Citation Nr: 19190071 Decision Date: 11/29/19 Archive Date: 11/29/19 DOCKET NO. 14-12 230 DATE: November 29, 2019 ORDER Entitlement to service connection for left wrist arthritis is denied. Entitlement to a disability rating in excess of 10 percent for service-connected left scaphoid fracture is denied. FINDINGS OF FACT 1. During the pendency of the appeal, the Veteran has not had a diagnosis of left wrist arthritis. 2. The Veteran's residuals of left scaphoid fracture are manifest by no worse than limitation of dorsiflexion to 50 degrees with pain. CONCLUSIONS OF LAW 1. The criteria for service connection for left wrist arthritis are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for a rating in excess of 10 percent for residuals of a left scaphoid fracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5215. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1975 to November 1979, and from October 1980 to May 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The claim of entitlement to a rating in excess of 10 percent for residuals of a left scaphoid fracture was previously remanded by the Board in September 2017 for an examination that incorporated the Court’s holding in Correia. A review of the record indicates that the Board’s directives were substantially complied with, such that further remand is not warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Further, in that September 2017 decision, the Board denied service connection for left wrist arthritis. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In February 2019, the Court issued a Memorandum Decision and remanded the issue back to the Board finding that the Board must consider the holding by the Federal Circuit in Saunders v. Wilkie, 888 F.3d. 1356 (Fec. Cir. 2018). 1. Left Wrist Arthritis The Veteran contends that he has arthritis related to his service-connected left wrist disability. Alternatively, he contends that his painful motion of the wrist warrants a separate rating under the Court’s holding in Saunders. Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C. § 1110. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107 (b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where the issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). At his May 2017 Board hearing the Veteran stated he had been diagnosed with arthritis. The Veteran was afforded a November 2017 VA examination in which the examiner indicated there was no diagnosis of traumatic or degenerative arthritis and no arthritis has been documented in the record. Further June 2012 and January 2015 VA examiners similarly found no diagnosis of arthritis and no arthritis documented in the record. The Board determines that service connection for arthritis, to include as related to the Veteran’s left wrist disability, is not warranted. The Board finds a diagnosis of arthritis has not been established. Further, the Veteran’s service-connected left wrist disability has been rated under Diagnostic Code 5215 and a separate rating for the same painful limitation of motion or limitation of motion due to arthritis under Diagnostic Code 5003 is prohibited. This would constitute pyramiding and is prohibited under the General Rating Formula, as the evaluation of the same manifestation under different diagnoses is to be avoided. 38 C.F.R. § 4.14. Additionally, in a recent case, Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that pain can constitute a disability under 38 U.S.C. § 1110. However, the Federal Circuit did not hold that the Veteran could demonstrate service connection simply by asserting subjective pain, but would have to show it amounted to a functional impairment of earning capacity. Id. at 28. The Board finds that the decision in Saunders can be distinguished from the facts of this case. Here, the evidence shows that the Veteran suffers from wrist pain, although this is not diagnosed as a separate and distinct wrist disability, and has instead been established as a symptom of his service-connected left scaphoid fracture. In describing the left scaphoid fracture, the examiner noted the Veteran’s reports of pain and observed pain on motion. Further, the examiner noted that there was decreased range of motion due to pain. In sum, the Board concludes no underlying arthritis disability has been clinically diagnosed during the appeal period or proximate thereto. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Further, while the Veteran is certainly competent to report his wrist problems, he has not demonstrated that he has the requisite specialized knowledge or training to establish a diagnosis of arthritis or to attribute his wrist symptomatology to a separate disability from his service-connected left scaphoid fracture. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran’s assertions of arthritis have less probative value than the medical opinions of record. In contrast, the VA examination reports from June 2012, January 2015, and November 2017 established the Veteran does not have diagnosed arthritis and that any left wrist pain is due to his scaphoid fracture. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran’s service connection claim for arthritis, to include as secondary to his service-connected wrist disability. Therefore, the benefit-of-the-doubt rule does not apply, and the service connection claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Residuals of Left Scaphoid Fracture The Veteran contends the residuals of his left scaphoid fracture are not adequately compensated. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, however, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). For the entire rating period on appeal, from September 2011, the service-connected left wrist disability has been assigned a 10 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5215. Under Diagnostic Code 5215 (limitation of motion of the wrist), 10 percent disability ratings are warranted for palmar flexion limited in line with the forearm or dorsiflexion less than 15 degrees. Diagnostic Code 5215 does not provide for a rating in excess of 10 percent. 38 C.F.R. § 4.71a. For an increase, the evidence must establish that the Veteran’s left wrist is manifested by ankylosis of the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5214. The Board has reviewed the Veteran’s clinical treatment records and the VA examination reports during the pendency of this claim and the evidence does not show that the Veteran’s left wrist is ankylosed, or that the pain and other functional loss rises to the level of more closely approximating the criteria for increase under Diagnostic Code 5214. The June 2012, January 2015, and November 2017 VA examiners determined that there was no ankylosis of the wrist. There was pain noted on examination and decreased range of motion. For the entire increased rating period on appeal from September 2011 to the present, the criteria for an increased disability rating in excess of 10 percent for the right wrist disability have not been met or more nearly approximated. 38 C.F.R. §§ 4.3, 4.7, 4.71a. A 10 percent rating is the maximum schedular disability rating under Diagnostic Code 5215. The Board further finds that the weight of the lay and medical evidence demonstrates that the criteria for a disability rating in excess of 10 percent for the left wrist disability have not been met or more nearly approximated under any other diagnostic codes pertaining to the wrist, specifically, under Diagnostic Code 5214. The left wrist has not been manifested by ankylosis or limitation of motion akin to ankylosis at any time. In reaching this conclusion, the Board considered whether an increased disability rating for the left wrist was warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint, applying the orthopedic rating principles at 38 C.F.R. §§ 4.40, 4.45, and 4.59. See also DeLuca v. Brown, 8 Vet. App. 202. In this case, there is no question that the Veteran’s left wrist disability has caused pain, and the Board recognizes his report of other symptoms such as weakness and fatigability; however, the records do not more nearly approximate ankylosis of the right wrist. As such, the Board finds that an increased disability rating in excess of 10 percent is not warranted under Diagnostic Code 5214 (ankylosis of the wrist) for the right wrist disability. Further, the Veteran has not undergone a total left wrist replacement; therefore, Diagnostic Code 5053 does not apply. Thus, the Board finds that an increased disability rating in excess of 10 percent is not warranted for the service-connected left wrist disability. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Uller The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.