Citation Nr: 1802071 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 12-22 268 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a bilateral leg condition, to include as secondary to service-connected right lung condition. 2. Entitlement to a rating in excess of 10 percent for residuals left wrist fracture. 3. Entitlement to an effective date earlier than February 17, 2010, for the grant of service connection for a right lung condition. REPRESENTATION Veteran represented by: Pennsylvania Department of Military and Veterans Affairs ATTORNEY FOR THE BOARD J. Smith-Jennings, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1968 to September 1970. These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The May 2010 rating decision denied a rating in excess of 10 percent for residuals left wrist fracture, and denied service connection for bilateral leg circulatory problems, and service connection for a right lung condition. The RO subsequently granted service connection for a right lung condition in a March 2014 rating decision. The issue of entitlement to service connection for a bilateral leg condition, to include as secondary to service-connected right lung condition is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's residuals, left wrist fracture are manifested by pain, weakness, and limited motion, but not by ankylosis. 2. The Veteran has a moderately severe disability of Muscle Group VII related to his service-connected residuals, left wrist fracture. 3. The Veteran's arthritis does not affect two or more major joints. 4. The Veteran's left wrist scar constitutes an area less than 39 square centimeters and is not painful or unstable. 5. Service connection for a right lung condition was denied in a final decision that was issued in June 2005; the Veteran did not appeal and new and material evidence was not submitted within a year of that decision. The Veteran has not asserted that there was clear and unmistakable error (CUE) in the June 2005 decision. 6. Since the last final denial of service connection for a lung condition, the record shows that the Veteran next communicated his desire to file a claim for service connection for a right lung condition on February 17, 2010. 7. In March 2014, the RO granted service connection for a right lung condition, effective February 17, 2010, the date VA received the Veteran's claim to reopen. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for limitation of motion of the left wrist are not met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 4.1, 4.27, 4.40, 4.45, 4.59, 4.7, 4.71, Diagnostic Codes 5215-5010; 4.118, Diagnostic Codes 7801-7805 (2017). 2. The criteria for an additional, separate 20 percent rating, and no more, for a moderately severe muscle disability of Muscle Group VII associated with the service-connected residuals of a left wrist fracture are met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 4.1, 4.27, 4.40, 4.45, 4.59, 4.7, 4.73, Diagnostic Code 5307 (2017). 3. The criteria for an effective date earlier than February 17, 2010 for the grant of service connection for a right lung condition are not met. 38 U.S.C. §§5107, 5110, 7105 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.160, 3.400, 20.201, 20.302 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating The Veteran contends that he is entitled to a rating higher than 10 percent for the residuals of his left wrist fracture. In support of this assertion, he describes experiencing increased weakness and pain which limit the jobs he is able to do as an equipment operator. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities (Rating Schedule), which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). 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 (2017); 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). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful . . . joints due to healed injury as entitled to at least the minimum compensable rating for the joint." 38 C.F.R. § 4.59 (2017). The provisions of 38 C.F.R. § 4.59 are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran's left wrist disability is rated as 10 percent disabling pursuant to Diagnostic Codes 5215-5010. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27 (2017). Diagnostic Code 5215 provides that limitation of motion of the major and minor wrist with palmar flexion limited in line with the forearm warrants a 10 percent disability rating. Alternatively, a 10 percent rating may be assigned for limitation of motion of dorsiflexion of the wrist less than 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5215 (2017). Higher ratings are warranted only where there is ankylosis of the wrist. Id. Diagnostic Code 5214 (2017). Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992). The Board has considered the Veteran's complaints of increased pain, weakness, and other symptoms which limit his range of motion, but is unable to find that these assertions allow for a rating higher than 10 percent under Diagnostic Code 5215. While painful motion may be taken into consideration in the assignment of a higher rating based on limitation of motion, here, 10 percent is the maximum available rating under Diagnostic Code 5215 and a rating under Diagnostic Code 5214, the only other diagnostic code pertaining to the wrist, requires a finding of ankylosis of the wrist. At no time has the Veteran been shown to have ankylosis. Because 10 percent is the maximum rating for limitation of motion, as opposed to ankylosis, the regulatory provisions pertaining to functional loss are not applicable. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202; Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Board has also considered whether a higher rating would be warranted under Diagnostic Code 5010 in light of the degenerative joint disease diagnosis. Diagnostic Code 5010 addresses traumatic arthritis and is rated identically to degenerative arthritis under Diagnostic Code 5003. Under Diagnostic Code 5003, degenerative arthritis, which is established by x-ray, would warrant a higher rating of 20 percent if the arthritis involves two or more major joints or joint groups. The wrist is considered a major joint. 38 C.F.R. § 4.45(f) (2017). However, in this case, a rating higher than the current 10 percent is not warranted as the Veteran's arthritis does not affect two or more major joints. See 38 C.F.R. § 4.71a. Further, a rating under Diagnostic Code 5003 cannot be combined with ratings based on limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note (1). Next, the Board has considered whether a separate compensable rating for a scar associated with residuals, left wrist fracture is warranted. However, at multiple VA examinations, it was noted that the scar constitutes an area less than 39 square centimeters and is not painful or unstable. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805 (2017). Although the Veteran has had tenderness to palpation around his left wrist, it has not at any time been indicated that the scar itself causes pain. Therefore, the criteria for a separate compensable rating for the scar associated with the service-connected left wrist disability have not been met, and a separate evaluation for the Veteran's scar is not warranted. Id. Lastly, the Board has considered whether a separate compensable rating is warranted for muscle weakness associated with service-connected residuals left wrist fracture. Under Diagnostic Code 5307, the muscles in Group VII affect the flexion of the wrist and fingers. They are the muscles that arise from the internal condyle of humerus, and include the flexors of the carpus, the long flexors of the fingers and thumb, and the pronator. The Diagnostic Code assigns different ratings based on whether the injury to the muscle group is in the dominant or non-dominant extremity. During the December 2015 VA examination, the examiner indicated that the Veteran's right hand is his dominant hand. Therefore, the Veteran's left hand/wrist is his non-dominant extremity. Under Diagnostic Code 5307 for the non-dominant extremity, a 20 percent rating is assigned for a muscle injury which is considered moderately severe. A 30 percent rating is assigned for a muscle injury which is considered severe. 38 C.F.R. § 4.73, Diagnostic Code 5307. Throughout the pendency of the appeal, muscle strength testing of the left wrist (the Veteran's minor extremity) has been measured as 4/5 (consistent with active movement against some resistance) at most, with 1 cm muscle atrophy as compared to the other wrist. These findings coupled with the Veteran's description of his symptoms are indicative of moderately severe disability of the muscles, such that a separate rating of 20 percent is warranted. See 38 C.F.R. §§ 4.56(d)(3)(ii) (record of consistent complaint of the cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section, and, if present, evidence of inability to keep up with work requirements); 4.73, Diagnostic Code 5307. The criteria for a rating higher than 20 percent are not met, as the cardinal signs and symptoms worse than those shown for moderately severe muscle injuries as defined in paragraph (c) are not demonstrated. See 38 C.F.R. § 4.56(d)(4)(ii). In sum, resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran demonstrated a moderately severe disability of Muscle Group VII related to his service-connected residuals left wrist fracture. Therefore, an additional separate rating of 20 percent under Diagnostic Code 5307 is warranted. Earlier Effective Date The Veteran contends that the effective date for the grant of service connection for a right lung condition should date back to 2003 when he originally filed his claim. Generally, the effective date for an award of compensation or claim for increase is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. § 3.400 (2017). The date of entitlement is the date the claimant meets the basic eligibility criteria for the benefit. The Board notes that an application that had been previously denied cannot preserve an effective date for a later grant of benefits based on a new application. 38 C.F.R. § 3.400 (q); see Wright v. Gober, 10 Vet. App. 343, 346-47 (1997); see also Washington v. Gober, 10 Vet. App. 391, 393 (1997) ("The fact that the appellant had previously submitted claim applications, which had been denied, is not relevant to the assignment of an effective date based on a current application."). "The statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." Sears v. Principi, 16 Vet. App. 244, 248 (2002). Thus, the effective date of an award of service connection is not based on the earliest medical evidence showing a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). For the Veteran to be awarded an effective date based on an earlier claim that became final and binding, he has to collaterally attack the prior decision and show there was clear and unmistakable error (CUE) in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). By way of history, the record reflects that the Veteran first filed his claim of entitlement to service connection for a right lung condition in March 2003. The RO denied the Veteran's claim in a January 2004 rating decision. In a statement in support of the claim dated March 2004, the Veteran stated he never received a decision regarding his claim for service connection for a right lung condition. Subsequently, the RO issued a decision dated June 2005 in which it reopened the Veteran's claim, but denied entitlement to service connection. The Veteran was notified of this decision and of his appellate rights by letter dated June 2005. He did not appeal, and no new and material evidence, including new claims, was received within one year of the decision. Therefore the June 2005 decision is final. 38 U.S.C. § 7105 (b)(2)(c) (2012); 38 C.F.R. §§ 3.156 (b), 3.160(d), 20.201, 20.302(a) (2017). Subsequently, the Veteran filed a claim to reopen his claim for service connection for a right lung condition in February 2010. In a March 2014 rating decision, the RO granted service connection for a right lung condition and assigned an effective date of February 17, 2010, which is the date VA received the Veteran's claim to reopen. In sum, the record shows that from June 2005 to February 2010, VA was not in receipt of evidence indicating the Veteran's intent to file/continue a claim for benefits. To reiterate the previously stated law, the effective date is the date upon which the application for which service connection was eventually awarded was filed with VA. Here, that date is February 17, 2010; the date VA received the Veteran's claim to reopen. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim for an earlier effective date for the grant of service connection for a right lung condition. Thus, the appeal is denied. There is no doubt to be resolved as to this issue. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 49. ORDER A rating in excess of 10 percent for limitation of motion associated with the residuals of the left wrist fracture is denied. A separate 20 percent rating for moderately severe disability of muscle group VII associated with the residuals of the left wrist fracture is granted. An effective date earlier than February 17, 2010, for the grant of service connection for a right lung condition is denied. REMAND Although the Board regrets the delay, further development is necessary prior to the adjudication of the issue of entitlement to service connection for a bilateral leg condition. The Veteran seeks service connection for a bilateral leg condition. Specifically, the Veteran contends that he has a bilateral leg condition secondary to his service-connected right lung condition. In a February 2010 statement, the Veteran indicated that he experienced circulation problems in both lower extremities, which he suggested was caused by his service-connected right lung condition. December 2002 VA treatment records note that the Veteran had leukocytoclastic vasculitis of the skin with a right upper lobe cavitary lesion. September 2003 VA treatment records note that the Veteran had skin lesions that had cleared except for residual depigmentation. It is unclear whether the Veteran has a current bilateral leg condition and whether it is related to service. The Board acknowledges that the evidence of record includes a January 2016 VA respiratory condition examination report in which the examiner acknowledged the Veteran's reports of continued pain, numbness, and tingling in his legs, but opined that the Veteran does not have any pertinent physical findings, complications, conditions, signs, or symptoms related to his diagnosed lung condition. However, the examiner indicated that the Veteran's claims file was not reviewed. Therefore, the Board finds that the January 2016 VA examination is inadequate on which to decide the claim. An additional VA examiner opinion is necessary. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any bilateral leg condition. The claims file should be made available to the examiner and review of the file should be noted in the requested report. The examiner should record the full history of any identified bilateral leg disabilities, including the Veteran's competent account of his symptoms. Following review of the claims file and examination of the Veteran, if necessary, the examiner should respond to the following: (a) Does the Veteran currently have a bilateral leg condition? Please discuss any bilateral leg condition diagnoses of record including vasculitis. In determining whether the Veteran meets the criteria for a current diagnosis, please consider medical and lay evidence dated both prior to and since the filing of the February 2010 claim for service connection. Please note that although the Veteran may not meet the criteria for a diagnosis at the present time, diagnoses made prior to and since the date of claim filing meet the criteria for a "current" diagnosis. Please also note that the Veteran is competent to report symptoms, treatment, and injuries, and that her reports must be taken into account in formulating the requested opinion. For each diagnosis found please answer the following: (b) Is it at least as likely as not (50 percent probability or greater) that the diagnosed bilateral leg condition had its onset during active service or within one year of the Veteran's separation from active service, or is otherwise related to service? (c) Is it at least as likely as not that the diagnosed bilateral leg condition was caused or aggravated by the Veteran's service-connected lung condition? The examiner is asked to specifically discuss the December 2002 diagnosis of leukocytoclastic vasculitis of the skin with a right upper lobe cavitary lesion and the January 2003 VA treatment note indicating that the Veteran possibly had a vasculitis of his lower extremities related to an inflammatory lesion in the upper lobe. The examiner should also address the Veteran's representative's January 2017 arguments concerning the plausible relationship between the diagnosed vasculitis and lung condition, given the apparent resolution of vasculitis following treatment of the lung condition. All findings and conclusions should be supported with a complete rationale which reflects the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 3. Readjudicate the claim on appeal. If the benefits requested on appeal are not granted in full, the Veteran and his representative should be furnished a supplemental statement of the case and provided an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs