Citation Nr: 1824271	
Decision Date: 04/24/18    Archive Date: 05/03/18

DOCKET NO.  14-10 822	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Entitlement to an initial rating in excess of 10 percent for post-operative residuals of right (dominant) forearm (right forearm disability) for the period prior to October 21, 2016.

2. Entitlement to an initial rating in excess of 10 percent for post-operative residuals of right forearm disability for the period since October 21, 2016.

3. Entitlement to an initial rating in excess of 10 percent for right (dominant) wrist disability for the period prior to October 21, 2016.

4. Entitlement to an initial rating in excess of 10 percent for right (dominant) wrist disability for the period since October 21, 2016.

5. Entitlement to an increased (compensable) rating for right forearm scar residual.

REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

W.T. Snyder, Counsel


INTRODUCTION

The Veteran served on active duty from November 1979 to November 1982. 

This appeal to the Board of Veterans' Appeals (Board) arose from a March 2012 rating decision of a Department of Veterans' Affairs (VA) Regional Office (RO) that granted service connection for the right forearm and right wrist disabilities and assigned initial ratings of 10 percent each; and, continued a noncompensable rating for the scar residual. The Veteran perfected an appeal of those determinations.

In October 2016, the Veteran testified before the undersigned at a Board hearing at the RO via video conference. A transcript of the hearing testimony is in the claims file. The undersigned held the record open for 30 days for the receipt of additional evidence. No additional evidence was received.

The issues of entitlement to increased initial ratings for the right forearm and right wrist disabilities for the period since October 21, 2016 are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT

1. For the period prior to August 26, 2013, the Veteran's right forearm disability manifested with tenderness; full range of motion (ROM); and, pain, weakened movement, and excess fatigability on repeat use of the right forearm and index, long, ring, and little fingers.

2. As of August 26, 2013, the Veteran's right forearm disability manifested with tenderness; full ROM; and, pain, weakened movement, and excess fatigability on repeat use of the right forearm and index, long, ring, and little fingers, and thumb.

3. For the period prior to October 21, 2016, the Veteran's right wrist disability manifested with full, painful ROM.

4. The Veteran's right forearm surgical scar residual has manifested as asymptomatic throughout the entire rating period on appeal.


CONCLUSIONS OF LAW

1. The requirements for an initial rating in excess of 10 percent for right (dominant) forearm disability for the period prior to October 21, 2016 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5024-5206 (2017).

2. The requirements for an initial separate rating of 10 percent for painful and weakened motion, and excess fatigability, right index, long, ring, and little fingers for the period prior to October 21, 2016 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5229.

3. The requirements for an initial separate rating of 10 percent for painful and weakened motion, and excess fatigability, right (dominant) thumb, have been met, effective August 26, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.400(o), 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5228.
4. The requirements for an initial rating higher than 10 percent for right (dominant) wrist disability for the period prior to October 21, 2016 are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5215.

5. The requirements for an increased (compensable) rating for right forearm scar residual are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.31, 4.118, DC 7804.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

Prior to issuance of the March 2012 rating decisions, via a November 2011 letter, VA provided the Veteran with notice. Additionally, VA has a duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. See 38 C.F.R. § 3.159(c). The Veteran's service treatment records (STRs), non-VA, and VA treatment records, including the VA examination reports are in the claims file. As noted in the Introduction, the undersigned held the record of the hearing open for receipt of additional VA records, but none were received. Neither the Veteran nor his representative has otherwise asserted that there are additional records to obtain.  As such, the Board will proceed to the merits of the appeal.

Applicable Law and Regulation

Disability ratings are intended to compensate for impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id.; 38 C.F.R. § 4.27. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. §§ 4.1, 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. Evaluations are based on functional impairments which impact a veteran's ability to pursue gainful employment. 38 C.F.R. § 4.10.

If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21.

In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; see also Peyton v. Derwinski, 1 Vet. App. 282 (1991).

Generally, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nonetheless, the Veteran is entitled to a staged rating for any part of the initial rating period on appeal where the disability manifested with greater severity. See O'Connell v. Nicholson, 21 Vet. App. 89, 
91-92 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).

Background

Historically, the Veteran severed a tendon in his right forearm during his active service and treatment for the injury included surgery. He applied for VA compensation in 1982. The rating board noted that the VA examination noted a laceration at the right distal forearm; and, examination revealed point tenderness at the post-operative site but no loss of motion or sensation. Service connection was granted for the scar residual and a noncompensable rating assigned. (12/08/1982 Rating Decision) VA received the Veteran's claim for an increased rating in October 2011.

Rating Criteria

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. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 
8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. In DeLuca, the Court stated that increased symptomatology due to weakness, fatigue, etc., where possible, should be stated by examiners in terms of additional loss of range of motion. DeLuca, 8 Vet. App. at 205.

Right forearm

Normal ROM for the elbow is 0 to 145 degrees. The RO rated the elbow under DC 5024 as tenosynovitis, which is rated as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5024. Hence, the RO assigned DC 5024-5206. A hyphenated code is used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation. See 38 C.F.R. § 4.27.

Degenerative arthritis is rated under DC 5003, which provides that degenerative arthritis established by X-ray is rated on the basis of LOM under the appropriate DC for the joint involved. Further, if the LOM of the joint involved is noncompensable, a rating of 10 percent is applicable. Id. LOM must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of LOM, but with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and occasional incapacitating exacerbations, a 20-percent evaluation is assigned. With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, a 10 percent rating is assigned. DC 5003. 

With any form of arthritis, painful motion is an important factor. Further, this criterion may be shown by lay evidence. See Petitti v. McDonald, 27 Vet. App. 415, 425 (2015) (explaining that § 4.59 "serves as a bridge linking painful motion and limitation of motion, with the result that a claimant who has painful motion is considered to have limited motion under [the relevant diagnostic code] even though actual motion is not limited"). It is the intention of the rating schedule to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59.
 
A compensable evaluation under DC 5003 and 38 C.F.R. § 4.59 (for painful motion) is in order where arthritis is established by X-ray findings and no actual LOM of the affected joint is demonstrated. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991) (holding that painful motion of a major joint or group of minor joints caused by degenerative arthritis is deemed to be limited motion such that a minimum compensable rating is warranted under 5003 even though there is no actual limitation of motion); see also Petitti, 27 Vet. App. at 427-28 (holding that painful motion may be "objectively confirmed" by either a clinician or a layperson who witnessed the veteran experience difficulty walking, standing, or sitting, or display a facial expression, such as wincing, indicative of pain. Where compensable LOM is demonstrated in the joint, the Lichtenfels rule is not applicable because the rating would apply the DC for LOM of the appropriate musculoskeletal body part. Even without X-ray findings of arthritis, but with evidence of pain throughout the ROM, the minimum compensable rating is warranted, even if the LOM is otherwise noncompensable per 38 C.F.R. § 4.59 and Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that painful motion warrants the assignment of the minimum compensable rating for limitation of motion of the affected joint); but higher ratings require actual limitation or functional impairment. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-38, 43 (2011) (reaffirming that pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," 38 C.F.R. § 4.40, in order to constitute functional loss).

Limitation of flexion of the forearm to 110 degrees warrants a noncompensable rating; motion limited to 100 degrees warrants a 10 percent rating for the dominant and non-dominant side. 38 C.F.R. § 4.71a, DC 5206. LOM on extension to 45 or 60 degrees warrants a 10 percent rating for either side; limitation to 75 degrees or extension warrants a 20 percent rating for either side. 38 C.F.R. § 4.71a, DC 5207.

The December 2011 examination report reflects a diagnosis of laceration of the right forearm flexor with disruption of the fingers flexor mechanisms, with repair, and residual chronic tendonitis, right forearm. The examiner noted the Veteran's history of an in-service injury in 1981 and the resultant surgical repair. The Veteran reported complaints of pain at the laceration site over the tendon repair site; recurrent cramping in the long finger on recurrent use; and, pain in the volar aspect of the right wrist. He denied flare-ups. The Veteran reported that he worked in landscaping. Physical examination on ROM revealed motion of 0 to 145 degrees without evidence of pain. There was no loss of ROM on repetitive-use testing, but there was pain on motion during repetitive-use testing. (Exam. Report, p. 6-7) The examiner assessed the Veteran's functional loss as pain on movement and swelling. The examiner noted tenderness to palpation over the long finger flexor tendons at the site of the surgery with palpable tendon scarring on all four tendons. Muscle strength, however, was 5/5; and, there was no evidence of flail joint, joint fracture and/or impairment of supination or pronation. X-rays were read as negative. The examiner noted that the Veteran had not lost the use of his right upper extremity. The examiner opined that the noted diagnosis was causally connected to his in-service injury and that the disorder did not impact the Veteran's ability to work.

The rating decision reflects that the RO granted service connection for the diagnosed disorder and assigned a 10 percent rating due to the Veteran's noted pain on motion during repetitive-use testing. (02/15/2012 Rating Decision-Narrative, p. 2) The Board affirms the initial rating assigned. A higher rating has not been met or approximated, as the Veteran's right elbow manifested with full ROM on initial and repeat testing. See 38 C.F.R. § 4.71a, DC 5206. In light of the fact that there was no loss of ROM on repetitive-use testing but pain, the minimum compensable rating, 10 percent, is warranted. See Mitchell, 25 Vet. App. at 37-38, 43; DeLuca, 8 Vet. App. 202; see also 38 C.F.R. § 4.40, 4.45, 4.59. The examiner also noted that the Veteran's surgical scar was not painful. Hence, the criteria for a separate rating for a painful scar was not met. See 38 C.F.R. § 4.118, DC 7804. 

The component of the examination addressing the fingers (p. 13-25) revealed no LOM on flexion or extension of the fingers or thumb. There was no gap between any fingertips and the proximal transverse crease of the palm or evidence of painful motion in attempting to touch the palm with the fingertips; and, there was no gap between the thumb pad and fingers. Grip strength was normal. This did not change on repetitive-use testing. The examiner noted that there was pain on movement, weakened movement, and excess fatigability on repetitive-use testing of the index, long, ring, and little fingers. (Exam. Report. P. 20, 21)

LOM of the index or long finger with a gap of one inch (2.5 cm) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, warrants a 10 percent rating. 38 C.F.R. § 4.71a, DC 5229. Although that was not met on examination, as noted, the Veteran's pain on movement and excess fatigability on repeat use warrants compensation. Hence, the Board allows a 10 percent rating for the impacted index and long fingers. 38 C.F.R. § 4.40, 4.45, 4.59; see also Mitchell, 25 Vet. App. at 37-38, 43; Esteban v. Brown, 6 Vet. App. 259 (1994) (separate ratings are available for different symptoms of a disability).

Right Wrist

Normal ROM for the wrist is 0 to 70 degrees on dorsiflexion (extension), and 0 to 80 degrees on palmar flexion. 38 C.F.R. § 4.71a, Plate I. LOM of the wrist on dorsiflexion of less than 15 degrees of either side warrants a 10 percent rating, as does palmar flexion limited in line with the forearm. 38 C.F.R. § 4.71a, DC 5215.

The right wrist portion of the examination report (12/11/2012 VA Examination, p. 26-35) reflects that the examiner entered a diagnosis of myofascial syndrome. In addition to the symptoms already noted, the examiner also noted the Veteran's complaints of right wrist pain at the volar aspect. He denied flare-ups. Physical examination revealed no evidence of tenderness to palpation of the joint. ROM on palmar flexion was 0 to 80 degrees, and on dorsiflexion of 0 to 70 degrees, both with onset of pain at 60 degrees. Repetitive-use testing did not reveal any loss of ROM, but the examiner noted pain on movement. Wrist strength was 5/5. The examiner opined that the right wrist pain was a continuation of the Veteran's symptoms in service.

The RO granted service connection for the right wrist and assigned the initial 10 percent rating on the basis of painful motion on repeat use. (02/15/2012  Rating Decision-Narrative, p. 3) The Board affirms the initial rating, as the Veteran's actual ROM was greater than that for which a compensable rating is warranted. See 38 C.F.R. § 4.71a, DC 5215.

In his Notice of Disagreement (05/29/2012 VA 21-4138), the Veteran asserted that he was entitled to a higher rating based on ankylosis in his fingers. However, there is no evidence that the Veteran has medical training to identify this disability. The examination report specifically noted that there was no ankylosis of the elbow, wrist, or the fingers. Hence, the Veteran's assertion is without a factual basis. The Board notes further that the rating criteria provide for only one rating for LOM. To warrant a higher rating, there must be ankylosis as specifically defined. See 38 C.F.R. § 4.71a, DC 5214. The fact that the Veteran was able to flex and extend his wrist on examination is evidence that there was no ankylosis.

Occupational therapy records dated in July 2012 noted the Veteran's therapy for pain. He had good grip; full ROM; intact light touch; and, there was no evidence of atrophy. (11/28/  2012 Medical Treatment-Government Facility, p. 5) September 2012 outpatient records note the Veteran's complaints of pain and weakness of the wrist when picking up equipment. He also complained of numbness of the fingertips 1 to 2 times a week. Physical examination revealed impaired light touch at the right palmar surface; reflex of 1+; and, positive Tinel's sign on the right. An EMG/NCV, however, was interpreted as normal. Id., p. 3-5. The report noted that the Veteran terminated the procedure before it was complete due to discomfort; but, the test was almost complete when he quit. There was no evidence of radiculopathy. An August 2012 MRI examination was read as having shown the tendon as intact. Id., p. 2-3.

A fee-basis examination was conducted in August 2013. The examination report (08/26/2013 VA Examination, p. 1-6) reflects complaints of continued pain and weakness of the right wrist. He reported daily flare-ups on lifting heavy items that caused him to drop items. He reported further that lasted for minutes to hours, depending on the activity. The Veteran described the flare-ups as causing his right hand to cramp into a claw shape. Physical examination revealed tenderness to palpation of the soft tissue or the right wrist joint. ROM on palmar flexion was to 55 degrees with onset of pain at 50 degrees. Dorsiflexion was to 40 degrees with onset of pain at 35 degrees. On repetitive-use testing palmar flexion was to 60 degrees, and dorsiflexion to 35 degrees. Muscle strength was diminished at 4/5. The examiner noted that repeat-use testing revealed functional loss of less movement than normal, pain on movement, and excess fatigability. The examiner noted that there was no ankylosis, and that the Veteran had not lost the use of the right wrist. (Exam. Report, p. 3-4) The examiner noted that May 2012 X-rays were read as having shown osteoarthritis.

The Board notes that the examiner did not address the Veteran's reported flare-ups and estimate the extent of any additional loss of ROM as a result. Generally, such an oversight renders an examination inadequate for rating purposes. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, however, a remand solely for that oversight would serve no useful purpose. As noted in the earlier discussion, 10 percent is the only rating provided for LOM of the wrist. 38 C.F.R. § 4.71a, DC 5215. Hence, there is no higher rating to be met or approximated due to flare-ups or repeat use over time under 38 C.F.R. §§ 4.40, 4.45. Further, the examiner noted that the right wrist disability impacted the Veteran's ability to work with heavy objects, and he had resultant pain at the end of his day, but he still worked. The examiner noted that the scar residual was not painful. Hence, there still is no factual basis for a separate rating for a painful scar (Exam. Report, p. 5). See 38 C.F.R. § 4.118, DC 7804.

The fingers examination (p. 6-12) confirmed the existing diagnosis of record. The Veteran reported flare-ups similar to that reported for his right wrist. The examiner noted that there was no evidence of LOM of the index, long, ring, and little fingers, but there was evidence of pain on motion that started at a gap of less than 1 inch (2.5 cm). There was no LOM of the thumb. Repetitive-use testing did not reveal any additional loss of ROM in the fingers or thumb, but the examiner noted that there was pain on movement, weakened movement, and excess fatigability on repeat use of the thumb and fingers (Exam. Report., p. 11). The examiner noted that right hand grip strength averaged 48 pounds, and the left averaged 85 pounds (Exam. Report, p. 13).

The Board notes the examiner's finding of pain on motion of all of the digits of the right hand. The minimum rating for LOM of the thumb is 10 percent. 38 C.F.R. § 4.71a, DC 5228. In light of the examination findings on repetitive-use testing, the Board finds that a 10 percent rating for the thumb was approximated as of the date of the examination, August 26, 2013. 38 C.F.R. §§ 3.400(o), 4.40, 4.45.

In his Substantive Appeal, the Veteran noted that he still experienced debilitating pain of 7+ intensity, and that should merit a higher rating. (03/28/2014 VA Form 9)

In light of all of the above, notwithstanding that there is one allowable rating for LOM of the wrist, the Board finds that the separate ratings granted by the RO, and those allowed by the Board, reasonably compensates the Veteran to the extent practical for his earning impairment because of functional loss due to pain, etc., of the right elbow and right wrist, and fingers. 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5024-5206, 5215. Further, the increases allowed by the Board are well within the amputation rule. See 38 C.F.R. § 4.68; 4.71a, DCs 5123-5125.

As noted earlier, the Veteran is entitled to a staged rating for any part of the rating period where his disability manifested at a more severe rate. The Board has in fact granted a staged rating where indicated by the evidence of record. There is no issue of employability, as the Veteran still works full time. As a result of the Veteran's hearing testimony, the Board closes this part of the rating period the day prior to the hearing. This is discussed further in the remand part of this decision below.

ORDER

Entitlement to an initial rating in excess of 10 percent for right (dominant) forearm disability for the period prior to October 21, 2016 is denied.

Entitlement to an initial separate rating of 10 percent for painful and weakened motion, and excess fatigability, right index, long, ring, and little fingers for the period prior to October 21, 2016 is granted, subject to the law and regulations governing the award of monetary benefits.

Entitlement to an initial separate rating of 10 percent for painful and weakened motion, and excess fatigability, right thumb, is granted, effective August 26, 2013, subject to the law and regulations governing the award of monetary benefits.

Entitlement to an initial rating in excess of 10 percent for right (dominant) wrist disability for the period prior to October 21, 2016 is denied.

Entitlement to an increased (compensable) rating for right forearm disability scar residual is denied.


REMAND

At the hearing, the Veteran testified that his symptoms have continued to worsen, to include tingling of all fingers. His testimony is evidence that his disability has increased in severity. The Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994).

Accordingly, the case is REMANDED for the following action:

1. The AOJ shall obtained all related treatment records generated since October 2016.
2. After the above is complete, regardless of whether additional records are added, arrange an examination of the Veteran by an appropriate examiner to determine the current severity of his right forearm and right wrist disabilities. All indicated diagnostic tests must be conducted. In addition to assessing the musculoskeletal facets of the disabilities, the examiner is also asked to determine whether there are neurological pathology associated with either or both disabilities.

The AOJ should advise the examiner that all joints examination should comply with the requirements of Sharp v. Shulkin, 29 Vet. App. 26 (2017) on assessing any functional loss due to flare-ups and use over time; Correia v. McDonald, 28 Vet. App. 158 (2016) on how ROM is tested; and Deluca.  The Court has held that a lack of opportunity to observe a flare-up is not a sufficient basis for declining to estimate its functional effects.  The examiner should provide an estimate and is free to indicate the level of confidence in such estimate on a scale of 1 to 5, with 5 very the most confident and 1 being the least confident.

3. After the above is complete, re-adjudicate the issues on appeal. If the decision remains in anyway adverse to the Veteran, issue him and his representative a Supplemental Statement of the Case, and then return the case to the Board, if all is in order.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

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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 (West 2012).



______________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs