Citation Nr: 1753087 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 12-14 384A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an effective date earlier than April 3, 2015, for the award of a 30 percent rating for favorable ankylosis of the right wrist. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from January 1987 to January 2007. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In December 2014 and May 2017, the Board remanded the appeal for additional development. It is once again before the Board. As discussed below, the Board has recharacterized the issue on appeal to accord with the Veteran's specific request. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into account the existence of these electronic records. FINDINGS OF FACT 1. The Veteran is right handed. 2. For the period from June 12, 2012 through April 2, 2015, and with reasonable doubt resolved in favor of the Veteran, the Veteran's right wrist disability has more nearly approximated favorable ankylosis of the wrist. CONCLUSION OF LAW For the period from June 12, 2012 through April 2, 2015, the criteria for a 30 percent rating for the Veteran's right wrist disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5309-5214 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As discussed below, the Veteran has limited the scope of the appeal to a claim of entitlement to a specific evaluation for a specific period of time. As the Board is granting the full benefit sought by the Veteran, the decision herein represents a full grant of the appeal and the duties to notify and assist need not be discussed. Regardless, the Board finds that VA adequately notified the Veteran of the information and evidence needed to substantiate his claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain, and that VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. The Veteran does not contend otherwise. In addition, pursuant to the Board's December 2014 and May 2017 remands, outstanding VA treatment records were associated with the claims file and adequate VA examinations were obtained. See Stegall v. West, 11 Vet. App. 268 (1998). Legal Principles and Analysis As a preliminary matter, the Board notes that although the present appeal for an increased rating arose from a July 2010 rating decision denying a rating in excess of 10 percent for the right wrist, the Veteran has since clarified that he is only claiming entitlement to an earlier effective date for the award of a 30 percent rating for the right wrist. In this regard, in a July 2017 correspondence submitted in response to a June 2017 supplemental statement of the case, the Veteran stated that he was only claiming that the 30 percent rating for the right wrist should have been granted on June 12, 2012 and not April 3, 2015. He added that he was not generally seeking entitlement to an increased rating ("I never requested a higher rating for my right wrist, I clearly stated that I disagreed with the effective date of rate (April 3, 2015), which needs to be corrected"), but rather only seeking that the 30 percent rating be awarded earlier ("I am requesting that the VA change the Effective date of Rate on my right wrist to the appropriate date of June 12, 2012, which is the date of my original right wrist Appeal"). An appellant may limit the scope of an appeal by clearly expressing an intent to exclude certain issues from appellate consideration, see AB v. Brown, 6 Vet. App. 35, 39 (1993), or by withdrawing issues already certified for appeal, see Hanson v. Brown, 9 Vet. App. 29, 31-32 (1996); 38 C.F.R. § 20.204 (2017); see also Murphy v. Shinseki, 26 Vet. App. 510, 514 (2014) (acknowledging that "the appellant generally controls the scope of appellate review"). Here, the July 2017 correspondence makes clear that the Veteran is seeking entitlement to a 30 percent rating for the right wrist effective June 2012. For reasons discussed in further detail below, the Board is granting the full benefit of the claim as limited in scope by the Veteran. Turning to the merits of the case, disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2017). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. For the period prior to April 3, 2015, the Veteran's right wrist disability has been evaluated as 10 percent disabling under Diagnostic Code 5215, applicable to limited motion of the wrist. Beginning April 2, 2015, it has been rated as 30 percent disabling under Diagnostic Codes 5309-5214. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2017). In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. The hyphenated diagnostic code in this case indicates that muscle injury of the forearm under Diagnostic Code 5309 is the service-connected disability and that ankylosis of the wrist under Diagnostic Code 5214 is the residual disability. The Veteran is right handed, and therefore his right wrist is his major extremity. 38 C.F.R. § 4.69 (2017). Diagnostic Code 5215 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. Diagnostic Code 5214, which is the only other diagnostic code which specifically references the wrist, requires favorable ankylosis in 20 to 30 degrees of dorsiflexion for a 30 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5214. In this case, in correspondence dated June 12, 2012, the Veteran reported experiencing pain in his wrist daily. He added that he "struggles" to use his right hand, in particular because he experiences pain and discomfort when turning a doorknob or turning a key to start his car. He reported that the right wrist prevented him from playing sports and lifting weights and that although he underwent physical therapy, there was very little noticeable benefit. A September 2014 VA treatment record shows that the Veteran continued reporting ongoing right wrist pain. A December 2014 VA treatment record shows that the Veteran received a steroid injection for his right wrist pain. A medical history note indicates that he had wrist surgery three years prior where he had reconstructed cartilage and they put a screw in it. He had two surgeries, one for the removal of the screw. The Veteran reported hearing a lot of popping and pain at that time which he continues to experience and reported had not improved. He also denied changes in mobility of the wrist since the surgery. He reported pain of 5-6 but the pain medication did not help. Physical examination revealed weakened hand grip, limited wrist flexion but extension within normal limits. A steroid injection was administered. At an April 2015 VA examination, the Veteran reported experiencing impairment in all activities involving the right wrist to include cooking, opening doors and tight jars, and in performing various athletic activities. He reported flare-ups of pain and dysfunction proportional to activity and that even a simple activity such as cooking with a heavy frying pan or taking out the trash will cause the right wrist to flare up. He noted that he cannot perform push-ups at all since pressure on the dorsiflexed wrist is too painful. The Veteran reported stiffness and enlargement of the joint and crepitus with motion. Upon examination, there was abnormal range of motion which the examiner noted included 75 degrees of palmar flexion and 30 degrees of dorsiflexion. The examiner noted that this contributed to a functional loss in that he had much less dorsiflexion than expected. There was pain noted on examination in palmar flexion, dorsiflexion, ulnar deviation and radial deviation which the examiner noted caused functional loss. There was pain with weight bearing, localized pain in the dorsal wrist joint, as well as objective evidence of crepitus. Pain, fatigue, lack of endurance and incoordination all significantly limited functional ability with repeated use over time and during flare-ups. Of note, the examination did not take place during a flare-up. Additional factors contributing to disability included less movement than normal due to ankylosis, deformity, and atrophy of disuse. There was mild thenar atrophy in the right palm which was not measurable but present in terms of there being a decreased muscle mass in the thenar region. The examiner additionally noted that there was favorable ankylosis in 20 to 30 degrees of dorsiflexion in the right wrist. A June 2015 rating decision granted a 30 percent rating based on the April 2015 examiner's finding that there was favorable ankylosis in the right wrist joint, assigning an effective date of April 3, 2015 - the date of the VA examination - as the date the evidence showed that the right wrist increased in severity. The Veteran disputes this finding, contending that his wrist actually worsened in June 2012 but because VA did not provide him with an examination until April 2015, this increase in severity went unacknowledged until then. As discussed above, he specifically claims that a 30 percent rating is warranted from June 2012 because that is when his symptoms worsened. The Board agrees that the evidence supports the Veteran's claim that his symptoms were as severe in June 2012 as they were at the time of the April 2015 VA examination. The June 2012 correspondence shows that the Veteran reported regular pain, impairment of most activities involving the wrist including everyday activities like turning a doorknob or turning a key in a car's ignition. Like the April 2015 examination, in June 2012, he also reported that he was not able to engage in sports or other exercise involving the wrist. Thereafter, VA treatment records continued to show reports of wrist pain. Although the December 2014 VA treatment record suggests that the Veteran had some range of motion in wrist extension, there was no discussion as to any additional functional impairment resulting from pain, fatigue or other factors, nor was it clear whether such range of motion was active or passive range of motion. Significantly, the April 2015 VA examiner also noted that the Veteran had some range of motion in flexion and extension of the wrist but concluded that when considering the effects of pain, fatigue, lack of endurance and incoordination, as well as the impact of flare-ups, his symptoms approximated favorable ankylosis of the wrist. The Board finds the Veteran's reports of significantly impaired use of the right wrist to be credible and consistent with his medical history of multiple wrist surgeries and steroid injections. Accordingly, the Board finds that it is reasonable to conclude that the severity of the symptoms observed at the time of the April 2015 VA examination would have been present had a VA examination taken place in June 2012. Since the June 12, 2012 correspondence shows that the Veteran claimed a worsening of his symptoms at that time, with reasonable doubt resolved in favor of the Veteran, the Board finds that a 30 percent rating is warranted for favorable ankylosis of the right wrist for the period from June 12, 2012 through April 2, 2015. 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Codes 5309-5214. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a 30 percent rating from June 12, 2012 through April 2, 2015 for favorable ankylosis of the right wrist is granted, subject to the regulations governing payment of monetary awards. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs