Citation Nr: 1820780 Decision Date: 04/05/18 Archive Date: 04/16/18 DOCKET NO. 13-23 381 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a rating in excess of 10 percent for residuals of a right wrist injury to include traumatic arthritis ("right wrist disability"). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from October 1983 to March 1986. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board remanded this matter in May 2015, December 2015, and June 2017 for further development. FINDING OF FACT 1. The Veteran's right wrist disability is manifested by pain, weakness, limitation of motion, and muscle atrophy, but without competent evidence of ankylosis. 2. From October 24, 2017, the evidence is in balance regarding the "loss of use" of the Veteran's right wrist disability picture. CONCLUSION OF LAW 1. The criteria for entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected right wrist disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. Part 4, including § 4.7 and Codes 5214-5215 (2017). 2. From October 24, 2017, the criteria for SMC for the "loss of use" of the right hand are met. 38 U.S.C. § 1114(k); 38 C.F.R. §§ 3.350(a)(2); 4.63. REASONS AND BASES FOR FINDING AND CONCLUSION In August 2008 and April 2009 letters, the RO send the Veteran notification letters. Regarding the "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (2017). Relevant service treatment and other medical records have been associated with the claims file. The Veteran was given VA examinations in February 2012, March 2012, July 2016, and October 2017. The issue was previously remanded, in part, so that the RO could obtain additional medical records. The Veteran stated, in December 2017, that there is no additional medical evidence (Medical Treatment Record - Government Facility, 12/13/17). In this response, he requested that the Board issue a decision as soon as possible. As such, the Board will proceed to the merits. Increased Ratings Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran's service-connected right wrist disability has been rated by the RO under the provisions of Diagnostic Code 5215. Under this regulatory provision, a rating of 10 is warranted where limitation of motion is less than 15 degrees of dorsiflexion; or when palmar flexion is limited in line with forearm. The 10 percent rating is the maximum allowable under this Diagnostic Code. The Veteran is left-hand dominant (see October 2017 VA examination report); thus, his service-connected right wrist disability involves his minor extremity. For the minor extremity, under Diagnostic Code 5214, a 20 percent rating is warranted where there is favorable ankylosis of the wrist in 20 to 30 degrees of dorsiflexion. A 30 percent rating is warranted where there is ankylosis of the wrist in any other position, except favorable, and a 40 percent rating is warranted where there is unfavorable ankylosis in any degree of palmar flexion, or with ulnar or radial deviation. A note following Diagnostic Code 5214 states that extremely unfavorable ankylosis will be rated as loss of use of hands under Diagnostic Code 5125. 38 C.F.R. § 4.71a, Diagnostic Code 5214. Normal range of motion of the wrist includes dorsiflexion (extension) from zero to 70 degrees, palmar 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. § 4.71a, Plate I (2017). It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The Veteran underwent a VA examination in February 2012. He reported that he is left hand dominant. In his right wrist, he reported constant pain, limitation of motion, and weakness. He also reported flare-ups that impair his ability to pursue employment in masonry, roofing, and construction. Upon examination, the Veteran achieved palmar flexion to 25 degrees (with pain beginning at 0 degrees); and dorsiflexion to 50 degrees (with pain beginning at 0 degrees). He was able to perform repetitive use testing with no additional limitation of motion. Regarding functional loss, the examiner noted that there was limitation of motion, incoordination, pain on movement, swelling, and deformity. Muscle strength testing was 3/5 (active movement against gravity) upon flexion; and 4/5 (active movement against some resistance) upon extension. There was no ankylosis. The Veteran wore a Velcro wrist splint. The examiner noted that November 2011 x-rays revealed significant degenerative changes and avascular necrosis. It limited the Veteran's ability to work, in that he could not lift, carry, or reach; and he had poor grip. The Veteran underwent another VA examination in March 2012. The Veteran's complaints were substantially the same as at the previous examination (limitation of motion impairing his ability to work). Upon examination, the Veteran achieved palmar flexion to 30 degrees (with pain beginning at 20 degrees); and dorsiflexion to 20 degrees (with pain beginning at 15 degrees). He was able to perform repetitive use testing with no additional limitation of motion. Regarding functional loss, the examiner noted that there was less movement than normal, weakened movement, pain on movement, and swelling. Muscle strength testing was unchanged; and once again, there was no ankylosis. The examiner noted that the disability results in joint swelling; mild to moderate limitation in repetitive wrist motions for certain job involving (for example) hammering, screw driver use, and mopping. He had a decline in his ability to grip and lift/carry. At a July 2016 VA examination, the Veteran reported flare-ups in which the level of pain increased to 8 or 9 out of 10. He reported that physical use of the wrist (as in heavy lifting) will cause a flare-up. The pain would last several hours and the intensity would be severe. He reported difficulty with activities such as cooking (lifting a heavy pot), putting on his shoes, and certain household tasks. Upon examination, the Veteran achieved palmar flexion to 15 degrees; and dorsiflexion to 25 degrees. Pain was noted on all types of movement. The Veteran was not able to perform repetitive use testing due to fear of pain. The examiner was not able to say (without speculating) to what degree motion would be limited during a flare-up. Muscle strength testing was 2/5 (active movement with gravity eliminated) upon flexion and extension. The examiner noted objective evidence of size discrepancy related to atrophy. Right hand grasp was weak. There was no ankylosis. The Veteran stated that lifting heavy objects would cause significant pain. He also stated that driving any vehicle would be difficult; and that typing would be difficult or impossible. He stated that duties involving fine motion would be difficult. Finally, at an October 2017 VA examination, the Veteran once again reported constant pain in the wrist at rest. He stated that it becomes severe with any movement of the wrist. He stated that he takes Naprosyn or Advil as needed for pain. He reported that pain in right wrist may increase for 2-7 days at a time, but he could not specify the frequency of these flare ups. Regarding functional impact, the Veteran stated that he "Cannot lay shingles, do construction, or do landscaping jobs due to this condition." He also reported that he cannot do any heavy lifting, pushing, or pulling. He stated that he cannot type for prolonged periods of time; he had limited ability to paint; and he had limited ability to grip, or use tools, or do other activities that require fine motor movement. Upon examination, the Veteran achieved palmar flexion to from 0 to 20 degrees. He had 0 degrees of dorsiflexion. Pain was exhibited during all types of motion. In terms of passive range of motion, the Veteran achieved 30 degrees of plantar flexion and 20 degrees of dorsiflexion. There was no pain on weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. It was described as diffuse tenderness. The Veteran was unable to perform range of motion testing due to pain. The examiner noted that pain, fatigue, weakness, lack of endurance, and incoordination were factors causing functional loss. The examiner was unable to describe the additional loss in terms of range of motion. Likewise, the examiner was unable to describe the additional functional loss during a flare-up, in terms of range of motion. Muscle strength testing was 3/5 in flexion and dorsiflexion. The examiner noted that the right wrist functioning was so diminished that amputation with prosthesis would equally serve the Veteran. However, there was no ankylosis. The examiner noted that the Veteran used a brace constantly. Analysis The Veteran's right wrist disability is currently rated as 10 percent disabling. As noted above, this is the maximum rating under Diagnostic Code 5215. In order to warrant a higher rating, the Veteran's disability must be rated under Diagnostic Code 5214. However, Diagnostic Code 5214 only allows for a higher rating for ankylosis of the wrist. The Board notes that the Veteran has been afforded four VA examinations. All four examiners have explicitly stated that the Veteran's right wrist is not ankylosed. Moreover, the Board has examiner all of the VA outpatient treatment records as well as the Veteran's private treatment records. None of these records reflect ankylosis. The Board has considered the holding in DeLuca. However, because the maximum schedular disability evaluation of 10 percent has been granted for the right wrist disability, DeLuca considerations are inapplicable. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (holding that remand for the BVA to consider the appellant's functional loss due to pain under section 4.40 was not appropriate when the appellant was receiving the maximum schedular rating for his service-connected disability). The Board finds that in the absence of ankylosis, the preponderance of the evidence weighs against the claim. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for a rating in excess of 10 percent for the Veteran's right wrist disability must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). However, the Board notes that the October 2017 VA examination report reflects the Veteran's right wrist functioning was so diminished that amputation with prosthesis would equally serve the Veteran. Additionally, at this examination the Veteran had 3/5 strength for both flexion and extension and dorsiflexion to 0 degrees (out of 70 degrees). The Veteran's functional impairment included an inability to type for prolonged periods of time, limited ability to paint, limited ability to grip or use tools or do other activities that require fine motor movement. SMC will be awarded for the anatomical loss of a hand, or where there is "loss of use" of the hand. 38 U.S.C. § 1114(k); 38 C.F.R. §§ 3.350(a)(2); 4.63. "Loss of use of the hand" means that no effective function remains other than that which would be equally well-served by an amputation stump below the elbow with use of a suitable prosthetic appliance. Id., Tucker v. West, 11 Vet. App. 369, 373 (1998) (holding that the relevant inquiry is not whether amputation is warranted but whether the veteran has any effective function remaining other than that which would be equally well-served by an amputation with use of a suitable prosthetic appliance). "Effective function" may include the ability to pick up coins from a table, grasp tools or eating utensils, and fasten clothes. 38 C.F.R. § 3.350(a)(2). Based on the October 2017 VA examination findings, to include no dorsiflexion, the examiner's opinion and the inability to perform many daily functions, the Board finds that the evidence is in equipoise to find a disability picture consistent with "loss of use" of the right hand. Prior VA examination reports, to include ones in July 2016 and March 2012, do include such findings. As such, the Board finds that SMC(k) is warranted from the date of this VA examination forward. ORDER An increased rating for the Veteran's service connected right wrist disability is denied. From October 24, 2017, SMC based on loss of use of a hand is granted. ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs