Citation Nr: 20007575 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 16-09 533 DATE: January 29, 2020 ORDER Entitlement to an increased disability rating for a left wrist condition, currently rated as 10 percent disabling, is denied. FINDING OF FACT At no time relevant to this appeal have ankylosis of the left wrist or involvement of two major joints or two or more minor joint groups with occasional incapacitating exacerbations been demonstrated. CONCLUSION OF LAW The criteria for Entitlement to an increased disability rating for a left wrist condition, currently rated as 10 percent disabling have not been met. 38 U.S.C. §§ 1155, 5103, 5103A and 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59 and 4.71a, Diagnostic Codes 5003, 5010, 5215. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from August 1981 to August 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a February 2019 Board videoconference hearing. A transcript of that hearing has been associated with the claims file. This matter was last before the Board in April 2019, at which time it was remanded for further development. The Board finds there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to an increased disability rating for a left wrist condition, currently rated as 10 percent disabling. The Veteran contends that he is entitled to a higher rating for his left wrist condition, asserting that it has increased in severity. The Board notes that the evidence of record consistently demonstrates that the Veteran is right-handed. The Veteran’s left wrist disability (status post internal fixation of distal radius, left minor with residual deformity) is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5215. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The hyphenated diagnostic code here indicates that the Veteran is service connected for traumatic degenerative arthritis due to trauma and limitation of motion of the left wrist. Traumatic arthritis, as shown by x-ray, is rated based on limitation of motion of the affected joint. 38 C.F.R. § 4.71a, DCs 5003, 5010. When, however, the limitation of motion is noncompensable under the appropriate diagnostic code, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. Id., DC 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Diagnostic Codes 5214 and 5215 assign disability ratings for the wrist. Under DC 5215 (the code under which the Veteran's right wrist disability is rated), a 10 percent rating is warranted for limitation of dorsiflexion of the wrist to less than 15 degrees, or for palmar flexion limited in line with the forearm. This is the maximum possible schedular rating under DC 5215. Id., DC 5215. Higher ratings are available under DC 5214 for ankylosis of the wrist. Under DC 5214, a 30 percent rating is warranted where there is favorable ankylosis of the wrist in 20 to 30 degrees of dorsiflexion. A 40 percent rating is warranted where there is ankylosis of the wrist in any other position, except favorable. A maximum 50 percent rating is warranted where there is unfavorable ankylosis in any degree of palmar flexion, or with ulnar or radial deviation. A note to DC 5214 states that extremely unfavorable ankylosis will be rated as loss of use of hands under DC 5125. 38 C.F.R. § 4.71a, DC 5214, 5125. Normal range of motion of the wrist includes dorsiflexion (extension) from zero to 70 degrees, palmar flexion from zero to 80 degrees, ulnar deviation from zero to 45 degrees, and radial deviation from zero to 20 degrees. 38 C.F.R. § 4.71a, Plate I. The evaluation of a service-connected musculoskeletal disability requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and of functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See, DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011) (quoting 38 C.F.R. § 4.40). An August 29, 2013 VA treatment record notes the Veteran's left wrist was status post removal of hardware. The Veteran reported improved preoperative symptoms with no significant pain at his left wrist and numbness/tingling and pain in his fingers resolved. A December 12, 2013 VA treatment record notes the Veteran's left wrist was status post removal of hardware. The Veteran reported improved symptoms with no significant pain at his left wrist and numbness/tingling and pain in his fingers resolved. A December 13, 2013 VA treatment record notes the Veteran 's left wrist incisions were well healed with sensation intact in all distal digits. Full range of motion was noted in all digits, as was normal grip strength. The Veteran was afforded a VA wrist conditions examination in February 2014. The Veteran was diagnosed with status post internal fixation of left distal radius. He reported that he had his hardware removed in March 2013 and has had chronic pain in the left wrist since injuring it while in the service. He reported no flare-ups. Upon examination, left wrist palmar flexion was measured as 35 degrees flexion with evidence of painful motion. Left wrist dorsiflexion was measured as 30 degrees with evidence of painful motion. No change in range of motion was noted after repetitive motion testing, but less movement than normal and pain on movement were. Chronic residual pain and arthritis of the left wrist with decreased range of movement were noted as residuals of left wrist surgery. The Veteran reported that he works doing home repairs and avoids using his left hand due to chronic pain. He further reported pain with twisting movements. A March 3, 2014 VA treatment record notes the Veteran reported improved symptoms with no significant pain at his left wrist and resolved numbness, tingling and pain in his fingers. A June 24, 2014 VA treatment record notes the Veteran had been using Motrin twice a week for the past year for left wrist pain. In his January 2015 Notice of Disagreement (NOD), the Veteran stated that he experiences daily "incapacitating exacerbations" that "cause [him] to have to use [his] right hand." A February 4, 2016 VA treatment record notes the Veteran reported left thumb pain. An x-ray revealed degenerative osteoarthritis of the first carpometacarpal joint. In his February 2016 appeal to the Board, the Veteran asserted that his left wrist has limitation of motion with "incapacitating exacerbations that restrict [him] from using [his] left hand to do simple tasks such as opening a door." The Veteran testified at the February 2019 Board hearing that his left wrist condition has worsened since October 2015. He stated that 2 or 3 times per month he experiences “freezing of the wrist joints and the thumb joints where it doesn’t want to move” which requires him to massage it to “get it to work again.” He then stated that this generally happens when he’s making twisting motions of the wrist and thumb together. He further stated that he has consistent pain in the left wrist. He then asserted that more than one joint in his wrist is involved. The Veteran was afforded a VA wrist conditions examination in September 2019. Diagnoses of status post ORIF left distal radius in service and traumatic arthritis were noted. The Veteran reported chronic pain in his left wrist since his in-service injury. The Veteran did not report flare-ups of his left wrist but did report a functional impairment with turning door handles and holding coffee cups. Upon examination, range of motion of the left wrist was measured as follows: 35 degrees palmar flexion; 35 degrees dorsiflexion; 30 degrees ulnar deviation; and 15 degrees radial deviation. It was noted that the range of motion itself does not contribute to a functional loss and that no pain was noted on examination, to include with weight bearing or on palpation of the joint. Crepitus was not noted. No additional loss of function or range of motion were noted after repetitive use or use over time. Ankylosis was not noted. Pain was not noted on passive range of motion testing or in non-weight bearing. It was further noted that an x-ray revealed mild osteoarthrosis of the distal radioscaphoid and scaphotrapezial-trapezoidal joint and moderately severe osteoarthrosis as the first carpometacarpal joint. No functional impact was noted. In an October 2019 letter, the Veteran asserted that the September 2019 VA examination did not include all relevant joints, namely, his left metacarpal joint. He then argued that a higher rating of 20 percent is warranted due to involvement of two or more major joints or two or more minor joint groups. In an October 18, 2019 statement in support of claim, the Veteran's representative asserted that the September 2019 VA examination did not follow the remand instructions and requested a new VA examination. Regarding the assertions made by the Veteran and his representative, the Board notes that the Veteran was afforded a VA hand and finger conditions examination in April 2016 and a diagnosis of degenerative osteoarthritis of the first carpometacarpal joint, subluxation of carpometacarpal joint was noted. Subsequently, in an April 29, 2016 rating decision, the RO granted service connection for left hand degenerative arthritis, claimed as degenerative osteoarthritis of the 1st metacarpal joint and subluxation of the carpometacarpal joint. The Veteran did not initiate an appeal of the noncompensable rating assigned and, as such, that matter is not currently before the Board. Furthermore, under Diagnostic Code 5010, traumatic arthritis substantiated by x-ray findings, is rated as degenerative arthritis pursuant to Diagnostic Code 5003. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2019). In the absence of limitation of motion, a 10, percent rating is warranted for traumatic arthritis when there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent rating is warranted for degenerative arthritis when there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Id. For the purpose of rating disability from arthritis, major joints include the shoulders and wrists; the interphalangeal, metacarpal, and carpal joints of the upper extremities are considered a group of minor joints. 38 C.F.R. § 4.45 (f). Here, the Veteran is in receipt of the maximum schedular rating available under Diagnostic Code 5215 for limitation to range of motion for the wrist. As the maximum schedular evaluation is in effect, no additional schedular discussion is necessary and discussion of 38 C.F.R. §§ 4.40 and 4.45 and the DeLuca and Mitchell factors are moot. Johnston v. Brown, 10 Vet. App. 80, 85 (1995) (If the maximum schedular rating is in effect for loss of motion of a joint, and the disability does not meet the criteria for a higher evaluation under any other applicable diagnostic code, further consideration of functional loss is not required). The intent of the Rating Schedule is 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. In this instance, the minimum compensable rating for the Veteran's wrist disability under DC 5215 is also the maximum compensable rating under the relevant diagnostic code, 10 percent. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran’s left wrist condition. The evidence of record shows that the Veteran is right-handed. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to occasional locking of the left wrist. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by those statements would not result in symptoms more nearly approximating favorable ankylosis of the major joint or intermediate ankylosis of the major or minor joint. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for a rating in excess of 10 percent for his left wrist condition. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See, Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017). C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brian P. Keeley 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.