Citation Nr: 1751812 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 12-15 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a rating in excess of 10 percent for flexor tendonitis of the right wrist. 2. Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU). REPRESENTATION Appellant represented by: Nicole Knoll, Agent ATTORNEY FOR THE BOARD N. Breitbach, Associate Counsel INTRODUCTION The Veteran served on active duty with the Army from October 1996 to August 2000. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in December 2013. At that time, the Board remanded the claim for an increased rating for flexor tendonitis of the right wrist to clarify whether the Veteran's neurological manifestations of the right wrist disability were part of the service-connected disability. Upon remand, in a rating decision in July 2015, the RO issued a separate evaluation for carpal tunnel syndrome of the right upper extremity with an evaluation of 10 percent, effective March 12, 2015. The Veteran did not timely appeal this decision; therefore, the appropriateness of the rating and effective date of carpal tunnel syndrome is not before the Board and will not be further discussed. The record indicates the Veteran filed a claim for TDIU in August 2010 based in part on service-connected wrist injuries. Thus, the issue of TDIU is currently before the Board. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that a claim for TDIU, either expressly raised by the appellant or reasonably raised by the record, is part of the claim for an increased rating). The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. As the Veteran is right-handed, her flexor tendonitis of the right wrist involves her major extremity for evaluation purposes. 2. The Veteran's flexor tendonitis of the right wrist is manifested by pain and limitation of motion without ankylosis. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for flexor tendonitis of the right wrist are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5215 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. In the VA Form 9, Substantive Appeal, received in June 2012, the Veteran's agent contended that VA failed to notify the Veteran in the May 2012 Statement of the Case (SOC) of the reasons and bases for denying the Veteran's claim for an increased rating in accordance with 38 U.S.C. § 5104 and 38 C.F.R. § 3.103(b) regarding why an increased evaluation was denied based on consideration and application of 38 C.F.R. §§ 4.40, 4.45 and the findings from the December 2011 VA examination. A review of the SOC reflects that it provided a summary of the evidence considered in the SOC, including the December 2011 examination, and provided reasons for why the increased rating claim was denied, including consideration of 38 C.F.R. §§ 4.40, 4.45. Therefore, the Board finds that VA has completed its duty to notify regarding the SOC. VA has met its duty to assist. VA has obtained, to the extent possible, all relevant evidence identified by the Veteran and necessary for an equitable resolution of the issue on appeal. In the Substantive Appeal, the Veteran's agent contended VA erred because the December 2011 VA examination was inadequate. In particular, the agent contended the examination did not include range of motion testing or indicate whether weakness, pain, or discomfort was present after repetitive range motion testing. The December 2011 VA examination includes such testing. Regardless, following the Board remand, the Veteran was afforded an additional VA examination in February 2016 that also included such testing. Notably, neither the December 2011 nor the February 2016 VA examinations include joint testing for pain on both active and passive motion. During the course of the appeal, the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). In this case, the Veteran is in receipt of a 10 percent rating for her service-connected right wrist flexor tendonitis for the entire appeal period. The 10 percent evaluation is the maximum rating assignable for limitation of motion of the right wrist and there is no indication that her symptoms more nearly approximate ankylosis of the wrist. Therefore, the Veteran is not prejudiced by the Board not remanding for further testing in this regard. Accordingly, appellate review may proceed without prejudice to the Veteran with respect to her claim. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Legal Criteria and Analysis Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (finding that a Veteran is competent to report on that of which he has personal knowledge). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is right-hand dominant; thus, her service-connected right wrist disability involves her major extremity. 38 C.F.R. § 4.69. In this case, the Veteran generally contends an increased rating is warranted for her service-connected right wrist flexor tendonitis. The Veteran's right wrist flexor tendonitis is currently assigned a 10 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5215, for limitation of motion of the wrist. Under Diagnostic Code 5215, with respect to the major extremity, a 10 percent rating is warranted for limitation of motion of the wrist manifested by dorsiflexion limited to less than 15 degrees or by palmar flexion limited in line with the forearm. This is the maximum possible schedular rating under Diagnostic Code 5215. 38 C.F.R. § 4.71a, Diagnostic Code 5215. However, higher ratings are assignable under Diagnostic Code 5214 for ankylosis of the wrist. Under Diagnostic Code 5214, with respect to the major extremity, a 30 percent rating is warranted where there is favorable ankylosis of the wrist in 20 to 30 degrees of dorsiflexion. A 40 percent rating is warranted where there is ankylosis of the wrist in any other position, except favorable. A maximum 50 percent rating is warranted where there is unfavorable ankylosis in any degree of palmar flexion, or with ulnar or radial deviation. A note following Diagnostic Code 5214 states 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 5214. Normal range of motion of the wrist includes dorsiflexion (extension) from zero to 70 degrees, palmar flexion from zero to 80 degrees, ulnar deviation from zero to 45 degrees, and radial deviation from zero to 20 degrees. 38 C.F.R. § 4.71a, Plate I (2016). When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). In this case, as the evidence discussed below illustrates, the Veteran is entitled to a 10 percent rating and no higher for her flexor tendonitis in the right wrist. 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. In this instance, the minimum compensable rating for the Veteran's wrist disability under Diagnostic Code 5215 is also the maximum compensable rating under the relevant diagnostic code. That rating, the rating assigned here, is 10 percent. Based on a review of the relevant evidence and the applicable law and regulations, it is the Board's conclusion that the evidence more nearly approximates an assignment of a 10 percent rating for the Veteran's right wrist flexor tendonitis for the entire relevant period. Turning to the relevant evidence of record in support of the 10 percent rating, the Veteran attended a VA examination in August 2010 in connection with the current claim for an increased rating. The Veteran had normal range of motion in the right wrist initially and normal range of motion following repetitive use. The VA examiner noted the Veteran had end-of-range pain with ulnar deviation. The Veteran stated her wrists affect her employment at Target as her wrists affect lifting over five pounds. Further, the Veteran stated her wrists impact her activities of daily living as well due to her lifting limitations and difficulty with driving. The Veteran stated there are no flare-ups as her wrists cause constant problems. The Veteran attended a VA examination in August 2011 where she had reduced dorsiflexion and palmer flexion in the right wrist to 45 degrees and ulnar deviation to 30 degrees. Range of motion testing revealed end-of-range pain but range of motion was not additionally limited following repetitive use testing. The wrist was not tender over the distal radius, but was tender over the distal ulna. The Veteran again noted limitations in her job as a cashier and in activities of daily living due to her limitation in lifting. In addition, the Veteran noted flare-ups that were activity related, variable in duration, and caused swelling. At a VA examination in December 2011, range of motion testing in the right wrist showed the Veteran had palmer flexion to 80 degrees and dorsiflexion to 70 degrees on both the initial range of motion testing and upon repetitive use testing. There was no objective evidence of painful motion during range of motion testing; however, the VA examiner noted the Veteran had pain on movement in the right wrist. The VA examiner also noted there was no functional impairment or functional impact stemming from the Veteran's right wrist condition. The examiner noted there was localized tenderness or pain on palpation of the joints/soft tissue of the right wrist. The examiner noted the Veteran did not have ankylosis in the right wrist joint. The Veteran reported that she has pain in her right wrist with use, but she reported no flare-ups. The Veteran attended a VA examination in June 2015 in connection for her claim for carpal tunnel syndrome. At this examination, only range of motion testing was performed on the Veteran's left wrist. However, the examiner specifically noted the Veteran did not have ankylosis in the right wrist. Additionally, the Veteran reported generally that she frequently dropped objects and had difficulty picking up her children. She also reported experiencing flare ups every three to four days. The Veteran attended a VA examination in February 2016 where range of motion testing in the right wrist revealed the Veteran had palmar flexion to 80 degrees, dorsiflexion to 70 degrees, ulnar deviation to 45 degrees, and radial deviation to 20 degrees on both the initial range of motion testing and upon repetitive use testing. The examiner noted the Veteran had pain with palmar flexion, dorsiflexion, ulnar deviation, and radial deviation, but the pain did not result in functional loss. There was tenderness to palpation of the wrist joint. The examiner found that pain, weakness, fatigability or incoordination did significantly limit functional ability with repeated use over a period of time and during flare ups. The examiner also noted that swelling was a contributing factor of the disability. The examiner stated the Veteran's right wrist condition interfered with her ability to work doing manual labor or even typing. The examiner noted the Veteran did not have ankylosis in the right wrist. At this examination, the Veteran stated she had flare-ups with any use of the right hand or lifting as little as five to ten pounds. In statements throughout the appeal period, the Veteran has stated that her wrist impairments, including her right wrist flexor tendonitis, have impacted certain activities that require lifting like caring for and lifting her children. Pertinent to the March 2010 claim for increase, the Veteran's right wrist flexor tendonitis has been manifested primarily by limited motion and pain. The Veteran is already in receipt of a 10 percent rating under DC 5215 based on these symptoms, and this is the maximum possible schedular rating under this diagnostic code for pain for limitation of wrist motion. Moreover, where a veteran is in receipt of the maximum schedular rating based on limitation of motion (i.e., a 10 percent rating under Diagnostic Code 5215) and a higher rating requires ankylosis, the regulations pertaining to consideration of functional impairment (38 C.F.R. §§ 4.40, 4.45) are not for application. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (stating that despite a notation from a VA examiner that the appellant "seems to have some minor discomfort in the wrist, with strenuous use," the appellant is already receiving the maximum disability rating available under DC 5215 and, thus, remand is not appropriate). Here, there is no lay or medical evidence of any ankylosis of the right wrist during the appeal period. In fact, the VA examiners stated in December 2011, June 2015, and February 2016 that there was no ankylosis. Thus, a rating in excess of 10 percent is not warranted under Diagnostic Code 5215 on the basis of limitation of motion. Moreover, as the evidence of record does not reflect that there was any ankylosis of the right wrist at any pertinent point, a rating in excess of 10 percent under Diagnostic Code 5214 is also not warranted. See 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5214, 5215. Increased evaluations under other potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Veteran's flexor tendonitis of the right wrist is rated by analogy under Diagnostic Code 5215. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. As discussed above, the findings show that the Veteran's right wrist disorder is a musculoskeletal disability manifested by painful motion and thus has been appropriately rated under Diagnostic Code 5215. The Veteran is in receipt of a separate rating for neurological impairment associated with her right wrist disability as a rating decision in July 2015 granted a separate 10 percent rating for carpal tunnel syndrome of the right upper extremity. The Veteran did not disagree with the rating or the effective date assigned and, as noted in the Introduction, this issue is not before the Board. Based on the medical and lay evidence of record, the Board has considered whether there is any other schedular basis for granting a higher or additional rating, but has found none. Regarding whether referral for an extraschedular rating is appropriate, such has not been raised by the claimant or reasonably raised by the record and will not be further discussed herein. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). In sum, the criteria for a rating in excess of 10 percent for flexor tendonitis of the right wrist have not been met during the pendency of the appeal. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to a rating in excess of 10 percent for the entire period on appeal for flexor tendonitis of the right wrist is denied. REMAND As for the issue of entitlement to TDIU, the Veteran filed applications for TDIU in August 2010 and July 2011. In the August 2010 application, the Veteran in part, filed her application based on a service-connected disability of "wrist injuries." The Veteran filed her July 2011 application in part, based on a service-connected disability of "carpal tunnel." The RO denied these claims in rating decisions in March 2011 and June 2013 respectively. The Veteran did not file a notice of disagreement following either rating decision, so the RO was not required to issue a statement of the case. However, on February 2016 VA examination, the examiner opined the Veteran's right wrist disability "interferes with her ability to work doing manual labor or even typing." Thus, as the record reflects that the Veteran may not be able to secure or follow a substantially gainful occupation as a result of her right wrist disability, the issue of entitlement to a TDIU must be remanded for further development. VA's Office of General Counsel has stated that, when the issue of entitlement to TDIU for a particular service-connected disability or disabilities is raised in connection with a claim for an increased rating for such disability or disabilities, the Board would have jurisdiction to consider the TDIU issue. If the Board determines that further action by the AOJ is necessary with respect to TDIU, the Board should remand, rather than refer, the TDIU issue for further development. See VAOPGCPREC 6-96 at para. 12, 13 (Aug. 16, 1996); Cf. Godfrey v. Brown, 7 Vet. App. 398, 409 (1995). Therefore, the AOJ should take appropriate steps to develop and adjudicate the claim for TDIU in light of all the evidence of record. Accordingly, the case is REMANDED for the following actions: 1. Ensure that all notice and assistance obligations are satisfied concerning the claim for a TDIU. Forward the appropriate form (VA Form 21-8940) to the Veteran for completion, and undertake any development necessary for this claim. 2. After completing the above action and any other development as may be indicated by any response received as a consequence of the action taken above, adjudicate the Veteran's claim seeking entitlement to TDIU. If the TDIU benefit sought is not granted, issue a Supplemental Statement of the Case and allow the Veteran and her agent an opportunity to respond, and then return the case to the Board for appellate review. No action is required of the Veteran until she is notified by VA. However, she is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). Her failure to help procure treatment records, or to report for any scheduled VA examination, may impact the decision made. 38 C.F.R. § 3.655. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. ______________________________________________ M. Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs