Citation Nr: 18150294 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 10-25 964 DATE: November 14, 2018 ORDER An initial compensable evaluation of the service-connected left wrist disability is denied. An initial compensable evaluation of the service-connected right wrist disability is denied. An initial compensable evaluation for the service-connected right thumb strain is denied. An initial evaluation in excess of 10 percent for the service-connected left ankle disability is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s left wrist has maintained full range of motion, except for slightly reduced palmar flexion after three repetitions on the December 2015 VA examination, and there is no evidence of additional functional loss. 2. Throughout the appeal period, the Veteran’s right wrist has maintained full range of motion, and there is no evidence of additional functional loss. 3. Throughout the appeal period, the Veteran’s right thumb has maintained full range of motion, and there is no evidence of any functional loss. 4. Throughout the appeal period, the Veteran’s left ankle has maintained at most a moderate limitation of motion, and there is no evidence of functional loss rising to the level described by criteria for a 20 percent evaluation. CONCLUSIONS OF LAW 1. The criteria for establishing an initial compensable evaluation of the service-connected left wrist disability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Codes 5015, 5215. 2. The criteria for establishing an initial compensable evaluation of the service-connected right wrist disability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5215. 3. The criteria for establishing an initial compensable evaluation for the service-connected right thumb strain have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5228. 4. The criteria for establishing an initial evaluation in excess of 10 percent for the service-connected left ankle disability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5271. REFERRED CLAIM The issue of an increased evaluation for the service-connected left knee femoropatellar syndrome was raised in a statement in the Veteran’s June 2010 substantive appeal, and has not been addressed by the Agency of Original Jurisdiction (AOJ). It is referred to the AOJ for adjudication. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Air Force from July 1982 to September 1986 and from January 1989 to August 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in August 2015, August 2016, and August 2017, when it was remanded for Agency of Original Jurisdiction (AOJ) development. The case has been returned to the Board for further appellate review. The Veteran was initially assigned a noncompensable rating for his left ankle disability, which the RO increased to a 10 percent evaluation for the entire period on appeal in a December 2015 rating decision. As the Veteran has not expressed satisfaction with the grant of a 10 percent evaluation, the issue of entitlement to a higher rating remains on appeal. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993) (a veteran is presumed to seek the maximum benefit permitted under the regulations). Increased Rating Claims—Laws and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. § 4.10; see generally Schafarth v. Derwinski, 1 Vet. App. 589 (1991). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation of parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance. 38 C.F.R. §4.40. The functional loss may be due to the loss of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, and evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a body part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of sections 4.40 and 4.45, pertaining to functional impairment. DeLuca, 8 Vet. App. at 207-08. In applying these regulations, VA must obtain examinations in which the examiner determines whether the disability was manifested by pain, weakened movement, excess fatigability, incoordination, and flare-ups which resulted in functional loss. These determinations, if feasible, should be expressed in terms of the degree of additional range-of-motion loss due to those factors. DeLuca, 8 Vet. App. at 207-08; see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Finally, painful motion is an important factor of disability with any form of arthritis. 38 C.F.R. § 4.59. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability; actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. Right and Left Wrist Disabilities The Veteran generally contends an increased rating is warranted for his service-connected right and left wrist disabilities. In his July 2009 notice of disagreement, he asserted that he had severe symptoms of these disabilities and requested the next higher evaluation for each of them. In an October 2018 brief, the Veteran’s representative reported that the Veteran experiences flare-ups marked by pain, reduced movement and motion, stiffness, and immobility. The Veteran is in receipt of a noncompensable rating for his left and right wrist disabilities under Diagnostic Code (DC) 5299-5215; DC 5215 governs disability ratings based on limitation of motion of the wrist. Under DC 5215, a 10 percent rating is warranted for limitation of dorsiflexion of the wrist to less than 15 degrees, or for palmar flexion limited in line with the forearm. This is the maximum possible schedular rating under DC 5215. 38 C.F.R. § 4.71a, DC 5215. Higher ratings are available under DC 5214 for ankylosis of the wrist. The Board notes the Veteran is also assigned a noncompensable evaluation under DC 5099-5015 for a lytic lesion on his left wrist; DC 5015 governs benign new growths of bone, and is rated under limitation of motion of the affected part. The Veteran has been afforded four VA examinations in relation to the wrist disabilities. In April 2008, the examiner identified a bilateral wrist strain. The Veteran’s range of motion in both wrists was measured as 70 degrees in dorsiflexion, without pain, and 80 degrees in palmar flexion, without pain. Ulnar deviation in both wrists was 45 degrees, without pain, and radial deviation was 20 degrees. The examiner noted that there was no change in active or passive range of motion during repetitive use testing, nor any change in range of motion due to painful motion, weakness, impaired endurance, incoordination, instability or acute flares. At the December 2012 VA wrist examination, the Veteran reported that the right wrist had gotten better and that he was not currently having issues with it. He also reported that he did not experience flare-ups in either wrist. The examiner identified a bilateral wrist strain, describing it as quiescent, and a bony lesion in the distal ulnar diaphysis of the left wrist. The Veteran’s range of motion in both wrists was measured as 70 degrees in dorsiflexion, without pain, and 80 degrees in palmar flexion, without pain. Ulnar deviation in both wrists was 45 degrees, without pain, and radial deviation was 20 degrees. The range of motion remained the same after repetitive use testing, and there was no functional loss or additional limitation due to weakness, fatigability, incoordination, pain, swelling, deformity, or atrophy. At the December 2015 VA wrist examination, the Veteran reported that the wrist disabilities did not produce any functional limitation. He reported that he regularly worked at a computer and his right arm would fatigue with mouse work, but that he was able to complete a 300-mile bike ride that year without complaint. The Veteran reported that he suspected the symptoms were more significant when he initially filed his notice of disagreement with the evaluations of his left and right wrist disabilities. The Veteran denied experiencing numbness or weakness, needing a splint, or requiring significant adaption on either wrist. The range of motion of the right wrist was measured as 80 degrees in dorsiflexion; 80 degrees in palmar flexion; 45 degrees in ulnar deviation; and 20 degrees in radial deviation. The range of motion of the left wrist was measured as 80 degrees in dorsiflexion; 75 degrees in palmar flexion; 40 degrees in ulnar deviation; and 25 degrees in radial deviation. No objective evidence of pain was noted in either wrist, and there was no additional loss of function in the right wrist after three repetitions. In the left wrist, the palmar flexion was reduced to 65 degrees and radial deviation to 25 degrees after three repetitions. The Veteran did not report any flare-ups. At the September 2017 VA examination, the Veteran reported that his bilateral wrist strain had improved, and that he did not experience pain, instability, or swelling in his activities of daily living. He reported that he had not sought treatment for his wrist disabilities, nor had he required self-medication or use of a brace. The Veteran reported that, most of the time, his wrists were asymptomatic and that he had no difficulty gripping or grasping objects, using a keyboard, writing, or driving. He reported that, occasionally, after repetitive heavy lifting at the gym or large repetitions of pushups, he would experience mild soreness and aches in the wrists, which would resolve with rest. The Veteran’s range of motion in both wrists was measured as 70 degrees in dorsiflexion; 80 degrees in palmar flexion; 45 degrees in ulnar deviation; and 20 degrees in radial deviation. There was no evidence of pain on motion or weight-bearing, and no crepitus. The examiner noted tenderness on palpation of both wrists in the over extensor region. There was no functional loss after three repetitions in either wrist, and muscle strength testing was all normal. There was no change in range of motion on weight-bearing or passive testing. The examiner noted that the left wrist was not misaligned in any way; there was no evidence of misalignment on the x-rays in the record nor on physical examination. There are no VA treatment records aside from the examination reports described above. Also, as noted above, the Veteran reported that he did not see a private physician for treatment for the wrist strains. After review of the above evidence, the Board finds that compensable evaluations are not warranted for the left and right wrist disabilities. None of the evidence indicates a range of motion limited to less than 15 degrees in dorsiflexion or palmar flexion limited in line with the forearm, and there is no evidence of ankylosis of any kind. Further, the record does not reflect functional loss due to pain, weakened movement, excess fatigability, or incoordination. Although the Veteran reported flare-ups resulting in stiffness, reduced motion, and pain in the October 2018 brief, he did not describe these flare-ups to any of the examiners. The only periods of pain or fatigue he reported to the examiners were consistent with overuse – long hours of computer work, heavy lifting in the gym, or large sets of pushups. The Veteran noted that such exertion resulted in soreness or mild aches that resolved themselves with rest, and did not report any functional loss during these periods. These symptoms are not descriptive of disability such that the next higher evaluation is warranted for the left and right wrist disabilities. Accordingly, the claims for an increased initial evaluation for the left and right wrist disabilities are denied. Right Thumb The Veteran contends an increased rating is warranted for his service-connected right thumb strain. In his July 2009 notice of disagreement, he asserted that he had severe symptoms of this disability and requested the next higher evaluation for each of them. In an October 2018 brief, the Veteran’s representative reported that the Veteran experiences flare-ups marked by pain, reduced movement and motion, stiffness, and immobility. The Veteran has been assigned a noncompensable rating for his right thumb strain disability under DC 5299-5228; DC 5228 governs limitation of motion of the thumb. Under this code, a noncompensable evaluation is assigned for motion limited to a gap less than one inch between the thumb pad and fingers, with the thumb attempting to oppose the fingers. A 10 percent evaluation is assigned for a gap of one to two inches, and a 20 percent evaluation is assigned for a gap of more than two inches. The Veteran has been afforded four VA examinations in relation to the right thumb disability. At the April 2008 VA examination, the Veteran reported pain only with hyperextension, and no paresthesias. The examiner identified a right thumb musculoskeletal strain. The Veteran had a full range of motion in the right thumb, and no tenderness on palpation. The examiner noted that there was no change in active or passive range of motion during repetitive use testing, nor any change in range of motion due to painful motion, weakness, impaired endurance, incoordination, instability or acute flares. At the December 2012 VA examination, the Veteran reported that he had “nagging rare pain” in his right thumb after being hit with a basketball during service. The examiner identified a right thumb strain, describing it as quiescent. The Veteran’s range of motion in the right thumb was normal, as there was no gap between the thumb pad and fingers, and there was no objective evidence of painful motion in the right thumb. The range of motion remained the same after repetitive use testing, and there was no functional loss or additional limitation due to weakness, fatigability, incoordination, pain, swelling, deformity, or atrophy. Hand grip testing was normal. At the December 2015 VA examination, the examiner identified the diagnosis as right thumb strain, resolved. Veteran denied any numbness or need for a splint on the right thumb, and reported that typing, gripping, and throwing were all normal, with no difficulty involving the right thumb. The Veteran’s range of motion of the right thumb was normal, with no gap between the thumb pad and fingers. There was no additional loss of function in the right thumb after repetitive use testing, and no pain, weakness, fatigability, or incoordination was noted on examination. Hand grip testing was normal, there was no atrophy noted, and the Veteran did not report any flare-ups. At the September 2017 VA examination, the Veteran reported that his right thumb had remained the same since the previous examination, and there were no injuries or fractures since then. He reported that the thumb disability did not interfere with his regular activities of daily living, and he was able to grip and grasp, write, use a keyboard, and drive normally. The Veteran did not report any flare-ups. The Veteran’s range of motion in the right thumb was normal, with no gap between the thumb pad and fingers, with no objective evidence of painful motion. The examiner noted mild tenderness on palpation over the base of the thumb, consistent with a musculoskeletal strain. There was no functional loss after three repetitions, and hand grip strength testing was normal. There are no VA treatment records aside from the examination reports described above. The Veteran has not indicated that he has sought treatment from any private physicians for the right thumb disability. After review of the above evidence, the Board finds that a compensable evaluation is not warranted for the right thumb disability. The Veteran’s range of motion in the right thumb was normal throughout the appeal period. Although the October 2018 brief described flare-ups resulting in stiffness and pain, the Veteran did not report such symptoms to any of the examiners, nor did he describe any functional loss resulting from his right thumb strain. Accordingly, a compensable evaluation of the service-connected right thumb strain is not warranted. Left Ankle The Veteran contends an increased rating is warranted for his service-connected left ankle disability. In his July 2009 notice of disagreement, he asserted that he had severe symptoms of this disability and requested the next higher evaluation for each of them. In an October 2018 brief, the Veteran’s representative reported that the Veteran experiences flare-ups marked by pain, reduced movement and motion, stiffness, and immobility. The Veteran is currently in receipt of a 10 percent evaluation for his left ankle disability under DC 5271. These criteria assess limitation of motion of the ankle as either moderate, warranting a 10 percent rating, or marked, warranting a 20 percent rating. Higher ratings for the ankle are warranted only when the ankle is ankylosed. 38 C.F.R. § 4.71a, DC 5270. The words “moderate” and “marked,” as used in the various diagnostic codes, are not defined in the VA Schedule for Rating Disabilities. The use of these terms by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The Veteran has been afforded four VA examinations in relation to the left ankle disability. In April 2008, the Veteran reported difficulty walking down hills due to weakness in his ankles. He also reported flare-ups 3 to 4 times a week, and that his right ankle was worse than his left. The examiner identified an acute and chronic musculoskeletal strain. The Veteran’s range of motion in the left ankle was measured as 45 degrees in plantar flexion and 20 degrees in dorsiflexion. The examiner noted that there was no change in active or passive range of motion during repetitive use testing, nor any change in range of motion due to painful motion, weakness, impaired endurance, incoordination, instability or acute flares. At the December 2012 VA ankle examination, the Veteran reported that he had more problems with his right ankle than with his left, which hurts very occasionally. He reported minimal left sided discomfort. The examiner identified a left ankle strain, describing it as quiescent. The Veteran’s range of motion in the left ankle was measured as 45 degrees in plantar flexion and 20 degrees in dorsiflexion, with no objective evidence of painful motion. The range of motion remained the same after repetitive use testing, and there was no functional loss or additional limitation due to weakness, fatigability, incoordination, pain, swelling, deformity, or atrophy. Strength testing was all normal and the left ankle revealed no laxity or instability. At the December 2015 VA ankle examination, the Veteran reported that occasionally he experiences a sharp pain in his left ankle for a brief moment when walking his 20-pound dog, but that otherwise, the ankle disability did not produce any functional limitation. The Veteran’s range of motion in the left ankle was measured as 45 degrees in plantar flexion and 18 degrees in dorsiflexion, with no pain noted on examination. There was no additional loss of function in the left ankle after repetitive use testing or repeated use due to pain, weakness, fatigability, or incoordination. Strength testing was normal, there was no atrophy noted, and the Veteran did not report any flare-ups. At the September 2017 VA examination, the Veteran reported that his ankles had remained the same since the previous examination, and there were no injuries or fractures since then. He reported recurrent aches and pain when physically active, such as running, walking distances, running or walking downhill for some time, or hiking, but no significant swelling, redness, or instability. He reported that the ankle disability did not interfere with his regular activities of daily living. The Veteran did not report any flare-ups. The Veteran’s range of motion in the left ankle was measured as 35 degrees in plantar flexion and 15 degrees in dorsiflexion, with no objective evidence of painful motion. There was no evidence of pain on motion or weight-bearing, and there was crepitus. The examiner noted mild tenderness on palpation over the lateral aspect of the soft tissue, consistent with ankle strain and mild osteoarthritis. There was no functional loss after three repetitions, and muscle strength testing was all normal. There was no change in range of motion on weight-bearing or passive testing. There are no VA treatment records aside from the examination reports described above. The Veteran has not indicated that he has sought treatment from any private physicians for the left ankle disability. After review of the above evidence, the Board finds that an evaluation in excess of 10 percent is not warranted for the left ankle disability. The Veteran’s range of motion in the left ankle was essentially normal throughout the early part of the appeal period, and beginning with the December 2015 VA examination, he began to show slight limitation in motion, with a maximum loss of 10 degrees in plantar flexion and 5 degrees in dorsiflexion. These results cannot be described as marked limitation of motion in the ankle, nor are they descriptive of ankylosis of the joint. Further, the record does not reflect evidence of functional loss meriting an increase to a 20 percent evaluation. The Veteran complained of aches and pain after physical exertion such as running, and occasional sharp pain when walking the dog, but the Veteran has not asserted that he is precluded from or limited by his ankle in these activities. There is likewise no evidence of weakness, instability, or incoordination in the joint that contributes to any functional loss. Accordingly, an evaluation in excess of 10 percent is not warranted under DC 5271 for the Veteran’s left ankle disability. The Board has considered other applicable diagnostic codes, including DC 5003, which allows for evaluations based on degenerative arthritis. However, the criteria for an evaluation in excess of 10 percent requires involvement of 2 or more major joints or minor joint groups, with occasional incapacitating exacerbations. Here, although the Veteran reported aches after walking downhill for some time, there is no evidence in the record of incapacitation due to the left ankle at any point. Other diagnostic codes relating to the foot and ankle are not applicable, as the record does not reflect any evidence of astragalectomy or malunion of any of the bones in the ankle. The Veteran therefore would not benefit from rating under different diagnostic criteria. For these reasons, the Board finds that an initial evaluation in excess of 10 percent for the service-connected left ankle disability is not warranted. ROMINA CASADEI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Josey, Associate Counsel