Citation Nr: 20005303 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 12-11 646 DATE: January 23, 2020 REMANDED 1. Entitlement to a rating in excess of 10 percent for residuals of a left wrist fracture is remanded. 2. Entitlement to a rating in excess of 10 percent for residuals of a left wrist fracture is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from December 1982 to December 1990. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2014, a videoconference hearing was held before the undersigned. In November 2014, the Board remanded this case to the RO for additional development. A December 2015 rating decision granted service connection for right and left forearm muscle injuries, rated 30 percent and 20 percent, respectively, effective from August 2009, and for nerve damage of the left wrist, rated 10 percent, effective from May 2013; all secondary to the service-connected bilateral wrist fractures. The Veteran did not file a notice of disagreement with those determinations, and the ratings for those disabilities are not before the Board. From February 13, 2013 through April 30, 2013, the Veteran’s left wrist disability was assigned a temporary total rating under 38 C.F.R. § 4.30 (for convalescence following surgery). From March 4, 2015 through May 31, 2015, his right wrist disability was assigned a temporary total rating under 38 C.F.R. § 4.30. Those periods of time are not for consideration. An August 2016 Board decision denied ratings in excess of 10 percent, each, for the Veteran’s residuals of a right and left wrist fractures. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (CAVC), which in a March 2017 Order granted a March 2017 Joint Motion for Remand of the parties, thereby vacating the Board’s August 2016 decision and remanding the case to the Board for further action consistent with the terms of the Joint Motion. In September 2017, the Board remanded the case to the RO for additional development. 1. and 2. Entitlement to a rating in excess of 10 percent for residuals of a left wrist fracture; Entitlement to a rating in excess of 10 percent for residuals of a left wrist fracture The Board remanded the case to the RO in September 2017, in part for a VA examination by an orthopedist to address the nature and severity of the Veteran’s bilateral wrist disabilities, and for the RO’s determination of whether the case warrants referral to VA’s Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). The examining orthopedic surgeon indicated in a September 2018 report (with a November 2018 addendum) that the Veteran did not have any current instability of his wrists. However, VA and private medical records indicate that the Veteran has a history (i.e., up to and including parts of 2015) of wrist instability/subluxation. Such pathology is not contemplated by the criteria in 38 C.F.R. § 4.71a, Diagnostic Codes 5214-5215 (the wrist limitation of motion codes under which orthopedic manifestations are currently evaluated). As earlier noted, the Veteran is already separately rated for right and left forearm muscle injury impairment (which is not for appellate consideration). When a December 2015 RO rating decision awarded the separate ratings for muscle impairment under 38 C.F.R. § 4.73, Diagnostic Codes 5307-5308, effective in August 2009, the RO found the Veteran’s manifestations were “a result of weakness and impairment of muscle function” and were separately compensable from range of motion; the RO did not specifically discuss the clinical findings of instability/subluxation. At issue is whether the Veteran’s history of instability/subluxation within the period for appellate consideration is contemplated by the rating criteria for muscle impairment. In that regard, it is noted that under 38 C.F.R. § 4.56(c), the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. Whether subluxation/instability is reflected by the “uncertainty of movement” is, at least in part, a medical question. The Board finds that a medical opinion to resolve this issue is needed. A finding that instability and subluxation are not contemplated within the criteria for evaluating muscle impairment, would require referral of this matter for consideration of an extraschedular rating for the period prior to March 2015 when instability/subluxation of the wrists was clinically noted. The matters are REMANDED for the following action: 1. Arrange for the Veteran’s claims file to be forwarded to an appropriate clinician for review of the Veteran’s history of instability/subluxation of the wrists, and an advisory medical opinion in the matter. See, e.g., private treatment records in September 2010, October 2010, April 2012, and September 2013; VA treatment records in September 2009, December 2010, and March 2011; and VA examination reports in September 2009, September 2012, July 2013, and March 2015. The consulting provider is asked to furnish an opinion as to whether the manifestations of instability and subluxation noted are contemplated within the rating criteria for evaluating muscle impairment. See 38 C.F.R. §§ 4.56 (including a description of the cardinal signs and symptoms of muscle disability), 4.73, Diagnostic Codes 5307-5308 (Muscle Groups VII and VIII relative to the wrist and fingers). [Copies of which must be available to, and reviewed, by the consulting provider.] 2. Review the record and if it is found that the Veteran’s history of instability/subluxation of the wrists (when noted during the period on appeal, in March 2015 and earlier, as instability was not found on the most recent examination) are not contemplated within the rating criteria for evaluating muscle impairment, prepare an appropriate summary and refer the matter to VA’s Director of Compensation Service for consideration of extraschedular ratings under 38 C.F.R. § 3.321(b)(1) for the periods in question. George R. Senyk Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debbie Breitbeil, 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.