Citation Nr: 1800782 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 11-21 634 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for right wrist degenerative arthritis of the radial navicular joint space ("right wrist disability"). 2. Entitlement to service connection for a right shoulder disability. 3. Entitlement to service connection for a right elbow disability. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Ben Winburn, Associate Counsel INTRODUCTION The Veteran had active naval service from August 1960 to February 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. This case was previously before the Board in July 2014, at which time the issues on appeal were remanded for additional development. The case has now been returned to the Board for further appellate action. The issues of entitlement to service connection for right shoulder and elbow disabilities, and of entitlement to a TDIU are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Limitation of motion of the Veteran's right wrist disability is not productive of malunion, nonunion, loss of bone substance, marked deformity, or ankylosis. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a right wrist disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5215 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that he should have a higher rating for his right wrist disability because his level of impairment is worse than contemplated by the currently assigned rating. At an April 2009 VA examination, the Veteran reported that his entire right hand and wrist were painful and had increased in severity since 2006. He reported that the metacarpophalangeal joints (MCP) stayed swollen and became more painful with use. The Veteran reported decreased grip strength, reporting that he could not open bottles or jars with his right hand. The Veteran reported that two knots in his wrist popped up with more use, which restricted his movement. The Veteran reported that he took Meloxicam for treatment of his pain and that the medication helped. Upon physical examination, the Veteran was noted to be right-handed. The MCPs 2-5 were enlarged with enlarged proximal interphalangeal joints 2-5. There were no palpable nodes. Phalanxes 2-4 were tender to palpation just distal to the MCP joints. The wrist was not tender. There was edema in the right hand when compared to the left. There was no opposition to the fifth finger, but full opposition otherwise and all fingers were to the traverse crease except for the fourth finger, which was 1 cm from the traverse crease. Grip strength was normal, bilaterally. There was ulnar deviation of the second finger to 20 degrees and fingers 3-5 to 30 degrees each. Right wrist range of motion measurements were as follows: dorsiflexion to 20 degrees without pain, and palmar flexion to 25 degrees with pain. There was no additional limitation of motion of functional loss due to pain, weakness, fatigability, incoordination, or lack of endurance following repetition. There were no flare-ups reported. X-rays revealed arthritic changes in the first MCP joint, mild narrowing of the radial navicular joint space, and small multiple small cyst changes within the carpal bones. Laboratory testing was within normal limits. The examiner diagnosed arthritis in the right wrist and hand. In February 2011, the Veteran was afforded another VA examination. At that time, the Veteran reported his right wrist disability had gotten progressively worse over time. He reported that his right hand and fingers were constantly swollen; that his middle, ring, and little fingers had become more ulnar deviated; and that he had difficulty moving the MCP joints of all fingers in the right hand. He reported that he experienced constant pain that was aching in nature. He reported that the pain and swelling were worse after using his right hand and that cold weather worsened his symptoms. The Veteran reported that he took Etodolac, Aleve, and Aspirin for treatment of his pain and that the medication did help. He reported that he could not hold or lift objects with his hand, he could not squeeze objects like toothpaste tubes, and that he could not make a fist. He did not use assistive devices. The Veteran reported flare-ups after repetitive use of the land that lasted 3 days to 1 week, at which time the swelling would usually resolve. Upon physical examination, the Veteran was noted to be right handed. There was edema and enlargement of the MCP joints on the right hand, in all fingers. There were no palpable nodes or warmth. There was ulnar deviation of the right ring and middle fingers to 40 degrees, and ulnar deviation of the right index finger to 20 degrees. The noted deviation occurred at the MCP joint. With opposition of the thumb and little finger, there was a 1.5 cm gap; to the ring finger, there was a 1.5 cm gap; to the middle finger, there was a 2 cm gap; and to the index finger, there was a 0.5 cm gap. With movement of the transverse crease of the index finger, there was a 4.5 cm gap; to the middle finger, there was a 0.5 cm gap; to the ring finger, there was a 0.5 cm gap; in the little finger, there was a 0.5 cm gap. The right wrist was tender to palpation over the dorsal and ventral surfaces. There was no edema, warmth, or crepitus. Range of motion measurements of the right wrist were as follows: dorsiflexion to 15 degrees, with pain; palmar flexion to 10 degrees, with pain; ulnar deviation to 15 degrees, with pain; and radial deviation to 10 degrees, with pain. There was no additional limitation of motion of functional impairment due to pain, lack of endurance, fatigability, incoordination, or weakness. The examiner diagnosed degenerative and rheumatoid arthritis of the right hand and wrist. The Board notes that there are no laboratory test results in the VA examination report confirming the diagnosis of rheumatoid arthritis. In May 2016, the Veteran was afforded another VA examination of his right hand and wrist. At that time, the Veteran reported did not report flare-ups of his right wrist disability. On physical examination, right wrist range of motion measurements were as follows: palmar flexion to 80 degrees, dorsiflexion to 70 degrees, ulnar deviation to 45 degrees, and radial deviation to 10 degrees. There was pain on palmar flexion and dorsiflexion; however, pain did not result in additional limitation of motion or functional loss. There was no evidence of pain with weight bearing, objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, and no objective evidence of crepitus. Left wrist range of motion measurements were taken for comparison purposes; however, the Veteran was also noted to have abnormal range of motion in the left wrist and a comparison was not possible. The examiner noted that additional functional limitations of the right wrist due to pain, weakness, fatigability, lack of endurance, incoordination, or flare-ups could not be determined without resorting to speculation as he was unable to assess the right wrist after repeated motion over time. Muscle strength testing was normal and there was no ankylosis of the right wrist. X-rays of the right wrist revealed arthritis. The Board notes that despite the fact that the examiner did not perform joint testing for pain