Citation Nr: 0004060 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 96-47 979 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a compensable initial disability evaluation for status post-ganglionectomy, right wrist. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION The veteran served on active duty from December 1967 to July 1969, and from January 1970 to March 1973. This appeal arises from a May 1995 rating decision of the Department of Veterans Affairs (VA), New Orleans, Louisiana, regional office (RO). That rating decision, in part, held that new and material evidence had not been received to reopen a previously denied claim for service connection for a right wrist disability. In an August 1996 rating action, the RO determined that a rating decision dated in December 1979 had contained clear and unmistakable error in denying service connection for status post ganglionectomy, right wrist. Service connection was granted, and a noncompensable evaluation was assigned from August 1979. The veteran subsequently disagreed with the initial noncompensable evaluation. In August 1998, the Board remanded the case for additional development. Subsequently, a July 1999 rating decision continued the prior evaluation. On the informal hearing presentation dated in February 2000, the veteran's representative presented argument on four issues which were the subject of a final Board decision in August 1998. Three of the issues involved claims which were denied on the basis that new and material evidence had not been presented. The representative has argued that in light of the Federal Circuit's decision in Hodge v. West, 155 F.3rd 1356 (Fed. Cir. 1998), that the Board should readjudicate those claims. The Board notes that its August 1998 decision is final, and the time period for filing an appeal to the Court has passed. The veteran id advised to either submit new and material evidence and request the RO to reopen the claim, or, if he believes that the Board was clearly and unmistakably erroneous in its 1998 decision, formally ask the Board to reconsider the decision on that basis. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's claim. 2. The medical evidence covering the period from August 1, 1979, to the present does not demonstrate that the veteran's service connected status post-ganglionectomy, right wrist, which consists of a one-inch healed scar, is poorly nourished with repeated ulceration, tender and painful on objective demonstration; or productive of limitation of function of the body part which it affects. CONCLUSION OF LAW The criteria for a compensable evaluation for status post- ganglionectomy, right wrist, since August 1, 1979, have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, Diagnostic Codes 7803, 7804, 7805 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is well-grounded, within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim which is plausible. All relevant facts have been properly developed and no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). Separate diagnostic codes identify the various disabilities. 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 (1999). During service in April 1971 the veteran had a ganglion removed from the dorsal aspect of the right wrist. The RO granted service connection for status post-ganglionectomy, right wrist, in August 1996. A noncompensable evaluation was assigned from August 1, 1979. The veteran contends that he is entitled to a compensable evaluation. A compensable evaluation for scars (other than burn scars or disfiguring scars of the head, face, or neck) requires that they be poorly nourished, with repeated ulceration, that they be tender and painful on objective demonstration; or that they produce limitation of function of the body part which they affect. 38 C.F.R. Part 4, Diagnostic Codes 7803, 7804, and 7805 (1999). A noncompensable rating must be assigned where the findings do not approximate these requirements. 38 C.F.R. §§ 4.7, 4.31 (1999). A VA examination was conducted in September 1979. The veteran reported discomfort and fatigue in his right hand. Neurological examination showed motor, strength, and tone normal. There was a one-inch scar on the dorsum of the veteran's right wrist. Sensory examination was within normal limits. Reflexes were hypoactive but equal. Romberg test and coordination tests were done well. The impression was residuals of right dorsal wrist laceration without any significant neuromuscular deficit. A VA examination was conducted in April 1994. The veteran reported history of excision of ganglion of dorsum of right wrist during service without recurrence. He denied any current symptomatology except for tenderness in right wrist upon extreme motion of the wrist and residual depression of scar tissue. Right wrist X-ray was negative. The examiner noted negative anatomical defects, no functional defects, and normal grasping of objects. The diagnosis was status following excision of ganglion of dorsum of right wrist with minimal residual symptomatology. A VA examination was conducted in October 1998. The veteran complained of wrist pain with swelling. On examination, the right wrist showed full range of motion, flexion, extension, radial and ulna deviation. There was a scar from the ganglionectomy. The examiner stated that he did not find any real disability from the wrist. He noted a "5% permanent disability secondary more to cosmetics than from anything else." The examination findings do not provide a basis for a compensable evaluation. The service-connected residuals of ganglionectomy, right wrist, consist of a small healed scar which is not shown to be poorly nourished with repeated ulceration, tender and painful on objective demonstration; or productive of limitation of function of the body part which it affects. 38 C.F.R. Part 4, Diagnostic Codes 7803, 7804, and 7805 (1999). In fact, there were essentially no objective findings, except for the presence of a healed, one- inch scar, and some tenderness on extreme motion of the wrist noted on one examination. The medical reports form a preponderance of the evidence which shows that the service- connected right wrist post-ganglionectomy residuals do not approximate any applicable criteria for a compensable rating at any time since August 1, 1979. See Fenderson v. West, 12 Vet. App. 119 (1999). As the evidence for and against the claim is not in relative equipoise, the reasonable doubt rule does not apply. 38 C.F.R. § 3.102 (1999). ORDER A compensable initial disability evaluation for status post- ganglionectomy, right wrist, is denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals