Citation Nr: 20005167 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 19-13 496 DATE: January 23, 2020 ORDER Entitlement to a disability rating in excess of 10 percent for residuals of a fracture to the left distal radius and ulna with arthritis (left arm condition) is denied. Entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the left wrist (left wrist condition) is denied. Entitlement to a disability rating in excess of 10 percent for residuals of a fracture of the right wrist (right wrist condition) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s left arm condition does not manifest as nonunion in the upper half of the radius or in the lower half of the ulna. 2. The Veteran’s left wrist condition does not manifest as ankylosis. 3. The Veteran’s right wrist condition does not manifest as ankylosis. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for the Veteran’s left arm condition have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5211, 5212. 2. The criteria for entitlement to a disability rating in excess of 10 percent for the Veteran’s left wrist condition have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5215. 3. The criteria for entitlement to a disability rating in excess of 10 percent for the Veteran’s right wrist condition have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5215. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1971 to July 1975. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of January 2018 issued by the Department of Veterans Affairs (VA) Regional Office (RO). Before addressing the merits of the Veteran’s claims, the Board briefly discusses their procedural history to note issues not currently on appeal. Following the rating decision on appeal, the Veteran timely filed his notice of disagreement (NOD) in April 2018. The RO issued a statement of the case (SOC) in March 2019 and the Veteran’s timely appeal to the Board followed in May 2019. Because the Veteran did not request a hearing in his appeal to the Board, no hearing before the undersigned VLJ was scheduled. The Veteran has separately appealed the issue of an initial compensable rating for headaches. The Board previously remanded that issue for further development in July 2018. At present, that issue is currently before the RO pending the issuance of a supplemental statement of the case (SSOC); accordingly, it is not presently before the Board. As will be discussed further below, the issue of entitlement to a TDIU is inextricably intertwined with the Veteran’s headache condition. Accordingly, the Board finds it necessary to defer the issue of entitlement to a TDIU until an SSOC addressing the Veteran’s headaches has been issued. The Board will now proceed to address the remainder of the Veteran’s claims on the merits. Increased Rating Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in 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. 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 a 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 reviewed when making disability rating decisions. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. With respect to disabilities of the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. These provisions thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable Diagnostic Code pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80 (1997). In determining if a higher rating is warranted on this basis, pain alone does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance as provided in 38 C.F.R. §§ 4.40 and 4.45. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 1. Entitlement to a disability rating in excess of 10 percent for the Veteran’s left arm condition. The applicable rating criteria provide that a disability rating of 10 percent is assigned where there is malunion, with bad alignment, of the ulna or radius. 38 C.F.R. § 4.71a, Diagnostic Codes 5211-5212. A disability rating of 20 percent is assigned only where there is nonunion in the lower half of the ulna or in the upper half of the radius. Id. The Board notes that “nonunion” in this context refers to a broken bone that has failed to heal. See “Nonunions,” American Academy of Orthopedic Surgeons (accessed via https://orthoinfo.aaos.org/en/diseases--conditions/nonunions/). The Veteran’s left arm condition has been rated as 10 percent disabling from July 1975. See January 2018 Rating Codesheet. More recently, the Veteran previously underwent VA examinations addressing this condition in December 2017 and October 2018. The history of the Veteran’s left arm condition supports the inference that its residuals included a nonunion fracture in the past. See November 1975 VA Examination Report at 4 (diagnosing “non-union [fracture] [at] distal end of [left] ulna”). However, the subsequent history of the Veteran’s left arm condition supports the conclusion that its residuals no longer include a nonunion fracture. See February 2009 VA Medical Treatment Records at 16 (providing that x-rays of October 2007 show “deformity of [the] styloid process of the ulna [which] could represent old posttraumatic changes[,]” and “mild soft tissue swelling at the wrist[,]” but not observing an extant nonunion fracture). Neither the December 2017 nor the October 2018 VA examiners found evidence of a nonunion fracture in the ulna or radius during the rating period on appeal. Instead, the December 2017 VA examiner found that a “palpable angulation deformity of [the] distal radius affects palmar flexion and dorsiflexion.” See December 2017 VA Examination Report at 10, 12. In other words, the Veteran’s left arm condition impedes his range of motion in his left wrist. The October 2018 VA examiner noted “tenderness at distal radius and ulnar area.” See October 2018 VA Examination Report at 3. The October 2018 VA examiner further opined that the Veteran’s left arm condition would impair his ability to “[lift or carry] heavy objects.” Id. at 6. This is consistent with the findings of the December 2017 VA examiner, who concluded that the cumulative impact of the Veteran’s conditions affects his “ability to push, pull, lift objects, twist or rotate the wrist, [and] handle objects” with his left hand. As will be discussed further below, the Veteran’s limited range of motion is the subject of a separately compensable disability rating. There is no competent medical evidence in the record to support the proposition that the Veteran’s left arm condition continues to include a nonunion fracture, which is the only basis for a disability rating in excess of 10 percent under Diagnostic Codes 5211 and 5212. 38 C.F.R. § 4.71a. The Board therefore finds that the assignment of a disability rating in excess of 10 percent for the Veteran’s left arm condition under these Diagnostic Codes is not warranted. The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the balance of the evidence is against the Veteran’s claim. 38 U.S.C. § 5107(b). Because the Veteran’s left arm condition manifests as “residuals of a fracture… with arthritis,” the Board has considered whether a higher rating might instead be assigned under Diagnostic Code 5003. The applicable rating criteria for degenerative arthritis provide that a disability rating of 20 percent will be assigned “[with] X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating episodes.” 38 C.F.R. § 4.71a, Diagnostic Code 5003. “[The] shoulder, elbow, wrist, hip, knee, and ankle are considered major joints[.]” 38 C.F.R. § 4.45(f). These criteria further provide that such a rating may be assigned only as an alternative to ratings based upon limitation of motion and may not be combined therewith. 38 C.F.R. § 4.71a, Diagnostic Code 5003 at Note (1). As noted previously, the Veteran’s limited range of motion is the subject of a separately compensable disability rating. The Board therefore is not precluded from considering whether a higher rating for the Veteran’s left arm condition may be warranted under Diagnostic Code 5003. However, the Board concludes that the evidence of record does not support the inference that it is at least as likely as not that the Veteran’s service-connected arthritic conditions “[involve] 2 or more major joints or 2 or more minor joint groups” as required by the applicable regulations. 38 C.F.R. §§ 4.45(f), 4.71a, Diagnostic Code 5003. The assignment of an alternative disability rating in excess of 10 percent for the Veteran’s left arm condition under Diagnostic Code 5003 is therefore not warranted. 2. Entitlement to a disability rating in excess of 10 percent for the Veteran’s left wrist condition. Generally, degenerative arthritis is rated “on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved[.]” 38 C.F.R. § 4.71a, Diagnostic Code 5003. The Veteran’s left wrist condition has been rated as 10 percent disabling from June 2008. See January 2018 Rating Codesheet. Under the applicable rating criteria, a disability rating of 10 percent is assigned where the dorsiflexion of the wrist is limited to 15 degrees or fewer, or where palmar flexion of the wrist is limited to the line of the forearm. 38 C.F.R. § 4.71a, Diagnostic Code 5215. A disability rating in excess of 10 percent for limited motion of the wrist is available only in cases where there is ankylosis of the wrist joint. Id., Diagnostic Code 5214. The VA examination reports of December 2017 and October 2018 reflect that the Veteran’s left wrist condition limits his palmar flexion to 40 or 45 degrees, respectively, and limits his dorsiflexion to 45 degrees. Neither VA examination supports the inference that there is ankylosis of the wrist, nor is there any other competent evidence of record to support such an inference. The Board is sympathetic to the Veteran’s assertions, documented in correspondence of March 2017, that “I try to avoid using my left hand… I use ice and take tramadol for the pain and that is about the only thing that works for my left wrist, however my left wrist still hurts on a daily basis.” See March 2017 Affidavit at 1. The Board notes that the December 2017 and October 2018 VA examinations reflect that the Veteran experiences flare-ups of his left wrist condition, but neither examination reflects a finding that the limitation of motion experienced during such a flare-up is equivalent to ankylosis. As previously noted, a higher rating based on functional loss, including functional loss due to pain experienced during a flare-up, may not exceed the highest rating available under the applicable Diagnostic Code pertaining to range of motion. Johnston v. Brown, 10 Vet. App. 80 (1997). The assignment of a disability rating in excess of 10 percent under Diagnostic Codes 5215 or 5214 is therefore not warranted. 38 C.F.R. § 4.71a. As previously discussed, the evidence of record also does not support the conclusion that it is at least as likely as not that the Veteran’s service-connected arthritic conditions involve “2 or more major joints or 2 or more minor joint groups” as contemplated by Diagnostic Code 5003. The assignment of a disability rating in excess of 10 percent under an alternative Diagnostic Code is therefore also not warranted. The Board has considered the doctrine of reasonable doubt but finds it is not applicable because the balance of the evidence is against the Veteran’s claim. 38 U.S.C. § 5107(b). Finally, the Board notes that the Veteran, through counsel, argued in his April 2018 NOD that the December 2017 VA examination was inadequate because it utilized x-rays from October 2007. See April 2018 NOD at 3; see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (providing that original VA examinations may no longer be adequate where the Veteran has asserted an increase in a disability’s severity). The Board finds that this argument plainly misreads the applicable rating criteria, which provide that degenerative arthritis is to be “established by X-ray findings[.]” 38 C.F.R. § 4.71a, Diagnostic Code 5003 (emphasis added). Once established, arthritis is to be rated “on the basis of limitation of motion[.]” Id. The applicable Disability Benefits Questionnaire expressly provides to examiners that they need not subsequently obtain additional x-rays once a diagnosis of arthritis has been established. See, e.g., December 2017 VA Examination Report at 12. In this case, the Board finds that Snuffer’s requirement of a timely VA examination was fully satisfied by the provision of such examinations as recently as December 2017 and October 2018. 3. Entitlement to a disability rating in excess of 10 percent for the Veteran’s right wrist condition. The Veteran’s right wrist condition has been evaluated as 10 percent disabling under Diagnostic Code 5215 from December 2009. See January 2018 Rating Codesheet. As previously discussed, a disability rating in excess of 10 percent is not assigned for limitation of motion of the wrist unless there is ankylosis. 38 C.F.R. § 4.71a, Diagnostic Codes 5214, 5215. The December 2017 and October 2018 VA examinations reflect that the Veteran’s palmar flexion of the right wrist is limited to 70 degrees and that his dorsiflexion is not limited. There is no other medical evidence of record supporting the inference that the Veteran’s right wrist condition manifests as ankylosis. Accordingly, the assignment of a disability rating in excess of 10 percent for the Veteran’s right wrist condition is not warranted. The Board has considered the doctrine of reasonable doubt but finds it is not applicable because the balance of the evidence is against the Veteran’s claim. 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to a TDIU. Generally, VA will grant a TDIU when the evidence shows that the Veteran is precluded by reason of his service-connected disabilities from obtaining or maintaining “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. As previously noted, the Veteran’s claim for an initial compensable rating for headaches is currently pending the issuance of an SSOC by the RO. In correspondence of March 2017, the Veteran identifies his headaches as the primary contributor to his inability to obtain or maintain employment. See id. at 2 (providing that “I simply cannot work and it is due to my service-connected headache condition”). A private vocational opinion filed as of April 2017 likewise corroborates that “[the Veteran] could not perform any type of sedentary work, as his service-connected headaches would interfere with his ability to attend and complete any work tasks.” See id. at 11. Furthermore, the Veteran may not be entitled to a TDIU on a schedular basis absent the assignment of additional qualifying disability ratings. See January 2018 Rating Codesheet (providing that the Veteran is currently rated as 30 percent disabled); see also 38 C.F.R. § 4.16(a) (requiring either a single disability rated at 60 percent or a total evaluation of 70 percent, with at least one disability rated at 40 percent). The Board therefore finds that the issue of entitlement to a TDIU is inextricably intertwined with that of an initial compensable rating for the Veteran’s headaches. Accordingly, the Board will not issue a decision on this claim at this time. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (providing that issues are inextricably intertwined when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). This matter is therefore REMANDED for the following action: 1. Issue a supplemental statement of the case addressing the Veteran’s claim for an initial compensable rating for headaches. 2. Adjudicate the Veteran’s claim to a TDIU based on the total evidence of record. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, Associate Counsel 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.