Citation Nr: 1806123 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 16-40 526 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 10 percent for residuals of a left radius fracture. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from January 1962 to January 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran is right hand dominant. 2. The Veteran's residuals of left radius fracture have been manifested by arthritis confirmed by x-ray evidence and full range of motion in palmar flexion and in dorsiflexion without objective evidence of painful motion or ankylosis. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for residuals of a left radius fracture have not been met or more nearly approximated for any period on appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5010-5215 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and to Assist But for the contentions regarding a VA medical examination, which are addressed below, 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). Thus, the Board finds that VA does not have a duty to assist that was unmet. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011). II. Increased Rating The Veteran's left wrist disability, residuals of a left radius fracture, has been rated 10 percent disabling since service connection was established in 1966. He contends that his left wrist disability has increased in severity and a rating higher than 10 percent is warranted. His claim for increase was received in October 2013. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Hart v. Mansfield, 21 Vet. App. 505 (2008). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The Veteran's left wrist disability, which is diagnosed as degenerative joint disease, is rated 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5010-5215. 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 rating assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. In this case, Diagnostic Code 5010 pertains to traumatic arthritis, which in turn is rated as degenerative arthritis under Diagnostic Code 5003, and 5215 refers limitation of motion of the wrist. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5215. For VA compensation purposes, normal range of motion for the wrist is dorsiflexion to 70 degrees and palmar flexion to 90 degrees with 0 degrees being the anatomical or neutral position. 38 C.F.R. § 4.71, Plate I. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. 38 C.F.R. § 4.69. The evidence of record indicates the Veteran is right-hand dominant. Therefore, his left wrist disability is rated as the minor or non-dominant wrist joint. Under the diagnostic criteria, a 10 percent disability rating is warranted for either the major or minor wrist joint 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. In addition, in every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In the absence of limitation of motion, a 10 percent rating is warranted for x-ray evidence of arthritis with evidence of involvement of 2 or more major joints or 2 or more minor joint groups, and a 20 percent rating is warranted for x-ray evidence of arthritis with evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Id. The 20 percent and 10 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion. Id., Note 1. In addition, the 20 percent and 10 percent ratings based on x-ray findings will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024. Id., Note 2. The Veteran was afforded a VA examination in December 2013. He stated he had noticed an increase in intermittent pain in his left wrist in the last few months and took Tylenol for it. He endorsed having left wrist flare-ups and avoiding lifting or carrying as a result. He denied having left wrist joint replacement or other left wrist surgical procedures. Left wrist range of motion findings were reported as palmar flexion to 60 degrees and dorsiflexion to 70 degrees with no objective evidence of painful motion in either plane of motion. After completing three repetitions of repetitive-use testing, palmar flexion and dorsiflexion each remained the same with no loss in range of motion or other functional impairment of the wrist. Other examination findings included the following: no localized tenderness or pain on palpation of the joints or soft tissue of either wrist; normal wrist strength on flexion and extension; no ankylosis of either wrist joint; and no other pertinent physical findings, complications, conditions, or signs and/or symptoms related to the left wrist disability. A left wrist x-ray examination from a prior VA examination documented arthritis. The examining physician concluded that the Veteran's left wrist disability did not impact his ability to work and left wrist functioning was not so diminished that amputation with prosthesis would equally serve the Veteran. Following the denial of his claim for an increased rating, the Veteran acknowledged in his December 2014 notice of disagreement (NOD) that the VA examination "did consider [his] pain and limitations on employment and life activities as a result of pain, swelling, and at times paralysis of motion as a result" of his service-connected left wrist injury. He asserted "this should have been considered" in the "decision to grant [him] a higher evaluation." In his August 2016 substantive appeal, he asserted he had "favorable ankylosis in 20 degrees to 30 degrees of dorsiflexion." Among VA treatment records associated with the claims file from the Cleveland VA Medical Center (VAMC) dated to February 2015 and from the Orlando VAMC, including related clinics, dated to June 2016, the last documented complaint of any left wrist pain or other symptoms occurred in May 2009, more than four years prior to receipt of the Veteran's claim for an increased rating. VA treatment records dated contemporaneously with the Veteran's current appeal for a higher left wrist disability rating are entirely silent for any complaints of left wrist pain, swelling, stiffness, freezing, locking, loss of motion, or weakness. During a February 2016 physical therapy consultation for a left knee disability, the Veteran reported he had retired from his job as an accountant. Having considered the medical and lay evidence of record, the Board finds that a preponderance of the evidence weighs against entitlement to a rating in excess of 10 percent for left wrist degenerative joint disease at any point pertinent to the claim on appeal, to include the one year look-back period prior to the October 2013 date of receipt of the Veteran's increased rating claim. See 38 C.F.R. § 3.400(o)(2) (2016) (providing compensation from the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a claim is received within 1 year from such date). Throughout the appeal, the Veteran's left wrist degenerative joint disease has been manifested by arthritis confirmed by x-ray evidence and full range of motion in palmar flexion and in dorsiflexion, without objective evidence of painful motion or loss of motion or other functional loss or impairment following repetitive-use testing. These findings are consistent with a noncompensable, or 0 (zero) percent rating based on x-ray evidence of left wrist arthritis in the absence of left wrist limitation of motion. 38 C.F.R. §§ 4.31, 4.71a, Diagnostic Codes 5003, 5010, 5215. (Because the 10 percent rating has been in effect since 1966, the rating is protected from reduction. 38 C.F.R. § 3.951(b)). A higher rating is not warranted because the left wrist is not manifested by limitation of motion, painful motion, ankylosis, or by x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Id. § 4.71a, Diagnostic Codes 5003, 5010, 5214, 5215. Considering alternative rating criteria, the Board notes that 38 C.F.R. § 4.73, Diagnostic Code 5308 provides a 20 percent rating for moderately severe or severe injury to muscle group VIII involving the wrist. However, the medical evidence of record indicates the Veteran does not have a left wrist muscle injury. Rather, on VA examination in December 2013, he had normal left wrist muscle strength on flexion and extension and no other pertinent findings demonstrated, such as muscle atrophy. Therefore, a higher rating for his left wrist disability is not warranted on the basis of any muscle injury. The Board has considered whether a higher rating is warranted on the basis of additional limitation of function per 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca, 8 Vet App. at 206-07. However, because the Veteran is already receiving the highest schedular rating available for limitation of motion of the wrist under Diagnostic Code 5215, including in the absence of actual limitation of motion, a higher rating based on factors such as painful motion or limited motion due to pain, weakness, and excess fatigability is not available. See Johnston, 10 Vet. App. at 84-85 (declining to remand a claim for an additional VA examination when the veteran was receiving the highest available schedular rating for his wrist disability). The Board acknowledges the January 2018 correspondence from the Veteran's representative asserting that he should be "afforded a VA examination to determine the current nature and severity of his service-connected disability of residuals of left radius fracture." Citing Johnston, supra, and Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992), the representative emphasized that VA must provide a new examination when a veteran claims that a disability is worse than when it was originally rated and the available evidence is too old to adequately evaluate the state of the condition. In this case, the Veteran was afforded a VA examination contemporaneously with his claim for an increased rating and those examination findings were consistent with a noncompensable rating rather than the 10 percent rating currently established since 1966. The Board recognizes that the December 2013 VA examination report may be difficult to locate in the electronic claims file because one copy of the report begins at page 289 of a 420-page VBMS document consisting of VA treatment record and the other copy is located in the Virtual VA file and labeled "CAPRI." Nevertheless, the claims file does include two copies of the December 2013 VA examination report. Thus, the evidence plainly reflects the Veteran was afforded a VA examination to assess the current nature and severity of his left wrist disability. Moreover, VA obtained contemporaneous treatment records dating to June 2016 from the Cleveland and Orlando VAMCs and related clinics. Notably, while the Veteran reported and received evaluation and treatment for other orthopedic problems such as right ring finger Dupuytren's contracture, knee problems, and foot problems, the records reflect he has not mentioned any left wrist problems since 2009, including during primary care visits or during orthopedic consultations. Here, hundreds of pages of VA treatment records spanning from the year prior to the current claim for increase to the present are entirely void of complaints or findings suggestive of either increased or even ongoing left wrist problems. While the absence of evidence does not by itself warrant a negative inference, here given the many years during which the Veteran sought treatment for multiple orthopedic and other medical disorders, a notation or reference to left wrist problems would be expected in these records if the Veteran were experiencing increasing symptoms, including intermittent paralysis and favorable ankylosis as he reported in correspondence in support of his claim. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing Fed. R. Evid. 803(7) for the proposition that "the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded"); see also Kahana v. Shinseki, 24 Vet. App. 428, 438-41 (2011) (Lance, J., concurring) (discussing the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony, as opposed to cases in which there is evidence that is relevant either because it speaks directly to the issue or allows the Board, as factfinder, to draw a reasonable inference). As such, these records support the findings of the December 2013 VA examiner and weigh against any finding of increased severity of service-connected left wrist degenerative joint disease. Regarding the representative's suggestion that a remand is warranted to provide the Veteran a VA examination, the Board is uncertain how Johnston v. Brown, 10 Vet. App. 80 (1997), supports that contention. In Johnston, the veteran claimed entitlement to an increased rating for a left wrist disability (among other claims), he was afforded a VA examination in connection with the claim, and the Court affirmed the Board's decision denying an increased rating, finding the Board's decision plausible and, therefore, not clearly erroneous. Johnston, 10 Vet. App. at 84-85. In Proscelle, the Court held that the record was inadequate for evaluating the current state of a veteran's service-connected disability because while the veteran claimed that his disability increased in severity in 1989, the most recent examination of his service-connected disability had been conducted in 1985. Proscelle, 2 Vet App. at 632. This case is distinguished from Proscelle because VA did provide the Veteran with a VA examination in connection with his claim for an increased rating and obtained pertinent, contemporaneous treatment records dated to June 2016. For these reasons, the Board finds that the medical evidence of record, including the December 2013 VA examination report, is sufficient to decide the claim, the evidence is not too old to evaluate the severity of the wrist disability, and VA is not required to obtain an additional examination to evaluate the disability. In summary, the Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for the Veteran's service-connected residuals of left radius fracture, diagnosed as left wrist degenerative joint disease, 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 (2017). ORDER Entitlement to a rating in excess of 10 percent for residuals of a left radius fracture is denied. ____________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs