Citation Nr: 20043071 Decision Date: 06/25/20 Archive Date: 06/25/20 DOCKET NO. 14-42 771 DATE: June 25, 2020 ORDER Entitlement to a disability rating in excess of 10 percent for residuals of left distal radius fracture is denied. Entitlement to a disability rating in excess of 10 percent for residuals of left elbow and forearm fracture (crushing injury) is denied. Entitlement to a compensable disability rating for residuals of right wrist fracture is denied. FINDINGS OF FACT 1. The Veteran’s residuals of left distal radius fracture have manifested in reduced movement and weakness in flexion and dorsiflexion of the left wrist. 2. The Veteran’s residuals of left elbow and forearm fracture (crushing injury) results in flexion limited to 140 degrees, pain, and weakness of the left elbow. 3. The available evidence indicates that the Veteran’s right wrist has a full range of motion with no pain on movement. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for residuals of left distal radius fracture have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5214, 5215 (2018). 2. The criteria for a disability rating in excess of 10 percent for residuals of left elbow and forearm fracture (crushing injury) have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5205-5213 (2018). 3. The criteria for a compensable disability rating for residuals of right wrist fracture have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5214, 5215 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2004 to May 2006. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Board remanded the Veteran’s appeals to the RO for further evidentiary development. The Board directed the RO to schedule examinations of the Veteran’s disabilities, and the RO scheduled the examinations accordingly for June 2019. The Veteran failed to appear for his examinations and the Board finds that good cause has not been shown for the Veteran’s failure to appear. There is also no indication that the Veteran did not receive the notifications, and he has not requested the VA examinations be rescheduled. Although VA has a duty to assist the Veteran in substantiating his claims, that duty is not a one-way street, and it is important that he make efforts to assist VA in gathering evidence relevant to his claim. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000). Increased rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). 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. 1. Entitlement to a disability rating in excess of 10 percent for residuals of left distal radius fracture On October 1, 2012, the Veteran filed a claim for an increased rating for his service-connected residuals of left distal radius fracture. The Veteran’s residuals of left distal radius fracture have been rated under the criteria for degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under the criteria for that code, when there is X-ray evidence of degenerative arthritis but the limitation of motion of the joint is noncompensable, a rating of 10 percent is warranted for involvement of 2 or more minor joints or 2 or more major joint groups. A rating of 20 percent is to be assigned in cases of involvement of 2 or more major joints or 2 or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Turning to the evidence, the February 2013 VA examination for wrist conditions noted a diagnosis of degenerative joint disease of the left wrist joint, status post surgeries for the crush injury. The Veteran reported no flare ups. The left wrist showed palmar flexion to 70 degrees instead of the normal 80 degrees, and dorsiflexion to 60 degrees instead of 70. There was no evidence of pain on movement and no change after three repetitions. The examiner listed no other contributing factors other than the reduced movement, but the report states that the left wrist was weakened, displaying only 4/5 strength on flexion and extension. Imaging of the left wrist showed mild degenerative change involving the wrist joint. The Veteran also reported pain in the left arm in a November 2014 VA treatment record. No diagnosis was made. Applying the criteria of Diagnostic Code 5003, the Veteran’s condition does not warrant a 20 percent rating as the record does not show the involvement of two or more major joints or minor joint groups, or incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The maximum schedular rating available for limitation of motion of the wrist is 10 percent. 38 C.F.R. §§ 4.71a, DC 5215. The record reflects that throughout the period on appeal, a 10 percent rating has been in effect for the Veteran’s residuals of left distal radius fracture. No higher rating is available under this diagnostic code. The only diagnostic code for conditions of the wrist that provides for a higher disability rating is Diagnostic Code 5214. 38 C.F.R. § 4.71a, Diagnostic Codes 5214-15. Diagnostic 5214 provides for disability ratings of 20, 30, 40, and 50 percent where the wrist is ankylosed, depending on whether it is the wrist of the dominant hand and on the angle at which the wrist joint is permanently frozen. However, the VA examiner of February 2013 indicated that the Veteran did not have ankylosis. The Veteran’s treatment records also do not contain findings of ankylosis of the wrist. Consequently, the Board finds that the Veteran is not entitled to a higher disability rating under DC 5214. The Board has also considered whether a higher rating is warranted under any other potentially applicable diagnostic code related to wrist or arthritis conditions. However, as Diagnostic Codes 5003, 5214, and 5215 are analyzed above, no other Diagnostic Codes are applicable. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a disability rating in excess of 10 percent for residuals of left distal radius fracture. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to a disability rating in excess of 10 percent for residuals of left elbow and forearm fracture (crushing injury) On October 1, 2012, the Veteran filed a claim for an increased rating for his service-connected residuals of left elbow and forearm fracture (crushing injury). The Veteran’s residuals of left elbow and forearm fracture (crushing injury) have been rated according to VA Diagnostic Code 5206. Under that Diagnostic Code, limitation of flexion of the forearm of the non-dominant arm to 45 degrees is to be assigned a 40 percent rating. Limitation of flexion of the forearm of the non-dominant arm to 55 degrees warrants a 30 percent rating; 70 or 90 degrees warrants a 20 percent rating; limitation of flexion to 100 degrees is to be assigned a 10 percent rating; and when flexion is limited to 110 degrees or more, a noncompensable rating is to be assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5206. Turning to the evidence, the February 2013 VA examination of elbow and forearm conditions noted a diagnosis of status post surgeries for an in-service crushing injury of the left elbow. The Veteran reported daily pain in the left elbow joint since service, from 5 to 9 on a scale of 10, and he used Motrin to relieve the pain. He said that the pain worsened when he had to lift. The examiner noted that the Veteran is right-hand dominant, and therefore the left arm is his minor arm. The Veteran reported an initial range of motion of flexion from 0 to 140 degrees and extension 140 to 0 degrees. There was no evidence of pain and no change after three repetitions. The functional loss included reduced movement of the left elbow. The examiner also recorded weakness of movement in flexion and extension of the left elbow at 4/5 strength. Imaging in February 2013 showed the metallic prosthesis of the radial head and the internal fixation metallic plate and multiple screws involving ulnar shaft. No indication of recent fractures was seen, and significant joint effusion was not evident. In November 2014, VA treatment records indicate that the Veteran reported pain in the left arm, but no disability was diagnosed. Applying the criteria of Diagnostic Code 5206, the Veteran’s limitation of flexion of the left elbow to 140 degrees warrants a noncompensable rating. 38 C.F.R. § 4.71a, Diagnostic Code 5206. In evaluating the Veteran’s increased rating claim, the Board must also address the provisions of 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 205 (1995). The February 2013 VA examiner stated that the Veteran’s left elbow showed weakened movement and reduced movement but did not have any other contributing factors such as excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or disturbance of locomotion. The November 2014 VA treatment record indicates pain on movement. The Board finds that despite the lack of evidence of a compensable limitation of flexion under Diagnostic Code 5206, the currently assigned 10 percent rating for the Veteran’s residuals of left elbow and forearm fracture (crushing injury) is warranted based on his reports of pain, as well as the February 2013 VA examiner’s findings of weakened movement and reduced movement and the November 2014 VA treatment provider’s observation of pain on movement. However, the Veteran’s left elbow disability does not more nearly approximate symptoms that would call for a higher disability rating under Diagnostic Code 5206, such as forearm flexion limited to 70 or 90 degrees, even when the DeLuca factors are considered. The Board has also considered whether a higher rating is warranted under any other potentially applicable diagnostic code related to elbow conditions. However, the Veteran does not have ankylosis of the elbow, limitation of extension of the elbow, fixture of forearm flexion, flail joint of the elbow, or joint fracture with marked cubitus varus or cubitus valgus deformity or with ununited fracture of the head of the radius, or a nonunion of the radius and ulna, an impairment of the ulna, impairment of the radius in nonunion or malunion, or supination and pronation of the elbow. Consideration of Diagnostic Codes 5205 and 5207 through 5213 is therefore not warranted. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a disability rating in excess of 10 percent for residuals of left elbow and forearm fracture (crushing injury). Consequently, the benefit-of-the-doubt rule is not applicable, and the claim is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 3. Entitlement to a compensable disability rating for residuals of right wrist fracture On October 1, 2012, the Veteran filed a claim for an increased rating for his service-connected residuals of right wrist fracture. The Veteran’s residuals of right wrist fracture have been rated according to Diagnostic Code 5215. Under that Code, dorsiflexion of the wrist less than 15 degrees warrants a 10 percent rating, and palmar flexion limited to in line with the forearm also warrants a 10 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5215. Turning to the evidence, the Veteran’s February 2013 examination of wrist conditions included no diagnosis for the right wrist. The palmar flexion of the right wrist was to 80 degrees with no pain and the dorsiflexion of the right wrist was to 70 degrees or greater with no pain. There was no change after three repetitions. The right wrist showed normal strength on flexion and extension. Imaging showed no traumatic or degenerative arthritis. The Veteran’s VA treatment records for the period on appeal show no complaint or treatment for the right wrist. Applying the criteria for Diagnostic Code 5215, the Board finds that the Veteran’s right wrist disability does not warrant a 10 percent rating. 38 C.F.R. § 4.71a. Here, there is simply no evidence that the Veteran’s right wrist has been limited to palmar flexion in line with the forearm, or dorsiflexion less than 15 degrees, to warrant a 10 percent rating under Diagnostic Code 5215. In evaluating the Veteran’s increased rating claim, the Board must also address the provisions of 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 205 (1995). The February 2013 VA examiner stated that the Veteran’s right wrist did not have any contributing factors such as reduced movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, disturbance of locomotion, or interference with standing or sitting. The Board finds that in the absence of any such contributing factors, the Veteran’s residuals of right wrist fracture does not more nearly approximate symptoms that would call for a higher disability rating, such as dorsiflexion of the wrist of less than 15 degrees, or palmar flexion limited to in line with the forearm. The Board has also considered whether a higher rating is warranted under any other potentially applicable diagnostic code related to wrist or arthritis conditions. However, the Veteran does not have X-ray evidence of degenerative arthritis in the joint, or ankylosis of the wrist, as documented in the VA examination report and treatment records. Consideration of Diagnostic Codes 5003 and 5214 is therefore not warranted. In every instance where the schedule does not provide a zero percent evaluation fora diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a compensable disability rating for residuals of a right wrist fracture. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Dean 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.