Citation Nr: 1752736 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 12-12 713 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for chronic left wrist sprain. REPRESENTATION Veteran represented by: Dale K. Graham, Agent ATTORNEY FOR THE BOARD C. Jones, Counsel INTRODUCTION The Veteran had active service from August 2000 to May 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision issued by the Department of Veterans Affairs Regional Office (RO) in Muskogee, Oklahoma, which, in pertinet part, granted service connection for chronic left wrist sprain and assigned a noncompensable disability rating, effective September 12, 2011. Thereafter, during the pendency of the appeal, in an April 2012 rating decision, a Decision Review Officer (DRO) increased the rating for the service-connected left wrist disability to 10 percent disabling, effective September 12, 2011. This appeal was before the Board in January 2015 at which time it was remanded for additional evidentiary development. Most recently, the claim was remanded by the Board in a May 2017 decision. A review of the record shows that the RO has complied with the remand instructions regarding the matter adjudicated herein. Stegall v. West, 11 Vet. App. 268 (1998). In the May 2017 decision, the issue of whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for left hand neurological impairments, to include as secondary to service-connected left wrist sprain was referred to the Agency of Original Jurisdiction (AOJ) for adjudication. However, the record currently available to the Board contains no indication that action has been taken on the claim. As previously noted in the May 2017 decision, the issue is not properly before the Board. 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) (2017). FINDING OF FACT The Veteran's left wrist sprain has been manifested by pain and decreased range of motion, but there has been no evidence of ankylosis of the left wrist. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for chronic left wrist sprain have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5215 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) 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). Applicable Laws Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where a claimant appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Veteran's service-connected left wrist disability has been evaluated under Diagnostic Code 5215 which contemplates wrist, limitation of motion. Under the diagnostic criteria, a10 percent disability rating is warranted where palmar flexion is limited in line with the forearm, or where dorsiflexion is less than 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5215. This is the maximum schedular rating based on limitation of motion of the wrist. A higher schedular rating is only warranted when there is evidence of ankylosis. 38 C.F.R. § 4.71a, Diagnostic Code 5214 (2017). Factual Background A September 2011 VA x-ray report showed scapholunate dissociation. A subsequent November 2011 VA orthopaedic surgery consult note indicated that the Veteran had full motion of his fingers and thumb and there was no swelling. He had 58 degrees of extension and 34 degrees of flexion. He had 42 kilograms of grip strength. The Veteran reported tenderness over the dorsum of his wrist, immediately distal to the radius. He had less tenderness over the palmar aspect of his wrist. The Veteran underwent a VA examination in December 2011. Symptoms reported by the Veteran included weakness, stiffness, swelling, giving way, lack of endurance, fatigability, tenderness, and pain. He did not experience heat, redness, locking, deformity, draining, effusion, subluxation, or dislocation. Treatment for the reported symptoms included wrist braces and a heating pack. The Veteran reported that he had never been hospitalized nor had any surgery for the condition. Further, in the past 12 months, the disability had not resulted in any incapacitation. He asserted that because of pian in his wrist and hand, he is unable to perform daily activities and work activities. He cannot put weight on his wrist at times and is limited in working out and staying in shape because of his left wrist disability. The Veteran reported experiencing flare-ups which impact the ability of the wrist to function. It was noted that the Veteran is right hand dominant. On physical examination, muscle strength on flexion and extension of the wrist was normal. Range of motion testing revealed flexion to 45degrees with the onset of pain at 45 degrees and dorsiflexion to 60 degrees with the onset of pain at 60 degrees. There was no additional limitation in motion following repetitive use testing. Notwithstanding, the examiner noted that there was functional loss and/or functional impairment of the wrist. The contributing factors include weakened movement, excess fatigability, and pain on movement. The Veteran also had localized tenderness or pain on palpation of joints or soft tissue of the left wrist. The examiner noted that diagnostic test results were normal. The Veteran was provided an additional VA examination in April 2012. He reported constant wrist pain, which worsened when moving the hand. He also reported tenderness over the dorsum of the wrists, immediately distal to the radius. Flare-ups with repetitive movement, decreased grip strength, and intermittent tingling of the left little finger and left thumb were also documented. The examiner noted that the Veteran had EMG studies conducted in 2011. The electrodiagnostic screening study, including bilateral median and ulnar sensory and motor conduction studies, were normal. It was noted that he Veteran is right hand dominant. On range of motion testing, the Veteran had flexion to 50 degrees with the onset of pain at 50 degrees and dorsiflexion to 45 degrees with the onset of pain at 45 degrees. There was no additional limitation in motion following repetitive use testing. Notwithstanding, the examiner noted that there was functional loss and/or functional impairment of the wrist. The contributing factor was pain on movement. There was also localized tenderness or pain on palpitation of the joints/soft tissue. Muscle strength testing revealed active movement against some resistance. There was no evidence of ankylosis. The examiner noted that the Veteran reported intermittent tingling of the left little finger and left thumb since 2002. Sensory decreased along the lateral aspect of the left little finger. He again noted that EMG studies completed in 2011 revealed normal results. He concluded that there was no evidence of a nerve damage or muscle disability secondary to the wrist injury. There was also no evidence of muscle atrophy. In the Veteran's substantive appeal received in May 2012, he asserted that he had ankylosis of the left wrist. In the report of a March 2015 VA wrist conditions VA examination, it was noted that the Veteran had been diagnosed with degenerative arthritis and scapholunate dissociation. Symptoms reported by the Veteran included pain, which was aggravated by all wrist movement. The Veteran also reported that his grip strength had weakened and declined over the last year. He also complained of numbness and pain in the left hand distal to the wrist in the thumb and first two fingers and lateral aspect of the palm. He reported flare-ups one time every other day and these lasted for 1 to 2 hours until his over the counter pain medication "kicks in." During flare-ups, he does not move his wrist due to severe pain. Range of motion resting revealed palmar flexion to 35 degrees, dorsiflexion to 25 degrees, ulnar deviation to 25 degrees, and radial deviation to 15 degrees. On repetitive testing, the Veteran had palmar flexion to 30 degrees, dorsiflexion to 20 degrees, ulnar deviation to 20 degrees, and radial deviation to 10 degrees. The examiner noted that range of motion was functionally limited as this would limit the wrist's ability to push, pull, and complete activities such as prolonged typing. Pain was noted on examination. There was also evidence of pain on weight bearing. In this regard, the examiner noted that there was tenderness over the dorsum of the wrist, immediately distal to the radius. The Veteran also had tenderness over the palmar aspect of the wrist. The examiner noted that there was functional loss and/or functional impairment of the wrist. The contributing factors included pain, fatigue, weakness, and lack of endurance. Muscle strength testing revealed active movement against some resistance. There was no muscle atrophy or ankylosis. Lastly, a VA examination was provided in August 2017. Chronic left wrist sprain was assessed. The Veteran reported flare-ups of the wrist manifested by everyday pain and weakness. With regard to functional impairment, the Veteran reported weak grip, numbness, and an inability to rotate or lift heavy objects. On range of motion testing, the Veteran had palmar flexion to 40 degrees, dorsiflexion to 34 degrees, ulnar deviation to 20 degrees, and radial deviation to 12 degrees. There was no additional loss of function or range of motion following repetitive testing. Pain was noted on dorsiflexion and ulnar deviation. There was evidence of localized tenderness or pain on palpitation on the joint line, which was determined to be moderated in severity. There was no evidence of pain with weight bearing or crepitus. Additional factors contributing to the disability included reduced grip strength and inability to pull or push. Muscle strength testing revealed active movement against gravity. There was no evidence of muscle atrophy or ankylosis. The examiner noted that there was no evidence of pain on passive range of motion testing or evidence of pain on non-weightbearing testing. Subsequent VA medical records document continued complaints of left wrist pain with numbness in the hands. Analysis Applying the criteria set forth above to the facts in this case, the Board finds that the preponderance of the evidence is against assignment of an initial rating in excess of 10 percent for the Veteran's left wrist disability. In this regard, the Veteran's left wrist disability has been manifested by decreased range of motion and significant pain, producing functional loss. At worst, the Veteran had dorsiflexion to 20 degrees following repetitive testing. See August 2017 VA examination report. The Board observes that a 10 percent rating is the maximum rating available unde Diagnostic Code 5215. A higher schedular rating for the wrist is only warranted when there is evidence of ankylosis, rated under 38 C.F.R. § 4.71a, Diagnostic Code 5214. The Board acknowledges that in the Veteran's substantive appeal, he indicated that he had ankylosis of the left wrist. However, by definition, the fact that the Veteran's left wrist manifests some range of motion is evidence of the absence of ankylosis. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure"). Notably, the VA examiners determined that there was no evidence of ankylosis following evaluation of the Veteran's left wrist disability. Absent a finding of ankylosis of the left wrist, which has not been shown by the evidence of record, a rating in excess of 10 percent is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5214, 5215. The Board has considered additional limitation of function per 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). In this regard, the record is clear that the Veteran experiences significant pain. Because the Veteran is already receiving the highest scheduler rating available for limitation of motion of the wrist under Diagnostic Code 5215, a higher rating based on factors such as painful motion or limited motion due to pain, weakness, and excess fatigability is not available. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The Board observes that the Veteran reported symptoms of numbness and tingling in the left hand associated with his left wrist disability. However, as noted above, the claim of service connection for neurological disabilities, secondary to the Veteran's service-connected left wrist disability has been referred to the RO for adjudication. The Board has considered all potentially applicable diagnostic codes in accordance with Schafrath v. Derwinski, 1 Vet. App. 589 (1991), but the Veteran's left wrist disability could not receive a higher rating under an analogous diagnostic code. See 38 C.F.R. § 4.115(b). Accordingly, the Board finds that the preponderance of the evidence is against the assignment of an initial disability rating in excess of 10 percent for the Veteran's service-connected left wrist sprain, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2016). ORDER Entitlement to an initial disability rating in excess of 10 percent for chronic left wrist sprain is denied. ____________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs