Citation Nr: 1745521 Decision Date: 10/12/17 Archive Date: 10/19/17 DOCKET NO. 12-07 684 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to a disability rating in excess of 10 percent for residuals of incomplete navicular fracture of the right wrist with tendonitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Steven H. Johnston, Associate Counsel INTRODUCTION The Veteran had active service from September 1959 to September 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. It was previously before the Board in August 2016 and May 2017 and remanded for additional development both times. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT Throughout the appeal period, the Veteran's wrist condition has manifested with pain and limited range of motion, but has never, at any time relevant to the appeal period, been manifested by ankylosis. CONCLUSION OF LAW Throughout the appeal period, the evidence of record has met the criteria for a 10 percent disability rating and no higher. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5215-5204 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159. In this case, appropriate notice was sent by letter in May 2011. Additional notice was sent by letter in February 2012. As to VA's duty to assist, the Board finds that all necessary development has been accomplished with respect to the Veteran's claim, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records and VA treatment records have been associated with the claims file. Neither the Veteran, nor the record, has alerted the Board to the existence of any additional treatment records relevant to the Veteran's claim. The Veteran has also been provided with VA examinations in June 2011, September 2016, and July 2017. The Board previously determined that the June 2011 and September 2016 VA examinations were inadequate because they did not comply with recent case law regarding the adjudication of increased rating claims. The Board observes that these examinations still provide information that is useful to the Board in rating the Veteran's condition. In any event, an additional examination complying with the recent case law was obtained in July 2017. The Board finds that this examination is adequate as it was based on a review of the claims file, an in-person examination of the Veteran, including a history elicited from the Veteran in which he explained the effects of his condition on his ability to work and perform other activities, and the report of this examination describes the Veteran's condition in sufficient detail to permit the Board to rate the Veteran's disability. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007). Neither the Veteran nor his representative has raised any issues with the adequacy of these examinations. 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 duty to assist argument). II. Increased Rating for Residuals of an Incomplete Navicular Fracture with Tendonitis Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). "Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern." Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA must consider the evidence of disability during the period one year prior to the application. Hazan v. Gober, 10 Vet. App. 511 (1997). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. VA examinations of joints are required to record a veteran's relevant joint's active and passive ranges of motion, and to test a veteran's relevant joint for pain on both active and passive motion, in weight bearing and non-weight bearing, and, if possible, to conduct similar tests on a veteran's opposite, undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). In rating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2016). Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45 (2016). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention 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 (2016). When assigning a disability rating, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on motion. DeLuca v. Brown, 8 Vet. App. 202 (1995). VA regulations and governing case law anticipate that examiners will offer opinions regarding additional functional loss due to flare ups, including estimates of additional loss of range of motion in degrees where appropriate, and that the Board shall ensure that examiners have evaluated all procurable and assembled information before determining that such estimates cannot be made. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of a matter. VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Limitation of motion of the wrist is assessed under Diagnostic Codes 5214 and 5215. 38 C.F.R. 4.71a. A 10 percent disability rating is assigned where palmer flexion is limited in line with the forearm or dorsiflexion is limited to less than 15 degrees. Id. 30, 40, and 50 percent ratings are assigned where the wrist is ankylosed between 20 and 30 degrees of dorsiflexion (favorably); in any position except favorably; or in any degree of palmer flexion, or ulnar or radial deviation, respectively. Id. The ratings recited are for limitation of motion of the dominant wrist, as is the case here. Id. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting VA must review the entire record, but does not have to discuss each piece of evidence). Here, the evidence of record establishes that the Veteran's right wrist is service-connected for residuals of an incomplete navicular fracture with tendonitis and degenerative arthritis of the wrist that is a subsequent development of this condition. See September 2016 VA examination report. The Veteran also has additional wrist conditions (carpal tunnel syndrome and right ulnar neuropathy) that are not associated with his service-connected condition. Id. The Veteran's post-service VA treatment records document that he has been seen and primarily treated for his nonservice-connected carpal tunnel and ulnar neuropathy conditions. A June 2011 VA examination report documents that the Veteran suffers from residuals of a navicular fracture of his right wrist that occurred in service. His symptoms include pain and numbness. Pain was associated with clapping, driving, yardwork, and sleeping. The Veteran wore a wrist splint that provided relief. His wrist joint was stiff, and the VA examiner indicated that the wrist was a non-weight bearing joint. The Veteran's wrist distal radius and navicular area were tender to palpation, without swelling. Sensation was intact to light touch, and the Veteran was positive on the Tinels and Phalens tests. There was pain evident on active motion of the right wrist. Dorsiflexion was limited to 30 degrees; palmar flexion was limited to 45 degrees; radial deviation was limited to 10 degrees, and ulnar deviation was limited to 20 degrees. By comparison, the Veteran's left wrist had some limitation of motion, but was nearly normal. This examination also documented the results of a May 2011 electromyography study (EMG) that documented both carpal tunnel syndrome and right ulnar neuropathy. The September 2016 VA examination documented the same condition. This examiner's attention was specifically called to the fact that the Veteran's wrist had both service-connected and nonservice-connected disabilities, and the examiner indicated that the symptoms recorded in the report of the examination were a result of the service-connected wrist condition and not the Veteran's carpal tunnel syndrome or ulnar neuropathy. At this examination, the Veteran reported chronic aching, worse with physical motion of the wrist or long drives. The Veteran continued to wear a wrist splint. The Veteran reported functional loss due to pain, especially difficulty opening jars, lifting heavy objects, or using tools. The Veteran's palmer flexion was limited to 55 degrees, dorsiflexion to 65 degrees, ulnar deviation to 40 degrees, and radial deviation to 10 degrees. These ranges of motion were limited by pain. The Veteran's ranges of motion were further reduced after repetitive use testing. Palmer flexion was reduced to 40 degrees. Dorsiflexion was reduced to 40 degrees. Ulnar deviation was reduced to 35 degrees, and radial deviation remained 10 degrees. Tests of the Veteran's active and passive ranges of motion yielded the same measurements. The Veteran had normal muscle strength and no ankylosis during the examination. An x-ray conducted in conjunction with this examination documented degenerative arthritis of the right wrist that the examiner determined was at least as likely as not a manifestation of the Veteran's service-connected right wrist condition. The Veteran reported flare-ups caused by bending the wrist or using a hammer. The Veteran's description of the flare ups did not indicate that his wrist became ankylosed during flare-ups. The examiner indicated that it was not possible to opine whether the Veteran's condition during a flare up more significantly limited function due to pain, weakness, fatigability, incoordination, or when the joint is used repeatedly over a period of time. The examiner could not provide this information in terms of degrees of range of motion loss due to those flare ups because the Veteran was not examined during a flare up. The examiner opined that due to the service-connected right wrist condition, the Veteran was limited in his routine daily activities and in potential employment activities which involved twisting or bending or lifting with the right wrist. The Veteran described avoiding heavy or repetitive lifting with his right hand and noted that at times he had to shift such activities to his left hand. The Veteran was able to perform activities like driving and mowing and using tools with his right wrist, but was slowed and less efficient due to this condition. A July 2017 VA examination also documented the Veteran's wrist condition. Palmer flexion was limited to 50 degrees. Dorsiflexion was limited to 60 degrees. Ulnar deviation was limited to 40 degrees, and radial deviation was limited to 10 degrees. These limited ranges of motion did not contribute to functional loss. Pain was noted on examination, but the pain did not result in functional loss. The pain was noted with dorsiflexion of the wrist. Mild tenderness was noted over the dorsal wrist region with palpation. The Veteran's passive range of motion was the same as his active range of motion. No pain was noted during weight bearing. There was no objective evidence of crepitus. Repetitive use did not result in further loss of range of motion. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over time. The examiner indicated that these factors also did not limit the Veteran's functional ability during flare ups, and no additional ranges of motion loss during flare ups were provided. The Veteran reported that flare ups were caused by the repeated gripping of objects. The Veteran had normal muscle strength and no ankylosis. The Veteran's left wrist had normal ranges of motion without pain, tenderness, or other symptoms. The Veteran submitted several statements to the Board regarding the effects of his right wrist condition on his daily life and repeatedly stated that he was continuing his appeal because his physicians had indicated he was entitled to increased compensation. However, some of his statements contained information regarding his symptoms. In a May 2011 statement, the Veteran stated that the pain in his wrist made it very hard to even print or right. In an October 2016 statement, the Veteran described the onset of his wrist injury and gave a description of the wrist splint that he used to treat it. In his response to the most recent supplemental statement of the case in September 2017, the Veteran described pain and difficulty bending his first two fingers and indicated that he had been advised that his condition could be treated with a surgical procedure, but his age and other health conditions made that inadvisable. The Board notes that the Veteran's VA treatment records document a referral for consultation with a surgeon regarding the Veteran's nonservice-connected carpal tunnel syndrome. Based on this evidence, the Board finds that the evidence of record weighs against entitlement to a disability rating in excess of 10 percent at any point throughout the appeal period. As described above, the Veteran's wrist was, at all times relevant to the appeal, capable of a greater range of motion than what the rating schedule describes as warranting a 10 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5215. However, despite the fact that the Veteran's condition does not manifest the necessary limitation of his range of motion to qualify for a 10 percent disability rating under the relevant diagnostic code, the record documents that the Veteran experiences pain when moving his wrist. Under such circumstances, a Veteran is appropriately compensated at a 10 percent disability rating, because it is the intention of the rating schedule to recognize painful motion as productive of disability. 38 C.F.R. § 4.59. Further, disability ratings in excess of 10 percent for limitation of motion of the wrist are unavailable unless the Veteran's wrist is ankylosed. 38 C.F.R. § 4.71a, Diagnostic Code 5214. Here, the evidence of record indicates that the Veteran's wrist has been capable of motion at all times. The Board has also considered the special considerations applicable to rating disabilities under Correia and DeLuca as well as the regulations that those cases interpret. However, the Board finds that these considerations cannot help the Veteran in this case. The rules coming from these cases are meant to ensure that Veterans are compensated at the actual levels of disability that their conditions manifest during active phases of their conditions after repeated use, during flare ups, under weight bearing or non-weight bearing conditions, or other circumstances. Correia, 28 Vet. App. 158; DeLuca, 8 Vet. App. 202. However, neither the Veteran nor the medical evidence of record indicates that the Veteran's right wrist condition changes in a manner that is relevant to the Board's determination during in situations like those contemplated by Correia and DeLuca. Under the relevant rating criteria, the Veteran is not entitled to a higher disability rating in the absence of ankylosis. The evidence of record does not indicate that the Veteran's right wrist has ever been ankylosed or that it becomes ankylosed under the circumstances contemplated by Correia and DeLuca. Thus, the Board finds that these considerations do not warrant an increase in the Veteran's compensation. Similarly, the Board has also considered the evidentiary requirements that are necessary before relying on an examiner's statement that an opinion as to a Veteran's additional loss of motion during flare-ups cannot be given. Sharp, 29 Vet. App. 26. However, because neither the Veteran nor the record indicates that flare-ups result in ankylosis of the right wrist, the Board finds that any additional loss of motion experienced by the Veteran during flare-ups would not result in entitlement to additional compensation. Finally, because the Veteran's condition has resulted in degenerative arthritis, the Board has also considered whether the Veteran could be entitled to a higher disability rating if his condition was rated under the diagnostic code for arthritis. However, under the rating code for degenerative arthritis, a rating in excess of 10 percent is not available absent X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003 & 5010 (2016). Here, the evidence of record documents degenerative arthritis only in the Veteran's right wrist (a single joint or joint group), and the record does not indicate any history of incapacitating exacerbations. Consequently, an alternative rating under the arthritis diagnostic code will not result in an increase in the Veteran's compensation. Consequently, the Board finds that the Veteran's service-connected right wrist condition has not manifested with the necessary symptoms to substantiate a rating in excess of 10 percent. In reaching this conclusion, the benefit of the doubt has been considered; however, the preponderance of the evidence is against the Veteran's claim. Therefore, the benefit of the doubt rule cannot aid the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER A disability rating in excess of 10 percent for residuals of an incomplete navicular fracture is denied with tendonitis is denied. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs