Citation Nr: 21001071 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 15-03 517 DATE: January 7, 2021 ORDER Entitlement to increased disability rating for residuals of fracture of the right hand, claimed as right wrist fracture. FINDING OF FACT An evaluation of 10 percent is the highest available rating for painful motion of the wrist when no ankylosis is present. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for residuals of fracture of the right hand, claimed as 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 (2012), Diagnostic Code 5215 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Army from December 1952 to June 1956. This matter comes before the Board of Veterans' Appeals (Board) from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In May 2018 the Board remanded the Veteran’s claim for further development. The Board observes that there has been substantial compliance with the remand directives such that the claim can be adjudicated. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran testified at a videoconference hearing before Veterans Law Judge (VLJ) who is no longer with the Board in January 2018. After 30 days, the Veteran did not respond to a letter offering him a new hearing with the undersigned VLJ such that this option has been waived. The transcript of the January 2018 hearing has been associated with the electronic claims file. In a July 2020 rating decision, the RO stated that it reviewed the Veteran’s claim for increased rating of fracture of the right hand, claimed as disability of the right wrist, liberally and sympathetically. Based upon the October 2019 VA examination for hand and finger conditions the RO added and then granted 5 claims for service connection—specifically service connection for residuals of fracture of the right hand, for the thumb, index finger, long finger, ring finger and little finger respectively. The thumb, index and long fingers were assigned 10 percent disability ratings and the fourth and little fingers were granted noncompensable disability ratings. As the Veteran has not filed a notice of disagreement or claim for increased rating for any of these five claims, the claims are not before the Board. 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. The Board notes that where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1, 4.2 (2017); see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Entitlement to increased rating for residuals of fracture of right hand, claimed as right wrist fracture The Veteran is currently assigned a 10 percent evaluation from May 2013 for residuals of right wrist fracture under Diagnostic Code (DC) 5215. The Veteran contends that the residuals of his right-hand fracture, claimed as right wrist fracture are more severe than contemplated by the 10 percent disability rating. DC 5215 provides evaluation 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 or when dorsiflexion is less than 15 degrees for major and minor joints. 38 CFR §4.59 allows consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a joint. For the Veteran to receive a higher evaluation than 10 percent for his wrist disability, the evidence must show ankylosis of the wrist under DC 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). In January 2018 that Veteran gave testimony regarding his right-hand disability. In addition to pain in the right wrist, he discussed intermittent swelling, coldness, and decreased range of motion in the right wrist compared to the left wrist. The Veteran described difficulties with cooking while gripping pots and with housework while gripping the vacuum cleaner. He demonstrated a decreased range of motion in his right wrist compared to his non service-connected left wrist. The Veteran underwent a hand and finger condition VA examination in October 2019. The VA clinician examiner reviewed his electronic file, considered the history provided by the Veteran and performed a clinical examination. Diagnoses of residuals of right-hand fracture and right had strain were confirmed from 2013 and 2019 respectively. The Veteran discussed worsening right hand pain over the last 18 months. Upon examination the Veteran demonstrated normal range of motion of the right wrist and fingers for both the right and left hand. For the left hand, there was no evidence of pain with movement or any other abnormal findings. Pain in the right hand caused functional loss with finger flexion and extension and upon palpation of the joints and soft tissue at a 5 out of 10 severity. There was no additional pain, weakness, fatigability or lack of coordination limiting functional ability with repeated use over a period with either the right or left hand. The Veteran denied flare-ups. Hand grip had reduced muscle strength to 4/5 for the right hand compared to the left hand with muscle strength of 5/5. The Veteran was formerly employed as a fisherman and lost up to a week of lost time in the preceding 12 months. The Veteran underwent a second VA examination in November 2019 in which the confirmed diagnoses were the existing residuals of right wrist fracture and, in November 2019, chondrocalcinosis (pseudogout) of the right triangular fibrocartilage complex (TFCC) of the wrist. The examining physician took a history from the Veteran which included the difficulties with cooking and gripping items as well as severe pain with inflammation of his right wrist. The examiner concluded that based upon a review of the evidence of record for this Veteran, there was no persistent evidence that there was a loss of function that was valid or reproducible. The Veteran’s right wrist palmar flexion was to 45 degrees, dorsiflexion was to 60 degrees, ulnar deviation was to 35 degrees and radial deviation was to 15 degrees with evidence of pain upon weightbearing that did not contribute to functional loss. There was tenderness ar the wrist joint to palpation. The left wrist range of motion was also abnormal with 55 degrees of palmar flexion, 65 degrees of dorsiflexion, 40 degrees of ulnar deviation and 20 degrees of radial deviation with evidence of pain upon weight-bearing. The examiner found no evidence of loss of muscle strength or atrophy or evidence of ankylosis in either wrist. The November 2019 examining physician offered his opinion that chondrocalcinosis was less likely than not due to residuals of the right wrist fracture and quoted literature that discussed that deposition of calcium salts in the cartilage joints is prevalent if almost half of people over age 85, with or without symptoms. The Board observes that the Veteran is currently rated under Diagnostic Code 5215 for limitation of wrist motion that is noncompensable under Diagnostic Code 5215; but for the evidence of painful motion. The 10 percent disability rating is the highest disability rating under Diagnostic Code 5215. Thus, the wrist pain is encompassed in the 10 percent disability rating currently assigned to the Veteran's service-connected residuals of right-hand fracture, claimed as right wrist fracture. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, supra. In the October and November 2019 VA hand and finger conditions examinations, each of the examiners specifically found that there was no 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 regarding flare-ups are not for application. See Hollenquest v. Wilkie, No, 17-4846 (Vet. App. May 15, 2019) (explaining why denial of a claim for a higher rating is allowed based on the absence of ankylosis without considering flare-ups). There are no other diagnostic codes pertaining to the wrist that would allow for a higher rating. The Board acknowledges that Veteran’s statements regarding an increase in right wrist pain over the last 18 months and notes that the Veteran is competent to describe his observable symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran has not shown that he has the advanced education and training required to render competent medical opinions regarding the cause or status of musculoskeletal disabilities. Therefore, the Board places greater probative value upon the opinions of the VA examiners in this matter. Here the Board notes that while there is a discrepancy between the normal range of motion findings in the October examination and the decreased range of motion in the November 2019 VA examination, however, as noted above, the 10 percent rating is assigned for painful motion and not for limitation of range of motion as neither examiner documented range of motion findings that warrant a 10 percent rating for the right wrist. In addition, the second examiner documented chondrocalcinosis which is unrelated to residuals of the Veteran’s right-hand fracture and offered his opinion that it is more likely than not contributing to painful motion in both wrists. In sum, the probative lay and medical evidence of record is against an increased rating for the Veteran’ residuals of right wrist fracture, claimed as disability of the right wrist. There are no doubts to be resolved. Gilbert, supra. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Adams Hill, 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.