Citation Nr: 1806725 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 12-30 057 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to a compensable disability rating for service-connected postoperative ganglion cyst, dorsum of the left wrist (left wrist disability). 2. Entitlement to a compensable disability rating for service-connected ganglion cyst, dorsum of right wrist (right wrist disability). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. Bassett, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1978 to March 1981. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In November 2016, the Board remanded the case to the RO for further development and adjudicative action. In April 2017, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of her testimony is associated with the claims file. The Board notes that the Veteran has asserted that her wrist disabilities result in numbness and tingling. However, the Veteran also applied for service connection for carpal tunnel syndrome (CTS) in both wrists. These symptoms were addressed in the RO's July 2017 decision addressing the Veteran's claims for CTS. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009); 38 C.F.R. § 4.14. As such, this decision does not address symptoms associated with CTS. FINDINGS OF FACT 1. For the entire period on appeal, the left wrist disability has been manifested by painful motion, but not by ankylosis of the left wrist or total wrist replacement. 2. For the entire period on appeal, the right wrist disability has been manifested by painful motion, but not by ankylosis of the left wrist or total wrist replacement. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for a 10 percent disability rating, but no higher, for the service-connected left wrist disability have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5053, 5214, 5215 (2017). 2. Resolving reasonable doubt in favor of the Veteran, the criteria for a 10 percent disability rating, but no higher, for the service-connected right wrist disability have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5053, 5214, 5215 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). VA's duty to notify was satisfied by a letter in March 2013. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issue has been obtained. The Veteran's service and post-service treatment records, VA examination reports, and lay statements have been obtained. VA has associated with the claims folder records of the Veteran's VA outpatient treatment records, and he was afforded multiple VA examinations, in May 2011, April 2013, and June 2017. These VA examinations are adequate because the examiners discussed his medical history, described his disabilities and associated symptoms in detail, and supported all conclusions with analyses based on objective testing and observations. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran has not reported that her bilateral wrist disability has worsened since the date of the latter examination. A remand is thus not required solely due to the passage of time. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Based on the foregoing, VA has satisfied its duties to notify and assist under the governing law and regulations. II. Increased Ratings The Veteran seeks a compensable rating for her right and left wrist disabilities. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). See also Fenderson v. West, 12 Vet. App. 119, 126 (1999) (applying this concept to initial ratings). It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Pyramiding, that is the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran is in receipt of a noncompensable disability rating for the right wrist disability and the left wrist disability under 38 C.F.R. § 4.71a, Diagnostic Code 5215, for the entire increased rating appeal period. The Veteran is right hand dominant. Under Diagnostic Code 5215 (limitation of motion of the wrist), 10 percent disability ratings are warranted for palmar flexion limited in line with the forearm or dorsiflexion less than 15 degrees. Diagnostic Code 5215 does not provide for a rating in excess of 10 percent. 38 C.F.R. § 4.71a. Under 38 C.F.R. § 4.71, Plate I, the standard range of motion for the wrist is extension from 0 to 70 degrees, palmar flexion from 0 to 80 degrees, forearm pronation 0 to 80 degrees, forearm supination 0 to 85 degrees, ulnar deviation from 0 to 45 degrees, and radial deviation from 0 to 20 degrees. The United States Court of Appeals for Veterans Claims (Court) has emphasized that, when assigning a disability rating, it is necessary to consider the functional loss due to flare-ups, fatigability, incoordination, and pain on movements. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). Painful motion is entitled to at least the minimum compensable rating for a joint. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011); see also Southall-Norman v. McDonald, 28 Vet. App. 346 n.5 (2016). Here, the RO denied entitlement to a compensable rating because the Veteran's range of motion measurements did not meet the minimum criteria for a compensable rating. Further, there is no evidence of arthritis in either wrist confirmed by X-ray imaging and as such, a minimum compensable rating under Diagnostic Code 5003 is not warranted. However, the decision in the Southall-Norman case highlights that a minimum compensable rating for pain can be assigned even in the absence of X-ray imaging confirming arthritis if there is painful motion. 28 Vet. App. at 346, n.5. The Veteran's representative argued at the hearing that her wrist pain is not due to her carpal tunnel syndrome (CTS). The representative noted that the Veteran has complained of wrist pain since before her diagnosis with CTS and even after she had surgery to ameliorate the symptoms of CTS. The VA examinations and treatment notes confirm that the Veteran complained of symptoms including pain in her wrists. The Veteran reported ongoing pain in both wrists to the May 2011 VA examiner. In September 2012, she sought treatment for pain in her wrists. She reported severe constant pain in the right and left upper extremities to the April 2013 VA examiner. She reported pain, weakness, and stiffness in both wrists to the June 2017 VA examiner. Thus, the evidence shows that the Veteran has pain in both wrists, even though the criteria for a minimum compensable rating are not met. Thus, in light of the holding in Southall-Norman, the Board finds that a minimum compensable rating of 10 percent, but not higher, for each wrist is warranted for the entire period on appeal. 28 Vet. App. at 346, n.5. However, ratings in excess of 10 percent are not warranted for either the right wrist or left wrist disability. Diagnostic Code 5215 does not provide for a rating in excess of 10 percent. 38 C.F.R. § 4.71a. Further, the Veteran has not undergone a total right wrist replacement; therefore, Diagnostic Code 5053 does not apply. The VA examination reports, including the April 2013 report, indicate the Veteran has range of motion in both wrists and no ankylosis, so a disability rating in excess of 10 percent is not warranted under Diagnostic Code 5214 for ankylosis of either wrist. Accordingly, based on all of the foregoing, ratings of 10 percent, but not higher, for the Veteran's right wrist and left wrist disabilities are warranted for the entire period on appeal. ORDER Entitlement to a rating of 10 percent, but not higher, for the entire period on appeal for the service-connected postoperative ganglion cyst, dorsum of the left wrist is granted, subject to the governing criteria applicable to the payment of monetary benefits. Entitlement to a rating of 10 percent, but not higher, for the entire period on appeal for the service-connected ganglion cyst, dorsum of right wrist is granted, subject to the governing criteria applicable to the payment of monetary benefits. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs