Citation Nr: 0003271 Decision Date: 02/09/00 Archive Date: 02/15/00 DOCKET NO. 97-32 385 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an evaluation in excess of 20 percent for residuals of fracture, navicular, left wrist, currently evaluated as 20 percent disabling, to include the issue whether an evaluation in excess of 10 percent was warranted prior to December 8, 1997. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Pitts, Associate Counsel INTRODUCTION The veteran had active service from January 1959 to June 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 1997 rating decision of the Newark, New Jersey Department of Veterans Affairs Regional Office (RO). The rating decision continued the evaluation of the veteran's left wrist disability at 10 percent. The veteran filed a notice of disagreement with the rating decision in March 1997. In July 1997, the RO provided the veteran with a statement of the case. In September 1997, the veteran filed his substantive appeal. A personal hearing was held at the RO in September 1997. In May 1998, the RO issued a rating decision granting a temporary total convalescent rating for the left wrist disability, pursuant to 38 C.F.R. § 4.30, from December 8, 1997, to March 31, 1998, and increasing the rating to 20 percent from April 1, 1998. In addition to the disorder of the left wrist at issue, the veteran is also service connected, in pertinent part, for residuals of a right hand injury, evaluated as 50 percent disabling, and fusion of the left thumb with arthritis, evaluated as 10 percent disabling. In a January 1999 rating, entitlement to a total rating based on individual unemployability was established. The veteran is also entitled to special monthly compensation under 38 U.S.C.A. § 1114(s) and 38 C.F.R. § 3.350(i). FINDINGS OF FACT 1. Prior to December 8, 1997, the veteran's residuals of a left wrist navicular fracture were characterized by nonunion of the fractured bone, arthralgia, limitation of motion, and functional loss. 2. After March 31, 1998, the veteran's residuals of a left wrist navicular fracture have been characterized by union of the fractured bone, degenerative joint disease, and ankylosis. CONCLUSIONS OF LAW 1. The criteria for a 20 percent evaluation for residuals of fracture, navicular, left wrist, prior to December 8, 1997, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5214, 5215 (1999). 2. The criteria for a 30 percent evaluation for residuals of fracture, navicular, left wrist, from April 1, 1998, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5214, 5215 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Background Service medical records indicate that the veteran fractured his left wrist during service in January 1959. The fracture was not diagnosed or treated until June 1959. During that month, the veteran was admitted to the United States Naval Hospital (USNH) in Corpus Christi, Texas after being seen on consultation there. A June 1959 treatment note prepared there stated a diagnosis of fracture, simple, left carpal navicular, with no artery or nerve involvement. On subsequent examination at the USNH in July 1959, it was noted that the veteran "ha[d] developed a well-defined nonunion [fracture], navicular" and that surgery might be necessary. The veteran was admitted to the Corpus Christi, Texas USNH in August 1959 and his diagnosis changed to nonunion of fracture, left navicular. In September 1959, a bone fusion with iliac graft was performed at the USNH to address the nonunion. Service medical records also documented that after the September 1959 surgery, the nonunion of the left navicular fracture persisted. It was also observed that the veteran had fallen on his left wrist in October 1960. In May 1962, a Medical Evaluation Board found that there had been no amelioration post-surgery of the nonunion and recommended that the veteran receive a disability discharge. It was found that the veteran was unfit to perform his duties because of his left wrist condition and disabilities involving his right hand. Postservice medical records documented that in December 1963, the veteran underwent surgery on his left wrist for a second time. This surgery, which was performed at the Irwin United States Army Hospital (USAH) in Fort Riley, Kansas, consisted of a radial styloidectomy and a bone graft to the navicular. The veteran underwent a VA examination in February 1970. The examination report documented limitations in range of motion of the veteran's left wrist. The report of x-rays taken in connection with the examination stated that the nonunion of the left navicular fracture had persisted, that the outer portion of the articular surface of the radius bone was defective because of loss of substance and the inner portion evinced hypertrophic changes, and that in all other respects the carpals appeared to be normal. Outpatient clinical records received from the Coast Guard spanned January 1987 to September 1988. The records indicated that the left wrist of the veteran had been examined in April 1988 after he complained of wrist and hand pain and recurrent stiffness. The examination note reflected that the veteran had limited range of motion with his left wrist and that medication for pain was prescribed. The impression set forth in the note was gout; however, it was suggested also that certain of the symptoms upon which this impression was founded might have been the result of the veteran's history of left wrist surgery. A September 1986 treatment record also noted gout (although without specifying the body part or parts involved). In July 1996, in connection with the current claim, the veteran again underwent VA examination, including a special orthopedic examination. The report of the orthopedic examination noted that the veteran complained that he had chronic pain in his left wrist and hand and that the pain was worse in cold weather. It was observed that the veteran was right-handed. The history noted that the veteran had fallen twice on his left wrist during service and had undergone two bone grafts. It was also documented in the history that while the veteran had undergone partial amputations of two fingers of the right hand, the veteran considered his left hand to be in worse condition than his right. It was indicated that the veteran's ability to grasp, push, pull, and twist with the hand was more limited for his left hand than for his right and that, currently, the veteran wore a brace when performing any left hand activity. Upon examination, no swelling of the veteran's left wrist was found. Dorsiflexion was 10 degrees, palmar flexion 20 degrees, radial deviation 10 degrees, and ulnar deviation 15 degrees. X-rays were reported to reveal an old nonunion fracture of the left carpal navicular bone with post- traumatic arthritic changes. There was a narrowing of spaces between the carpal bones and between the carpal bones and the radius. The impression of the examiner was arthralgia of the left wrist with markedly decreased range of motion and "severe decrease in functional ability." In September 1997, the veteran testified at a personal hearing. He stated that he had pain in his left wrist every day with any motion but had no pain when he was not moving the wrist. He testified that during flare-ups of his left wrist pain, which he said could last between two hours and two days, he wore a brace and took medication. The veteran maintained that he had limited movement in his left wrist and limited strength in his left hand. He also recounted that he was an automobile mechanic and could not perform his job properly because it required both the strength to lift heavy objects and specific strength in the hands (for example, to tighten parts of an engine). He stated that he had ceased working at his trade a number of years before. Records received by the RO in April 1998 from VA Medical Center (VAMC) in Philadelphia, Pennsylvania documented that in December 1997, the veteran again underwent left wrist fusion surgery. An iliac crest bone graft was performed and a plate inserted. The December 1997 discharge summary noted that the veteran had longstanding degenerative joint disease. Another December 1997 record stated that the veteran had "severe" arthritis in his left wrist. A post-operative treatment note observed that the veteran complained of stiffness in the fingers of his left hand and that occupational therapy for finger mobilization was being prescribed. A February 1998 follow-up note concerning the left wrist condition of the veteran recorded that he complained of pain. The note stated that x-rays disclosed that the post-surgical fusion was good. In June 1998 another VA examination was performed. Photographs of the veteran's hands were also taken at that time. The examiner documented that the veteran had reported that the pain he had been having in his left wrist was gone. Upon examination of his left wrist, the veteran was found to have 7 degrees of radial deviation, "effusion" at the wrist with no motion. This was in neutral as far as dorsal volar positioning. The diagnoses pertinent to the left wrist were status post-fusion with stability and 7 degrees of radial deviation and early DuPuytren's palmar fibrosis in the ray, 4th metacarpal, without contracture. The examiner also noted functional limitations of the veteran's left hand involving weakness, fatigability, lack of endurance, and incoordination. The same limitations were noted with respect to the veteran's right hand. The examiner opined that given these functional limitations, the veteran would have difficulty working. The claims file also contained a report concerning a consultation for his left wrist fusion that the veteran had in October 1998 at the Philadelphia, Pennsylvania VAMC. It documented that x-rays indicated degenerative joint disease of the wrist and hand with metacarpophalangeal joint pain and that physical therapy was prescribed. In January 1999 the RO received a December 1998 written opinion of a private physician, Roy B. Friedenthal, M.D. Dr. Friedenthal observed that x-rays revealed evidence of previous surgery at the carpometacarpal joint of the left hand. Dr. Friedenthal reported that on examining the veteran's left wrist and hand, he found the veteran to have a "rigid effusion" with some radial deviation at the wrist but no pain upon attempted motion. He also reported that he found the veteran to have painless motion of the carpometacarpal joint of the left hand. Dr. Friedenthal stated an impression that the veteran's left hand showed evidence of a solid fusion at the wrist with a dorsal plate. II. Analysis The veteran's current claim was filed in February 1996. At that time, the disability was evaluated at 10 percent under Diagnostic Code 5212 (pertaining to impairment of the radius). In February 1997, the RO continued the 10 percent evaluation. The rating decision indicated that the evaluation had been based on the criteria of Diagnostic Code 5215 (pertaining to limitation of motion of the wrist). Subsequently, in a June 1998 rating decision, the RO increased the evaluation of the veteran's disability to 20 percent. The 20 percent evaluation took effect April 1, 1998, following the expiration of a 100 percent temporary total convalescent rating under 38 C.F.R. § 4.30 for the period December 8, 1997 to March 31, 1998. The June 1998 rating decision cited Diagnostic Code 5010 (pertaining to traumatic arthritis) and Diagnostic Code 5214 (pertaining to ankylosis of the wrist). A January 1999 rating decision issued during the pendency of the current appeal continued the 20 percent evaluation under the same Diagnostic Codes. In the June 1998 rating decision, the RO also granted the veteran service connection for a left thumb fusion due to arthritis as secondary to the veteran's left wrist condition and rated the left thumb disability at 10 percent under Diagnostic Codes 5010-5214. As an initial matter, the Board observes that because the veteran has alleged that his disability has increased in severity, his claim for an increased evaluation is well grounded. See Proscelle v. Derwinski, 2 Vet. App. 629 (1992); 38 U.S.C.A. § 5107(a) (West 1991). In general, disability evaluations are assigned by applying a schedule of ratings, which represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991). VA regulations require that, in evaluations of a given disability, that disability be viewed in relation to its whole recorded history. See 38 C.F.R. §§ 4.1, 4.2. When there is a question as to which of two ratings should be assigned to a disability, the higher rating must be assigned if the disability pictured by the record more closely approximates the criteria required by that rating. 38 C.F.R. § 4.7. In every instance in which the minimum schedular evaluation requires residuals and the schedule does not provide a noncompensable evaluation, a noncompensable evaluation will be assigned when the required residuals are not shown. 38 C.F.R. § 4.31. All VA regulations which the face of the record indicates are potentially relevant to the claim for increased evaluation will be considered by the Board, whether explicitly raised in the record or not, unless their consideration would be arbitrary, capricious, or contrary to law. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). When after a careful review of all available and assembled data a reasonable doubt arises regarding the degree of disability, such reasonable doubt must be resolved in favor of the claimant. 38 C.F.R. § 4.3. Thus, a claim for an increased evaluation of disability will be granted unless a preponderance of the evidence of record is against the claim. 38 U.S.C.A. § 5107(b) (West 1991). The history of the left wrist disability of the veteran has been noted. See Schafrath v. Derwinski, 1 Vet. App. 589. However, in a claim for an increased evaluation, the present level of the disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Therefore, evidence of record most pertinent to the claim will be that bearing on this issue. a. Entitlement to an evaluation in excess of 10 percent for residuals of fracture, navicular, left wrist, prior to December 8, 1997 As observed above, the February 1997 rating decision which the veteran appeals denying his request for an increased evaluation and continuing the existing 10 percent rating employed the criteria pertaining to limitation of motion of the wrist set out in Diagnostic Code 5215. Because that Diagnostic Code affords a maximum evaluation of 10 percent, an increased rating is not available to the veteran thereunder. See 38 C.F.R. § 4.71a, Diagnostic Code 5215 (1999). As remarked above, the 10 percent evaluation for the veteran's left wrist disability had been assigned under Diagnostic Code 5212 in a June 1970 rating decision. Diagnostic Code 5212 concerns impairment of the radius. See 38 C.F.R. § 4.71a, Diagnostic Code 5212 (1999). Since the disability at issue involves the minor extremity of the veteran, the maximum evaluation available to him under this Diagnostic Code is 30 percent. However, the disability at issue in this appeal concerns the left wrist navicular bone. This is not the equivalent of the radius. Therefore, Diagnostic Code 5212 is inapplicable to the disability in question. Diagnostic Code 5214 is potentially relevant to disabilities involving the wrist. Diagnostic Code 5214 concerns ankylosis of the wrist. See 38 C.F.R. § 4.71a, Diagnostic Code 5214 (1999). Again, however, no finding of ankylosis of the left wrist prior to December 8, 1997, is documented by the medical evidence of record. Therefore, this Diagnostic Code is inapplicable to the veteran's left wrist disability prior to December 8, 1997. The medical evidence does reveal that during his 1996 examination by VA, the veteran was found to have left wrist arthralgia and, on X-ray, post-traumatic arthritis. Such a condition might be rated by analogy as traumatic arthritis under Diagnostic Code 5010. This Diagnostic Code in turn directs that the condition in concern be rated as degenerative arthritis under Diagnostic Code 5003. See 38 C.F.R. § 5010 (1999). However, Diagnostic Code 5003 provides that when limitation of motion is a characteristic of the disability in question, it is to be rated under the Diagnostic Code dealing with limitation of motion for the specific joint or joints at issue. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (1999). In this case, because there has been a finding of limitation of motion, the veteran's left wrist disability would be evaluated under Diagnostic Code 5215, which, as has been observed, affords a rating of no more than 10 percent. In addition, a compensable disability rating may be given under VA regulations for disability due to, among other causes, pain on use of the part or parts concerned, and/or weakness and fatigability on their use if such is supported by adequate pathology and evidenced by the visible behavior of a claimant in undertaking motion. A finding of limited range of motion and/or instability of the part or parts concerned is not required in such a case. Schafrath v. Derwinski, 1 Vet. App. at 592. Weakness is as significant as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45 (1999). Therefore, a compensable rating of disability may be warranted for functional loss due to such factors. 38 C.F.R. § 4.40. Furthermore, a compensable rating for disability of a joint or joints may be given for weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.), pain on movement, and excess fatigability upon use of the disabled part or parts. 38 C.F.R. § 4.45. A compensable rating could be warranted regardless of whether symptoms were displayed upon repeated use or during flare-ups only. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The 1996 VA examination report in this case indicated that the veteran had frequent pain in his left wrist and had sustained a severe loss of function as a result of his injury. The veteran's hearing testimony of September 1997 was to the same effect. The record indicates that during the period prior to December 8, 1997, the veteran wore a brace on his left upper extremity in order to perform activities with his left hand and following flare-ups of pain. Therefore, the Board determines that a preponderance of the evidence supports the veteran's claim for an increased evaluation of his left wrist disability prior to December 8, 1997. See 38 U.S.C.A. § 5107(b). The Board is of the opinion that an additional disability evaluation of 10 percent is warranted on account of functional loss related to pain, resulting in a rating of 20 percent. See 38 C.F.R. § 4.40; see 38 C.F.R. § 4.3. It is the opinion of the Board that the evidence of record does not support a higher evaluation for the period prior to December 8, 1998, than that granted by this decision. b. Entitlement to an evaluation in excess of 20 percent for residuals of fracture, navicular, left wrist In evaluating the veteran's claim for an increased rating of his left wrist disability, the Board considers the veteran to be seeking the maximum benefit allowed by law and regulation. See AB v. Brown, 6 Vet. App. 35 (1993) (a claimant is presumed to be seeking the maximum benefit allowed by law and regulation for the disability in question, and a claim remains in controversy when less than the maximum benefit has been awarded). The veteran has not been granted the maximum evaluation for his left wrist condition potentially available to him. Therefore, the increase in the evaluation of his disability from 10 percent to 20 percent by the June 1998 rating decision issued during the pendency of this appeal did not foreclose the claim of the veteran for the period covered by that award. The current 20 percent evaluation of the veteran's left wrist disability is based on the criteria contained in Diagnostic Code 5214. Because the disability involves a minor extremity of the veteran, the maximum rating that would be available to him under this Diagnostic Code is 40 percent. See 38 C.F.R. § 4.71a, Diagnostic Code 5214 (1999). However, the veteran's condition does not meet the criteria for a 40 percent evaluation of a disability involving a minor extremity, which requires unfavorable ankylosis, in any degree of palmar flexion, or radial or ulnar deviation. The medical evidence does not demonstrate this combination of conditions. For a 30 percent evaluation of disability involving a minor extremity, Diagnostic Code 5214 requires a showing of ankylosis of the wrist in any other position except favorable, which is defined as existing when there is 20 to 30 degrees of dorsiflexion. The report of the June 1998 VA examination states that the veteran's wrist had no motion in neutral, or at 0 degrees, in the dorsal volar position. That is, there was ankylosis in this position, which is one other than favorable. Therefore, the Board determines that a preponderance of the evidence supports the veteran's claim for an evaluation of his left wrist disability in excess of 20 percent. See 38 U.S.C.A. § 5107(b). The Board is of the opinion that a 30 percent evaluation of the veteran's left wrist disability under Diagnostic Code 5214 is warranted from April 1, 1998. It is the opinion of the Board that the evidence of record does not support a higher evaluation than that granted by this decision. In making this determination, the Board has considered whether a higher rating based on 38 C.F.R. §§ 4.40 and 4.45 is warranted, but does not find that the evidence supports a rating in excess of 30 percent. The evidence developed after December 8, 1997 demonstrates that such an increase is not warranted for the period beginning April 1, 1998. The veteran had surgery in December 1997 to fuse the left wrist bone that had been fractured. The report of the June 1998 VA examination stated that the veteran recounted that the longstanding pain in his left wrist had ceased. Likewise, the December 1998 opinion submitted by Dr. Friedenthal found the veteran to have had no pain on attempted motion of his wrist. Therefore, the Board finds that an increase in the schedular rating on account of pain and functional loss for the period beginning April 1, 1998 would not be justified. The veteran and his representative have argued that an extraschedular rating for this disability is appropriate. The Board disagrees. The veteran's left wrist disability does not present 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 regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (1999). ORDER An increased evaluation of 20 percent for residuals of fracture, navicular, left wrist prior to December 8, 1997 is granted, subject to controlling regulations applicable to the payment of monetary benefits. An increased evaluation of 30 percent for residuals of fracture, navicular, left wrist from April 1, 1998 is granted, subject to controlling regulations applicable to the payment of monetary benefits. BARBARA B. COPELAND Member, Board of Veterans' Appeals