Citation Nr: 1821748 Decision Date: 04/09/18 Archive Date: 04/19/18 DOCKET NO. 04-30 462 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an evaluation in excess of 10 percent for a left wrist disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Showalter, Associate Counsel INTRODUCTION The Veteran served on active duty from Jun 1972 to October 2002. This appeal to the Board of Veterans' Appeals (Board/BVA) originated from a January 2003 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). In February 2010, in support of this claim, the Veteran testified at a Travel Board hearing at the RO before a Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. Because that VLJ is no longer with the Board, the Veteran was offered another hearing to be conducted by the undersigned in correspondence dated January 2018. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. In February 2018 correspondence, the Veteran stated that he did not desire a new hearing. Accordingly, the Board will proceed with adjudication. In October 2017, the Veteran was granted an initial 10 percent rating for the left wrist disability. As that did not constitute a grant of the full benefit sought on appeal, the claim for increase remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). The Board has previously remanded this claim six times for additional development. The Board finds there has been substantial compliance with these previous remand directives and will proceed with adjudication. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998) FINDING OF FACT The Veteran's left wrist has some limited range of motion because of the Veteran's service-connected disability, but does not have favorable or unfavorable ankylosis. CONCLUSION OF LAW A rating in excess of 10 percent for the Veteran's left wrist disability is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.71a, Diagnostic Code (DC) 5214, 5215 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's issues on appeal, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. In deciding this claim, the Board has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, certainly not in exhaustive detail, each and every piece of evidence of record or considered. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, concerning the claim. In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. 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. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran's service-connected left wrist disability has been evaluated pursuant to the criteria set forth in 38 C.F.R. § 4.71a, DC 5215, relating to limitation of motion of the wrist. Pursuant to DC 5215, a 10 percent disability rating is warranted where palmar flexion is limited in line with the forearm, or where dorsiflexion is less than 15 degrees. 38 C.F.R. § 4.71a, DC 5215. This is the maximum schedular rating based on limitation of motion of the wrist under this diagnostic code. A rating greater than 10 percent is warranted only when there is evidence of ankylosis. 38 C.F.R. § 4.71a, DC 5214. Pursuant to DC 5214, a minor (nondominant) wrist is rated 20 percent for favorable ankylosis in 20 to 30 degrees of dorsiflexion. Id. A 30 percent rating is warranted for ankylosis other than favorable in any other position. Id. A 40 percent rating is warranted for unfavorable ankylosis in any degree of palmar flexion, or with ulnar or radial deviation. Id. For a major (dominant) wrist, a 30 percent rating is warranted for favorable ankylosis in 20 to 30 degrees of dorsiflexion. Id. A 40 percent rating is warranted for ankylosis other than favorable in any other position. Id. A 50 percent rating is warranted for unfavorable ankylosis in any degree of palmar flexion, or with ulnar or radial deviation. Id. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). The Board will grant the Veteran's claim if the evidence supports the claim or is in relative equipoise. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). VA treatment records dated March 2006 show the Veteran reported occasional wrist pain. Radiological testing revealed no wrist abnormalities. VA treatment records from May 2006 to February 2009 show that the Veteran had localized wrist pain that he reported intermittently and treated with over-the-counter mediation. At the February 2010 hearing, the Veteran reported that he originally fractured his left wrist after an accident on a flight deck. He stated he had difficulty with his wrist since that time. He reported that he would not use his left wrist because "the strength is just not here." He also stated that during flare-ups, he had a "big knot" that causes further pain and functional difficulties. In a September 2011 examination, the Veteran reported that his wrist was "really bad" when he developed a ganglion cyst, which he reported occurred two to three times a month. The examiner found that range of motion testing revealed no objective evidence of painful motion on palmar flexion, but found that the Veteran's dorsiflexion was limited to 60 degrees when the Veteran began experiencing pain. The examiner found that after repetitive testing, the Veteran had less movement than normal and increased pain. No ankylosis was noted at that time. December 2011 treatment notes show that the Veteran reported that his left wrist pain made it difficult for him to type while he was at work. He also reported difficulty opening doors and jars because of his left wrist pain. The Veteran's left wrist extension was measured to be 50 degrees and his left wrist flexion was measured to be 30 degrees. The Veteran was provided a wrist splint to help alleviate his painful symptoms. In a May 2014 examination, the Veteran's left wrist was found to have active movement against full resistance in testing of wrist extension and flexion. In a March 2015 examination, the Veteran's left wrist flexion and extension had "normal strength." No ankylosis was noted. In a July 2017 examination, the Veteran reported that he had left wrist pain that was worse when he developed a ganglion cyst. Testing of the left wrist revealed normal range of motion, with "no pain noted on exam." The examiner found that there was no functional loss after repetitive use and the Veteran had no reduction in left wrist muscle strength. The examiner also found no ankylosis in the left wrist. At the outset, the Board notes that in Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that 38 C.F.R. § 4.59 creates range of motion testing requirements with which VA must comply. 38 C.F.R. § 4.59 provides, "he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint." With respect to the most recent VA examination of July 2017, the VA examiner did not provide findings consistent to Correia, 28 Vet. App. 158. However, the examination found the Veteran's wrist to be fully normal with no limitation of motion. Moreover, the Veteran is currently rated at the highest rating possible under the applicable diagnostic code based on limitation of motion, with higher ratings requiring ankylosis. Any error in not conducting Correia-complaint range of motion testing with regard to the left wrist is therefore harmless. Therefore, the Board finds it unnecessary to remand for another examination and will decide the issue based on the evidence of record. Currently, the Veteran is evaluated at a 10 percent rating for his left wrist disability. To warrant a higher rating, the evidence would need to show that he has ankylosis of the wrist that further impacts his range of motion, as he currently has the highest possible rating under DC 5215. See DC 5214, 5215. After reviewing the Veteran's treatment records and previous examinations, there is no evidence to show that the Veteran currently has ankylosis of his left wrist. While the Veteran has painful motion, range of motion testing and strength testing in previous examinations have shown that the Veteran's left wrist is largely normal. The last three examinations have found normal strength and normal range of motion. Objective findings have shown occasional limitation of motion, justifying his current rating at 10 percent. But at no time during the period on appeal has the Veteran's left wrist had the functional equivalent of ankylosis. Indeed, even upon consideration of pain, the Veteran has continued to retain movement on his left wrist. Therefore, the preponderance of the evidence is against the claim for an increased rating. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence is against evaluations other than, or in excess of, those described above, that doctrine is not applicable here. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER An evaluation in excess of 10 percent for a left wrist disability is denied. ____________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs