Citation Nr: 1808351 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 09-46 974 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for residuals of fracture, right carpal navicular with degenerative changes. 2. Entitlement to a disability rating in excess of 30 percent for bilateral pes planus with bilateral bunionectomy. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD M. C. Wilson, Counsel INTRODUCTION The Veteran served on active duty from July 1977 to August 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision that was issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, in September 2008. The Veteran requested a Board hearing in his November 2009 substantive appeal (VA Form 9) and later withdrew this request in August 2014. Thus, the hearing request is deemed withdrawn and the Board will proceed with review of his appeal. 38 C.F.R. § 20.704(e) (2017). In October 2017, the Veteran submitted a timely notice of disagreement with the RO's July 2017 denial of claims for service connection for hypertension and type II diabetes mellitus. The RO recently issued a statement of the case (SOC) in February 2018, but the Veteran has not perfected his appeal as to these issues. Thus, these issues are not before the Board at this time. See 38 U.S.C. § 7105(a) (2012); 38 C.F.R. § 20.202 (2017); Evans v. Shinseki, 25 Vet. App. 7 (2011). In correspondence dated in September 2016 and a November 2016 Informal Hearing Presentation, the Veteran raised the issue of his entitlement to service connection for hepatitis C and indicated that he would like the RO to address the matter of VA's adjustment of his compensation benefits payments. As these issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issue of the Veteran's entitlement to an increased rating for bilateral pes planus with bilateral bunionectomy is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT Throughout the appeal period, the Veteran has been in receipt of the maximum schedular rating available for residuals of fracture, right carpal navicular with degenerative changes; ankylosis of the wrist is not shown or claimed. CONCLUSION OF LAW A schedular rating higher than 10 percent for residuals of fracture, right carpal navicular with degenerative changes, is not available. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5215 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1 (2017). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3 (2017). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) later clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. In that regard, the Board notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. See Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Here, the Veteran's right wrist disability-residuals of fracture, right carpal navicular with degenerative changes-is currently rated 10 percent disabling under DC 5215-5010 (for limitation of motion of the wrist and arthritis). See 38 C.F.R. § 4.27 (2017) (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). When dorsiflexion of a wrist is limited to less than 15 degrees or palmar flexion is limited in line with the forearm, a (maximum) 10 percent rating is to be assigned; and a higher rating requires ankylosis of the wrist. 38 C.F.R. § 4.71a, Diagnostic Codes 5214, 5215 (2017). Upon examination in August 2008, the Veteran complained of right wrist joint pain that he described as severe and constant, and he presented with right wrist brace, which relieves his pain. The examiner indicated that the functional limitations of the Veteran's disability include difficulty pushing, pulling, and lifting more than forty pounds. His range of motion was not additionally limited by pain, fatigue, weakness, or lack of endurance and he denied having flare ups. In July 2009, a VA physician noted that the possibility of right wrist fusion was discussed with the Veteran, but that he did not wish to proceed with surgery at that time. The evidence does not show that the Veteran's right wrist was fused thereafter. Upon examination in September 2015, a physician noted that the Veteran has osteoarthritis of his right wrist and reported that flare ups impact function of the wrist, as the Veteran experiences pain and decreased function daily. Again, it was noted that functional impairment was manifested by an inability to lift heavy objects without pain. Notably, there was no muscle atrophy nor ankylosis of the right wrist. In light of the foregoing, the Board finds that the Veteran is already in receipt of the highest available schedular rating (i.e. 10 percent) under Diagnostic Code 5215 for the entire appeal period. As there is no evidence of right wrist ankylosis, Diagnostic Code 5214 does not apply. Additionally, although arthritis has been documented in the Veteran's right wrist, a rating higher than 10 percent is not available under the applicable criteria for rating arthritis, because only one service-connected joint is affected. See 38 C.F.R. § 4.71a, Diagnostic Code 5010 (arthritis due to trauma, rated under Diagnostic Code 5003 as degenerative arthritis). Thus, the appeal is denied. Overall, the Veteran has been assigned the maximum rating available and consideration of his functional limitation does not result in a higher rating. See Johnson, 9 Vet. App. at 11; see also Spencer, 13 Vet. App. at 382. ORDER A schedular rating in excess of 10 percent for residuals of fracture, right carpal navicular with degenerative changes, is denied. REMAND With regard to the claim for an increased rating for the Veteran's service-connected bilateral foot disability, the Court recently held in Correia v. McDonald, 28 Vet. App. 158 (2016), that the testing listed in the final sentence of 38 C.F.R. § 4.59 is required unless a medical examiner determines that it cannot or should not be conducted. The pertinent sentence states that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Further, the Court recently issued the decision Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), concerning the adequacy of VA orthopedic examinations. In Sharp, the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why she could not do so." Here, the range of motion testing conducted upon examination in September 2015 is not in accord with the requirements noted above. Thus, the September 2015 examination is inadequate for complete resolution of the Veteran's claim and a new VA examination that adequately addresses the Veteran's bilateral foot disability should be provided. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding record of the Veteran's treatment. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of his foot symptoms and the impact of the condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for a VA examination to determine the current severity of his service-connected bilateral pes planus with bilateral bunionectomy. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should identify all foot pathology found to be present, to include any scarring associated with his foot disability. The examiner should conduct all indicated tests and studies. The joint should be tested in both active and passive motion and in weight-bearing and non weight-bearing modes. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate additional functional loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Then readjudicate the issue on appeal. If any benefits sought are not granted, provide the Veteran and her representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs