Citation Nr: 18146359 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-27 313 DATE: October 31, 2018 ORDER An initial disability rating of 10 percent, but no higher, for tendonitis of the right wrist is granted. An initial disability rating in excess of 10 percent for degenerative joint disease of the thoracolumbar spine is denied. FINDINGS OF FACT 1. Throughout the appeal period, tendonitis of the right wrist has been manifested by pain and functional limitations most nearly approximating palmar flexion limited in line with the forearm or dorsiflexion limited to less than 15 degrees. 2. The lumbar spine disability is not manifested by forward flexion greater than 30 degrees but not greater than 60 degrees, or a combined range of motion of less than 120 degrees. There is no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, or evidence of incapacitating episodes. CONCLUSIONS OF LAW 1. Throughout the course of the appeal, the criteria for the assignment of a 10 percent rating for tendonitis of the right wrist have been met. 38 U.S.C. §§ 1155, 5107; C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, DC 5215. 2. The criteria for an initial rating in excess of 10 percent for degenerative joint disease of the thoracolumbar spine are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Codes 5003-5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1990 to May 2012 in the United States Air Force. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Higher 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 degree of disability specified is considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The Board's analysis will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The probative evidence here includes the VA examination report discussed below. The Veteran’s VA treatment records and private medical records were considered, but do not contain the specific information sufficient for rating the disability under the applicable rating criteria. The Board considered has considered whether an inferred claim for a total disability based upon individual unemployability has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Basically, a TDIU award permits for the assignment of a total rating even when an individual service-connected disability or disabilities are rated as less than total. While the Veteran’s representative states that his right wrist disability impacts work, neither the Veteran nor his representative allege that he is precluded from attaining or maintaining gainful employment. Indeed, the record shows he has been employed throughout the appeal period, first with a civilian-owned jet demonstration company, and then as a maintenance superintendent and avionic manager at a local airport. While VA examiners have noted that various service-connected disabilities would have an impact on his work, no examiner found that any service-connected disability precludes him from securing or following gainful employment. Thus, while both the Veteran and VA examiners have documented some functional impact upon the ability to work due to service-connected disabilities, there is no probative evidence that any such disability precludes his ability to secure and follow a substantially gainful occupation; moreover, he is employed. The issue of a TDIU does not arise in the context of an increased rating claim when there is no allegation or evidence of unemployability. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). As such, a Rice claim is not raised. Right Wrist The Veteran was awarded service connection for his right wrist disability and assigned a noncompensable rating in the October 2012 rating decision on appeal under 38 C.F.R. § 4.71a, DC 5215. Diagnostic Codes 5214 and 5215 pertain to the wrist. DC 5214 requires evidence of ankylosis of the wrist. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (internal medical dictionary citation omitted). DC 5215 provides a maximum rating of 10 percent where palmar flexion is limited in line with the forearm or dorsiflexion is less than 15 degrees. The normal range of motion for the wrist is 70 degrees of dorsiflexion (extension) and 80 degrees of palmar flexion. Normal ulnar deviation is 45 degrees, and normal radiation deviation is 20 degrees. See 38 C.F.R. § 4.71, Plate I. The probative evidence here includes a VA examination report from May 2012. While the Veteran’s range of motion was normal, considering the pertinent evidence in light of the governing legal authority the Board nonetheless finds that a 10 percent rating is warranted for the right wrist tendonitis. Resolving any doubt in his favor, the Board finds that the requirement for 10 percent rating under DC 5215 has been approximated given the Veteran’s pain, which causes functional limitations while bearing weight, such as when pushing up with the wrist. In his substantive appeal, the Veteran further stated that his wrist pain causes difficulty using a computer, using tools at work, and holding objects like a glass or mug. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that pain may result in functional loss if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Moreover, in Burton v. Shinseki, the Court determined that 38 C.F.R. § 4.59 provides for a minimum 10 percent rating for painful, unstable, or maligned joints, which involve residuals of injuries in non-arthritis contexts. Burton, 25 Vet. App. at 4-5. However, the preponderance of the evidence is against the assignment of a rating in excess of 10 percent. As 10 percent is the maximum rating available under DC 5215, a higher rating is not possible under this code. Diagnostic Code 5214 is not applicable as the May 2012 examiner found there was no ankylosis of the wrist. Moreover, on VA examination, there were no flare-ups, repetitive use caused no loss of motion or function, and there were no other pertinent physical findings, complications, conditions, signs, or symptoms related to the right wrist disability. Any functional impairment due to pain, including on use, is contemplated in the evaluation assigned herein; there is no demonstration, by lay or medical evidence, of additional functional impairment comparable to ankylosis of the right wrist. For the foregoing reasons, the Board finds that a 10 percent rating is warranted for the Veteran’s right wrist disability, however, the preponderance of the evidence is against the assignment of any higher rating. In reaching this decision the Board considered the doctrine of reasonable doubt, however, to the extent the preponderance of the evidence is against the assignment of a rating in excess of 10 percent, the doctrine is not for application. Lumbar Spine The Veteran was awarded service connection for his lumbar disability and assigned a 10 percent rating in the October 2012 rating decision on appeal. This rating was continued in a November 2014 rating decision. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation is warranted when the forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation requires forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Ratings of 50 percent and 100 percent are assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine, or of the entire spine, respectively. Under the Formula for Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, ratings are assigned based on the quantity and duration of incapacitating episodes over a prior 12-month period. For purposes of evaluation under this formula, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician. Under this Formula, a 20 percent evaluation is warranted if incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past 12 months, a 40 percent rating is warranted if the total duration is at least four weeks but less than six weeks, and a 60 percent rating is warranted if the total duration is at least six weeks. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, and normal extension, bilateral lateral flexion, and bilateral lateral rotation is zero to 30 degrees. These rating criteria are applied with and without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are separately rated under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code, 5242, 5243, at Note (1). The probative evidence here includes VA examination reports from May 2012 and November 2014. Considering the pertinent evidence in light of the governing legal authority, the Board finds the preponderance of the evidence is against a rating in excess of 10 percent for the lumbar spine disability. On VA examination in May 2012, forward flexion was to 90 degrees or greater with painful motion beginning at 90 degrees or greater. The combined range of motion was greater than 120 degrees. The examiner stated there was no guarding or muscle spasm of the thoracolumbar spine. On VA examination in November 2014, forward flexion was to 90 degrees or greater with painful motion beginning at 80 degrees. The combined range of motion was greater than 120 degrees. The examiner stated there was no guarding or muscle spasm of the thoracolumbar spine. Thus, the evidence does not support the assignment of a 20 percent or higher disability rating on the basis of limitation of motion of the spine. The Board also finds insufficient evidence to support a finding that the Veteran’s pain is so disabling as to actually or effectively limit lumbar spine motion to such an extent as to warrant the assignment of a higher rating. The May 2012 VA examination report documented difficulty with sitting or standing for prolonged periods of time. He did not have any flare-ups. He could perform repetitive-use testing with no additional loss of motion and with no functional loss. On VA examination in November 2014, he did not have flare-ups. He could perform repetitive-use testing with no additional loss of motion. Functional loss included less movement than normal, pain, and interference with sitting, standing, or weight-bearing. Pain could significantly limit functional ability during flare-ups, or when the joint was used repeatedly over a period of time. His ability to walk in both duration and distance was unlimited, he could sit or stand for 45 minutes before changing position, and he could lift 25 pounds. The Board further considered the Veteran’s statements in his substantive appeal that his back disability restricts his ability to sit for longer than 20-30 minutes without moving/stretching, causes pain when bending forward, and precludes him from being able to cut his lawn. While the Veteran clearly experiences pain and functional loss, the Board cannot find that it approximates the level of severity as described by the next higher rating, which contemplates an abnormal spinal contour or gait or the restrictions on motion listed above. The Board finds that pain and functional loss has already been considered in awarding the current rating. As for consideration of a higher rating on the basis of “incapacitating episodes,” both the May 2012 and November 2014 VA examiners found the Veteran does not have IVDS. Given this, and as there is no record of prescribed bed rest by a physician due to the service-connected lumbar spine disability, the criteria for a higher evaluation under Diagnostic Code 5243 have not been met. As for consideration of a separate rating on the basis of neurological manifestations of the disability, in the October 2012 rating decision on appeal, the Veteran was also awarded separate ratings for sciatica of the right leg and the left leg, both effective from the day after his separation from service. In his Notice of Disagreement, the Veteran limited his appeal to the issues captioned above; he did not disagree with any aspect of the RO’s decision on his sciatica of the legs. Thus, the matters of entitlement to higher ratings for these neurological disabilities are not currently before the Board. Aside from sciatica, neither of the VA examiners found any other neurological abnormalities related to the spine disability, such as bowel or bladder problems. Thus, the preponderance of the evidence is against any further separate rating for neurological abnormalities associated with the lumbar spine disability. Finally, the lumbar spine disability has been rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5242. Hyphenated diagnostic codes are used when a rating requires use of an additional rating criteria to identify the basis for the evaluation assigned. A higher rating is not warranted under DC 5003 as the record does not show x-ray evidence of arthritis of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. (Continued on the next page)   For all the foregoing reasons, the Board finds the preponderance of the evidence is against a rating higher than 10 percent for the lumbar spine disability or any separate rating based on neurological abnormalities. M. Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Smith, Counsel