Citation Nr: 1745513 Decision Date: 10/12/17 Archive Date: 10/19/17 DOCKET NO. 13-30 576 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an increased rating for status post right wrist fracture, currently rated as 20 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Kelly A. Gastoukian, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1986 to November 1995. This matter comes before the Board of Veterans' Appeals (Board) from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The issue was previously before the Board in May 2015, when the Board remanded the claim for referral to the Director of Compensation Service for extraschedular consideration. In an October 2016 administrative decision, the Director of Compensation Service granted entitlement to an extraschedular rating of the Veteran's right wrist disability and assigned an additional 10 percent, increasing the disability rating from 10 to 20 percent on an extraschedular basis. A January 2017 rating decision implemented the Director of Compensation for Service's decision and a supplemental statement of the case was issued in January 2017. This matter is returned to the Board for further consideration. FINDINGS OF FACT 1. The Veteran's right wrist disability is manifested by pain, tenderness, and limited motion, but not by ankylosis. 2. In October 2016, the Director of Compensation Service granted entitlement to an additional 10 percent extraschedular rating to be combined with the schedular 10 percent rating for a right wrist disability. 3. The Veteran's right wrist disability does not cause impairment in earning capacity beyond that contemplated by the current 20 percent rating. CONCLUSION OF LAW The criteria for a rating, schedular or extraschedular, in excess of 20 percent for right wrist disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 3.321(b)(1), 4.71a, Diagnostic Codes 5214, 5215 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran contends that his right wrist disability warrants a rating higher than the 20 percent currently assigned. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2016). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. See 38 C.F.R. § 4.40 (2016). The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. See 38 C.F.R. § 4.45 (2016). Diagnostic Code 5215 (wrist, limitation of motion of) provides for the assignment of a 10 percent disability rating with dorsiflexion less than 15 degrees or palmar flexion limited in line with forearm. The 10 percent rating is the maximum rating provided under Diagnostic Code 5215. 38 C.F.R. § 4.71a (2016). Diagnostic Code 5214 (wrist, ankylosis of) is the only other diagnostic code which specifically references the wrist. 38 C.F.R. § 4.71a (2016). Ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." See Lewis v. Derwinski, 3 Vet. App. 304 (1992) [citing SAUNDERS ENCYCLOPEDIA AND DICTIONARY OF MEDICINE, NURSING, AND ALLIED HEALTH at 68 (4th ed. 1987)]. After a careful review of all evidence of record, the Board finds that the symptomatology and occupational impairment caused by the Veteran's right wrist disability does not warrant a schedular or extraschedular evaluation in excess of 20 percent. In an April 2011 VA treatment record, the Veteran noted progressively worsening wrist pain and limited motion especially on extension. He indicated he was wearing a support splint while working and noted "significant discomfort" while performing certain tasks. An obvious deformity was noted on the ulnar side producing tenderness. At a General VA examination in May 2011, dorsiflexion was to 2 degrees, plantar flexion to 3 degrees. There was no ankylosis. It was noted there was no objective evidence of pain on active motion and no pain on motion after repetitions of range of motion. In a VA treatment record dated in May 2011, it was noted a Kenalog injection was suggested to the Veteran as well as surgery. The Veteran declined these options. Grip strength was noted to be decreased secondary to pain. It was recommended the Veteran continue wearing a brace and suggested that the Veteran be reassigned to a job that does not require repetitive lifting or repetitive stress on the right wrist. The examiner provided the Veteran a note for light duty at work due to his wrist pain. In November 2011, the rating for the Veteran's wrist disability was raised to 10 percent based on limited motion of the wrist: dorsiflexion less than 15 degrees. The Veteran underwent another VA examination in September 2013. He indicated continuing pain and indicated it would wake him up sometimes. He reported that his wrist would swell on use. In addition, he wore a brace and stated he would sometimes ice his wrist after returning home. The Veteran reported flare-ups when picking up items weighting more than 10 pounds. Localized tenderness was noted as well as decreased strength as compared to the left wrist. Dorsiflexion was to 40 degrees with painful motion beginning at 20 degrees. Palmar flexion was to 25 degrees with painful motion beginning at 10 degrees. After three repetitions of range of motion testing, palmar dorsiflexion was to 45 degrees and palmar flexion was to 20 degrees. Additional functional loss was noted on repetitive motion, to include less movement than normal, excess fatigability, pain on movement, swelling and deformity. The examiner noted deformity was shown on X-ray, although no ankylosis or arthritis was noted to be present. It was also noted the wrist had an impact on the Veteran's ability to do his job at the paper factory. He indicated his ability to sweep and mop was inhibited by pain in his wrist, and lifting heavy objects resulted in flare-ups. The Veteran's primary symptoms of pain, swelling, and limitation of motion in his right wrist are encompassed by the schedular criteria, including his reported flare-ups of pain which contributed to functional impairment. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2016); DeLuca, 8 Vet. App. 202. Additionally, under Diagnostic Code 5214, a rating higher than 10 percent is available only if ankylosis is present, which is not the case here. In this case, the Veteran has documented additional symptomatology which causes an impact on his functioning, including causing marked interference with work and his ability to perform activities of daily life, and these symptoms are not reasonably described in the rating criteria. Due to the nature of the Veteran's job, he was required to lift and grip objects on a daily basis. Because of the pain he experienced in his right wrist, it was recommended the Veteran be assigned different duties at work. As noted in the February 2013 VA examination report the Veteran's symptoms in his right wrist worsened whenever he had to perform certain tasks such as sweeping or mopping. He was also limited in his ability to lift and carry heavy objects. In May 2015, the Board referred the Veteran's claim to Director of Compensation Service for consideration of the assignment of an extraschedular rating for a right wrist disability. 38 C.F.R. § 3.321(b)(1) (2016). In an October 2016 administrative decision, the Director of Compensation Service granted the Veteran's claim of entitlement to extraschedular evaluation for his service-connected right wrist disability in accordance with 38 C.F.R. § 3.321(b)(1). In that decision, the Director of Compensation Service noted that the Veteran's right wrist disability impacted his ability to use his right hand to lift and grip objects and that this disability interferes with employment requiring the use of his right hand. The Director of Compensation Service found that the Veteran's right wrist disability symptoms were not contemplated by the regular rating criteria and showed a disability level greater than the schedular rating criteria for assignment of a 10 percent evaluation. Therefore, the Director assigned an extraschedular evaluation of 10 percent in addition to the schedular 10 percent rating assignment for the Veteran's right wrist disability. In Kuppamala v. McDonald, 27 Vet. App. 447 (2015), the Court stated that the Board has the requisite experience to assign extraschedular ratings, as it considers the average impairment in earning capacity in every decision involving the rating schedule, and in many instances, such as when rating a disability by analogy or conducting an analysis of a psychiatric disability under certain diagnostic codes, the Board goes beyond mere mechanical application of the rating schedule. Id. at 457. The Board may assign an extraschedular rating when appropriate, and is only precluded from assigning an extraschedular rating "in the first instance." Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996). With respect to the term "in the first instance," the Court has clarified that the Board may assign extraschedular ratings when reviewing either a grant or a denial of an extraschedular rating by the Director of Compensation Service. Kuppamala, 27 Vet. App. at 456. The Veteran has been assigned an additional 10 percent rating for his right wrist on an extraschedular basis under 38 C.F.R. § 4.71a, Diagnostic Code 5215, bringing his total rating for his wrist disability to 20 percent. The Board finds that an an extraschedular evaluation greater than what has already been awarded is not warranted in this case. The Veteran's wrist disorder impacts on the Veteran's ability to grasp objects with his right hand, particularly with respect to heavy objects, or use his right wrist repetitively. Although this limits his ability to work with heavy objects or make repetitive motions, the record does not show the Veteran's wrist disability impairs or prevents his ability to perform light duty at work. He has not lost time from work due to his wrist disability alone. The Veteran's assigned schedular rating is based upon the average impairment of earning capacity resulting from his disability, and his assigned extraschedular rating contemplates the additional, marked interference with employment it causes. The evidence does not include quantifiable monetary loss or employment position changes to show further interference beyond that already recognized by the extraschedular rating. Indeed, the purpose of the rating criteria is to compensate for "impairment in earning capacity" caused by a service-connected disability. 38 C.F.R. § 4.1. Here, the Veteran maintains range of motion in his right wrist, and to the extent that his industrial capacity is lessened by his right wrist disorder, the extraschedular disability evaluation that the Veteran has now been assigned, and his current combined total disability rating, adequately reflect the impairment that the Veteran alleges. In sum, the Board finds that although the Veteran's right wrist disability manifests with symptoms of functional impairment which is not reasonably described by the rating criteria and presents an exceptional or unusual disability picture which causes marked interference in the Veteran's occupational functioning, the disability picture does not cause impairment in earning capacity beyond that contemplated by the current 20 percent rating. The benefit sought on appeal is therefore denied on a schedular and extraschedular basis. (CONTINUED ON NEXT PAGE) ORDER A rating in excess of 20 percent for a right wrist disability is denied. ____________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs