Citation Nr: 18145077 Decision Date: 10/26/18 Archive Date: 10/25/18 DOCKET NO. 09-49 047 DATE: October 26, 2018 ORDER Prior to October 13, 2011, entitlement to a disability rating in excess of 10 percent for residuals of a left navicular fracture with mild arthritis (left wrist) is denied. Effective October 13, 2011, entitlement to a disability rating of 20 percent, but no higher, is granted for residuals of a left navicular fracture with mild arthritis (left wrist). Effective September 26, 2017, entitlement to a separate disability rating of 20 percent, but no higher, is granted for muscle atrophy of the left forearm as a residual of a left navicular fracture with mild arthritis (left wrist). FINDINGS OF FACT 1. Prior to May 27, 2010, the Veteran’s left wrist disability was manifested by a mild wrist strain that created a mild functional loss. There was no x-ray evidence of involvement of 2 or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations or favorable ankylosis of the wrist in 20 degrees to 30 degrees dorsiflexion. 2. Effective May 27, 2010, the Veteran’s disability most closely approximates involvement of 2 or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 3. Effective September 26, 2017, the Veteran’s left wrist disability is also manifested by moderately severe forearm muscle atrophy. CONCLUSIONS OF LAW 1. Prior to May 27, 2010, the criteria for entitlement to a disability evaluation in excess of 10 percent for the Veteran’s service-connected left navicular fracture with mild arthritis (left wrist) had not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including § 4.7 and Codes 5003, 5214-5215. 2. Effective May 27, 2010, the criteria for entitlement to a disability evaluation of 20 percent, but no higher, for the Veteran’s service-connected left navicular fracture with mild arthritis (left wrist) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including § 4.7 and Codes 5003, 5214-5215. 3. Effective September 26, 2017, the criteria for a separate rating of 20 percent, but no higher, for the left forearm atrophy as a residual of his service connected left navicular fracture with mild arthritis (left wrist), have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including § 4.7 and Code 5307. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Entitlement to a disability rating in excess of 10 percent for residuals of a left navicular fracture with mild arthritis (left wrist). Increased Ratings Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran’s service-connected residuals of a left navicular fracture with mild arthritis has been rated by the RO under the provisions of Diagnostic Code 5215. Under this regulatory provision, a rating of 10 percent is warranted for dorsiflexion of the wrist that is less than 15 degrees; or palmar flexion limited in line with forearm. This is the maximum schedular rating. Additionally, pursuant to Diagnostic Code 5214, a 20 percent rating is assigned for favorable ankylosis of the wrist in 20 degrees to 30 degrees dorsiflexion of the minor extremity (non-dominant side). A 30 percent rating is assigned for favorable ankylosis of the wrist in 20 degrees to 30 degrees dorsiflexion of the major extremity (dominant side) or any other position, except favorable of the minor extremity. A 40 percent rating is assigned for any other position, except favorable of the major extremity or unfavorable ankylosis of the wrist in any degree of palmar flexion, or with ulnar or radial deviation of the minor extremity. A 50 percent rating is assigned for unfavorable ankylosis of the wrist in any degree of palmar flexion, or with ulnar or radial deviation of the major extremity. Additionally, pursuant to Diagnostic Code 5003, arthritis established by x- ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) 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. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of involvement of 2 or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of 2 or more major joints or 2 or more minor joints warrants a 10 percent evaluation. See 38 C.F.R. § 4,71a, Diagnostic Code 5003. For the purpose of rating disability from arthritis, the wrist is considered a major joint. See 38 C.F.R. § 4.45. Normal range of motion for the wrist is 70 degrees of dorsiflexion (extension); 80 degrees of palmar flexion; 45 degrees of ulnar deviation; and 20 degrees of radial deviation. See 38 C.F.R. § 4.71a, Plate I. In the present case, it should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. On October 2004 VA examination, the Veteran reported that the main problem with his wrist was that he had a sensation of weakness. He mentioned some “pulling” in the left forearm that went up to the elbow. He did not take any medication for the wrist and reported no incidents of flare ups; however, he reported difficulty with lifting over 50 pounds. Although he had a brace for his wrist, he admitted that he did not wear it because he did not think that it helped; and he was concerned about getting it dirty when working as a plumber. Objectively, the examiner noted that the Veteran is right-handed. On examination, the wrist appeared normal. There was a 4 cm well-healed scar over the inner left wrist with mild bony prominence beneath the scar. There was no tenderness to palpation. There was normal dorsiflexion, palmar flexion, radial deviation, and ulnar deviation. There was no pain with range of motion and he had normal use of the left hand. X-rays showed an old healed fracture with mild arthritis. He was diagnosed with chronic mild wrist strain that created a mild functional loss. A March 2010 treatment report from Dr. D.H. reflects that the Veteran had 20 degrees of left wrist dorsiflexion and 20 degrees of volar flexion. He lacked about 10 degrees of supination. X-rays revealed significant changes across the carpus and radial ulnar articulation. The assessment was post traumatic disease with daily pain. The Veteran reported that it hurts on a daily basis. Dr. D.H. reported that the only treatment to offer the Veteran was a fusion of his wrist. The Veteran had enough flexion to play the guitar and do other activities. In a December 2014 correspondence, the Veteran stated that Dr. D.H. misunderstood him; and that he could only play guitar for a few minutes without pain. On May 2010 VA examination, the Veteran stated that he had constant pain in the left wrist and was able to use it only minimally. He reported that he had flare ups during the cold and rain. However, the examiner then stated that there was no functional impairment. The Veteran used aspirin for pain. There was no history of surgery. The Veteran reported pain, stiffness, decreased speed of joint motion, limitation of motion, and severe flare ups that occurred every three to four months and lasted hours. The Veteran reported that with flare ups, he experienced difficulty with the usage of the left wrist. Notwithstanding, the examiner stated that there were no incapacitating episodes of arthritis and he did not use any assistive devices. On examination, there was bony joint enlargement, tenderness, abnormal motion, and guarding of movement. There was objective evidence of pain on movement. Dorsiflexion was to 30 degrees, palmar flexion was to 30 degrees, radial deviation was to 10 degrees, and ulnar deviation was to 10 degrees. Objective evidence of pain was not shown and there were no additional limitations following repetitive motion. There was no joint ankylosis. December 2009 X-rays showed that there was narrowing at the radiocarpal joint and possibly a mild scapholunate disassociation. He experienced pain with occupational activities. The left wrist disability had a severe effect on chores; a moderate effect on exercise, recreation, grooming, and driving; and a mild effect on shopping, feeding, bathing, and dressing. An October 2011 clinic note from Southern Orthopedic Surgeons indicated that the Veteran had increasing loss of range of motion and pain to the point that it was impacting his ability to do his normal job. On examination, there was pain in the area of the scaphoid. He lacked a little bit of full extension and flexion. He was neurologically and neurovascularly intact. X-rays revealed post-traumatic arthritis in several joints. On March 2012 VA examination, the Veteran reported that his left wrist was worse since his last VA examination. He stated that he was unable to do anything that required additional pressure/weight bearing on the wrist without significant pain in the navicular area. Even with significantly reduced activity, the left wrist was painful at the end of the day. The Veteran reported that it was hard to move his wrist during flare-ups due to increased pain. Range of motion studies revealed that the Veteran was able to palmar flex to 25 degrees with pain at 20 degrees and dorsiflex to 50 degrees with pain at 30 degrees. After repetitive motion, palmar flexion was to 30 degrees and dorsiflexion was to 45 degrees. The examiner reported that the Veteran had additional limitation in the range of motion of the wrist following repetitive-use testing. The examiner reported that the Veteran had functional loss and/or functional impairment or additional limitation of the range of motion after repetitive use due to less movement than normal, weakened movement, and pain. The Veteran had localized tenderness or pain on palpation. Wrist flexion revealed normal strength. The Veteran did not have ankylosis. The examiner reported that there was no functional impairment such that no effective function remained other than that which would be equally served by an amputation with a prosthesis. The examiner noted that October 2011 X-rays from the Veteran’s orthopedist showed extensive arthritis that involved multiple bones and joints in the wrist. The Veteran’s wrist condition impacted his ability to work as a plumber, and he had to compensate extensively with his right wrist during his job. As a result, he was developing right wrist pain. During his July 2012 Video Conference hearing , the Veteran restated prior contentions and indicated that if he did not have the current limitations with his left wrist that he could possibly get a better job that paid more money. He reported that the VA doctor, Dr. H, and Dr. M. all told him that a wrist fusion would eliminate the pain, but after such a procedure he would not be able to move his wrist backward or forwards. He was not sure if he would be able to perform his job as a plumber with such restrictions. He had tried to wear a brace, but was unable to move his fingers. The brace held the wrist in place like the fusion surgery does to the wrist. Functionally, he could button his shirt and for other activities, he used his other hand. He drove mostly with his right hand. The Board denied the Veteran’s claim in September 2012. In June 2014, the United States Court of Appeals for Veterans Claims (Court) vacated the Board’s decision. The Board then remanded the matter in May 2015 for further development. At a March 2016 VA examination, the Veteran was able to palmar flex to 10 degrees and dorsiflex to 20 degrees. The examiner stated that range of motion causes functional loss in that the Veteran has difficulty gripping with his left hand. There was pain with range of motion; and there was objective evidence of localized tenderness or pain. When asked about flare-ups, there was no response provided. However, earlier in the report, it stated that the Veteran did not report flare-ups. With regard to muscle strength, flexion and extension rate were normal (5/5). There was no muscle atrophy. The RO sought an addendum, which was provided (by a different clinician) in May 2016. The clinician was asked to estimate functional loss due to factors such as pain, weakness, fatigability, and loss of endurance. She was also asked to estimate the loss of function in the wrist in October 2004, December 2009, May 2010, March 2012, July 2012, and December 2014. The clinician stated that a response could not be rendered without speculating on past examinationss dated for greater than six years due to an absence of evidence and limited medical knowledge. The Veteran underwent another VA examination in September 2017. He reported having decreased range of motion of the left wrist all the time. He also reported that he could not lift more than 10-15 pounds with his left hand. His left upper extremity is weak due to a cast being there for eight months. The Veteran could palmar flex to 10 degrees and dorsiflex to 20 degrees. There was pain with motion. There was no additional limitation of motion upon repetitive testing. The examiner was unable to estimate to functional loss during a flare-up in terms of range of motion. The examiner noted that the Veteran had muscle atrophy in the left upper extremity. His left forearm was 20 cm. where the circumference of the more normal side was 30 cm. The Veteran had a 4 cm. by .2 cm. scar from a planned surgery. He stated that surgery was attempted but he was told that the bone was in place and no surgery was performed. The scar was not painful or unstable, and it did not have a total area of greater than 39 square cm. The Veteran had moderately severe range of motion of the left wrist associated with pain. He had difficulty using his hand to lift more than 10-15 pounds. The Veteran is in receipt of a 10 percent rating pursuant to Diagnostic Code 5215, which is the maximum allowable rating under this Code. The Board notes that the Veteran has undergone numerous examinations, and that the Veteran’s left wrist disability has not ever been shown to be ankylosed in 20 degrees to 30 degrees dorsiflexion pursuant to Diagnostic Code 5214. The Board emphasizes that it has considered the Veteran’s reports of functional limitations and symptomology, to include pain. However, the objective evidence does not support a finding that the Veteran’s service connected left wrist disability is manifested by favorable ankylosis of the wrist in 20 degrees to 30 degrees dorsiflexion (Diagnostic Code 5214) to warrant increased compensation pursuant to the provisions of 38 C.F.R. §§ 4.40, 4.45, or the holding in DeLuca. Indeed, as the Veteran is now in receipt of the maximum rating allowable based on limitation of motion (Diagnostic Code 5215), consideration of 38 C.F.R. §§ 4.40, 4.45 is not necessary. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (holding that because the maximum rating available under the diagnostic code pertaining to limitation of motion of the wrist had already been assigned, remand was not warranted for consideration of functional loss due to pain under § 4.40). Consequently, the Board finds that a rating in excess of 10 percent is not warranted under Diagnostic Codes 5214-5215. However, given that the Veteran began reporting severe flare ups that occurred every three to four months, the Board finds that a 20 percent rating is warranted effective May 27, 2010 under Diagnostic Code 5003. The Board finds that these severe flare ups, as described by the Veteran, are tantamount to incapacitating exacerbations. Additionally, the Board notes that the Veteran’s wrist disability is not only manifested by limitation of motion. It is manifested by a limitation of grip strength. In a September 2018 correspondence, the Veteran’s representative argued that a separate rating is warranted under Diagnostic Code 5307 (governing Muscle Group VII, flexion of the wrist and fingers). This Diagnostic Code provides that, for the non-dominant extremity, a noncompensable rating is assigned for a muscle injury which is considered to be slight. A 10 percent rating is assigned for a muscle injury which is considered moderate. 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. Given that distinct muscle atrophy was shown in the Veteran’s September 2017 VA examination, the Board finds that a separate rating is warranted effective September 26, 2017. The September 2017 VA examiner found that the Veteran had moderately severe range of motion of the left wrist associated with pain. The Veteran has difficulty using his hand to lift more than 10-15 pounds. Consequently, the Board finds that a separate rating of 20 percent is warranted effective September 26, 2017. A higher rating would only be warranted for muscle injury that is considered severe. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Prem, Counsel