Citation Nr: 18156811 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-52 599 DATE: December 11, 2018 ORDER 1. Entitlement to an initial 10 rating, but no higher, for status post right wrist fracture prior to October 5, 2016 is granted. 2. Entitlement to an initial increased rating in excess of 10 percent for status post right wrist fracture from October 5, 2016 is denied. FINDINGS OF FACT 1. Prior to October 5, 2016, the Veteran’s status post right wrist fracture was manifested by pain and limited motion. 2. From October 5, 2016, the Veteran’s status post right wrist fracture is manifested by pain and limited motion, but is not manifested by ankylosis. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial 10 percent rating, but no higher, for status post right wrist fracture prior to October 5, 2016 have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.21, 4.31, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5215. 2. The criteria for entitlement to an initial increased rating in excess of 10 percent for status post right wrist fracture from October 5, 2016 have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, DC 5215. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from November 2010 to October 2014. The Board acknowledges that the Veteran submitted a Rapid Appeals Modernization Program (RAMP) opt-in election form that was received by VA on June 13, 2018. However, the appeal had already been activated at the Board and is therefore no longer eligible for the RAMP program. Accordingly, the Board will undertake appellate review of the case. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects the Veteran’s ability to function under the ordinary conditions of daily life, including employment, by comparing the Veteran’s symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4. 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 disabilities specified are 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. The provisions regarding the avoidance of pyramiding, see 38 C.F.R. § 4.14, do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. However, those provisions should only be considered in conjunction with the DCs predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable DC. In the February 2015 rating decision on appeal, the Veteran was granted service connection for status post right wrist fracture, and assigned a noncompensable rating effective November 1, 2014. In an October 2016 rating decision, the Veteran was assigned a 10 percent rating, effective October 5, 2016. The Veteran’s status post right wrist fracture is rated under DC 5215. DC 5215 provides that limitation of motion of the major and minor wrist with palmar flexion limited in line with the forearm warrants a 10 percent disability rating. Alternatively, a 10 percent rating may be assigned for limitation of motion of dorsiflexion of the wrist less than 15 degrees. 38 C.F.R. § 4.71a, DC 5215. Higher ratings are warranted only where there is ankylosis of the wrist. Id. DC 5214. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. As the Veteran is right-handed, the major wrist disability ratings are applicable. 1. Entitlement to an initial 10 rating, but no higher, for status post right wrist fracture prior to October 5, 2016 The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence supports the award of an initial 10 percent rating, but no higher, for the Veteran’s status post right wrist fracture prior to October 5, 2016. The reasons follow. Affording the Veteran the benefit of the doubt, the Board finds that the Veteran is entitled to the minimum compensable rating of 10 percent for the service-connected status post right wrist fracture based on the application of 38 C.F.R. § 4.59, due to findings of pain and limitation of motion in the right wrist. For example, the Veteran was found to have limited extension of the right wrist in the December 2014 VA examination. The examiner also noted that the Veteran’s right wrist exhibited pain and loss of function. VA treatment records from January 2016 noted that the Veteran’s right wrist disability manifested with pain and limited range of motion. This evidence supports a finding of pain and limitation of the right wrist, which are the criteria necessary for a 10 percent rating under 38 C.F.R. § 4.59. The Board notes that a 10 percent evaluation is also the maximum available compensation available under DC 5215. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of an increased rating in excess of 10 percent for status post right wrist fracture. As the maximum rating under DC 5215 is 10 percent, DC 5215 cannot form the basis for a higher initial rating for status post right wrist fracture. As the Veteran does not contend, and the evidence does not suggest, that his right wrist is manifested with ankylosis, the Veteran may not receive a higher rating under DC 5214. For example, the December 2014 VA examination notes that the Veteran does not have any ankylosis of the right wrist. VA treatment records also do not support complaints or diagnosis of ankylosis in the Veteran’s right wrist in this part of the appeal period. In sum, the Veteran is entitled to at least the minimum compensable rating of 10 percent for the service-connected status post right wrist fracture prior to October 5, 2016, based on the application of 38 C.F.R. § 4.59 as an initial rating. However, as the preponderance of the evidence is against the claim for a rating in excess of 10 percent for the service-connected status post right wrist fracture prior to October 5, 2016, the benefit of the doubt doctrine is not for application for this evaluation, and the Veteran’s claim is denied to this extent. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. Entitlement to an initial increased rating in excess of 10 percent for status post right wrist fracture from October 5, 2016 The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of an initial increased rating in excess of 10 percent for status post right wrist fracture from October 5, 2016. The reasons follow. The Board has considered the Veteran’s complaints of pain and limitation of motion, but is unable to find that these assertions allow for a rating higher than 10 percent under DC 5215. While painful motion may be taken into consideration in the assignment of a higher rating based on limitation of motion, here, 10 percent is the maximum available rating under DC 5215 and a rating under DC 5214, the only other DC pertaining to the wrist, requires a finding of ankylosis of the wrist. The record shows affirmatively the Veteran does not have ankylosis. For example, in the October 2016 VA examination, the examiner indicated that there was no ankylosis in the Veteran’s right wrist. VA treatment records also do not support complaints or diagnosis of ankylosis in the Veteran’s right wrist in this part of the appeal period. Because 10 percent is the maximum rating for limitation of motion, as opposed to ankylosis, the regulatory provisions pertaining to functional loss are not applicable. See 38 C.F.R. §§ 4.40, 4.45, 4.59. In sum, the evidence does not show that an initial increased rating in excess of 10 percent for status post right wrist fracture from October 5, 2016 is warranted. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not for application, and the Veteran’s claim for an increased rating is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Husain, Associate Counsel