Citation Nr: 1748799 Decision Date: 10/30/17 Archive Date: 11/06/17 DOCKET NO. 10-27 943 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to an evaluation in excess of 10 percent for a left wrist disability prior to June 2, 2011 and an evaluation in excess of 20 percent beginning on this date. REPRESENTATION Veteran represented by: Heather Vanhoose, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran had active duty in the Marine Corps from July 1968 to July 1970. This appeal to the Board of Veterans' Appeals (Board) is from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2012, the Veteran provided testimony during a Travel Board hearing before the undersigned Veterans Law Judge (VLJ. In March 2014 and June 2017, the Board remanded the case for additional development. FINDING OF FACT Prior to June 2, 2011, the Veteran's left wrist disability was not manifested by ankylosis and unfavorable ankylosis was not shown at any time since this date. CONCLUSION OF LAW The criteria are not met for a rating in excess of 10 percent for a left wrist disability prior to June 2, 2011 or in excess of 20 percent starting on this date. 38 U.S.C.A. §§ 1155, 5103, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5214, 5215 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014). The duty to notify has been met. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist. Here, no specific procedural arguments were made. In the substantive appeal, the attorney took exception to, but did not identify any failure or errors on VA's part to discharge the duty to assist. The development complies with the remand directives and is sufficient to decide the claim. Stegall v. West, 11 Vet. App. 268 (1998). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40(2016) allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 (2016) provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. 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. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (2016). Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's left wrist arthritis disability is rated based on limitation of motion. Degenerative arthritis 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, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application 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. In the absence of limitation of motion, X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, warrants a 10 percent evaluation; with the addition of occasional incapacitating exacerbations, a 20 percent evaluation is warranted. 38 C.F.R. Part 4, Code 5003. Limitation of wrist motion is rated under Diagnostic Code 5215. A 10 percent rating is assigned where dorsiflexion is less than 15 degrees, or where palmar flexion is limited in line with forearm. The 10 percent rating is the maximum rating available for limitation of wrist motion for both the major and minor wrist under this code. See 38 C.F.R. § 4.71a, Diagnostic Code 5215. Diagnostic Code 5214 governs ankylosis of the wrist. Where ankylosis is unfavorable, in any degree of palmar flexion, or with ulnar or radial deviation, a 40 percent rating is assigned for the minor wrist. Where ankylosis is in any other position, except favorable, a 30 percent rating is for assigned for the minor wrist. Where ankylosis is favorable in 20 degrees to 30 degrees dorsiflexion, a 20 percent rating is for assigned for the minor wrist. Extremely unfavorable ankylosis will be rated as loss of use of hands under Diagnostic Code 5125. See 38 C.F.R. § 4.71a, Diagnostic Code 5214. As the Veteran is in receipt of the maximum rating available for limitation of motion of the left wrist under Code 5215, in order to warrant a higher rating, the evidence must show that there is ankylosis of the left wrist. Ankylosis is immobility and consolidation of a joint due to disease, injury, surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992). Ankylosis is also considered a stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Under 38 C.F.R§ 4.71, normal range of motion for the wrist is extension from 0 to 70 degrees, palmar flexion from 0 to 80 degrees, forearm pronation 0 to 80 degrees, forearm supination 0 to 85 degrees, ulnar deviation from 0 to 45 degrees, and radial deviation from 0 to 20 degrees. See Plate I. For the period pertinent to the appeal prior to June 2, 2011, the evidence indicates that a rating in excess of 10 percent is not warranted since there is no evidence of ankylosis in the left wrist. The November 2009 VA examiner specifically noted that there was no evidence of ankylosis. The examination revealed dorsiflexion and palmar flexion were from 0 to 70 degrees, radial deviation was from 0 to 15 degrees, and ulnar deviation was from 0 to 35 degrees. There was objective evidence of pain following repetitive motion, but no additional limitation after three repetitions. Based on these findings, ankylosis is not shown. See VA examination received November 2009. The provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 are not for consideration where the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The RO assigned a 20 percent effective June 2, 2011 under Code 5214 based on the date of an informal conference with a Decision Review Officer in which the Veteran reported a worsening of the left wrist disability, and the findings of the June 2011 VA examination. In order to assign a higher rating there must be evidence of unfavorable ankylosis under Code 5214. On June 2011 examination, the Veteran's symptoms included giving way, stiffness, decreased speed of joint motion, weakness, and tenderness. The clinician found evidence of painful active motion, left wrist crepitus, edema, tenderness, pain at rest, weakness, and guarding of movement. Left wrist dorsiflexion was from 0 to 45 degrees, palmar flexion was from 0 to 40 degrees, radial deviation was from 0 to 10 degrees, ulnar deviation was from 0 to 20 degrees. Repetitive motion revealed objective evidence of pain, but there was no additional limitation of motion after three repetitions and the clinician commented that there was no ankylosis. The Veteran denied having flare-ups since his pain was constant. See VA Examination received June 2011. In October 2012, the Veteran testified that he had daily pain, very little wrist movement, popping, and swelling. . On April 2015 VA examination, the range of left wrist motion was dorsiflexion from 0 to 25 degrees, palmar flexion from 0 to 55 degrees, ulnar deviation from 0 to 20 degrees, and radial deviation from 0 to 25 degrees. The examiner noted objective evidence of pain with all ranges of motion, but they did not result in or cause functional loss. There was pain with weight bearing, and localized tenderness or pain on palpation of the joint. Crepitus was also present on examination. Testing after three repetitions of motion did not produced any additional limitation. Muscle strength testing revealed flexion strength of 4/5 and extension strength of 3/5. The reduction in muscle strength was attributed to the Veteran's service-connected wrist disability. Favorable ankylosis in 20 degrees to 30 degrees of dorsiflexion was present. The physician clarified that the examination findings met the criteria for favorable ankylosis since dorsiflexion was to 25 degrees. . On July 2017 VA examination, the range of motion tests revealed palmar flexion to 70 degrees, dorsiflexion to 50 degrees, ulnar deviation to 10 degrees, and radial deviation to 20 degrees. Passive and active ranges of motion were the same. There was no objective evidence of pain in non-weight bearing. Pain was noted on the examination that resulted in functional loss of ulnar deviation. Pain was the same in active and passive range of motion. On ulnar deviation the Veteran had moderate pain and partly sublexed his wrists. There was no evidence of pain with weight bearing, but there was crepitus. The Veteran was able to perform three repetitions with no additional loss in the range of motion. The left wrist demonstrated more movement than normal, and muscle strength in flexion and extension were 4/5. There was no evidence of ankylosis. The examiner indicated that the severity of the left wrist disability had not changed since September 2008. . During this period, the range of motion has varied with some ranges showing greater mobility and others showing less. None of the changes, however, reflect a significant worsening in the disability, especially to a degree that meets or approximates the criteria for a higher rating. The evidence shows that the Veteran's left wrist disability was not manifested by unfavorable ankylosis. As noted previously, ankylosis involves immobility or fixation of a joint. Although the range of motion tests show there was limitation of motion and, in some instances, significant limitation in dorsiflexion in 2015, at no time had the left wrist been shown to have been immobilized or fixed in a position. The Board is aware that the April 2015 VA examiner indicated the Veteran's left wrist disability was manifested by ankylosis based on a findings that dorsiflexion ranged from 0 to 25 degrees, but the physician who conducted the June 2011 examination had similar findings but noted the wrist was not ankylosed. Regardless of whether or not these findings represent favorable ankylosis, with regard to the specific criteria needed for a higher rating under Code 5214, the evidence clearly shows unfavorable ankylosis was not present at any time during the appeal. While other factors may be taken into consideration in evaluating musculoskeletal disabilities, there is no evidence that any of these factors produced sufficient additional functional impairment to assign a higher rating. The Veteran reported having daily flare-ups of pain especially when using his left wrist. His flare-ups involved pain and swelling, and occurred when he tried to do more activities. Although the April 2015 examiner was unable to comment without speculating on whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time or during flare-ups because additional limitation did not manifest after three repetitions of motion, the July 2017 examiner indicated some factors did significantly limit functional impairment. In particular, pain and swelling caused functional loss manifested by less movement with repeated use over time, and pain and swelling during flare-ups that also decreased the range of wrist motion. The July 2017 examiner was unable to express in degrees how much range of motion was lost during flare-ups or after repeated use over time; however, from a functional standpoint the examiner stated the disability decreased the Veteran's ability to do any heavy lifting with his left hand. Similarly, the April 2015 examiner found that the functional impairment of the left wrist disability resulted in an inability to lift, carry, or move heavy objects using his left hand. While the evidence indicates pain and swelling cause functional impairment in terms of additional loss of range of motion during periods of flare-ups or repetitive use over time, the evidence does not show that decreased range of motion is consistent with unfavorable ankylosis. The Board also considered whether a separate compensable rating was assignable under Codes 5307 or 5308 based on muscle weakness in wrist flexion or extension. Under these codes, moderate impairment is required for a minimum compensable evaluation of 10 percent. A 20 percent rating requires moderately severe impairment. See 38 C.F.R. § 4.73. Since only mild weakness was shown and impairment only prevented carrying, lifting or moving heavy objects, the Board finds that the left wrist disability is manifested by only mild muscle impairment. Consequently, a rating based on Codes 5307 or 5308 would not result in a higher rating. In short, the most probative evidence preponderates against a higher rating for the Veteran's left wrist disability. In the present case, staged ratings are assigned and, based on a review of the record there is no material change in the disability during the course of the appeal to warrant any additional staged ratings. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A rating for a left wrist disability in excess of 10 percent prior to June 2, 2011 and in excess of 20 percent beginning on this date is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs