Citation Nr: 1643113 Decision Date: 11/09/16 Archive Date: 12/01/16 DOCKET NO. 10-16 929 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a rating in excess of 20 percent for residuals of a left (minor) wrist fracture, with arthritis, from August 24, 2005, to May 21, 2006, on an extraschedular basis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran served on active duty from June 1954 to March 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). By that rating action, the RO continued a previously assigned 10 percent evaluation for residuals of a left wrist fracture with arthritis. The Veteran appealed the 10 percent rating assigned to this disability to the Board. By an April 2007 rating decision, the RO increased the evaluation for the Veteran's left wrist disability to 20 percent disabling, effective May 22, 2006--the date of a VA Form 9, which the RO determined to be a claim for increase in VA compensation for this disability. (See April 2007 rating action). Because the increase in the evaluation of the Veteran's left wrist disability does not represent the maximum rating available for the condition, the Veteran's increased evaluation claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). In April 2010, the Veteran requested a videoconference hearing before the Board. A Board videoconference hearing was scheduled to be held in July 2011. However, in June 2011, prior to the hearing, the Veteran withdrew his hearing request. See 38 C.F.R. § 20.704. No other request for a hearing, either before the RO or the Board, remains pending at this time. In a November 2011 decision, the Board denied an increased disability rating in excess of 10 percent for residuals of a left wrist fracture with arthritis prior to May 22, 2006, and remanded the claim of entitlement to a disability rating in excess of 20 percent from May 22, 2006 to the present. In its remand directives, the Board requested, in part, that the Veteran be scheduled for a VA examination of his left wrist to determine the presence of any ankylosis. VA examined the Veteran in December 2011. A copy of the December 2011 examination report is contained in the claims file. In a September 2012 Board decision, an increased rating for a disability rating in excess of 20 percent from May 22, 2006, to the present for a left wrist disability was denied. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Thereafter, in August 2013, the Court issued an order approving a Joint Motion for Remand (JMR) to remand the Veteran's claim for a rating in excess of 20 percent for the left wrist disability from August 24, 2005 to May 22, 2006, consistent with the terms of the JMR. The Court specifically found that the effective date for the increased rating of 20 percent should have been August 24, 2005, not May 22, 2006. The Board accepts the date August 24, 2005, as directed by the Court, for purposes of this decision. In a December 2013 Board decision, a rating in excess of 20 percent for residuals of a left wrist fracture, with arthritis, from August 24, 2005, to May 21, 2006, was denied by the Board. The case was returned to the Court. The Board's decision was vacated pursuant to a March 2015 Order, following a JMR. There were three aspects to the JMR. First, the Board was to address an October 2005 VA examination and, either obtain an adequate medical opinion, or alternatively provide an adequate statement of its reasons or bases for why one is not necessary. Second, the Board was to provide an adequate statement of reasons or bases in assessing the adequacy of the October 2005 VA examination. Third, the Board must adequately address a referral for an extraschedular evaluation. In an August 2015 decision, the Board again denied a rating in excess of 20 percent for residuals of a left wrist fracture, with arthritis, from August 24, 2005, to May 21, 2006, was again denied on a schedular basis. At that time, the Board remanded the matter of referral for an extraschedular evaluation during this time period. The case was referred to the Director of VA Compensation and Pension Service for an administrative determination regarding an extraschedular evaluation and the case has now been returned for further appellate consideration. As noted, the Court, the August 2013 JMR found that the effective date of the award of a 20 percent rating for the Veteran's left wrist disability was August 24, 2005. This was pointed out in the most recent decision of the Board. To date, it does not appear that the RO has effectuated this order. As this has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The issue of a current increased rating for left wrist disability has been raised by the record in a September 2016 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT From August 24, 2005, to May 21, 2006, the competent and probative evidence of record, shows that the Veteran's left wrist disability did not present such an exceptional or unusual disability picture so as to render impractical application the regular rating schedule standards; there have not been, as examples, marked impairment with employment, frequent hospitalization, or other manifestations of the disability such that the available schedular ratings for the disability are rendered inadequate. CONCLUSION OF LAW The criteria for an extraschedular disability rating for left wrist disability from August 24, 2005, to May 21, 2006, are not met. 38 C.F.R. § 3.321 (b)(1) (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA's duty to notify was satisfied by a letter dated in June 2009. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The Veteran was afforded a VA medical examination in October 2005. The Board finds that the opinion obtained is adequate. The opinion was provided by a qualified medical professional and was predicated on a full reading of all available records. The examiner also provided a detailed rationale for the opinion rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor the representative has challenged the adequacy of the examination obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist, including with respect to obtaining a VA examination or opinion, has been met. 38 C.F.R. § 3.159(c)(4) (2015). Extraschedular Rating To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular rating commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321 (b)(1)(2015). Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional provision that VA shall from time to time readjust the schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities. 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. 38 C.F.R. § 3.321 (b) (2015). To determine whether referral for extraschedular consideration is warranted, the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. If the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology, the assigned schedular rating is adequate, and referral for extraschedular consideration is not warranted. If the Board finds that the schedular ratings does not contemplate the Veteran's level of disability and symptomatology, then either the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment or frequent periods of hospitalization. If so, then the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether justice requires assignment of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). Consideration of an extra-schedular rating is only warranted where there is evidence that the disability picture presented by the Veteran would, in that average case, produce impairment of earning capacity beyond that compensated in the rating schedule or where evidence shows that the Veteran's service-connected disability affects employability in ways not contemplated by the rating schedule. VAOPGCPREC 6-96 (1996), 61 Fed. Reg. 66749 (1996). The actual wages earned by a particular Veteran are not considered relevant in the calculation of the average impairment of earning capacity for a disability, and contemplate that Veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average for their disability. Extraschedular consideration cannot be used to undo the approximate nature of the rating system created by Congress. Thun, 22 Vet. App. at 111 (2008). The Board is precluded by regulation from assigning an extraschedular rating under in the first instance. 38 C.F.R. § 3.321 (b)(1). However, the Board is not precluded from raising the question and addressing referral where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). In this case, the procedural development required by 38 C.F.R. § 3.321 (b)(1) has been completed. This case was referred to VA's Director of Compensation and Pension Service for consideration of an extraschedular rating in the first instance. The Board can now consider that issue on appeal. Normal ranges of motion of the wrist are dorsiflexion from 0 degrees to 70 degrees, and palmar flexion from 0 degrees to 80 degrees. 38 C.F.R. § 4.71, Plate I. Diagnostic Code 5214 provides ratings for ankylosis of the wrist. Favorable ankylosis of the wrist in 20 degrees to 30 degrees dorsiflexion is rated 30 percent disabling for the major wrist and 20 percent for the minor wrist; ankylosis of the wrist in any other position except favorable is rated 40 percent disabling for the major wrist and 30 percent for the minor wrist; and unfavorable ankylosis of the wrist in any degree of palmar flexion, or with ulnar or radial deviation, is rated 50 percent disabling for the major wrist and 40 percent for the minor wrist. 38 C.F.R. § 4.71a. A Note provides that extremely unfavorable ankylosis will be rated as loss of use of hands under Diagnostic Code 5125. 38 C.F.R. § 4.71a. Diagnostic Code 5215 provides ratings based on limitation of motion of the wrist. Limitation of palmar flexion in line with the forearm is rated 10 percent disabling for the major wrist and 10 percent for the minor wrist; limitation of dorsiflexion to less than 15 degrees is rated 10 percent disabling for the major wrist and 10 percent for the minor wrist. 38 C.F.R. § 4.71a. Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 pct and 10 pct ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. By definition, ankylosis contemplates a total absence of joint mobility. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) and Lewis v. Derwinski, 3 Vet. App. 259 (1992) (both indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). More generally, 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. In addition, 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. This regulation also provides that the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and that crepitation should be noted carefully as points of contact which are diseased. Thus, 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, 204-07 (1995). VA outpatient treatment records from April 2005 to May 2006 show the Veteran was referred to the arthritis clinic for his left wrist disability. In April 2005, it was noted that he was wearing a thumb spica and related that it remained comfortable. In May 2005, it was reported that he wore a wrist splint 1 to 2 times a day with much relief and used paraffin almost daily for pain relief. He stated that he felt the pain was gradually decreasing. He participated in fluid therapy, massage, and Ionto patch therapy. He was encouraged to wear his splint during strenuous activity. Later that month, he stated that his left wrist pain was decreased to 5/10 as compared 7/10 earlier in the month. In December 2005, it was noted that he continued to have left wrist pain and was advised to continue to use Tylenol. In May 2006, his Tylenol was refilled and he was told to continue use of Tylenol and his wrist support. The Veteran underwent a VA examination in October 2005. At that time, he complained of left wrist pain and pain at the base of his left thumb. He stated that he wore a brace on the wrist and the thumb, and if he moved the thumb too much it hurt. He described his symptoms as constant. The condition did not cause incapacitation. His treatment included the medications Gabapentin and Acetaminophen, and therapy. He had had surgery in 1984 when a bone was removed from the base of the thumb, without prosthetic implant. The examiner described functional impairment with reduced strength and motor control of the left hand. It was indicated that the Veteran was right hand dominant. The general appearance of the left wrist was abnormal with findings of swelling at the base of the left thumb. Range of motion of the left wrist joint was dorsiflexion of 54 degrees with pain occurring at 43 degrees; palmar flexion of 49 degrees, with pain occurring at 42 degrees; radial deviation of 20 degrees, with pain occurring at 18 degrees; and ulnar deviation of 35 degrees, with pain occurring at 30 degrees. The left wrist function was additionally limited by pain, weakness, lack of endurance, and incoordination with repetitive use. Pain was the major functional impact. The left wrist joint was not additionally limited by fatigue with repetitive use. The examiner stated that he was unable to make a determination without resorting to speculation on whether pain, fatigue, weakness, lack of endurance, or incoordination additionally limit the joint function in degrees. The examiner also indicated that the base of the left thumb was 4 cm in height as compared to the right thumb which was 3.5 cm in height, which indicated swelling. The diagnosis was fracture, left wrist with arthritis. The effect of the condition on the Veteran's occupation was that he had been retired for 11 years from a career as a policeman and before that, he was a carpenter. The effect of the condition on the Veteran's daily activity was that it caused pain and made things slower. The Veteran indicated that he worked on his house and made things for a flea market. The Veteran's left wrist disability has been rated as analogous to ankylosis of the wrist at a favorable angle pursuant to Code 5214. In a February 2016 administrative decision, the Chief of VA's Compensation and Pension Service concluded, after a review of the record, that a disability rating on an extraschedular basis for the Veteran's left wrist disability, for the period from August 24, 2005, to May 21, 2006, was denied. In that decision, it was noted range of motion from 54 degrees dorsiflexion to 49 degrees palmer flexion with occupational impact due to painful motion that resulted in the Veteran having to move his wrist slower. The Veteran's employment for eleven years as a police officer was noted. Outpatient treatment records showing that the Veteran was participating in physical therapy were also noted. Thus it was found that the evidence, when considered in totality did not show that an extraschedular award was warranted. In this regard, it was found that the rating schedule provided ample opportunity to assess a higher evaluation under other diagnostic codes for the wrist by analogy under 38 CFR 4.20 (2015); Lendenmann v. Principi 3 Vet. App. 345 (1992). The rating schedule recognized wrist complications to 40 or 50 percent, with Code 5214 providing for a higher evaluation for a limitation of motion between 20 and 30 degrees. The evidence of record shows a limitation of motion far in excess of this. Because the facts of the case failed to establish any extra-schedular entitlement pursuant to Thun v. Peake showing no frequent hospitalizations, marked interference with employment, or unusual disability picture as to render impractical the application of the regular schedular standards, no extra-schedular evaluation is warranted. As the appropriate VA authority has adjudicated entitlement to an extraschedular rating, the Board may now consider that issue. The threshold question is whether the rating criteria adequately contemplate the Veteran's disability. The issue of entitlement to extraschedular consideration is first properly addressed by considering whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board finds that a comparison between the level of severity and symptomatology of the Veteran's left wrist disability with the relevant established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disabilities and symptomatology. A rating in excess of 20 percent requires that range of motion be limited to favorable ankylosis with movement between 20 and 30 degrees or to unfavorable ankylosis of the joint. There is, however, no evidence of ankylosis as defined above. Further, the Veteran did not identify any symptomatology not contemplated by the assigned schedular rating during the time period in question. Therefore, the Board finds that the schedular criteria adequately address the Veteran's left wrist symptomatology. Thus, the Board's extraschedular analysis must stop. Because the schedular criteria adequately compensated the Veteran for the level of disability and symptomatology of residuals of a left wrist fracture between August 24, 2005, to May 21, 2006, the threshold for an extraschedular rating were not met and the second step of the inquiry need not be addressed. Nevertheless, even if the available schedular rating for residuals of a left wrist fracture was inadequate, the Veteran did not exhibit other related factors such as those provided by the regulation as governing norms. The evidence of record does not show that at any time during the appeal period that the left wrist disability required frequent periods of hospitalization. Moreover, there is no evidence of marked interference with employment. Additionally, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual condition fails to capture all the service-connected disabilities experienced. In this case, even after applying the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional symptoms that have not been attributed to a specific service-connected condition. This includes the Veteran's hearing loss, which is rated as noncompensable and tinnitus, which is rated at the maximum 10 percent. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. Thus, an additional referral for assignment of an extraschedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). The Board finds that the schedular criteria adequately compensate the Veteran for the level of disability and symptomatology of residuals of a left wrist fracture for the entire period on appeal. Consequently, an extraschedular rating from August 24, 2005, to May 21, 2006, is denied. The preponderance of the evidence is against the assignment of any extraschedular rating, and the claim must be denied. 38 U.S.C.A. § 5107 (b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A rating in excess of 20 percent for residuals of a left (minor) wrist fracture, with arthritis, from August 24, 2005, to May 21, 2006, on an extraschedular basis, is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs