 and 5214. Specifically, the medical evidence of record simply does not establish that the veteran's service connected right wrist disability is manifested by fusion or ankylosis of the wrist. In VAOPGCPREC 23-97 (July 1, 1997), it was held that where the manifestations of a condition create a separate disability, the symptomatology of which neither duplicates nor overlaps that of another condition, assigning a separate rating under the appropriate diagnostic code does not violate the provisions of 38 C.F.R. § 4.14, which prohibits evaluating the same manifestations of a condition, albeit diagnosed variously, under different ratings. The opinion held, for example, that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003, for arthritis, and 5257, for instability. See also Esteban v. Brown, 6 Vet. App. 259 (1994). Thus, in addition to considering whether an increased evaluation for the residuals of a fracture of the right wrist with spurring and post-traumatic arthritis is warranted under Diagnostic Code 5010-5213, the Board will also discuss whether a separate compensable evaluation is warranted for limitation of right wrist motion under Diagnostic Code 5215. Diagnostic Code 5215 directs that dorsiflexion limited to less than 15 degrees warrants a 10 percent evaluation. Diagnostic Code 5215 also provides a 10 percent evaluation for palmar flexion limited in line with the forearm. However, the medical evidence does not show that the required manifestations are present. The October 1998 report shows that the veteran has dorsal flexion to 30 degrees. Palmer flexion was noted to measure 30 degrees, also. After consideration of the evidence, the Board finds that the criteria for separate, compensable evaluations under Diagnostic Code 5215 are not met. Specifically, the medical evidence of record simply does not establish that the veteran's service connected right wrist disability is manifested by dorsiflexion limited to less than 15 degrees or palmar flexion limited in line with his forearm. In exceptional cases where schedular evaluations are found to be inadequate, consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities" is made. 38 C.F.R. § 3.321(b)(1) (1999). The governing norm in these exceptional cases is a finding that 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. Id. The Board first notes that the schedular evaluations in this case are not inadequate. Higher ratings are available for impairment of supination and pronation involving fusion of the bones so that the hand is fixed in position, and for ankylosis of the wrist. In addition, separate compensable evaluations are available for limitation of dorsiflexion and palmer flexion. However, the medical evidence reflects that the required manifestations are not present in this case. Second, the Board finds no evidence of an exceptional disability picture in this case. The veteran has required hospitalization and outpatient treatment, but the medical evidence of record establishes that the treatment required has been for disabilities and conditions other than the service-connected right wrist disability. The veteran has testified that he has difficulty driving, writing, and picking up objects with his right hand and wrist. But he has also testified that he can drive and pick up objects using his left hand. The medical evidence simply does not demonstrate that his service-connected residuals of the fracture of his right wrist with spurring and post-traumatic arthritis prevent him from being employed, or that they interfere with his ability to perform employment. Thus, the Board cannot find medical evidence that the impairment resulting from the service-connected residuals of the fracture of his right wrist with spurring and post-traumatic arthritis, alone, interfere markedly with his employment. Rather, for the reasons noted above, the Board concludes that the impairment resulting from the service-connected right wrist disability is adequately compensated by the 30 percent schedular evaluation under Diagnostic Code 5010-5213. Therefore, extraschedular consideration under 38 C.F.R. § 3.321(b) (1999) is not warranted in this case. In rating this service-connected disability, the Board has considered the disabling effects of pain, as indicated in the above discussions. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Objective observations of limitation of movement was noted by the examiner. No findings were made of abnormal movement, guarding of movement, muscle atrophy, weakness, decrease in sensation or reflexes, or changes in condition of the skin indicative of disuse. Consequently, the veteran's complaints of pain, weakness, numbness, cramping, and limitation of movement, by themselves, do not support an assignment of a higher or separate, compensable evaluation. As discussed above, the rating now assigned for the right wrist disability accounts for the painful and limited motion demonstrated. The presence of other factors listed in 38 C.F.R. § 4.45, are either not contended or not shown. III. Entitlement to Special Monthly Compensation Based on the Loss of the Use of the Right Hand In determining the veteran's entitlement to special monthly compensation for loss of use of the right hand, the Board must consider the medical evidence concerning the current impairment of his right hand in light of the controlling laws and regulations governing entitlement to such additional benefits. The criteria for entitlement to additional monthly compensation for loss of use of a hand or a foot are very specific and are set forth in the provisions of 38 U.S.C.A. § 1114(k) (West 1991 & Supp. 1999). Loss of use of a hand or a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of the hand or foot, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance and propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis. Complete ankylosis of two major joints of an extremity will be taken as loss of use of the hand or foot. 38 C.F.R. §§ 3.350(a)(2), 4.63 (1999). The October 1998 VA examination report shows that while the veteran experiences limitation of movement and difficulty writing and performing fine tasks, he is able to move his right wrist. Moreover, he testified before the undersigned member of the Board in July 1999 that, while his strength and dexterity are impaired, he can eat and shave using his right hand. The examiner who performed the October 1998 VA examination observed no swelling, dislocation, subluxation, or other abnormality in the veteran's right wrist. Finally, although the examiner noted that the veteran cannot write, the veteran testified that he can, albeit not for long periods of time. As noted above, the veteran has contended that the most recent VA examination is inadequate. The description of the veteran, however, concerning the remaining function of his right hand does not suggest that further examination would reveal findings that would support a grant of special monthly compensation for loss of use of a hand. The Board concludes that there is no objective evidence of functional loss of the right hand that would equate to the functional level of an amputation stump with prosthesis. Further there is no medical evidence that he has complete ankylosis of two major joints of the right upper extremity. Therefore, the Board concludes that entitlement to special monthly compensation for loss of use of the right hand is not warranted. 38 U.S.C.A. § 1114(k) (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.350(a)(2), 4.63 (1999). The Board has carefully reviewed the evidence of record, but the evidence is not so evenly balanced as to raise a reasonable doubt. 38 U.S.C.A. § 5107 (West 1991). ORDER The appeal concerning the issue of increased evaluation for disease of the auditory canal of the right ear is dismissed. Entitlement to a rating greater than 30 percent for the service connected residuals of a fracture to the right wrist, with spurring and post-traumatic arthritis, is denied. Entitlement to special monthly compensation due to loss of use of the right hand is denied. MARY GALLAGHER Member, Board of Veterans' Appeals