Citation Nr: 1808612 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 07-16 765 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for a left wrist disability. 2. Entitlement to an initial rating in excess of 20 percent for a right shoulder disability. 3. Entitlement to an initial rating in excess of 10 percent for a left foot disability. 4. Entitlement to an initial compensable rating for a right shoulder scar. 5. Entitlement to an initial compensable rating for a left ankle disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Forde, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1977 to May 1981 and from July 1986 to July 2006, to include service in Afghanistan from November 2004 to November 2005. His decorations include the Combat Infantryman and Master Parachutist Badges. He had additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2016, the Veteran testified before the undersigned Veterans Law Judge. In January 2017, the Board remanded this matter for additional development. An August 2017 rating decision granted an initial 20 percent rating for the right shoulder disability, effective August 1, 2006 and granted service connection for a left knee disorder. Thus, the issue of entitlement to service connection for a left knee disorder is no longer on appeal and will not be addressed further. The issues of entitlement to increased initial ratings for left foot, left ankle, right shoulder, and right shoulder scar disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's right side is his dominant side. 2. The preponderance of the evidence shows that the Veteran's left wrist disability is manifested by pain with limitation of motion, but not ankylosis. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for the left wrist disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5010-5215 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran asserts that his left wrist disability is worse than currently rated and warrants an increased rating. See July 2017 Board hearing transcript at 2-3. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the evidence demonstrates distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. The RO has rated the Veteran's left wrist disability under Diagnostic Code 5010. Under Diagnostic Code 5010, traumatic arthritis is to be rated as degenerative arthritis under Diagnostic Code 5003, which is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Disabilities of the wrist are rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5214 (ankylosis) or Diagnostic Code 5215 (limitation of motion). The rating criteria distinguish between the major (dominant) and minor (non-dominant) wrist; in this case the Veteran is shown to be right-handed, so the criteria for the minor hand apply. See May 2017 VA examination report. Under Diagnostic Code 5215, a 10 percent rating is warranted for the major or minor wrist when there is dorsiflexion less than 15 degrees, or when palmar flexion is limited in line with the forearm. A 10 percent disability rating is the maximum schedular rating provided for limitation of motion of the wrist. The Board notes that the Veteran's disability is evaluated at 10 percent, and as such he is receiving the maximum schedular rating possible under Diagnostic Code 5215. Therefore, the Board finds that a higher evaluation is not warranted. A higher disability evaluation is afforded for ankylosis of the wrist under Diagnostic Code 5214. Under Diagnostic Code 5214, favorable ankylosis of the wrist in 20 to 30 degrees of dorsiflexion warrants a rating of 20 percent if involving the minor extremity and 30 percent if involving the major extremity. Ankylosis of the wrist in any position, except favorable, warrants a 30 percent rating if involving the minor extremity and a 40 percent rating if involving the major extremity. Unfavorable ankylosis of the wrist, in any degree of palmar flexion, or with ulnar or radial deviation, warrants a 40 percent rating if involving the minor extremity and a 50 percent rating if involving the major extremity. As to ankylosis, the May 2017 VA examiner specifically concluded that the Veteran did not have ankylosis in the left wrist. Physical examination revealed full range of motion with dorsiflexion to 70 degrees, palmar flexion to 80 degrees, radial deviation to 20 degrees, and ulnar deviation to 45 degrees, with pain in palmar flexion and dorsiflexion. The pain noted on examination did not result in functional loss. Further, during his Board hearing, the Veteran demonstrated his ability to twist his wrist, with pain. See July 2016 Board hearing at 3. In support of his appeal, the Veteran submitted a private DBQ from his treating physician, Dr. G.V. in October 2016 finding ankylosis in lateral rotation. However, the DBQ does not contain any range of motion measurements or any explanation for his finding of ankylosis. Moreover, all of the other evidence of record does not support a finding of left wrist ankylosis, and includes multiple findings and range of motion measurements that affirmatively show that the left wrist is not ankylosed. See March 2006 and March 2009 VA examination reports. As such, the Board finds that the preponderance of the evidence is against a finding that the Veteran has left wrist ankylosis. Therefore, the Veteran does not meet the rating criteria for an increased evaluation under this code. As such, the preponderance of the evidence is against the claim. 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; DeLuca v. Brown, 8 Vet. App. 202 (1995). In the November 2017 VA examination, the Veteran stated that he experienced limited range of motion, pain, reduced strength, and chronic weakness. Although the Veteran has reported pain and weakness in his wrist, in Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the United States Court of Appeals for Veterans Claims determined that if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. § 4.40 and § 4.45 are applicable. As such, a higher rating is not applicable. Further, the Veteran has reported flare-ups that cause increased pain with gripping and pushing objects, causing swelling of the wrist twice a year lasting two to three months. See July 2016 Board hearing at 8; May 2017 VA examination report. The Board acknowledges that Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) requires that the examiner estimate the functional loss that would occur during flare-ups; however, as the Veteran is receiving the maximum schedular rating possible under Diagnostic Code 5215 and a higher rating is not warranted without a finding of ankylosis, which as noted above is not demonstrated, a VA examination or opinion that complies with Sharp is not required. Moreover, the May 2017 VA examiner's finding of left wrist strength at 4 out of 5 with no evidence of atrophy is reflective of only a slight muscle disability and therefore does not support a separate rating under 38 C.F.R. § 4.73, Diagnostic Codes 5307-5308. After a review of the entire record, the Board finds that the preponderance of the evidence is against the award of a disability rating in excess of 10 percent for the left wrist disability. As a preponderance of the evidence is against the award of an increased rating, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). This is true at all times during the appeal, and therefore the Board need not consider staged ratings. ORDER Entitlement to an initial rating in excess of 10 percent for residuals of the left wrist is denied. REMAND A VA examination of the right shoulder was conducted in May 2017. During the examination, the Veteran reported flare-ups once a year with increased pain for three months. The examiner noted that the examination was not conducted during a flare-up and that the examination is neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during a flare-up. Pursuant to Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), a VA examiner has the obligation to elicit information regarding flare-ups of a musculoskeletal disability if the examination is not conducted during such a flare-up, and to use this information to characterize additional functional loss during flare-ups. Accordingly, a new VA examination of the right shoulder, also considering his scar, is warranted. In regards to the claims of entitlement to increased ratings for the service-connected left foot and left ankle disabilities, the Board notes that the evaluation of the same symptoms under various diagnoses, known as pyramiding, is to be avoided. See 38 C.F.R. § 4.14. In the May 2017 VA left ankle examination, the examiner noted that the left ankle was not painful but later noted that the Veteran was unable to run as the left tibialis anterior repair causes increased pain with walking long distances, up hills, and upstairs. In the Veteran's May 2017 VA left foot examination, the examiner found pain on weight-bearing, disturbance of locomotion, and functional loss on the left with walking. The Veteran testified that he has left foot pain along the arch of the foot and that when he begins to walk he has ankle and foot pain. See July 2017 Board hearing at 14. He further testified that because they are near each other, and that the symptoms are similar, it is hard to associate one versus the other. Id. at 17. The Board finds that the medical and lay evidence does not establish what symptoms are attributed to each service-connected disability so that the Board may decide the claims without engaging in the prohibited pyramiding. Thus, these issues must be remanded for the examiner to distinguish any separate and distinct ankle symptoms from his already compensated foot symptoms. Any outstanding treatment records should also be secured. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding records from private medical treatment providers. If any records are unavailable, document this finding in the claims file and notify the Veteran pursuant to 38 C.F.R. § 3.159(e). 3. Then schedule the Veteran for a VA examination to determine the current nature and severity of his right shoulder disability. 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 conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested for pain (1) on active motion, (2) on passive motion, (3) in weight-bearing, (4) in nonweight-bearing, and (5) with range of motion of the opposite undamaged joint. 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. Considering the Veteran's reported history, please also provide an opinion describing functional impairment of the Veteran's right shoulder due to flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. In regards to the right shoulder scar, the examiner should address the size and location, as well as any associated pathology, to include tenderness or pain. See July 2016 Board hearing at 9. A complete rationale shall be given for all opinions and conclusions expressed. 4. Then return the claims file to the May 2017 VA examiner for preparation of an addendum opinion as to the current nature and severity of the Veteran's left foot and left ankle disabilities. The claims file should be made available to and reviewed by the examiner. No examination is needed, unless the examiner determines otherwise. Following review of the May 2017 left foot and ankle examinations, as well as the Veteran's Board hearing testimony, the examiner must identify and distinguish any left ankle symptoms separate and distinct from the Veteran's left foot symptoms. See July 2017 Board hearing at 14, 17; May 2017 VA ankle and foot examination reports. In particular, the examiner is requested to state whether the Veteran experiences left ankle pain that is separate and distinct from his left foot pain. A complete rationale shall be given for all opinions and conclusions expressed. 5. Thereafter, readjudicate the issues on appeal. 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.A. §§ 5109B, 7112 (2012). ______________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs