Citation Nr: 1301200 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 10-32 577 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. What evaluation is warranted for right wrist strain from December 1, 2008? 2. What evaluation is warranted for right ankle strain from December 1, 2008? REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from July 1986 to November 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Benefits Delivery at Discharge (BDD) Unit at the Regional Office (RO) of the Department of Veterans Affairs (VA) in Salt Lake City, Utah. Prior to certifying this appeal to the Board, in a February 2011 rating decision, the RO granted service connection for right leg shin splints. Because the February 2011 decision represents a full grant of the benefits sought with respect to this issue, this matter is not before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. As will be explained in more detail below, the record reflects that the Veteran's right wrist disability has been evaluated based on limitation of motion. She asserts that she also has a separate neurological impairment associated with her right wrist disability; however, this issue not been adjudicated by the Agency of Original Jurisdiction (AOJ). In addition, in June 2011, she filed claims for increased ratings for bilateral plantar fasciitis and rosacea. Because these issues have not been adjudicated by the AOJ, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Since December 1, 2008, the Veteran's right wrist strain has not been productive of ankylosis. 2. Since December 1, 2008, the Veteran's right ankle strain has not been productive of a marked limitation of ankle motion CONCLUSIONS OF LAW 1. Since December 1, 2008, the Veteran's right wrist strain has not met the criteria for an evaluation greater than 10 percent. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Codes 5214, 5215 (2012). 2. Since December 1, 2008, the Veteran's right ankle strain has not met the criteria for an evaluation greater than 10 percent. 38 U.S.C.A. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5271 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The requirements of 38 U.S.C.A. § 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or the completeness of the application. VA provided the requisite notice to the Veteran with her original claim for benefits in August 2008 (see VA Form 21-526), including the information and evidence needed to substantiate and complete the claims, notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain, and how disability ratings and effective dates are determined. This case was most recently readjudicated in February 2011. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claims, and as warranted by law, affording VA examinations. For the reasons discussed below, the Board finds that the examinations are adequate to make a determination on the claims. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c) (2012). Legal Criteria Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the claimant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). In addition, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40 , 4.45, 4.59. 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C .F.R. § 4.59. When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Analysis Right Wrist The Veteran asserts that she is entitled to a higher, 20 percent rating for her right wrist disability because she has limited motion and difficulty holding onto objects. (See August 2010 VA Form 9). For the reasons discussed below the Board finds that the right wrist disability warrants no more than a 10 percent rating. As an initial matter, the Board notes that the Veteran's right hand is her dominant or major hand. Her right wrist disability has been assigned a 10 percent rating under Diagnostic Code 5215-5024. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.27 (2012). Under Diagnostic Code 5024, tenosynovitis is rated based on limitation of the affected part, as degenerative arthritis. Under Diagnostic Code 5003 degenerative arthritis is rated based on limitation of motion of the affected joint. 38 C.F.R. § 4.71a. Limitation of motion of the wrist is evaluated under Diagnostic Code 5215. Id. A 10 percent rating is warranted for the major wrist when palmar flexion is in line with the forearm. A 10 percent rating is also warranted when dorsiflexion is less than 15 percent. A 10 percent rating is the maximum available evaluation under Diagnostic Code 5215. The normal range of motion of the wrist is from 0 to 70 degrees on dorsiflexion, 0 to 80 degrees on palmar flexion, 0 to 20 degrees on radial deviation, and 0 to 45 degrees on ulnar deviation. 38 C.F.R. § 4.71, Plate I (2012). During the September 2008 VA examination, the Veteran complained of right wrist pain, stiffness, lack of endurance, and fatigability. She denied weakness, swelling, heat, redness, giving way, locking, and dislocation. She described the pain as localized, burning, aching, and sharp. She said the pain was constant, estimated as 8/10 in severity. She said pain was elicited by physical activity and relieved by rest. She reported having problems holding objects and performing twisting actions with the right wrist and hand. On examination, the right wrist showed no signs of edema, effusion, weakness, tenderness, redness, heat, subluxation or guarding of movement. Range of motion was limited to 56 degrees on dorsiflexion, 68 degrees on palmar flexion, 16 degrees on radial deviation, and 34 degrees on ulnar deviation. Pain occurred at the endpoint of each range of motion. Pain was the major functional impact. After repetitive use, joint function was not additionally limited by fatigue, weakness, lack of endurance, and incoordination. There was no additional limitation in range of motion with repetitive testing. Sensory function, motor function, and reflexes were within normal limits. Tinel's sign was absent. Phalen's test was negative. X-rays of the right wrist were within normal limits. The Veteran was diagnosed as having a right wrist strain. A June 2009 outpatient treatment record from the 82nd Medical Group Clinic indicates that the Veteran did not have any musculoskeletal symptoms. In December 2009, it was noted that she had no localized joint pain. During the September 2010 VA examination, the Veteran complained of a history of constant numbness and tingling, and intermittent sharp pain in her right wrist. She also reported weakness, decreased grip strength, and stiffness. She said her wrist condition affected her ability to push and pull, type, write, use a computer, and do household chores. She said she was told in the military that she had beginning stages of carpal tunnel syndrome. On examination of the Veteran's right wrist, there were no anatomical defects observed. There was no redness, erythema, swelling, heat, atrophy, instability, or weakness. There was tenderness to palpation on the anterior right side. Dorsiflexion, palmar flexion, and radial and ulnar deviation were normal actively and passively, but with pain. There was decreased grip strength in the right wrist compared to the left. Phalen's test was negative and Tinel's sign was positive. Dexterity was normal. There was no gap between the thumb pad and the tip of the fingers on opposition of the thumb. There was no gap between the fingers and the proximal transverse crease of the hand on maximum flexion of the fingers. There was decreased sensation to sharp, dull, vibration on the right hand. Sensory was intact on the right forearm, but was decreased to sharp, dull and right hand vibration. X-rays revealed no degenerative changes. There was an ulnar plus variant which might cause issues in the future, but soft tissues were well maintained and there was no swelling present. Electrodiagnostic studies were normal with no evidence of carpal tunnel syndrome. The diagnosis was intermittent strain of the right wrist with numbness and tingling in the hand. In this case, the evidence reflects that the Veteran had limited motion of the right wrist, but no sensory deficits in September 2008. In September 2010; however, she had full range of motion of the right wrist, but exhibited some sensory deficits. (As noted above, the issue of entitlement to a separate rating for a right wrist neurological disorder is being referred to the RO.) At worst, dorsiflexion of the right wrist was limited to 56 degrees and palmar flexion was limited to 68 degrees. There is no evidence of any additional functional impairment on repetitive testing due to pain or any other DeLuca factor. Therefore, the Board finds the Veteran's reports of painful and reduced motion are fully contemplated in the 10 percent rating. Although higher ratings are available under Diagnostic Code 5214 when there is evidence of ankylosis, right wrist ankylosis has never been shown. The evidence does not reflect that the Veteran's right wrist joint has ever been in a fixed position. For these reasons, the Board finds that a rating higher than 10 percent is not warranted for the right wrist strain. 38 C.F.R. § 4.71a. Right Ankle The Veteran asserts that she is entitled to a higher, 20 percent rating for her right ankle disability based on the severity of her limited motion. (See August 2010 VA Form 9). For the reasons discussed below the Board finds that the right ankle disability warrants no more than a 10 percent rating. The Veteran's right ankle disability has been evaluated as 10 percent disabling under Diagnostic Code 5271. Under Diagnostic Code 5271, a 10 percent rating is assigned for moderate limited motion of the ankle. A 20 percent rating is assigned for marked limitation of motion of the ankle. 38 C.F.R. § 4.71a. Normal range of motion of the ankle is from 0 to 20 degrees on dorsiflexion and from 0 to 45 degrees on plantar flexion. 38 C.F.R. § 4.71, Plate II. During the September 2008 VA examination, the Veteran complained of constant localized right ankle pain, stiffness, lack of endurance, and fatigability. She denied weakness, swelling, heat, redness, giving way, locking and dislocation. She estimated the pain as 8/10 in severity. On examination, the Veteran's right ankle showed no signs of edema, effusion, weakness, tenderness, redness, heat, subluxation or guarding of movement. There were no deformities. Range of motion was limited to 14 degrees on dorsiflexion and to 32 degrees on plantar flexion with pain occurring at the endpoints. After repetitive use, pain was the major functional impact. There was no additional limitation due to fatigue, weakness, lack of endurance, or incoordination. There was also no additional limitation in range of motion on repetitive testing. Motor function, sensory function, and reflexes were within normal limits. She walked with a normal gait. X-rays were within normal limits. She was diagnosed as having a right ankle sprain. A June 2009 outpatient treatment record from the 82nd Medical Group Clinic indicates that the Veteran did not have any musculoskeletal symptoms. In December 2009, it was noted that she had no localized joint pain. During the September 2010 VA examination, the Veteran complained of constant pain in her right ankle. She said the pain and swelling was worse at the end of the day, estimated as 8/10 in severity. She said she had flare-ups 3 to 4 times per week, usually caused by prolonged walking. She also complained of stiffness, instability, and giving way of the ankle. She denied any locking, weakness, fatigability, lack of endurance, or episodes of dislocation or recurrent subluxation. On examination of the Veteran's right ankle, there were no deformities observed. There was mild tenderness to palpation, but no laxity was noted. Dorsiflexion was to 20 degrees and plantar flexion was to 40 degrees with pain. With repetitive testing, there was no change in function or degree secondary to pain, fatigue, weakness, or lack of endurance. There was no varus or valgus angulation noted. There was no heat, redness, swelling, instability, or weakness noted. X-rays revealed no evidence of fracture, dislocation, or osseous mass lesion. Soft tissues were well maintained with no swelling noted. The diagnosis was chronic strain of the right ankle. In this case, at worst, the dorsiflexion of the right ankle has been limited to 14 degrees and plantar flexion to 32 degrees - lacking only 6 degrees of dorsiflexion and 13 degrees of plantar flexion. In September 2010, the Veteran had normal dorsiflexion and lacked only 5 degrees of plantar flexion. There has been no evidence of additional functional impairment on repetitive testing due to pain or any of the other DeLuca factors. Based on this evidence, the Board finds that the range of motion of the Veteran's right ankle has been no more than moderately limited. Moreover, the Veteran's reports of pain, swelling, and instability are fully contemplated in the 10 percent rating. A higher, 20 percent rating is not warranted because the evidence does not show a marked limitation of motion in the right ankle. The Board has also considered other potentially applicable diagnostic codes, but finds that none warrant a rating higher than 10 percent. Higher ratings are available for ankylosis of the ankle under Diagnostic Codes 5270 and 5272, but these criteria are not applicable as the Veteran's right ankle is not ankylosed. Furthermore, because there is no evidence of deformity or a history of astragalectomy, Diagnostic Codes 5273 and 5274 are also not applicable. For these reasons, the Board finds that a rating higher than 10 percent is not warranted for the right ankle strain. Both Claims In reaching these conclusions, the Board has considered the Veteran's complaints of pain, reduced motion, swelling, and instability. The Veteran is competent to give evidence about what she has personally experienced. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Board points out that despite her reports of constant pain, outpatient treatment records in June and December 2009 indicate that she had no musculoskeletal problems or localized joint pain. Hence, the Board finds her statements describing her symptomatology only somewhat credible. In this case, the Board finds the objective medical findings more probative and persuasive in determining the actual degree of disability. The Board has also considered whether the Veteran may be entitled to extraschedular ratings pursuant to 38 C.F.R. § 3.321 (2012). In accordance with Thun v. Peake, 22 Vet. App. 111 (2008), there is a sequential three-step analysis to determine whether a case should be referred for extraschedular consideration. Step one, is to determine whether the schedular rating adequately contemplates a claimant's disability picture. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, then no referral to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration of an extraschedular rating is required. Regarding this first step under Thun, the Board finds that the rating criteria reasonably describe the Veteran's disabilities and symptomatology. The Veteran has described symptomatology involving right wrist pain and limitation of motion and right ankle pain, swelling, limitation of motion, and instability. Regarding the right wrist, diagnostic Code 5215 specifically contemplates limitation of motion due to pain and other factors. Furthermore, Diagnostic Code 5214 provides for higher ratings for ankylosis of the ankle. To the extent she has complained of numbness and tingling in her right wrist, the Board is referring the issue of a separate compensable rating for neurological impairment of the right wrist for initial consideration by the AOJ. Regarding the right ankle, Diagnostic Code 5271 specifically contemplates a limitation of motion due to pain and other factors. Here, the rating criteria clearly contemplate the Veteran's disability picture. They include symptomatology of the type reported by the Veteran and by medical professionals on clinical evaluation. Therefore, the threshold factor for extraschedular consideration under step one of Thun has not been met, and the Board need not reach the second step of the Thun analysis, that is, whether the disability picture is exceptional. As the disability picture is contemplated by the Rating Schedule, the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). The Board has also considered the Court's decision in Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In this case, the Veteran retired from the Air Force in November 2008. It is unclear whether she is currently employed; however, she does not assert, nor does the evidence show, that she is unemployable due to her service-connected right wrist and ankle disabilities. Therefore, the Board does not find that a claim for a total rating based on individual unemployability is reasonably raised by the record. For the reasons and bases discussed above, the Board finds that the preponderance of the evidence is against entitlement to initial ratings in excess of 10 percent for the right wrist strain and right ankle strain. The benefit of the doubt doctrine is not for application as the weight of the evidence is against the claims. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER From December 1, 2008, entitlement to an initial evaluation in excess of 10 percent for right wrist strain is denied. From December 1, 2008, entitlement to an initial evaluation in excess of 10 percent for right ankle strain is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs