Citation Nr: 20026751 Decision Date: 04/17/20 Archive Date: 04/17/20 DOCKET NO. 14-44 498 DATE: April 17, 2020 ORDER Entitlement to an initial evaluation higher than 10 percent for a right wrist disability is denied. REMANDED Entitlement to service connection for a left ankle disability is remanded. FINDING OF FACT An evaluation of 10 percent is the highest available rating for limitation of the wrist when no ankylosis is present. CONCLUSION OF LAW The criteria for an initial evaluation higher than 10 percent for a residuals of a right wrist fracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5215. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from August 1972 to January 1974. This matter comes before the Board of Veterans’ Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This case was most recently before the Board in July 2018. The issues above were remanded for further development. Since that time, the Agency of Original Jurisdiction (AOJ) granted service connection for left and right ear hearing loss. Therefore, those issues have been granted in full and are no longer on appeal. Increased Rating Claim Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, as here, multiple (“staged”) ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to an initial evaluation higher than 10 percent for a right wrist disability The Agency of Original Jurisdiction (AOJ) granted service connection for the Veteran’s right wrist disability in a May 2014 rating decision and granted a 10 percent evaluation effective April 16, 2013. The Veteran’s right wrist disability was evaluated under Diagnostic Codes 5003 and 5215. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating 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. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5003. DC 5215 provides evaluations for limitation of motion of the wrist. A 10 percent is assigned for palmar flexion limited in line with forearm for major and minor joints. A 10 percent evaluation is assigned when dorsiflexion is less than 15 degrees for major and minor joints. A higher evaluation under DC 5003 requires x-ray evidence of involvement of two or more major joints or two more minor joints with occasional incapacitating exacerbations. The Veteran’s right wrist disability includes only one joint. Therefore, a higher evaluation for the right wrist under DC 5003 is not warranted. In order for the Veteran to receive a higher evaluation than 10 percent for his wrist disability, the evidence must show ankylosis of the wrist. In the January 2020 Wrist Conditions DBQ, the examiner specifically found that there was no right wrist ankylosis. Where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, the cited regulations are not for application. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997) (although the Secretary suggested remand because of the Board’s failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis). See also Hollenquest v. Wilkie, No, 17-4846 (Vet. App. May 15, 2019) (explaining why Johnston and Spencer allow for denial of a claim for a higher rating based on ankylosis without considering flare-ups); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). Therefore, an initial evaluation higher than 10 percent for a right wrist disability is denied. REASONS FOR REMAND 1. Entitlement to service connection for a left ankle disability is remanded. The Veteran believes his left ankle disability is related to his military service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). As for a current disability, the February 2015 and January 2020 examiners both focused on fractures of the left ankle and arthritis. The February 2015 examiner noted fracture in 2014 x-ray and mild degenerative joint disease of the anterior aspect of tibiotalar joint. The January 2020 examiner found a diagnosis of osteoarthritis of the left ankle and healed fracture of the left ankle. The April 1973 service treatment record, however, notes that the Veteran had swelling and pain in the area of the left achilles tendon with no trauma noted. The service treatment record noted that it may be irritation from the Veteran’s boots. The Veteran’s has consistently reported ankle pain since service. After filing his claim for service connection for the left ankle, a June 2014 Magnetic Resonance Imaging (MRI) noted old medial malleolus avulsion and chronic irregularity with no evidence of acute ligamentous injury. The MRI also noted mild soft tissue edema anterior to the Achilles tendon within Kager’s fat pad which may reflect Achilles peritendinitis. A new examination is needed to determine if the Veteran had Achilles peritendinitis at any time during the appeal period and, if so, whether it is related to the Achilles pain that he had in service. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any ankle disability or Achilles disability, including possible Achilles peritendinitis at any time during the appeal period. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the April 1973 service treatment record noting swelling, tenderness in the area of the left Achilles tendon. The examiner’s attention is directed to the June 2015 MRI which noted: old medial malleolus avulsion fracture and chronic irregularity. No evidence of acute ligamentous injury. Mild soft tissue edema anterior to the Achilles tendon within Kager’s fat pad which may reflect Achilles peritendinitis. 2. Readjudicate the Veteran’s claim, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tahirih S. Samadani, 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.