on passive motion or in nonweight-bearing, the examination is still adequate even with consideration of the United States Court of Appeals for Veterans Claims (Court) decision in Correia v. McDonald, 28 Vet. App. 158 (2016). In this regard, the Board notes that the criteria for a higher rating for the right wrist include physical findings such as malunion, nonunion, loss of bone substance, fusion, or ankylosis. Therefore, an opinion regarding additional functional impairment in the form of limitation of motion would not be useful in determining whether a higher rating for the Veteran's right wrist disability is warranted. Therefore, the May 2016 VA examination report is adequate for rating purposes despite the Court's decision in Correia. The Board further notes that despite the fact that the examiner could not provide an opinion regarding additional functional impairment during a flare-up or following repetition, the examination is still adequate even with consideration of the United States Court of Appeals for Veterans Claims (Court) decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this regard, the Board notes that the criteria for a higher rating for the right wrist include physical findings such as malunion, nonunion, loss of bone substance, fusion, or ankylosis. Therefore, an opinion regarding additional functional impairment in the form of limitation of motion would not be useful in determining whether a higher rating for the Veteran's right wrist disability is warranted. Therefore, the May 2016 VA examination report is adequate for rating purposes despite the Court's decision in Sharp. A review of the record shows that the Veteran receives treatment for his various disabilities. However, a review of the treatment notes of record does not show that he has right wrist symptoms that are worse than those reported at his VA examination, to include range of motion measurements. The Board finds that the Veteran is not entitled to an initial rating in excess of 10 percent for his right wrist disability. In this regard, the Board notes that the Veteran is in receipt of the maximum allowable rating for limitation of motion of the wrist as it was determined that the evidence most nearly approximated the criteria for palmar flexion being limited in line with the forearm, which like dorsiflexion less than 15 degrees, warrants a maximum 10 percent schedular rating. There is no evidence of record showing that the Veteran has nonunion in his wrist, loss of bone substance, or marked deformity. The Veteran has reported increased pain and swelling on use of his right wrist, but that limitation of function was contemplated by the examiner when reporting limitation of motion. Therefore, a rating in excess of 10 percent for the right wrist disability is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5215 (2017). The Board has also considered whether a higher rating should be assigned under a different diagnostic code pertaining to the wrist. However, there is no evidence that the Veteran has malunion, nonunion, loss of bone substance, bone fusion, or ankylosis. Therefore, the Board finds that there is no basis for assignment of a higher rating under another diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Codes 5211, 5212, 5213, 5214. Consideration has also been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). ORDER Entitlement to an initial rating in excess of 10 percent for a right wrist disability is denied. REMAND The Board finds that additional development is required before the remaining claims on appeal are decided. A review of the record shows the Veteran was diagnosed with glenohumeral and acromioclavicular joint osteoarthritis of the right shoulder and osteoarthritis of the right elbow in 2009, and is service connection for the aforementioned right wrist degenerative arthritis of the radial navicular joint space, effective November 2008. With regard to the opposite upper extremity, the Veteran is service connection for left wrist arthritis, status post fracture, and limited painful motion of the left elbow, effective May 2004. The Board acknowledges that there are multiple VA medical opinions of record addressing various legal theories of entitlement. However, there is no indication from the record that an opinion as to whether the Veteran's right shoulder and right elbow disabilities were aggravated by his service-connected left elbow, left wrist, and/or right wrist disabilities, to specifically include overuse/altered body motion. Therefore, the Board finds that the Veteran should be afforded a new VA examination to determine the nature and etiology of his right shoulder and right elbow disabilities, to include whether his right shoulder and right elbow disabilities were aggravated by his service-connected left elbow, left wrist and/or right wrist disabilities. With regard to the Veteran's claim for TDIU, the Board finds that the Veteran's claim is inextricably intertwined with the claims currently on appeal. Therefore, the appropriate remedy where a pending claim is inextricably intertwined with claims currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Additionally, current treatment records should be identified and obtained before a decision is made with regard to the remaining issues on appeal. Accordingly, the case is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner who has not previously examined the Veteran or provided an opinion in this appeal, of sufficient expertise to determine the nature and etiology of the Veteran's right shoulder and elbow disabilities. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide the following opinions: a) Whether it is at least as likely as not (a 50 percent probability or greater) that any currently present right shoulder disability is etiologically related to the Veteran's active service. b) Whether it is at least as likely as not (a 50 percent probability or greater) that any currently present right shoulder disability was caused or chronically worsened by the Veteran's service-connected left elbow, left wrist, and/or right wrist disability, to specifically include any overuse/altered body mechanics resulting from such. c) Whether it is at least as likely as not (a 50 percent probability or greater) that any currently present right elbow disability is etiologically related to the Veteran's active service. d) Whether it is at least as likely as not (a 50 percent probability or greater) that any currently present right elbow disability was caused or chronically worsened by the Veteran's service-connected left elbow, left wrist, and/or right wrist disability, to specifically include any overuse/altered body mechanics resulting from such. The rationale for all opinions expressed must be provided. 3. Confirm that the VA examination report and all medical opinions provided comport with this remand and undertake any other development found to be warranted. 4. Then, readjudicate the remaining issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then return the case to the Board. 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 of Veterans' Appeals 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 (2012). ______________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs