Citation Nr: A20008671 Decision Date: 05/15/20 Archive Date: 05/15/20 DOCKET NO. 190928-34742 DATE: May 15, 2020 ORDER Entitlement to service connection for left ankle disability, claimed as left ankle pain/strain, is denied. Entitlement to a compensable initial disability rating for left wrist fracture, claimed as left wrist pain/strain, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a current left ankle disability, proximate to the claim, or during the appeal period. 2. Throughout the entire appeal period, the Veteran’s service-connected left wrist fracture has not been manifested by painful motion, limitation of motion or ankylosis. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left ankle disability, claimed as left ankle pain/strain, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to a compensable initial disability rating for left wrist fracture, claimed as left wrist pain/strain, have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5215. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2005 to January 2012. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. Following the issuance of a September 23, 2019 Higher Level Review rating decision by the Agency of Original Jurisdiction (AOJ) which granted service connection for left wrist fracture, and denied service connection for left ankle pain/strain, the Veteran selected Direct Review by a Veterans Law Judge (VLJ) option, indicating that the Veteran did not want a Board hearing and would not be submitting additional evidence in support of his appeal. See September 2019 VA Form 10182. Direct review is the appeal option to the Board in which a Board decision is issued based on evidence of record at the time of the prior decision. The Board notes that the Veteran stated that he experienced severe pain of his left wrist if turned the wrong way. See September 2019 VA Form 10182. However, this statement was not before the AOJ prior to the September 2019 rating decision on appeal. Therefore, the Board may not consider this evidence. See 38 C.F.R. § 20.300. The Board also notes that the Veteran included appeal of the issue of entitlement to service connection for residuals of a right hand fracture. See September 2019 VA Form 10182. In a November 2019 rating decision, the AOJ granted the Veteran service connection for a right hand fracture. As this decision represents a full grant of the benefit sought, this issue is not on appeal before the Board. Entitlement to service connection for left ankle disability, claimed as left ankle pain/strain, is denied. The Veteran seeks service connection for a left ankle disability, claimed as left ankle pain/strain. Service connection may be established for a disability resulting from disease or injury in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To prevail on a direct service connection claim, there must be (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). The requirement for a current disability is satisfied if the disability is present at any point proximate to the claim, or during the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In regard to the first element of the Shedden analysis, the probative evidence of record does not show that the Veteran has a current left ankle disability demonstrated proximate to or during the appeal. The Veteran’s service treatment records (STRs) document that the Veteran incurred and was treated for a left ankle sprain during service. See January 2009, and August 2010 STRs. However, the Veteran’s November 2011 report of medical history and December 2011 separation exam shows no ankle defects or complaints on separation from service. Additionally, there are no current post-service medical treatment records that establish that the Veteran currently has a left ankle disability. The Veteran was afforded a VA examination in July 2019 for reported left ankle pain/strain. The VA examiner indicated review of the Veteran’s VA claims folder and conducted an in-person examination. The VA examiner noted the Veteran’s STRs document a left ankle sprain, but notes his injuries were shown to be transient/acute disorders and they resolved as expected without residuals. See July 2019 VA examination. The VA examiner noted that there were no entries in the Veteran’s medical record indicating any specific evaluation for a significant aggravation/worsening, chronic/persistent or recurrent left ankle disorder. Id. The VA examiner also noted that the Veteran denied any recent injury or current treatment for related injury of the left ankle. Id. It was indicated that the Veteran did not report having any functional loss or functional impairment of the joint. Left ankle range of motion was normal, and no pain was noted on examination. There was also no reduction in muscle strength. X-ray imaging of the left ankle revealed a normal left ankle with no degenerative changes. The VA examiner concluded that there was insufficient evidence to warrant or confirm a current diagnosis of an acute or chronic left ankle disorder or its residuals. Id. The Board finds the VA examination to be adequate for decision making purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). To the extent the Veteran asserts that he has a left ankle disability, the Board notes that he has not been shown to have the medical training necessary to diagnose such condition. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the July 2019 VA examination is afforded greater probative value. In sum, the Board finds that there is no competent evidence of a current disability, and there is no valid claim. See Brammer, 3 Vet. App. at 225. In this case, there is an absence of proof of a left ankle disability during or in proximity to the appeal period. Without evidence of a current diagnosis of a disability, the Board need not address the other elements of service connection. The preponderance of the evidence is therefore against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Entitlement to a compensable initial disability rating for left wrist fracture, claimed as left wrist pain/strain, is denied. The September 23, 2019 rating decision that granted service connection for a left wrist fracture assigned a noncompensable initial rating, effective June 6, 2019. Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled date, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The Veteran’s left wrist fracture is currently assigned a noncompensable rating under Diagnostic Code (DC) 5215. Under DC 5215, 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. See 38 C.F.R. § 4.71a, DC 5215. This is the maximum possible schedular rating under DC 5215. Id. Higher ratings are available under DC 5214 for ankylosis of the wrist. The Board finds that a compensable initial disability rating under DC 5215 is not warranted. The Veteran was afforded a VA examination in July 2019. It was noted that the Veteran was right hand dominant. The VA examiner noted the Veteran’s report that he occasionally experiences episodes of wrist pain when lifting and thinks that his left wrist is weak. See July 2019 VA examination. During the July 2019 examination, the Veteran had full range of motion of the left wrist, with no pain on movement noted. Id. The VA examiner noted that there was no pain, weakness, fatigability, or incoordination that significantly limited functional ability with repeated use over a period of time. Id. The Veteran was able to perform repetitive use testing with no additional limitation of motion after repetitive use or functional loss or impairment. Id. The VA examiner noted that there was no decrease in muscle strength, atrophy, or ankylosis. Id. The examiner noted that there was no pain when the joint is used in non-weight bearing or weight-bearing. Id. Additionally, x-rays revealed a normal wrist with no degenerative changes, fracture or dislocation. Id. The Board acknowledges the Veteran’s lay statements regarding occasional pain when lifting and thinking his wrist is still weak. See July 2019 VA examination. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses; however, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Such competent evidence concerning the nature and extent of the Veteran’s left wrist disability has been provided by the July 2019 VA examiner based on in-person examination of the Veteran during the current appeal and who rendered pertinent opinions in conjunction with the evaluation. The medical findings directly address the criteria under which this disability is evaluated. Moreover, the VA examiner reviewed the Veteran’s VA claims folder. Therefore, the Board finds the July 2019 VA examination to be adequate for decision making purposes and affords it great probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). After review of the evidence, the Board finds that a compensable rating is not warranted for the Veteran’s left wrist fracture. There is no medical evidence of record that indicates a range of motion limited to less than 15 degrees in dorsiflexion or palmar flexion limited in line with the forearm, and there is no evidence of ankylosis of any kind to warrant a separate rating under DC 5214. See 38 C.F.R. § 4.71a, DCs 5215, 5214. Further, the Board has considered additional impairment to the left wrist on the basis of functional loss due to pain under 38 C.F.R. §§ 4.40, 4.45, and 4.59 but finds that the evidence does not demonstrate that pain has restricted overall motion and does not cause limitation of motion to warrant a higher rating. See DeLuca, 8 Vet. App. at 206-208; 38 C.F.R. §§ 4.40, 4.45. Although the Veteran has reported pain with use of the left wrist, the July 2019 VA examination report indicates that pain does not cause functional loss and that the Veteran exhibited full range of motion in the left wrist without objective evidence of painful motion. In sum, the Board finds that the evidence does not reflect that the Veteran’s left wrist fracture has manifested in symptoms or functional limitations that more nearly approximate the criteria for a 10 percent rating under DC 5215. As such, the preponderance of the evidence is against a finding that the Veteran is entitled to a compensable initial disability rating for left wrist fracture. The Board has considered the benefit-of-the-doubt rule; however, since the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. P. Moore, 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.