Citation Nr: 18140928 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-25 760 DATE: October 9, 2018 ORDER An evaluation in excess of 10 percent prior to March 17, 2017, for right wrist tendonitis is denied. A 30 percent, but not higher, evaluation for right wrist tendonitis for the period beginning March 17, 2017, is granted, subject to the law and regulations governing the payment of monetary benefits. REMANDED Entitlement to a rating in excess of 20 percent for right shoulder muscular strain is remanded. FINDINGS OF FACT 1. Prior to March 17, 2017, the evidence demonstrates that the Veteran’s right wrist tendonitis is characterized by mild incomplete paralysis of the median nerve. 2. Beginning March 17, 2017, the evidence of record demonstrates that the Veteran’s right wrist tendonitis is characterized by moderate incomplete paralysis of the median nerve. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right wrist tendonitis prior to March 17, 2017, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.124a, Diagnostic Code (DC) 8515-5215 (2017). 2. The criteria for a 30 percent rating, but not higher, for right wrist tendonitis beginning March 17, 2017, have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.124a, DC 8515-5215 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2000 to January 2004. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Increased Ratings Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified by the schedule are considered adequate to compensate veterans for considerable loss of working time from exacerbation or an illness proportionate to the severity of the several grades of disability. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in this decision is, therefore, undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Right Wrist Tendonitis The Veteran’s right wrist tendonitis is rated under 38 C.F.R. § 4.84a, DC 8515-5215. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. In this case, the hyphenated diagnostic code indicates that tendonitis, under Diagnostic Code 8515, is the service-connected disability and limitation of motion, under Diagnostic Code 5215, is a residual condition. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the particular nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123. The Veteran’s right upper extremity disability is rated under DC 8515. This DC provides ratings for both the “minor” and the “major” wrist. In this context “minor” and “major” refer to the dominant or nondominant side; for example, the right wrist would be the major wrist for a right handed person. This DC addresses complete and incomplete paralysis of the medial nerve. Under DC 8515, mild incomplete paralysis of the minor or major wrist warrants a 10 percent rating. 38 C.F.R. § 4.124a. Moderate incomplete paralysis warrants a 20 percent rating for the minor wrist and a 30 percent rating for the major wrist. 38 C.F.R. § 4.124a, DC 8515. Severe incomplete paralysis warrants a 40 percent rating for the minor wrist and a 50 percent rating for the major wrist. Id. Complete paralysis with the hand inclined to the ulnar side, the index and middle fingers more extended than normal, considerable atrophy of the muscles of thenar eminence, the thumb in the plane of the hand; pronation incomplete and effective, absence of flexion of the index finger and feeble flexion of the middle finger, that cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of the thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; and pain with trophic disturbances warrants a 60 percent rating for the minor wrist and a 70 percent disability rating for the major wrist. Id. The Board notes that the terms “mild,” “moderate,” “moderately severe,” and “severe” are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Although a medical examiner’s use of descriptive terminology such as “mild” is an element of evidence to be considered by the Board, it is not dispositive of an issue. The Board must evaluate all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In addition, the Veteran is competent to describe his symptoms and their effects. See Layno v. Brown, 6 Vet. App. 465 (1994). While she is credible to the extent that she sincerely believes she is entitled to a higher rating, she is not competent to identify a specific level of disability according to the appropriate code, as this is a complex medical determination outside the realm of common knowledge of a lay person. See, e.g., Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Veteran’s contentions regarding the appropriate rating are outweighed by the competent medical evidence that evaluates the true extent of his disability. 1. Evaluation in Excess of 10 Percent Prior to March 17, 2017 The Veteran’s right wrist tendonitis disability is currently rated as 10 percent disabling Diagnostic Code 8515. The Veteran received a VA examination in June 2012 and the examiner noted that she was right hand dominant. The Veteran indicated that she got periodic tendonitis in her right flexor tendons, but had steroid injections that gave her relief. She also wore a wrist splint. The Veteran did not report any flare-ups. Upon examination, palmar flexion ended at 80 degrees or greater with no objective evidence of painful motion, and dorsiflexion ended at 70 degrees or greater with no objective evidence of painful motion. Range of motion measurements were the same after repetitive use testing. The examiner indicated that there was no functional loss and/or functional impairment of the wrist, and muscle strength testing showed there was normal strength for wrist flexion and extension. The Veteran did not have ankylosis of the wrist joint. After careful consideration, the Board finds that a rating in excess of 10 percent prior to March 17, 2017, is not warranted. The Board finds the June 2012 VA examination highly probative and concludes that a higher rating for moderate severe or severe incomplete paralysis is not justified. The Veteran’s symptoms do not appear to be so chronically pervasive to justify a higher rating, based on competent, credible examination reports indicating that there was no pain. For these reasons, the Veteran is entitled to a rating of no greater than 10 percent. 38 C.F.R. § 4.124a, Diagnostic Code 8515. The 10 percent rating for the right wrist is the highest available schedular rating because the Veteran is right handed. See 38 C.F.R. § 4.71a, Diagnostic Code 5215. Therefore, 38 C.F.R. §§ 4.40 and 4.45, and the decision in DeLuca are not for consideration because the Veteran is already in receipt of the maximum schedular rating available for limitation of motion. 2. Evaluation in Excess of 10 Percent after March 17, 2017 The Veteran received a VA examination on March 17, 2017. The examiner noted the right wrist tendonitis diagnosis from 2002, and also diagnosed her with right wrist strain. The right wrist strain was a progression of the tendonitis, and the Veteran related worsening pain and symptoms that affected daily activities. The Veteran also reported flare-ups that were described as pain. She had numbness and tingling in her hand and the pain moved and radiated into her upper back. She could not use her right hand like before, as it would cramp and spasm, causing her to drop things. Upon examination, palmar flexion ended at 60 degrees and dorsiflexion ended at 50 degrees. The range of motion did not cause functional loss, and there was no additional loss of function or range of motion after three repetitions. The Veteran indicated that her disability interfered with repeated motions and holding. Her muscle strength was normal, and there was no muscle atrophy. There was also no ankylosis. At the outset, the Board notes that the Veteran is competent to describe her symptoms and their effects. See Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran competently described the decreased functioning in her right wrist and how it affected her daily activities. Furthermore, the medical examination revealed decreased ranges of motion of the right wrist, which indicates that the Veteran’s condition worsened. Therefore, in light of the Veteran’s statements and the objective medical evidence, the Board finds that her right wrist tendonitis manifested with moderate incomplete paralysis of the median nerve beginning March 17, 2017. A 50 percent evaluation is not warranted because the evidence does not suggest that the Veteran’s right wrist tendonitis resulted in severe incomplete paralysis of the median nerve. Although her symptoms worsened, the Veteran still exhibited normal muscle strength on examination and she did not show decreased ranges of motion on repetitive use. Finally, a 70 percent evaluation is not warranted because there was no complete paralysis of the median nerve. REASONS FOR REMAND 1. Right Shoulder The Veteran’s last VA examination for her right shoulder disability was in March 2017. The Board has reviewed that examination report and notes that it is not adequate, as the examiner did not provide any passive, weight-bearing or nonweight-bearing range of motion testing results. The examiner did, however, note that there was objective evidence of pain on passive and nonweight-bearing range of motion testing. Consequently, the Board must remand the claims in order for another VA examination to be accomplished. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Correia v. McDonald, 28 Vet. App. 158 (2016) (38 C.F.R. § 4.59 requires that VA examinations include joint testing 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). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court also noted that for a joint examination to be adequate, the examiner “must express an opinion on whether pain could significantly limit” a veteran’s functional ability, and that determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Furthermore, the Court stated that the examiner must “obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves.” Sharp, 29 Vet. App. at 34. The examiner must also “offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans,” and the examiner’s determination “should, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. Id. at 10. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination so as to determine the current severity of her right shoulder disability. The claims file must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Full range of motion testing must also be performed. The right shoulder must be tested in both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with the range of the opposite undamaged left shoulder. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also request the Veteran identify extent of her functional loss during flare-ups and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of flare-ups on the Veteran’s range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel