Citation Nr: 1814830 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 14-10 790 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to service connection for a right wrist strain. 2. Entitlement to an initial rating higher than 10 percent for residuals of left wrist fracture. REPRESENTATION Appellant represented by: Maine Veterans' Services ATTORNEY FOR THE BOARD J. Rothstein, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1965 to January 1968. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, which reopened and denied the Veteran's claim for service connection for a right wrist disability, as well as reopened and granted the Veteran's claim for service connection for residuals of a left wrist fracture, assigning an initial 10 percent rating effective January 27, 2011 (the identified date of claim). Jurisdiction over this case was subsequently transferred to the RO in Togus, Maine. The Veteran timely appealed this denial for service connection and the initial rating assigned for residuals of a left wrist fracture. In October 2015, the Board reopened the claim for service connection for a right wrist disability, and remanded the reopened claim as well as the claim for a higher initial rating for residuals of a left wrist fracture to the Agency of Original Jurisdiction (AOJ) for further development. In August 2016, the Board again remanded the claims on appeal to the AOJ for further development. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's right wrist strain is related to service. 2. Prior to October 24, 2016, the Veteran's service-connected left wrist disability has been manifested by palmar flexion limited to no more than 75 degrees, and dorsiflexion limited to no more than 50 degrees; and there is no evidence showing the Veteran's service-connected left wrist disability was manifested by or approximated ankylosis. 3. From October 24, 2016, the Veteran's service-connected left wrist disability has been manifested by ankylosis in any other position, except favorable; and there is no evidence showing the Veteran's service-connected left wrist disability was manifested by or more nearly approximated unfavorable ankylosis. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, right wrist strain was incurred in service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. Prior to October 24, 2016, the criteria for an initial rating higher than 10 percent for residuals of left wrist strain have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.69, 4.71a, Diagnostic Code (DC) 5215 (2017). 3. From October 24, 2016, the criteria for a 40 percent rating, but no higher, for residuals of left wrist strain have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.69, 4.71a, DC 5214 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. As the claim for service connection for right wrist strain is being granted, further discussion of the VCAA with regard to this claim is unnecessary. As to the remaining claim decided herein, the requirements of 38 U.S.C. §§ 5103 and 5103A have been met. As mentioned above, the higher rating claim for residuals of a left wrist fracture arises from the Veteran's disagreement with the initial rating assigned in connection with the grant of service connection for this disability. The courts have held, and VA's General Counsel has agreed, that where, as in this instance, an underlying claim for service connection has been granted and there is disagreement as to a "downstream" question, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007). Additionally, VA assisted the Veteran in obtaining identified and available evidence needed to substantiate this claim and affording him VA examinations in July 2011, February 2016, and October 2016, the reports of which are of record. As indicated by the discussion below, these examination reports, along with the other lay and medical evidence of record, contain sufficient evidence by which to evaluate the Veteran's service-connected left wrist disability in the context of the pertinent regulations. There is no evidence that there are any outstanding relevant records or that additional examinations are in order. Moreover, in its most recent August 2016 remand, relevant to this claim, the Board instructed the AOJ to request that the Veteran identify any and all health care providers who have provided treatment for his wrists; to obtain such identified records; to secure outstanding VA treatment records; and to provide the Veteran with a VA examination to ascertain the current severity and manifestations of his service-connected left wrist disability. In response, the AOJ sent a letter requesting that the Veteran identify any and all health care providers who provided treatment for his claimed disabilities and obtained updated VA treatment records. While the Veteran returned an authorization form (VA Form 21-4142a) in September 2016, he did not identify any health care providers on the form. In addition, in October 2016, the AOJ provided the Veteran with a VA wrist conditions examination. It is noted that, in directing the AOJ to provide the Veteran with a VA examination as to left wrist in the August 2016 remand, the Board further instructed that the examiner must clearly state whether the Veteran's previously documented left carpal tunnel syndrome was associated with his service-connected left wrist disability; and that the October 2016 VA examiner provided no such statement in the examination report. However, as the July 2011 VA examiner indicated that he was unable to determine how much of the Veteran's symptoms were due to his service-connected left wrist disability versus his non-service-connected left carpal tunnel syndrome, all of the Veteran's left wrist symptoms are being attributed to his service-connected left wrist disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when it is not possible to separate the effects of the service-connected and non-service-connected disabilities, the benefit of the doubt doctrine dictates that such signs and symptoms be attributed to the service-connected disability or disabilities). Thus, any deficiency in this regard is deemed harmless. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (remand is not warranted when it would result in unnecessarily imposing additional burdens on the Board and Secretary with no benefit flowing to the Veteran). As such, and based on all of the above, the AOJ substantially complied with the Board's remand instructions, and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with). The Board will therefore proceed to the merits of the claims being decided herein. II. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran claims that he currently has a right wrist disability that is related to an in-service injury. July 2011 and February 2016 VA examination reports contain a diagnosis of a right wrist strain. The Veteran has thus met the current disability requirement. In addition, the Veteran has stated that he injured his right wrist during the same November 1965 in-service fall in which he fractured his left wrist (for which he is service connected) by attempting to break his fall, and that even though treatment following the fall primarily focused on his left wrist, he experienced continuous problems with his right wrist (mostly right wrist pain) since that time. Although the Veteran's service treatment records only reflect a left wrist injury in connection with the November 1965 fall, a complaint of right wrist pain with no fracture (per X-ray) in October 1966, and a complaint of popping in the right wrist in May 1967, the Board finds the Veteran's statements concerning experiencing a right wrist injury and right wrist symptoms in service to be competent and credible. See 38 C.F.R. § 3.159(a)(2); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that a claimant is competent to report observable symptoms that require only personal knowledge, not medical expertise, as they come to the claimant through his senses); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a claimant is competent to provide lay evidence regarding those matters which are within his personal knowledge and experience). Therefore, the Veteran has met the in-service injury or event requirement. The remaining question in this case is therefore whether there is a nexus between the current right wrist strain and the in-service right wrist injury and symptoms. There are three medical opinions of record addressing this question, that of the July 2011 VA examiner, the February 2016 VA examiner, and the October 2016 VA examiner, all of which are negative. However, as the Board found the opinions of the July 2011 and February 2016 VA examiners on this question to be inadequate in its October 2015 and August 2016 remands, respectively, these opinions will not be discussed or considered further in this regard. As such, as to the October 2016 opinion, the VA examiner opined that it was less likely as not that the Veteran's right wrist strain manifested during service or was otherwise causally or etiologically related to service. He provided the following rationale: that there was no documented medical evidence of record of a right wrist injury or diagnosis in 1965 (related to 1965 fall that injured the left wrist) or at time of separation or soon after separating from service; that there was no documented medical evidence of ongoing right wrist problems concerning the 1965 fall and the 1966 report of right wrist pain; that no pathology was identified at the time of the Veteran's 1966 report of right wrist pain and 1967 report of popping in the right wrist; that June 1967 evaluation/X-ray of the right wrist was normal; and that continuous right wrist symptomatology since service was not documented by the evidence of record. However, this rationale is flawed for two reasons. First, the absence of a right wrist disability in service is not in and of itself fatal to a claim for service connection for a right wrist disability. See Cosman v. Principi, 3 Vet. App. 503, 505 (1992) ("[E]ven though a veteran may not have had a particular condition diagnosed in service, or for many years afterwards, service connection can still be established"); 38 C.F.R. § 3.303(d). Second, it appears that the VA examiner based his negative opinion primarily on the absence of documented medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). In contrast, the Veteran has indicated that he has had right wrist pain continuously since his in-service fall. The Board finds that such statements by the Veteran to be competent and credible, and such lay evidence indicates a relationship between the current right wrist sprain and the in-service right wrist injury and symptoms. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). Based on the foregoing, the Board finds that the evidence is at least evenly balanced as to whether the Veteran's right wrist strain had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for right wrist strain is therefore warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. III. Higher Initial Rating Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, an award of service connection for disability has been granted and the assignment of an initial evaluation for this disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When assessing the severity of a musculoskeletal disability that is 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 symptoms are most prevalent ("flare-ups") due to the extent of any pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017). The Veteran's residuals of left wrist fracture is currently rated as 10 percent disabling under 38 C.F.R. § 4.17a, DC 5215, for limitation of motion of the wrist. Ratings for disabilities of the wrist are based on whether the major (dominant) or minor side is affected. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. 38 C.F.R. § 4.69. Only one hand will be considered dominant. Id. The injured hand or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. Id. In this case, there is conflicting evidence as to which hand is dominant. For instance, while the July 2011 VA examination report indicates that the Veteran is right hand dominant, February 2016 and October 2016 VA examination reports indicate that the Veteran is ambidextrous. Hence, resolving reasonable doubt in the Veteran's favor, the Board accepts that the Veteran is ambidextrous. Additionally, given that an injury/fracture to the Veteran's left wrist was noted in service and that the left wrist has been shown to have ankylosis, as explained in greater detail below (while his right wrist has not), the Board will therefore consider the Veteran's left hand to be the dominant one for purposes of rating the wrist. Under DC 5215, with respect to the major extremity, a 10 percent rating is warranted for dorsiflexion less than 15 degrees, or palmar flexion limited in line with the forearm. See 38 C.F.R. § 4.71a, DC 5215. However, higher ratings are assignable under 38 C.F.R. § 4.71a, DC 5214, for ankylosis of the wrist. Under DC 5214, with respect to the major extremity, a 30 percent rating is warranted for favorable ankylosis in 20 to 30 degrees dorsiflexion. Id. A 40 percent rating is warranted for ankylosis in any other position, except favorable. Id. A maximum, 50 percent rating is warranted for unfavorable ankylosis in any degree of palmar flexion, or with ulnar or radial deviation. Id. Normal range of motion of the wrist includes dorsiflexion (extension) from zero to 70 degrees; plantar flexion from zero to 80 degrees; ulnar deviation from zero to 45 degrees; and radial deviation from zero to 20 degrees. See 38 C.F.R. § 4.71, Plate I (2017). Turning to the evidence of record, in February 2011, during a visit with his private primary care physician, the Veteran complained of wrist pain. On examination, the Veteran was noted to have full range of motion of the wrists. In December 2011, during another visit with his primary care physician, the Veteran continued to complain about wrist pain. The Veteran denied having any symptoms of numbness, burning, or weakness. In July 2011, the Veteran underwent a VA joints examination. At that examination, he reported currently having left wrist pain. He described the pain as a mild ache lasting a few hours on and off. On examination, ranges of motion measurements for the left wrist were as follows: flexion to 75 degrees with no pain; extension to 65 degrees with no pain; ulnar deviation to 30 degrees with no pain; and radial deviation to 20 degrees with no pain. Dexterity was found to be normal. In February 2016, the Veteran underwent a VA wrist conditions examination. At that examination, he reported having functional loss or functional impairment of the left wrist. In this regard, he stated that he avoided heavy or repetitive use of his wrist. He did not report flare-ups. On examination, ranges of motion measurements for the left wrist were as follows: palmar flexion to 70 degrees; dorsiflexion to 50 degrees; ulnar deviation to 25 degrees; and radial deviation to 20 degrees. Pain was noted on dorsiflexion, and the VA examiner noted that this pain and limited dorsiflexing caused functional loss. There was no pain with weight-bearing. There was evidence of pain on palpitation (mild and on the navicular/radial side). There was no evidence of crepitus. The Veteran was unable to perform repetitive use testing with at least three repetitions. As to the left wrist, the VA examiner noted that pain and fatigue significantly limited functional ability with repeated use over a period of time, describing such in terms of the following ranges of motion: palmar flexion to 65 degrees; dorsiflexion to 40 degrees; ulnar deviation to 20 degrees; and radial deviation to 15 degrees. Muscle strength testing of the left wrist revealed normal strength. There was no reduction in muscle strength and no muscle atrophy. There was no ankylosis of the wrists. During a March 2014 visit to the VA medical center (VAMC), the Veteran reported continued pain in his wrists. He rated the pain as a three out of 10. In his March 2014 substantive appeal, with regard to his left wrist, the Veteran reported having loss of range of motion as well as consistent pain. In November 2015, during another VAMC visit, the Veteran reported having chronic pain in his wrists. The VA physician noted that the Veteran had previously been treated with narcotics, but that he was functioning adequately without this medication. In October 2016, the Veteran underwent another VA wrist conditions examination. During that examination, the Veteran reported having continued pain in his left wrist, describing such pain as a daily aching. He reported that when it was cold outside, use of his wrist caused more prominent pain symptoms. He also reported that his wrist was not as coordinated and claimed decreased strength in his left wrist after use. He did not report flare-ups or any functional loss or functional impairment of the left wrist. On examination, ranges of motion measurements for the left wrist were as follows: palmar flexion to 50 degrees; dorsiflexion to 30 degrees; ulnar deviation to 15 degrees; and radial deviation to 5 degrees. The VA examiner noted that the range of motion itself did not contribute to functional loss. Pain in all planes was noted on examination, but the VA examiner noted that it did not result in/cause functional loss. There was no evidence of pain with weight bearing. There was evidence of pain on palpation (moderate and on the dorsal side). There was no evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions, but the VA examiner noted that there was no additional loss of function or range of motion after three repetitions. The VA examiner also noted that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. Muscle strength testing of the left wrist revealed normal strength. There was no reduction in muscle strength and no muscle atrophy. There was no ankylosis in any other position except favorable of the left wrist. Based on the foregoing, the Board finds that a 40 percent rating for the Veteran's service-connected left wrist disability is warranted from October 24, 2016. In this regard, the October 2016 VA examination (conducted on October 24, 2016) shows that the Veteran's service-connected left wrist disability was manifested by ankylosis in any other position, except favorable. As this satisfies the criteria for a 40 percent rating under DC 5214, entitlement to a 40 percent rating is warranted from October 24, 2016. However, an initial rating higher than 10 percent prior to October, 24, 2016 is not warranted. Significantly, neither the Veteran's lay statements nor the medical evidence of record indicate that there was ankylosis of the left wrist prior to October 24, 2016. Rather, the February 2016 VA examination report contains a specific finding of no ankylosis. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (all of the facts should be examined in determining the effective date and the effective date for an increased rating, as well as for an initial rating or for staged ratings, is predicated on when the increase in the level of severity can be ascertained). Moreover, while VA must in some circumstances consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination (see DeLuca, supra; 38 C.F.R. §§ 4.40, 4.45), this rule does not apply where, as here, the Veteran is receiving the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). For similar reasons, the decision in Correia v. McDonald, 28 Vet. App. 158 (2016), in which the United States Court of Appeals for Veterans Claims held that 38 C.F.R. § 4.59 creates range of motion testing requirements with which VA must comply, is not for application, as range of motion findings will not result in a higher rating. Thus, a rating higher than 10 percent is not warranted under the applicable diagnostic codes. Accordingly, an initial rating of 40 percent, but no higher, is warranted for the Veteran's service-connected left wrist disability from October 24, 2016, and the criteria for an initial rating higher than 10 percent for the Veteran's service-connected left wrist disability have not been met at any time prior to October 24, 2016. As the preponderance of the evidence is against a finding of any higher ratings, the benefit of the doubt doctrine is not otherwise for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other related issues, nor have any other such issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). ORDER Entitlement to service connection for a right wrist strain is granted. Entitlement to an initial rating higher than 10 percent for residuals of left wrist fracture, prior to October 24, 2016, is denied. Entitlement to an initial 40 percent rating, but no higher, for residuals of left wrist fracture, from October 24, 2016, is granted, subject to controlling regulations governing payment of monetary awards. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs