Citation Nr: 18141351 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 10-19 002A DATE: October 10, 2018 ORDER Entitlement to an initial rating higher than 10 percent for service-connected right wrist fracture residuals is denied. Entitlement to an initial rating higher than 10 percent prior to July 9, 2009 for service-connected lower back strain is denied. Entitlement to an initial rating of 20 percent, but no higher, beginning July 9, 2009 for service-connected lower back strain is granted. FINDINGS OF FACT 1. During the appeal period, the Veteran’s right wrist fracture residuals have manifested through painful range of motion limited, at worst, to palmar flexion to 15 degrees, dorsiflexion to 15 degrees, ulnar deviation to 5 degrees, and radial deviation to 5 degrees, with stiffness, decreased grip strength, lack of endurance, and evidence of pain with weight bearing, but with no ankylosis, no muscle atrophy or reduction in muscle strength, and no x-ray evidence of arthritis. 2. From June 1, 2008 to July 9, 2009, the Veteran’s lower back strain disability manifested as no worse than combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, with forward flexion, extension, and right lateral flexion within normal limits and without pain, a 5 degree loss of right lateral rotation (with no pain), a 10 degree loss of left and right lateral flexion (due to pain), in each case with no fatigue, weakness, lack of endurance, or loss of coordination upon testing. 3. Beginning July 9, 2009, the Veteran’s lower back strain disability manifested as no worse than combined range of motion of the thoracolumbar spine not greater than 120 degrees upon flare ups, with forward flexion to 45 degrees, and extension, and lateral flexion and rotation bilaterally to 10 degrees, with pain and lack of endurance, but no muscle atrophy, ankylosis, or radiculopathy. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating higher than 10 percent for right wrist fracture residuals have not been met. See 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1 - 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5214, 5215. 2. Prior to July 9, 2009, the criteria for an initial disability rating higher than 10 percent for a lower back strain disability were not met. See 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1 - 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5237. 3. Since July 9, 2009, the criteria for an initial disability rating of 20 percent, but no higher, for a lower back strain disability have been met. See 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1 - 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1993 to May 1997, from September 2004 to May 2005, and from June 2007 to May 2008. The Veteran also had service in the Army National Guard. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision dated August 2008, which granted service connection for residuals of a right wrist fracture and for lower back strain, each rated at 10 percent effective June 1, 2008. The Veteran testified before the undersigned Veterans Law Judge during an April 2017 videoconference hearing. A transcript of that proceeding is associated with the claims file. In June 2017, the Board remanded the issues on appeal for additional development, including new VA examinations that occurred in October 2017. The Board finds the RO substantially complied with the remand instructions and an additional remand to comply with the remand directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). In June 2018, while this appeal was in remand status, the RO issued a supplemental statement of the case increasing the Veteran’s rating for his lower back strain disability from 10 percent to 20 percent, effective October 19, 2017. As the Veteran appealed the initial rating, it remains within the Board’s jurisdiction to determine whether the effective date assigned by the RO for the increase was in accordance with the facts showing the disability worsened. The Board has thoroughly reviewed all evidence in the claims file. Consistent with the law, the analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim, and the Board’s reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran must not assume the Board has overlooked evidence not explicitly discussed herein. In addition, pertinent regulations for consideration were provided in the March 2010 statement of the case and the December 2016, June 2018, and August 2018 supplemental statements of the case, and are not repeated here in full. Neither the Veteran nor his representative raised any issues with the duty to notify, the duty to assist, or the conduct of his Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding “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 or Bryant hearing deficiency argument). Thus, the Board need not discuss any potential issues in this regard. Finally, neither the Veteran nor his representative raised any other issues not addressed herein, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming Board not required to address issues unless specifically raised by claimant or reasonably raised by evidence of record). Increased Rating Disability evaluations are determined by comparing the Veteran’s symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate Diagnostic Codes identify the various disabilities and the criteria for specific ratings. Where there is a question as to which of two ratings shall be applied, the higher rating 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. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3.   1. Right wrist fracture residuals The Veteran has a 10 percent initial rating for his right wrist fracture residuals, under DC 5215. He seeks a higher rating. During the appeal period, the Veteran’s right wrist fracture residuals have manifested through painful range of motion limited, at worst, to palmar flexion to 15 degrees, dorsiflexion to 15 degrees, ulnar deviation to 5 degrees, and radial deviation to 5 degrees, with stiffness, subjective decreased grip strength, lack of endurance, and evidence of pain with weight bearing, with no ankylosis, no muscle atrophy or reduction in muscle strength, and no x-ray evidence of arthritis. See October 2017 VA examination; April 2011 VA treatment record (noting no x-ray evidence of arthritis); July 2008 VA examination (diagnosing condition as resolved fracture with residuals of pain and tingling, and noting normal range of motion except for 5-degree decrease in ulnar deviation, with no pain, fatigue, weakness, lack of endurance, incoordination, tenderness, swelling, or deformity). The highest rating available under DC 5215 for limitation of motion of the wrist is 10 percent, which the Veteran already has. Moreover, where a musculoskeletal disability is currently evaluated at the highest schedular evaluation available based upon limitation of motion, a higher rating under 38 C.F.R. §§ 4.40, 4.45, and 4.59 is not warranted. Johnston v. Brown, 10 Vet. App. 80 (1997) The Board considered the higher ratings potentially available under DC 5214 for ankylosis of the wrist, but the Veteran does not have ankylosis, which is fixation or the absence of movement of a joint. See July 2008 and October 2017 VA examinations; see also Dorland’s Illustrated Medical Dictionary 94 (31st ed. 2007) (defining ankylosis). His symptoms are not comparable to ankylosis, such that the higher rating is approximated. The criteria for a rating higher than 10 percent for right wrist fracture residuals for any portion of the appeal period have not been met. The Veteran’s claim for an increased rating is denied. The Board also considered whether a separate evaluation is warranted for any neurological abnormality associated with his right wrist fracture residuals under an appropriate Diagnostic Code. However, the weight of the medical evidence shows the Veteran’s service-connected right wrist fracture residuals have not manifested with neurological symptoms such as paralysis, neuritis, or neuralgia. The Board recognizes the July 2008 VA examiner noted the Veteran’s report of pain and tingling, and the November 2010 VA treatment record noted his subjective complaints of numbness and tingling radiating to all his right-hand fingers and decrease in grip strength. However, the weight of the medical evidence shows no objective evidence of neurological symptoms caused by his wrist condition. See July 2008 VA examination (no objective neurological abnormalities noted with respect to wrist); October 2017 VA examination (noting wrist pain but no complaint of numbness or tingling, with no objective neurological abnormalities noted); April 2011 VA treatment note (noting intermittent wrist pain with no evidence of nerve impingement); see also August 2016 VA treatment record (noting wrist pain but no complaint of numbness or tingling); April 2017 hearing transcript (description of wrist symptoms silent for numbness or tingling). On balance, the weight of the evidence shows a separate rating for a neurological abnormality is unwarranted at this time. The Board considered the applicability of the benefit-of-the-doubt doctrine and finds it inapplicable because the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 2. Lower back strain The Veteran has an initial rating of 10 percent for his lower back strain from June 1, 2008 to October 17, 2017, and 20 percent thereafter. He seeks a higher rating.   The General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) under 38 C.F.R. § 4.71a provides, in pertinent part, the following rating criteria for lumbar spine (lower back) conditions: • unfavorable ankylosis of the entire spine (100 percent); • unfavorable ankylosis of the entire thoracolumbar spine (50 percent); • forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine (40 percent); or • forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis (20 percent). • forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height (10 percent). For VA purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Note (2). Any associated objective neurologic abnormalities, including but not limited to radiculopathy, should be separately evaluated under an appropriate Diagnostic Code. See id., Note (1). The RO initially assigned a 10 percent rating based on the Veteran’s July 2008 VA examination, which showed combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees. In June 2018, the RO increased his rating to 20 percent, effective October 19, 2017, based on the Veteran’s October 2017 VA examination, which showed forward flexion limited after repeated use testing to 55 degrees. The Board finds the evidence is in at least relative equipoise that the Veteran’s lower back strain disability satisfied the criteria for a 20 percent rating, but no higher, as of July 9, 2009. On that date, the Veteran underwent physical therapy through VA, where he was noted to have lumbar forward flexion limited to 50% of normal range (i.e., 45 degrees) and extension limited to 25% of normal range (i.e., 7.5 degrees), with lateral flexion and rotation within normal limits bilaterally. These range of motion measurements satisfy the 20 percent criteria based on forward flexion greater than 30 degrees but not greater than 60 degrees, and are generally consistent with the measurements subsequently obtained at the October 2017 VA examination. The Board considered private treatment records from March 2010 relating to updated imaging and a follow up examination of the Veteran’s lower back. Those records indicate he had full 90 degrees of flexion and 10 degrees of extension, with lateral flexion and rotation within normal limits bilaterally. However, the records further note the Veteran continued to experience chronic back pain and limitations on his ability to sit or stand. Although these range of motion measurements suggest improvement as compared to the July 2009 findings, they did not capture the full extent of the Veteran’s functional loss or limitation of motion in his lower back due to pain and interference with sitting and standing. See also May 2010 VA treatment record (noting the Veteran had decreased flexion and extension with pain upon examination). The Board finds the Veteran did not meet the criteria for the next higher, 20 percent rating prior to July 9, 2009. The Veteran did not have the requisite limitations of motion. The Veteran did experience muscle spasms, but they were not severe enough to result in abnormal gait or abnormal spinal contour. See July 2008 VA examination (noting mild spasm in the lumbar area bilaterally upon examination). The Board acknowledges the contention of the Veteran’s representative that the effective date of the 20 percent rating awarded by the RO should be September 8, 2008, the date of the Veteran’s first MRI, but finds it without merit. See August 2018 VA Form 646. Contrary to the representative’s contention, the October 2017 VA examiner did not indicate on the examination report that “the severity of [the Veteran’s] back condition warranted 20% effective 09/08/2008.” Moreover, although the MRI provides additional detail regarding the physiological nature of the Veteran’s lower back condition, nothing in the medical evidence relating to the September 2008 MRI supports a higher rating under the relevant rating criteria prior to July 9, 2009. The Board also finds the Veteran has not meet the criteria for the next higher, 40 percent rating for any part of the appeal period. There is no evidence the Veteran’s forward flexion of his thoracolumbar spine is or has been 30 degrees or less, nor does the Veteran have ankylosis (fixation or the absence of movement) of the entire thoracolumbar spine, or symptoms/impairment comparable to such findings. The Board considered the possibility of awarding a higher initial rating under 38 C.F.R. §§ 4.40 and 4.45 and declines to do so. There is no indication in the medical evidence of record summarized above, including the 2017 VA spine examinations, that symptoms such as pain have resulted in additional functional loss or limitation of motion that would meet or approximate the criteria for a higher evaluation. The Board considered the 2017 VA examiner’s findings of additional limitations of motion due to pain and lack of endurance upon repeated use over time or during flare ups; however, even considering such additional limitations, they did not meet or approximate the criteria for higher rating under the General Rating Formula. As such, higher initial ratings are unwarranted under DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The Board also considered the applicability of other rating criteria, including for Intervertebral Disc Syndrome (IVDS). The Veteran does not have a diagnosis of IVDS, nor does the record contain evidence of incapacitating episodes that required bed rest prescribed by a physician and treatment by a physician. See July 2008 VA examination (noting Veteran reported two incapacitating back episodes in prior 12 month period, but not indicating they required bed rest prescribed by a physician and treatment by a physician, and not diagnosing IVDS); October 2017 VA examination (no diagnosis of IVDS). The Board also considered whether a separate evaluation is warranted for any objective neurological abnormality associated with his lower back strain under an appropriate Diagnostic Code. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). The preponderance of the medical and lay evidence shows the Veteran’s service-connected lower back strain has not manifested with neurological symptoms, such as radiculopathy, during the appeal period. See, e.g., July 2008 VA examination (noting no radiating pain into extremities); March 2010 VA treatment record (noting no radicular symptoms on examination); March 2010 private treatment record (noting no neurologic findings); May 2010 VA treatment record (noting lower back pain does not radiate); August 2016 VA treatment record (no radicular symptoms on examination); April 2017 hearing transcript (Veteran denied numbness or pain that goes down legs); October 2017 VA examination (noting negative straight leg test results and no radicular pain or other signs or symptoms of radiculopathy). A separate rating for a neurological abnormality is unwarranted. The Board acknowledges the Veteran’s contentions that his lower back strain has interfered with his employment, including his ability to travel for extended periods by car or airplane due to limits on how long he can sit. See May 2010 VA Form 9. However, such symptoms and impairments are contemplated by, and the evidence summarized above supports, the assigned disability ratings. The Board does not doubt the Veteran has had lower back symptoms such as some limitation of motion, feelings of pain, and impairments such as exacerbated pain and stiffness with extended standing and sitting. However, neither he nor his representative has cited specific, competent medical evidence that would warrant a higher rating under the relevant rating criteria. Moreover, as noted above, the Board has considered the additional limitations caused by the factors set forth in 38 C.F.R. §§ 4.40 and 4.45, and finds no higher initial ratings are warranted. In summary, a higher initial rating for the Veteran’s lower back strain disability is unwarranted from July 9, 2009. The benefit of the doubt rule under 38 U.S.C. § 5107(b) does not apply because there is not an approximate balance of evidence. See Ortiz, supra. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Leamon, Associate Counsel