Citation Nr: 20043712 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 12-10 942 DATE: June 29, 2020 ORDER Entitlement to a disability rating in excess of 10 percent for a right wrist disability is denied. FINDING OF FACT The Veteran’s service-connected right wrist disability has not been manifested by dorsiflexion of less than 15 degrees, palmar flexion limited in line with the forearm, or ankylosis of the wrist. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for a right wrist disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5215-5010. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1961 to April 1965. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). By way of history, the July 2011 rating decision denied the Veteran’s claim for an increased disability rating for a service-connected right wrist disability. The Veteran appealed the decision to the Board and in December 2014, the matter was remanded for additional development. In July 2017, the Board denied the claim and the Veteran then appealed the decision to the United states Court of Appeals for Veterans Claims (Court). In a July 2018 Joint Motion, the Court vacated the Board’s denial and remanded the issue for further consideration. In December 2018, the Board remanded the claim to the agency of original jurisdiction (AOJ) for development consistent with the July 2018 Joint Motion. The requested development has been completed to the extent possible, and no further action is necessary to comply with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a disability rating in excess of 10 percent for a right wrist disability is denied. The Veteran is seeking a disability rating in excess of 10 percent for his service-connected right wrist disability. Specifically, the Veteran contends that his right wrist disability is more severe than reflected by his currently assigned disability rating. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 205-06 (1995). As such, in evaluating musculoskeletal disabilities, VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca, 8 Vet. App. at 206. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, this regulation is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court of Appeals for Veterans Claims (Court) has held that “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” See Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain may result in functional loss, but only if it limits the ability to “perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance.” Id. (quoting 38 C.F.R. § 4.40). The Veteran’s right wrist disability is evaluated under Diagnostic Code 5215-5010. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. Here, the hyphenated diagnostic code indicates that limitation of motion of the wrist, Diagnostic Code 5215, is rated under the criteria for arthritis due to trauma, Diagnostic Code 5010. Diagnostic Code 5215 provides that limitation of motion of the major and minor wrist with palmar flexion limited in line with the forearm warrants a 10 percent disability rating. Alternatively, a 10 percent disability rating may be assigned for limitation of motion of dorsiflexion of the wrist less than 15 degrees. 38 C.F.R. § 4.71a. Normal dorsiflexion of the wrist is from zero to 70 degrees, normal palmar flexion is from zero to 80 degrees, normal ulnar deviation of the wrist is from zero to 45 degrees, and normal radial deviation is from zero to 20 degrees. 38 C.F.R. § 4.71a, Plate I. Higher ratings are warranted for ankylosis of the wrist under Diagnostic Code 5214. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992). Diagnostic Code 5010 addresses traumatic arthritis and is rated identically to degenerative arthritis under Diagnostic Code 5003. Under Diagnostic Code 5003, if there is limitation of motion, it is to be rated under the appropriate diagnostic code(s) for the joint or joints involved. However, if limitation of motion is non-compensable under the appropriate diagnostic code(s), but there is objective evidence of swelling, muscle spasm or satisfactory evidence of painful motion, a 10 percent disability rating may be assigned. If there is no limitation of motion, a 10 percent disability rating is warranted if there is x-ray evidence showing the involvement of two or more major joints or two or more minor joints. A 20 percent disability rating is warranted if there is x-ray evidence showing the involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. According to Note (1) associated with Diagnostic Code 5003, the 10 and 20 percent disability ratings based on x-ray evidence are not to be combined with ratings based on limitation of motion. For the purpose of rating disability from arthritis, the wrist is considered a major joint. 38 C.F.R. § 4.45. Turning to the evidence of record, the Veteran was afforded a VA examination for his right wrist disability in April 2011. The Veteran reported that his right wrist had been progressively worsening since injury. He had a fair response to treatment with medication. Of the right wrist, the VA examiner noted deformity, giving way, instability, pain, stiffness, weakness, decreased speed of joint motion, swelling, and tenderness. There was no indication of incoordination, episodes of dislocation or subluxation, locking episodes, or effusions. The Veteran’s right wrist disability affected motion of the joint and he endorsed flare-ups of joint disease that were moderate, occurred weekly, and lasted 3 to 7 days. Alleviating factors included heat, ice, muscle rub, and Celebrex. During flares, the Veteran minimized motion and avoided using the joint. On examination, the examiner noted that a weight-bearing joint was not affected and there was no loss of bone or part of a bone. There was bony enlargement in the right wrist and guarding of movement. Range of motion testing of the right wrist revealed dorsiflexion to 60 degrees and palmar flexion to 30 degrees. There was objective evidence of pain or additional limitations following repetitive motion. Range of motion testing of the right wrist after repetitive motion revealed dorsiflexion to 50 degrees and palmar flexion to 20 degrees. There was no joint ankylosis. The Veteran was afforded another VA examination for his right wrist disability in July 2012. The Veteran reported flare-ups of his right wrist disability that impacted function of the wrist. Aggravating factors included cold weather, carpentry work, and tasks requiring repetitive wrist motion. Range of motion testing of the right wrist revealed dorsiflexion to 60 degrees with painful motion beginning at 65 degrees and palmar flexion to 50 degrees with painful motion beginning at 55 degrees. Range of motion measurements of the right wrist after repetitive use testing revealed dorsiflexion to 65 degrees and palmar flexion to 50 degrees. The VA examiner indicated that the Veteran did not have additional limitation in range of motion of the wrist following repetitive-use testing, but he did have less movement than normal, pain on movement, and deformity. He experienced localized tenderness or pain on palpation of the joints/soft tissue of the right wrist. Muscle strength testing revealed active movement against some resistance with right wrist flexion and extension. The examiner indicated there was no ankylosis of either wrist joint. The Veteran was afforded a VA examination for his right wrist disability in March 2015. Range of motion testing of the right wrist revealed dorsiflexion to 75 degrees and palmar flexion to 80 degrees. No pain was noted on exam and there was no evidence of pain with weightbearing. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion. He was examined immediately after repetitive use over time and pain, weakness, fatiguability, and incoordination did not significantly limit functional ability. The Veteran denied flare-ups that impacted the function of his right wrist. Muscle strength testing of the right wrist revealed normal flexion rate strength and normal extension rate strength. The examiner indicated there was no ankylosis of either wrist joint. In November 2019, the Veteran was afforded another VA examination for his right wrist disability. The Veteran reported that his right wrist disability had worsened since onset and he could not use his wrist/hand much. He stated that he could not lift more than one pound due to pain. The Veteran wore a brace most days to keep his wrist from bending. He endorsed functional loss or impairment of the wrist joint. The VA examiner confirmed a diagnosis of a right wrist disability with degenerative joint disease, old right wrist fracture with degenerative joint disease changes. Range of motion testing of the right wrist revealed dorsiflexion to 50 degrees and palmar flexion to 45 degrees. Range of motion contributed to functional loss and resulted in limited bending of the wrist due to pain. Pain was exhibited through palmar flexion, ulnar deviation, dorsiflexion, and radial deviation. The examiner noted objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Pain was located at the base of the right thumb. The examiner noted evidence of pain with weightbearing but no evidence of crepitus. Range of motion testing of the left wrist was all normal and no pain was noted on examination. The Veteran was able to perform repetitive use testing with at least three repetitions and no additional loss of function or range of motion. The examiner indicated that pain, fatigue, and lack of endurance significantly limited functional ability with repeated use over a period of time resulting in dorsiflexion to 50 degrees and palmar flexion to 45 degrees. The Veteran endorsed flare-ups of his right wrist disability with pain, fatigue, and lack of endurance significantly limiting functional ability. Range of motion during flare-ups resulted in dorsiflexion to 50 degrees and palmar flexion to 45 degrees. There was no objective evidence of pain when the right wrist was used in non-weightbearing. Passive range of motion testing was the same as active range of motion, with the same pain exhibited. With regards to the left wrist, the examiner indicated that there was no objective evidence of pain with non-weightbearing or on passive range of motion testing and passive range of motion was the same as active range of motion. The examiner indicated that there were no other additional factors that contributed to the Veteran’s right wrist disability. On muscle strength testing, a reduction in muscle strength of the right wrist was noted with active movement against some resistance on flexion and extension. There was no muscle atrophy and no ankylosis of either wrist joint. The examiner indicated that the Veteran’s right wrist disability impacted his ability to carry, lift, hold, grasp, and manipulate his hand due to pain on the radial wrist and joint of thumb. With regards to flare-ups, the examiner elaborated that the Veteran’s right wrist would swell and become tender on the right thumb CMC area. Flares would last a few days and during flares, the Veteran could not use his hand much. The frequency and severity of flares depended on the Veteran’s activity and cold weather exacerbated the Veteran’s right wrist disability and flares were alleviated by resting, and not lifting or carrying. Regarding repeated use over time, the examiner elaborated that the Veteran’s right wrist disability exhibited weakness of extension and flexion and range of motion was limited due to pain. The Veteran reported pain on the right wrist, that he could not use his right wrist hand much, and could not lift more than one pound due to pain. The examiner stated that although the Veteran experienced more pain, fatigue, and lack of endurance during flare-ups and after repetitive use of the right wrist, range of motion remained the same. She noted these impairments were due to pain. Following review of the record, the Board finds that the evidence does not support the criteria for a disability rating in excess of 10 percent for the Veteran’s right wrist disability. As the Veteran’s right wrist is a major joint and there is no x-ray evidence of involvement of two or more major joints, a disability rating greater than 10 percent is not warranted under Diagnostic Code 5010. Further, Diagnostic Code 5215 has a maximum assignable disability rating of 10 percent, which is the equivalent of the disability rating the Veteran is already receiving. On VA examinations, the Veteran was consistently able to demonstrate dorsiflexion greater than 50 degrees and palmar flexion greater than 30 degrees, both appreciably greater than palmar flexion in line with the forearm or dorsiflexion less than 15 degrees, as set forth in the criteria required for a 10 percent disability rating under Diagnostic Code 5215. While the Veteran is currently compensated under Diagnostic Code 5215-5010 for satisfactory evidence of painful motion that is noncompensable under Diagnostic Code 5215, the Veteran’s right wrist disability would not warrant a greater disability rating under Diagnostic Code 5215 even after considering evidence of pain, weakened movement, excess fatigability, or incoordination. Therefore, no higher rating based on limitation of motion of the Veteran’s right wrist is possible. Under Diagnostic Code 5214, greater disability ratings are assigned for ankylosis of the wrist. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992). The Board has considered whether a rating in excess of 10 percent could be warranted under Diagnostic Code 5214; however, the evidence of record does not show ankylosis of the Veteran’s right wrist. Specifically, all VA examinations of record explicitly indicated that there was no ankylosis of either wrist joint. Additionally, range of motion testing of the Veteran’s right wrist conducted during the November 2019 VA examination resulted in dorsiflexion to 50 degrees and palmar flexion to 45 degrees, with no additional loss in range of motion following flare-ups, repetitive use, testing on passive range of motion, or in non-weightbearing. The Board recognizes the Veteran’s assertions that his service-connected right wrist disability warrants a higher disability rating and that he is unable to use his wrist/hand during periods of flare-ups and cannot lift more than one pound. The Veteran is competent to report his lay-observable symptomatology such as pain and loss of motion. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005); Layno v. Brown, 6 Vet. App. 465 (1994). The Board has considered the Veteran’s statements with the clinical findings of record. The Board attributes greater probative value to the objective clinical findings which do not reflect that the Veteran’s limitation of motion or function due to pain and other factors are so great and persistent as to result in limited motion to a degree similar to ankylosis of the joint. Thus, ankylosis has not been demonstrated and a higher disability rating is not warranted under Diagnostic Code 5214. The Board has considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the veteran’s disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the veteran’s disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the veteran’s exceptional disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a veteran’s disability picture requires the assignment of an extraschedular rating. Here, the Board finds that the lay and medical evidence of record fails to show unique or unusual symptomatology regarding the Veteran’s service-connected right wrist disability that would render the schedular criteria inadequate. The Veteran’s pain, functional limitations and loss, and loss of range of motion are contemplated in the rating schedule under Diagnostic Codes 5010 and 5215. As the Veteran’s disability picture is contemplated by the rating schedule, the threshold issue under Thun is not met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary. In sum, the Board therefore finds that the criteria for a rating in excess of 10 percent for the Veteran’s service-connected right wrist disability have not been met. As the preponderance of the evidence is against the assignment of a higher rating, 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 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Silverblatt, 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.