Citation Nr: 21001263 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 18-48 939 DATE: January 7, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for a right wrist fracture is denied. A separate initial 10 percent rating for right thumb arthritis with painful limitation of motion as residual of a service-connected right wrist fracture is granted, subject to regulations governing the payment of monetary awards REMANDED Entitlement to a separate rating in excess of 10 percent for right thumb arthritis with painful limitation of motion as residual of a service-connected right wrist fracture is remanded. FINDINGS OF FACT 1. The Veteran is currently in receipt of the highest disability rating under Diagnostic Code 5215 for limitation of motion of the wrist and the evidence does not reflect that the Veteran has ankylosis of the wrist. 2. The Veteran has right thumb arthritis that results in painful limitation of motion of the thumb that is shown to be a residual of his right wrist fracture.   CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for a right wrist fracture are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5215. 2. The criteria for an initial separate 10 percent rating for right thumb arthritis with painful limitation of motion as a residual of the service-connected right wrist fracture are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5228. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) in June 1964, with additional periods of ACDUTRA and inactive duty for training (INACDUTRA). This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was held before the undersigned in February 2020. A transcript of the hearing is of record. This matter was previously before the Board in April 2020 when it was remanded for further development. 1. Entitlement to an initial rating in excess of 10 percent for a right wrist fracture is denied. 2. An initial separate 10 percent rating for painful limitation of motion of the thumb as residual of a service-connected right wrist fracture is granted. The Veteran contends he is entitled to an initial rating in excess of 10 percent for his service-connected right wrist fracture. Specifically, he alleges his condition is more appropriately rated under Diagnostic Code (DC) 5003, for degenerative arthritis, and that he is entitled to a 20 percent rating under DC 5003. Generally, 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 used in the evaluation of disabilities 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. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). With respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran’s right wrist fracture is currently rated under DC 5003-5215. Hyphenated diagnostic codes are used when a rating for a particular disability under one diagnostic code is based upon rating of the residuals of that disability under another diagnostic code. 38 C.F.R. § 4.27. Here, the hyphenated DC 5003-5215 indicates that the Veteran’s degenerative arthritis (DC 5003) is rated by analogy under the criteria for limited motion of the wrist (DC 5215). DC 5003, for degenerative arthritis, provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent 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, the rating criteria provides degenerative arthritis shall be rated as follows: a 10 percent rating is warranted where there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent rating is warranted where there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Note (1) provides that the 20 percent and 10 percent ratings based on x-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on x-ray findings, above, will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024, inclusive. 38 C.F.R. § 4.71a. December 2016 and September 2020 VA examinations reflect that the Veteran is right-handed; therefore, ratings for the major wrist are applicable. 38 C.F.R. § 4.69. DC 5215, which provides ratings for limitation of motion of the major wrist, provides that a 10 percent rating is warranted for dorsiflexion less than 15 degrees of either the major or minor joint or for palmar flexion limited in line with forearm of either the major or minor joint. Id. DC 5214 provides for ratings for ankylosis of the wrist and for the major wrist provides a 30 percent rating where there is favorable ankylosis of the wrist in 20 to 30 degrees dorsiflexion. A 40 percent rating is warranted where there is ankylosis in any other position, except favorable. A 50 percent rating is warranted where there is unfavorable ankylosis, in any degree of palmar flexion, or with ulnar or radial deviation. Turning to the evidence in this case, a review of the record reflects that the Veteran underwent a VA examination in December 2016. The Veteran reported that he had intermittent, fleeting pain in the right wrist that he described as being a sharp pain at a level of 7 on a 10-pain scale. He indicated that he needed to use the left hand with heavy lifting and that grasping with the right thumb caused shooting pain into the right wrist. He indicated the right wrist did not give way, catch, or lock. Following examination of the Veteran, the examiner noted diagnoses of degenerative arthritis and a right wrist fracture. The examiner also noted that the Veteran did not report any flare ups. Range of motion testing revealed an abnormal range of motion in the right wrist, specifically, palmar flexion to 40 degrees, dorsiflexion to 20 degrees, ulnar deviation to 25 degrees, and radial deviation to 15 degrees. The examiner noted that the Veteran’s range of motion was met with resistance and that the abnormal range of motion itself did not contribute to any functional loss. Additionally, pain was noted on examination of each range of motion but did not result in any functional loss. There was evidence of pain with weight-bearing but no evidence of localized tenderness, pain on palpation, or crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions without any additional loss of function or range of motion. The examiner indicated that the Veteran was not being examined immediately after repetitive use over time, but that pain, weakness, fatigability, or incoordination did not significantly limit functional ability. Strength testing revealed normal strength and the absence of muscle atrophy. There was no evidence of ankylosis. The examiner also indicated that there was no pain on passive range of motion testing or when the right wrist was used in nonweight-bearing. The Veteran reported that he did not use any assistive devices. In April 2017, the Veteran was evaluated by private Dr. B.P. During the evaluation, the Veteran reported pain and loss of motion in his right wrist. He indicated that he experienced occasional pain in his right thumb area and that pain is associated with activities; grasping objects; and activities of daily living, including opening a jar. Examination of the right wrist revealed pain on palpation in the region of the right radiocarpal joint and the base of the right thumb. Additionally, the Veteran had decreased pinch and grip strength on the right compared to the left. Range of motion testing revealed flexion and extension to 50 degrees, radial deviation to 20 degrees, and ulnar deviation to 20 degrees. X-rays of the right wrist confirmed that he had a healed mid scaphoid fracture and arthritic changes in the wrist and showed carpal metacarpal arthritis in the thumb. Dr. B.P. then indicated that he reviewed the rating criteria and opined that the Veteran should be awarded a 20 percent rating for degenerative arthritis with x-ray involving minor joint groups including carpometacarpal joint of the thumb as well as the scaphoid trapezium joint of the right wrist. Dr. B.P. also noted that the Veteran had occasional incapacitating exacerbations based on his report of pain in that region. He further noted that he discussed surgical options with the Veteran to improve his pain symptoms and function. A June 2019 VA treatment record reflects that the Veteran was prescribed a splint/brace for his wrist. In February 2020, the Veteran testified at a Board hearing. During the hearing, the Veteran testified that he experienced cramping in his thumb area to the point that he could not hold a pencil. He also reported pain on use of his wrist. He testified that he cannot perform most operations with his wrist and that he wears a brace on his wrist to help stabilize his thumb. In September 2020, the Veteran underwent an additional VA examination. The examiner noted diagnoses of degenerative arthritis of the right wrist and a right wrist fracture and indicated that the Veteran was right-handed. During the examination, the Veteran reported that his condition had progressed/worsened since onset in 1964. He reported that he experienced pain (rated the pain at severity level of seven out of ten) and decreased range of motion in his right wrist and that he cannot hold a pen to sign his name. He indicated that he takes Tylenol for treatment and uses a wrist brace. The Veteran reported experiencing flare-ups at least once per week, noting that he cannot hold, grab, or grip objects and that the pain is worse in the rain. He also reported functional impairment as he cannot do any tasks with his right wrist. Range of motion testing was abnormal and revealed palmar flexion to 30 degrees, dorsiflexion to 40 degrees, ulnar deviation to 25 degrees, and radial deviation to 15 degrees. The examiner noted that the abnormal range of motion in itself contributed to functional loss as the Veteran’s decreased range of motion interferes with bending, grabbing, gripping, and holding objects. The examiner also noted that there was objective evidence of pain on examination exhibited with each range of motion and that the pain causes functional loss. There was no evidence of localized tenderness or pain on palpation; however, there was evidence of pain with weight-bearing and crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions without any additional loss of function or range of motion. The examiner noted that pain, fatigue, and weakness significantly limited functional ability with repeated use over time and during flare ups but indicated that there would be no change in the Veteran’s range of motion measurements. Additional factors contributing to disability were noted to include less movement than normal and weakened movement. Muscle strength testing revealed a reduction in muscle strength as there was active movement against some resistance. There was no evidence of muscle atrophy or ankylosis. An October 2020 statement from the Veteran indicates that he experienced pain in his thumb area in the past that has rendered him unable to hold a fork or pen. He also reported that he was issued a brace by VA and uses Tylenol as needed. After review of the evidence of record, the Board finds a preponderance of the evidence is against finding a rating in excess of 10 percent for the Veteran’s right wrist fracture is warranted as the record reflects that the Veteran is currently in receipt of the highest rating provided under DC 5215, which rates limitation of motion of the wrist. Although there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, as indicated in the April 2017 report from Dr. B.P., it is not appropriate to rate the Veteran’s right wrist fracture under DC 5003. The Board notes that the express terms of DC 5003 provide that degenerative arthritis will be rated on the basis of limitation of motion under the appropriate diagnostic code for the affected joint involved. More specifically, DC 5003 provides that degenerative arthritis should only be rated based on x-ray evidence in the absence of limitation of motion. Here, there is evidence of limitation of motion, as noted in both the December 2016 and September 2020 VA examinations; thus, the Veteran’s right wrist fracture must be rated under the DC for limitation of motion of the wrist, which is DC 5215. The Board also notes assignment of separate ratings for arthritis, under DC 5003, and limitation of motion of the wrist, under DC 5215, is not appropriate as it would result in double compensation for the same disability, which is a violation of the rule against pyramiding. See 38 C.F.R. § 4.14. Additionally, as there is no evidence of ankylosis, the Veteran’s right wrist fracture cannot be rated under DC 5214 for ankylosis of the wrist. The Board further concludes that the Veteran is entitled to a separate 10 percent rating for right thumb arthritis with painful limitation of motion under DC 5003-5228. The April 2017 evaluation by Dr. B.P. reflects that the Veteran’s right thumb arthritis is a residual of his right wrist fracture as the physician indicated that the arthritis involved the right wrist and the right thumb. The April 2017 evaluation also reflects that the Veteran experiences pain in the right thumb and a limited ability to grasp items. Physical examination revealed a decreased pinch and grip strength on the right. Additionally, the Veteran has consistently reported that he experiences pain in his right thumb that causes him to have difficulty gripping things. For example, on December 2016 VA examination, he stated that grasping with the right thumb caused shooting pain into the right wrist. Further, at the February 2020 hearing, he testified that he experienced cramping in his thumb area to the point that he could not hold a pencil. The Board concludes that the evidence more nearly approximates that the Veteran’s right wrist fracture residuals include arthritis in the right thumb that results in painful limitation of motion as reflected by his decreased pinch and grip strength. As such, he is entitled to a separate 10 percent rating, at least, for such impairment under hyphenated DC 5003-5228. 38 C.F.R. §§ 4.59, 4.71a. As indicated above, the Board is remanding the claim seeking entitlement to a separate rating in excess of 10 percent for right thumb arthritis. Accordingly, the Board finds a rating in excess of 10 percent for the Veteran’s service-connected right wrist fracture is not warranted. The Board has considered the benefit-of-the-doubt rule; however, since a 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; 38 C.F.R. § 3.102. The Board further concludes that at least a separate 10 percent rating is warranted for right thumb arthritis with painful limitation of motion.   REASONS FOR REMAND As explained above, the Board has concluded that the Veteran is entitled to a separate 10 percent rating for right thumb arthritis as a residual of his right wrist fracture. However, the evidence of record is insufficient to determine if he is entitled to an evaluation in excess of 10 percent for right thumb arthritis. In order to obtain a higher 20 percent rating under DC 5228, the evidence must show limitation of motion of the thumb with a gap of more than two inches (5.1 centimeters) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. The Veteran has not undergone a VA examination of his thumb and the evidence is otherwise insufficient to determine whether the criteria for a higher rating are met. As such, remand is necessary to schedule the Veteran for an examination to evaluate the severity of his right thumb arthritis. The matter is REMANDED for the following actions: 1. Obtain and associate with the claims file VA treatment records from September 2020 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his right thumb arthritis. The examiner should provide a full description of the disability and report all signs and (CONTINUED ON NEXT PAGE)   symptoms necessary for evaluating the Veteran’s disability under the rating criteria. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Jiggetts 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.