Citation Nr: 18160206 Decision Date: 12/27/18 Archive Date: 12/26/18 DOCKET NO. 17-61 699 DATE: December 27, 2018 ORDER A rating in excess of 10 percent for right wrist strain is denied. A rating in excess of 10 percent for right ankle eversion deformity (right ankle disability) is denied. REMANDED 1. Entitlement to an effective date prior to November 26, 2014 for the assignment of a 10 percent rating for right wrist strain is remanded. 2. Entitlement to an effective date prior to November 26, 2014 for the assignment of a 10 percent rating for right ankle disability is remanded. FINDINGS OF FACT 1. The Veteran’s right wrist disability is manifested by pain and limited motion; the wrist is not ankylosed. 2. The Veteran’s right ankle disability is manifested by no more than moderate limitation of motion. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right wrist strain have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5215 (2017). 2. The criteria for a rating in excess of 10 percent for right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107, 7105 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from June 2003 to June 2007. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision issued by the Department of Veterans’ Affairs (VA) Regional Office (RO) in Augusta, Maine. The RO, in pertinent part, continued the prior noncompensable ratings for the Veteran’s service-connected right wrist and right ankle disabilities. In September 2017, the RO increased the ratings for the right wrist and right ankle disabilities to 10 percent each, effective November 26, 2014. Thereafter, and following the issuance of a statement of the case (SOC), the Veteran filed a timely substantive appeal (VA Form 9) in November 2017 wherein he made assertions with respect to the severity of his manifestations. As such, the matter of his entitlement to still-higher ratings for those two disabilities is presented for the Board’s review. In his November 2017 VA Form 9, the Veteran also expressed dissatisfaction with the effective date(s) of the 10 percent ratings assigned for his right wrist and right ankle disabilities. Inasmuch as the RO did not provide the Veteran a standard notice of disagreement (NOD) form in connection with the September 2017 rating action, the assertions in his substantive appeal may reasonably be construed as a timely NOD with respect to the effective date(s) assigned for those two disabilities. 38 C.F.R. § 20.201(b). Thus far, he has not been furnished an SOC as to those issues. See, e.g., 38 C.F.R. § 19.29. This matter is discussed in further detail, in the REMAND section, below. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If 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. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). 1. Right Wrist Strain The Veteran seeks to establish a higher rating for his right wrist disability. In his NOD, he stated that he had painful movement in the wrist after he worked at a computer for 12-hour shifts, which led to problems with stiffness, flare-ups, and weakness. In his substantive appeal, he reported that painful motion in the wrist was almost constant and that flare-ups happened without excessive use. The Veteran’s wrist strain and resulting limitation in motion are evaluated under the criteria set forth at 38 C.F.R. §4.71a, Diagnostic Code 5215. The maximum available rating available under that diagnostic code is 10 percent. The Veteran is currently in receipt of the maximum schedular rating for limitation of motion of his right wrist. As such, a higher rating cannot be awarded on the basis of functional impairment due to manifestations such as flare-ups and pain with repeated use. See, e.g., Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (indicating that consideration of functional loss due to pain under 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca v. Brown, 8 Vet. App. 202 (1995) is not required if the claimant is already in receipt of the maximum schedular rating for limitation of motion under the pertinent diagnostic code). Although higher ratings are available for ankylosis of the wrist (see 38 C.F.R. §4.71a, Diagnostic Code 5214), the record does not establish the presence of ankylosis. According, there is no basis for the assignment of a higher evaluation under the schedule. His claim for an increased rating must be denied. 2. Entitlement to a Rating in Excess of 10 Percent for Right Ankle Disability The Veteran also seeks to establish a higher rating for his right ankle disability. In his NOD, he stated that his right ankle would become painful and “lock up” after heavy use, such as with exercise or standing for long periods of time, leading to an inability to walk. He also reported stiffness in the ankle with long sitting. In his substantive appeal, he reported that painful movement and flare-ups occurred numerous times per week to daily. The Veteran’s right ankle disability and resulting limitation in motion are evaluated under the criteria set forth at 38 C.F.R. § 4.71a, Diagnostic Code 5271. Under Diagnostic Code 5271, ratings of 10 and 20 percent, respectively, are warranted for moderate and marked limitation of motion. Higher evaluations are available under other diagnostic codes for manifestations such as malunion of bones or ankylosis. See 38 C.F.R. §4.71a, Diagnostic Codes 5270, 5272, 5273. Normal range of motion in the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. See 38 C.F.R. § 4.71, Plate II. The Veteran was examined for VA compensation purposes in November 2015. He reported getting pain in the ankle during long walks. According to the examiner, no flare-ups were reported to occur, and the Veteran did not report having functional loss or functional impairment of the ankle. The initial range of motion was normal, with dorsiflexion to 20 degrees and plantar flexion to 45 degrees. There was no pain on examination or objective evidence of localized tenderness or pain on palpitation. There was also no evidence of pain with weight bearing and no crepitus. The examiner noted that the Veteran did not demonstrate additional loss of function or range of motion after repetitive-use testing, and that pain, weakness, fatigability, and incoordination did not significantly limit functional ability with flare-ups or repeated use over time. There was no evidence of reduced muscle strength or muscle atrophy, and there was no ankylosis or joint instability. The examiner concluded that the Veteran’s right ankle disability would not impact his ability to perform any type of occupational task. An April 2017 VA examination report confirmed the existence of the Veteran’s right ankle eversion deformity and progression of the previous diagnosis. The Veteran reported flare-ups resulting in increased pain and indicated that he was unable to do extended walking. On examination, dorsiflexion was limited to 10 degrees and his plantar flexion was limited to 25 degrees. The examiner also noted that there was pain on dorsiflexion; evidence of pain with weight bearing; and moderate lateral tenderness. The examiner noted that pain, fatigability, and lack of endurance significantly limited functional ability with repeated use over time and described those factors as limiting the Veteran’s dorsiflexion to 10 degrees and plantar flexion to 25 degrees. Additionally, the examiner determined that flare-ups of the Veteran’s condition further limited his range of motion, reducing plantar flexion to 20 degrees. The Veteran’s muscle strength was found to be normal and there was no ankylosis. Imaging tests failed to demonstrate the presence of arthritis. Finally, the examiner stated that there was objective evidence of pain on passive range of motion testing of the Veteran’s right ankle. There was also objective evidence of pain on non-weight bearing of the right ankle. Based upon the evidence of record, the Board finds that the preponderance of the evidence is against the assignment of rating in excess of 10 percent for the Veteran’s right ankle disability. As noted previously, normal range of motion in the ankle is dorsiflexion to 20 degrees and plantar flexion to 45 degrees. At its most limited, the Veteran’s dorsiflexion was 10 degrees and his plantar flexion was 20 degrees. In light of normal range of motion and how it relates to the Veteran’s limitations, the Board finds the Veteran’s limitation to be no more than moderate. REASONS FOR REMAND As discussed above, the Veteran has filed a timely NOD with respect to matter of his entitlement to earlier effective dates for the 10 percent ratings assigned for his service-connected right wrist and right ankle disabilities. See Introduction, supra. To date, no SOC as to those issues has been furnished. In Manlincon v. West, 12 Vet. App. 238 (1999), the United States Court of Appeals for Veterans Claims (Court) held that when an appellant files a timely NOD as to a particular issue, and no SOC is furnished, the Board should remand, rather than refer, the issue for the issuance of an SOC. Accordingly, these matters are REMANDED for the following action: Unless the claims are resolved by granting the benefits sought, or the NOD is withdrawn, furnish an SOC to the Veteran in accordance with 38 C.F.R. § 19.29, concerning the matter of his entitlement to an effective date prior to November 26, 2014 for the 10 percent ratings assigned for his service-connected right wrist and right ankle disabilities. These issues should be certified to the Board for appellate review if, and only if, a timely substantive appeal is received. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD F. Lanton, Associate Counsel