Citation Nr: 1801407	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  14-14 587	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Saint Petersburg, Florida


THE ISSUE

Entitlement to a disability rating in excess of 10 percent for a service-connected right wrist disability. 


REPRESENTATION

Veteran represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

R. Scarduzio, Associate Counsel






INTRODUCTION

The Veteran served on active duty from September 1993 to May 1997.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 

The issue was previously before the Board in December 2015 and September 2016, where it was remanded for additional development.  It has since been returned for further appellate review. 


FINDING OF FACT

The Veteran's right wrist disability is primarily manifested by pain and limitation of motion; he is in receipt of the maximum schedular rating for his right wrist disability in the absence of ankylosis.


CONCLUSION OF LAW

The criteria for a disability rating in excess of 10 percent for service-connected right wrist disability have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5214, 5215 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

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).
The Veteran fractured his right wrist in service.  He was awarded service connection for the disability, evaluated as 10 percent disabling, in December 1997.  He asserts that the disability warrants a higher rating.  For the reasons that follow, the Board finds that an increased rating is not warranted. 

Disabilities ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from diseases or injuries incurred or aggravated during military service and the residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2017).  

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings.  See Fenderson v. West, 12 Vet. App. 119, 127 (1999).

A disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59 (2017).  Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  

Disabilities of the wrist are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5214 and 5215.  The Board notes that the Veteran is right-hand dominant and, as such, his right wrist is considered the major joint for rating purposes.  Diagnostic Code 5214 provides for a 30 percent disability rating with favorable ankylosis in 20 to 30 degrees of dorsiflexion, a 40 percent disability for ankylosis in any other positions, except favorable, and a 50 percent disability rating for unfavorable ankylosis in any degree of palmar flexion or with ulnar or radial deviation.  Diagnostic Code 5215 provides for a maximum 10 percent disability rating for dorsiflexion to less than 15 degrees or palmar flexion limited in line with the forearm.

The Board notes that for disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment.  The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain.  Such inquiry is not to be limited to muscles or nerves.  These determinations are, if feasible, to be expressed in terms of the degree of additional loss-of-motion due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain.  Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-08 (1995); 38 C.F.R. § 4.59.

As an initial matter, the Veteran is in receipt of the maximum schedular rating available under Diagnostic Code 5215.  As the maximum scheduler evaluation is in effect, no additional schedular discussion is necessary and discussion of 38 C.F.R. §§ 4.40 and 4.45 and the DeLuca and Mitchell factors is moot.  Johnston v. Brown, 10 Vet. App. 80, 85 (1995) (If the maximum schedular rating is in effect for loss of motion of a joint, and the disability does not meet the criteria for a higher evaluation under any other applicable diagnostic code, further consideration of functional loss is not required).

Diagnostic Code 5214, however, allows for higher ratings for wrist limitation where ankylosis is shown.  VA examinations in February 2012 and October 2016 indicated dorsiflexion limited to no more than 50 degrees.  While joint function was slightly diminished after repetitive use, the examiners found that there was no reduction in muscle strength or atrophy, and that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over time.  Importantly, the examiners specifically noted no ankylosis.  Treatment records during the period on appeal are not in conflict with the findings of the VA examiners.  Diagnostic Code 5214 is therefore also not applicable and a rating in excess of 10 percent is not warranted.  38 C.F.R. § 4.71a.

Based upon the above evidence of record, the Board finds a higher rating is not warranted for the Veteran's right wrist disability.  Although the record reveals limitation of motion of the wrist, there is no evidence of ankylosis.  The Board has considered whether there is any other basis for assigning a higher or separate rating but has found none.  Although VA examiner's during the period on appeal noted the presence of small, faded, superficial scars on the Veteran's right hand, there was no scar or evidence of laceration on the right wrist.  As such, a separate rating for scars is not warranted.  See C.F.R. § 4.118, Diagnostic Codes 7800-7804.  In addition, physical examination and range of motion testing of the Veteran's right hand in February 2012 was noted as unremarkable despite the Veteran's reluctance to fully extend his thumb, and the record does not include any medical evidence linking any right hand disability to the right wrist disability that would warrant a separate rating under the applicable diagnostic codes for evaluating limitation of motion of single or multiple digits of the hand.  See C.F.R. § 4.71a, Diagnostic Codes 5216-5230. 

In reaching this decision, the Board has considered the Veteran's lay statements and notes that he is competent to report his own observations with regard to the severity of his right wrist disability.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  The Board finds the Veteran's statements regarding having pain and limitation of motion in his wrist to be credible, but they are not indicative of symptomatology that is more severe than that observed at his VA examinations and do not describe symptoms that would warrant a higher rating than is currently assigned.  Even if the Veteran were to demonstrate additional loss of motion due to pain or weakness, as the current 10 percent rating based on limitation of motion absent ankylosis is the highest available, there can be no higher rating assigned due to functional loss caused by pain.  See Johnston, 10 Vet. App. 84-85 (1997).
As the preponderance of the evidence is against a finding that a higher rating is warranted for the Veteran's right wrist disability, the claim must be denied.  See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).

	
ORDER

Entitlement to a disability rating in excess of 10 percent for a service-connected right wrist disability is denied.



____________________________________________
Nathan Kroes
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs