Citation Nr: 1807442	
Decision Date: 02/06/18    Archive Date: 02/14/18

DOCKET NO.  14-18 388	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitlement to an increased evaluation in excess of 20 percent for service-connected undiagnosed illness manifested by arthralgia, fatigue, sleep disturbance, and headaches (undiagnosed illness).

2.  Entitlement to an increased evaluation in excess of 10 percent for residuals of right wrist fracture with post-traumatic arthritis (right wrist disability).  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran




ATTORNEY FOR THE BOARD

J. Ragheb, Counsel


INTRODUCTION

The Veteran served on active duty from August 1988 to October 2000.  This appeal is before the Board of Veterans' Appeals (Board) from a March 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas.  The Detroit, Michigan RO has jurisdiction of the current appeal.  

The Veteran testified at a September 2017 videoconference Board hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of the hearing is of record.


FINDINGS OF FACT

1.  For the entire appeal period, the Veteran's undiagnosed illness has more nearly approximated a disability akin to constant, or nearly constant, fibromyalgia symptoms that are refractory to therapy. 

2.  For the entire rating period on appeal, the right wrist disability has been manifested painful limitation of motion, to include dorsiflexion between 10 and 15 degrees, accompanied by weakness and lack of endurance; however, palmar flexion has always exceeded the degree in line with the forearm; ankylosis is not  manifested.





CONCLUSIONS OF LAW

1.  Resolving reasonable doubt in the Veteran's favor, the criteria for an evaluation of 40 percent, but not in excess thereof, for service-connected undiagnosed illness manifested by arthralgia, fatigue, sleep disturbance, and headaches, have been met for the entire appeal period.  38 U.S.C. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5025 (2017).

2.  The criteria for a disability rating in excess of 10 percent for the service-connected right wrist disability have not been met for any period.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5214, 5215 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  Required notice was provided by letter dated April 2010.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

As to VA's duty to assist, all necessary development has been accomplished.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Veteran's service and VA medical records, as well as Social Security Administration (SSA) disability records have been obtained, as have private medical records identified by the Veteran.  The Veteran was afforded VA examinations during the period of the claims decided herein.  Taken together, these examinations and associated reports are adequate.  Along with the other evidence of record, they provided sufficient information and a sound basis for a decision on the Veteran's claims.  38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007).  Therefore, VA has satisfied its duties to notify and assist, and there is no prejudice to the Veteran in adjudicating this appeal.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

Disability Rating Legal Authority

Disability ratings 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.  See 38 U.S.C. § 1155; 38 C.F.R. § 4.1.  If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran.  See 38 C.F.R. § 4.3.  Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).

When assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when her symptoms are most prevalent ("flare-ups") due to the extent of her pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria.  DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59.

Increased Rating for Undiagnosed Illness

The Veteran seeks a higher evaluation for the service-connected undiagnosed illness.  

The Veteran is in receipt of a 20 percent rating for the service-connected undiagnosed illness under DC 8850-5025.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27.

DC 5025, for fibromyalgia, provides a 20 percent rating for fibromyalgia, with widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headaches, irritable bowel symptoms, depression, anxiety, or Raynaud's like symptoms that are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of the time.  A 40 percent is warranted with constant, or nearly constant symptoms, and that are refractory to therapy. 

The Veteran underwent a VA examination in April 2010 where he reported pain in all of his joints, daily fatigue, sleep disturbance, and intermittent headaches (two times per month treated by over-the-counter medications and laying down).  There were no flare-ups or incapacitating episodes.  Upon examination, palpation of the Veteran's musculoskeletal system was undertaken, but there were no findings consistent with fibromyalgia.

The Veteran underwent a VA examination in October 2012 where he reported aches all over his body for which he had been treated with over-the-counter vitamin D.  It was noted that the Veteran had constant widespread musculoskeletal pain, stiffness, muscle weakness, fatigue, sleep disturbance, paresthesias, headaches, depression, anxiety, and Raynaud's-like symptoms.  It was further noted that continuous medication is required for control of the Veteran's symptoms, but that the Veteran's fibromyalgia was not refractory to therapy. 

At the September 2017 Board hearing, the Veteran reported pain throughout his body, and fatigue, as well as headaches at least three or four times per week.  The Veteran described the headaches as severe enough that he has to lay down, close his eyes, and rest.  The Veteran reported occasional dizziness associated with the headaches, and stated that he sometimes has to place a cool washcloth over his head to help relieve the headaches.  Treatment records during the appeal period do not show any treatment for the Veteran's undiagnosed illness. 

After a review of all the evidence, the Board finds that an evaluation of 40 percent is warranted for the Veteran's undiagnosed illness.  The Veteran's current 20 percent evaluation is warranted for symptoms that are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of the time; the higher (maximum) 40 percent rating is warranted for constant, or nearly constant, symptoms that are refractory to therapy.  The evidence shows that the Veteran's undiagnosed illness manifestations are constant, or nearly constant.  While the there is no medical evidence that the Veteran's undiagnosed illness manifestations or symptoms are refractory to therapy, the record reflects that the Veteran has reported the same symptoms regardless of medication used to treat such symptoms.  The Board is also assigning the higher 40 percent rating in light of the Veteran's testimony regarding the frequency and severity of all his undiagnosed illness manifestations or symptoms, especially the headaches. 

The 40 percent rating assigned is the maximum rating under 38 C.F.R. § 4.71a, DC 5025.  A review of the rating schedule indicates that there are no other applicable codes that would permit an evaluation in excess of 40 percent for this disability.  Nor is a separate rating warranted under any other diagnostic code.  The Veteran is already in receipt of a separate rating for post-traumatic stress disorder, which contemplates the Veteran's symptoms of anxiety and depression, as well as a separate rating for esophageal reflux with hiatal hernia and Barrett's esophagus, status-post nissen fundoplication, which contemplates any gastrointestinal symptoms he may have.  The Board may not assign separate ratings for the same manifestations of disability under multiple diagnoses, as such would compensate the Veteran twice for the same symptomatology and "would overcompensate the claimant for the actual impairment of his earning capacity."  Brady v. Brown, 4 Vet. App. 203, 206 (1993).  Such would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. 

Additionally, as the Veteran is receiving the maximum scheduler rating available under 38 C.F.R. § 4.71a, DC 5025, any functional loss may not be a basis to grant a higher rating because the disability is already rated at the maximum level under the pertinent diagnostic code.  Hence, a disability rating higher than 40 percent for fibromyalgia based on functional loss due to pain pursuant to 38 C.F.R. §§ 4.40 and 4.45 is not warranted.  Accordingly, the Board finds that a higher rating than 40 percent is not warranted for the Veteran's undiagnosed illness manifestations and symptoms.  38 C.F.R. §§ 4.3, 4.7.

Increased Rating for Right Wrist Disability

The Veteran seeks a higher evaluation for the service-connected right wrist disability.  He contends that he has increased right wrist pain and weakness, as well as decreased grip strength.  

The Veteran is in receipt of a 10 percent rating under 38 C.F.R. § 4.71a, DC 5010-5215.  As noted above, hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27.  The record reflects that the Veteran is right hand dominant. 

DC 5215, for limitation of motion of the wrist, provides that a maximum 10 percent rating is warranted for limitation of dorsiflexion of the wrist, with dorsiflexion limited to less than 15 degrees; a maximum 10 percent rating is provided for limitation of palmar flexion, with palmar flexion limited in line with the forearm, whether the dominant or minor wrist. 

Under DC 5214, for ankylosis of the wrist, a 30 percent rating is warranted for favorable ankylosis of the dominant wrist in 20 degrees to 30 degrees dorsiflexion.  A 40 percent rating is available for unfavorable ankylosis of the dominant wrist in any other position, except favorable.  A 50 percent rating is available for unfavorable ankylosis of the dominant wrist in any degree of palmar flexion, or with ulnar or radial deviation.  Extremely unfavorable ankylosis will be rated as loss of use of the hand under DC 5125 (loss of use of the hand).  See 38 C.F.R. § 4.71a.

The Veteran underwent a VA examination of the right wrist in April 2010 where he reported right wrist pain, weakness, and difficulty with mobility, noting that he was losing range of motion, especially dorsiflexion of his wrist, and stated that the wrist felt sore all the time, with no flare-ups, locking, instability, or lack of endurance.  Right wrist dorsiflexion was measured from 0 to 15 degrees.  Palmar flexion was measured from 0 to 45 degrees.  Radial deviation was measured from 0 to 20 degrees.  Ulnar deviation was measured from 0 to 45 degrees.  Palpation of the right wrist was free of any effusion, warmth, or redness.  Range of motion was performed without pain, fatigue, weakness, or lack of endurance, to include after repetitive use testing.  

The Veteran underwent a VA examination of the right wrist in October 2012 where he reported flare-ups of the right wrist disability brought on by weather, overuse, or repeatedly using large keys at his work at a penitentiary.  Upon examination, right wrist dorsiflexion was measured at 10 degrees, and palmar flexion was measured at 30 degrees, to include as due to pain and after repetitive use testing.  There was no localized tenderness or pain on palpation of the right wrist, but weakness of the wrist was noted.  It was assessed that the Veteran had no ankylosis of the right wrist. 

The Veteran underwent a VA examination of the right wrist in April 2015 where he reported right wrist stiffness and functional impairment due to lack of endurance, but denied flare-ups.  Right wrist dorsiflexion was measured from 0 to 20 degrees.  Palmar flexion was measured from 0 to 50 degrees.  Radial deviation was measured from 0 to 10 degrees.  Ulnar deviation was measured from 0 to 30 degrees.  There was no evidence of localized tenderness or pain on palpation of the joint or associated soft tissue.  Range of motion measurements includes repetitive use testing.  Right wrist muscle strength was normal, but there was a mild decrease in grip strength in the right hand compared to the left.  It was assessed that the Veteran had no ankylosis of the right wrist.

Medical records during the appeal picture show a similar disability picture.  See, e.g., December 2013 VA treatment record; May 2014 SSA treatment record.

After a review of all of the evidence, the Board finds that the criteria for a rating in excess of 10 percent for the right wrist disability are not met and are not more nearly approximated at any point during the appeal period.  38 C.F.R. § 4.7.  

As noted above, the criteria for limited motion of the wrist under DC 5215 do not contemplate a rating higher than 10 percent.  Regarding dorsiflexion, the criteria require less than 15 degrees.  The measurement was 15 degrees in April 2010, 10 degrees in October 2012, and 20 degrees in April 2015.  Thus, the criteria for a 10 percent rating for dorsiflexion were not met, except during the October 2012 VA examination.  Regarding palmar flexion, the criteria require essentially 0 degrees (in line with forearm).  Here, the measurement was 30 degrees in April 2010 and October 2012, and 50 degrees in April 2015.  Accordingly, a preponderance of the evidence is against a higher rating on the basis of limited motion.  

Regarding ankylosis, the evidence is decidedly against the presence of ankylosis at any time during the appeal.  There are no findings approximating complete bony fixation of the joint.  Similarly, the Veteran has not exhibited the functional equivalent of ankylosis of the right wrist.  DeLuca, 8 Vet. App. at 204-07.  Accordingly, a preponderance of the evidence is against a higher rating on the basis of ankylosis.

In sum, the Board finds that the Veteran's right wrist has been manifested painful limitation of motion, to include dorsiflexion between 10 and 15 degrees, accompanied by weakness and lack of endurance; however, palmar flexion has always exceeded the degree in line with the forearm.  For the entire rating period on appeal, the right wrist disability has not been manifested by ankylosis of the wrist.  In light of these findings, the Board concludes that a rating in excess of 10 percent for the right wrist disability is not warranted.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  See 38 C.F.R. §§ 4.3, 4.7.

Finally, the record shows that the Veteran has scars associated with the right wrist disability; however, the October 2012 and April 2015 VA examiners specifically assessed that the scars were neither painful or unstable, and that the total area of the scar is less than 39 cm; therefore, the Board finds that a separate compensable rating for the scars under DC 7801 or DC 7804 is not warranted.  38 C.F.R. § 4.118 (2017).

The Veteran has not expressly raised the matter of entitlement to an extraschedular rating.  His contentions have been limited to those discussed above, i.e., that his undiagnosed illness manifestations and the right wrist disability are more severe than is reflected by the assigned schedular rating.  As explained above in denying a higher rating, the criteria for a higher schedular rating were considered, and contemplate all of the Veteran's undiagnosed illness and right wrist symptoms and resulting functional impairment.  In view of the circumstances, the Board finds that the rating schedule is adequate, and that referral for extraschedular consideration is not warranted under the circumstances of this case.  Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014).


ORDER

For the entire rating period on appeal, an evaluation of 40 percent, but not in excess thereof, for service-connected undiagnosed illness manifested by arthralgia, fatigue, sleep disturbance, and headaches, is granted, subject to the laws and regulations governing the payment of VA benefits.

An evaluation in excess of 10 percent for the service-connected residuals of right wrist fracture with post-traumatic arthritis is denied.



______________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs