Citation Nr: 21001713 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 16-27 669 DATE: January 11, 2021 ORDER A rating in excess of 40 percent for right wrist ankylosis, residual of scaphoid fracture with osteopenia and muscle loss of the right hand and wrist, is denied. Prior to November 27, 2019, a separate rating of 20 percent, but no higher, for neuritis of the right upper extremity is granted, subject to the laws and regulations governing the payment of monetary awards. The assignment of the separate rating for neuritis of the right upper extremity, evaluated as 40 percent as of November 27, 2019, is proper; the appeal is denied. FINDING OF FACT 1. For the entire appeal period, the Veteran’s right wrist ankylosis, residual of scaphoid fracture with osteopenia and muscle loss of the right hand and wrist, is in a neutral, zero degree, position, which is neither unfavorable in a position other than any degree of palmar flexion, or with ulnar or radial deviation, nor favorable. 2. Prior to November 27, 2019, the Veteran has neuritis of the right upper extremity residual to her scaphoid fracture with osteopenia and muscle loss of the right hand and wrist with nerve involvement of all radicular groups, which results in no more than mild incomplete paralysis of the affected nerves. 3. As of November 27, 2019, the Veteran’s neuritis of the right upper extremity is manifested by nerve involvement of all radicular groups that results in no more than moderate incomplete paralysis of the affected nerves. CONCLUSION OF LAW 1. The criteria for a rating in excess of 40 percent for a right wrist disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.951, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5214. 2. Prior to November 27, 2019, the criteria for a separate rating of 20 percent, but no higher, for neuritis of the right upper extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.120, 4.123, 4.124a, DC 8613. 3. The assignment of a separate rating for neuritis of the right upper extremity, evaluated as 40 percent as of November 27, 2019, is proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.120, 4.123, 4.124a, DC 8613. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2006 to August 2009. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in October 2015 by a Department of Veterans Affairs (VA) Regional Office. In May 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In October 2019, the Board remanded the Veteran’s claims of entitlement to a rating in excess of 40 percent for residuals of scaphoid fracture of the right wrist with osteopenia and muscle loss of the right hand and wrist, and entitlement to service connection for muscle atrophy of the right forearm for additional development. While on remand, an August 2020 rating decision recharacterized the former disability as right wrist ankylosis, residual of scaphoid fracture with osteopenia and muscle loss of the right hand and wrist, and awarded a separate rating for neuritis of the right upper extremity, evaluated as 40 percent as of November 27, 2019. Thus, the Board has recharacterized the Veteran’s service-connected disability as shown on the title page of this decision and assumed jurisdiction over the propriety of the separately assigned rating for her neuritis of the right upper extremity as part and parcel of her increased rating claim. As pertinent to the service connection claim remanded by the Board, the August 2020 rating decision awarded service connection for right elbow condition, to include muscle atrophy and painful flexion, and right forearm condition, to include muscle atrophy and painful supination/pronation. As such is a full grant of the benefit sought on appeal with regard to the Veteran’s service connection claim, that issue is no longer before the Board. The remaining issues on appeal now return to the Board for further appellate consideration. 1. Entitlement to a rating in excess of 40 percent for right wrist ankylosis, residual of scaphoid fracture with osteopenia and muscle loss of the right hand and wrist. The appeal period before the Board stems from the Veteran’s May 19, 2015, claim for an increased rating for her right wrist ankylosis, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). For the entire appeal period, such disability, which is on the major side as she is right-handed, has been rated as 40 percent disabling pursuant to 5214. 38 C.F.R. § 4.71a. In this regard, such DC provides that unfavorable ankylosis of the major wrist, in any degree of palmar flexion, or with ulnar or radial deviation, is rated as 50 percent disabling. Ankylosis of the major wrist in any other position, except favorable, is rated as 40 percent disabling. A Note to such DC reflects that extremely unfavorable ankylosis will be rated as loss of use of hands under DC 5125. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. As the DC under which the Veteran’s right wrist disability is rated is predicated on the type of ankylosis, and not on loss of range of motion, 38 C.F.R. §§ 4.40 and 4.45, as interpreted in DeLuca v. Brown, 8 Vet. App. 202 (1995), do not apply. Johnson v. Brown, 9 Vet. App. 7, 9 (1996) (recognizing that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 should only be considered in conjunction with the DCs predicated on limitation of motion). In this regard, “ankylosis” is defined as “immobility and consolidation of a joint due to disease, injury or surgical procedure.” See Colayong v. West, 12 Vet. App. 524, 528 (1999); Shipwash v. Brown, 8 Vet. App. 218, 221 (1995); see also Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint). Upon review of the record, the Board finds that a rating in excess of 40 percent for the Veteran’s right wrist ankylosis is not warranted as such is in a neutral, zero degree, position, which is neither unfavorable in a position other than any degree of palmar flexion, or with ulnar or radial deviation, or favorable. Specifically, while VA treatment records and July 2014, August 2015, and November 2019 VA examinations demonstrate ankylosis of the right wrist, such do not reflect ankylosis to a degree that is required for an increased rating of 50 percent or to be considered as loss of use of the hands under DC 5125. Specifically, at the July 2014 VA examination, the Veteran’s right wrist ankylosis is described as unfavorable in a position other than any degree of palmar flexion, or with ulnar or radial deviation, and, at the August 2015 and November 2019 VA examination, it was noted that the Veteran’s right wrist was ankylosed in a neutral, zero degrees, position. Moreover, while VA treatment records and the Veteran’s Board hearing testimony reflect subjective complaints referable to loss of use of the right hand, all VA examiners found that the Veteran’s right wrist disability did not result in extremely unfavorable ankylosis or functional impairment such that no effective functions remain other than that which would be equally well served by an amputation with prosthesis. Thus, a rating in excess of 40 percent is not warranted for the Veteran’s right wrist disability. 2. Propriety of the assignment of the separate rating for neuritis of the right upper extremity, evaluated as 40 percent as of November 27, 2019. As noted, supra, the Board has assumed jurisdiction over the propriety of the separately assigned rating and effective date for the Veteran’s neuritis of the right upper extremity, evaluated as 40 percent disabling as of November 27, 2019. In this regard, VA regulations provide that neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe incomplete paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. In the instant case, the Veteran’s neuritis of the right upper extremity is rated pursuant to DC 8613 and, as she is right-handed, ratings for the major side are applicable. 38 C.F.R. § 4.124a. In this regard, DC 8613 provides that neuritis of all radicular groups is evaluated pursuant to paralysis of all radicular groups under 8513. DC 8513 provides that incomplete paralysis of all radicular groups warrants a 20 percent rating when mild, a 40 percent rating when moderate, and a 70 percent rating when severe. Complete paralysis warrants a 90 percent rating. The words “mild,” “moderate,” and “severe” as used in the various DCs are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. As noted previously, the appeal period stems from the Veteran’s May 19, 2015, claim for an increased rating for her right wrist ankylosis, plus the one-year look-back period. Gaston, supra. Thus, the Board must consider whether a separate rating for neurological manifestations of such disability is warranted for the appeal period prior to November 27, 2019, and whether the assignment of a 40 percent rating as of such date is proper. In this regard, a July 2014 VA examination, conducted within the look-back period, reflects the Veteran’s report of moderate constant pain, intermittent pain, and paresthesias and/or dysesthesias and mild numbness in the right upper extremity. Strength was normal with right elbow flexion and extension, absent with wrist flexion and extension, and 3/5 with grip and pinch. Reflexes were normal throughout the right upper extremity and sensory examination was normal with the exception of decreased sensation at the right hand/fingers. Based on such examination, the examiner assessed mild incomplete paralysis of the median and ulnar nerves. However, subsequent to the completion of an EMG, he indicated that there was no diagnosis related to the Veteran’s reported symptoms. The examiner explained that, while the Veteran’s symptoms strongly suggested neuropathy in the right hand, particularly involving the median nerve distribution, with some symptoms in the ulnar nerve area, the EMG did not confirm any significant sensory or motor neural damage. Therefore, he found that the Veteran’s reported symptoms were legitimate, but any damage to she has had to the nerves in the area from multiple surgeries is not significant enough to show on the EMG. Thus, he found that it was not appropriate to label the condition as a full blown neuropathy. At her May 2019 Board hearing, the Veteran testified that she experienced shaking, a burning sensation, tingling, numbness, reduced grip strength, and difficulty using her fingers. On VA examination conducted on November 27, 2019, the Veteran reported that she loses feeling in her palm and fingers, and dropped things she was holding. She further indicated that she experienced mild intermittent pain, paresthesias and/or dysesthesias, and numbness in her right upper extremity. Muscle strength testing was 3/5 with elbow flexion and extension, 1/5 with wrist flexion and extension, and 2/5 with grip and pinch. Reflexes were reduced at 1+ at the right biceps, triceps, and brachioradialis. Sensation was normal throughout the right upper extremity with the exception of the inner/outer forearm where it was decreased. Based on such examination, the examiner diagnosed moderate incomplete paralysis of the radial, median, and ulnar nerves and lower radicular group. In May 2020, a VA examiner opined that the current severity of the Veteran’s residuals of her scaphoid fracture warrants by proximity association of peripheral neuropathy/causalgia/neuritis. He indicated that such disorder began subsequent to such service-connected disability and is the direct result of such disability. In this regard, the examiner noted that the Veteran’s multiple surgeries resulted in neurologic complaints, which were documented on examinations. He further observed that, while the 2014 EMG did not diagnose an actual neuropathy, such documented abnormalities, the findings of which are consistent with neuritis or causalgia. Based on the foregoing, the Board finds that the evidence demonstrates that the Veteran’s neuritis of the right upper extremity has been present throughout the appeal period. In this regard, while the EMG conducted in connection with the July 2014 VA examination did not reveal the presence of neuropathy, such, as interpreted by the May 2020 VA examiners, demonstrated the presence of a neurological abnormality, which was best characterized as neuritis. Furthermore, as such was characterized by subjective symptoms, decreased sensation, and deceased muscle strength, without more severe manifestations on examination or on EMG, the July 2014 VA examiner assessed such as resulting in, at most, mild incomplete paralysis of the ulnar and median nerves. Thus, based on the foregoing, the Board finds that, for the appeal period prior to November 27, 2019, the Veteran has neuritis of the right upper extremity residual to her scaphoid fracture with osteopenia and muscle loss of the right hand and wrist with nerve involvement of all radicular groups, which results in no more than mild incomplete paralysis of the affected nerves, thereby warranting a 20 percent rating, but no higher, under DC 8613. However, as of November 27, 2019, the Board finds that, as the Veteran’s neuritis of the right upper extremity is manifested by nerve involvement of all radicular groups that results in no more than moderate incomplete paralysis of the affected nerves, a rating in excess of 40 percent under DC 8613 is not warranted. In this regard, the evidence shows that characterized by subjective symptoms, decreased sensation, and deceased muscle strength, without more severe manifestations on examination, the November 2019 VA examiner assessed such as resulting in, at most, moderate incomplete paralysis of the radial, median, and ulnar nerves and lower radicular group. Thus, a higher rating under DC 8613 is not warranted for the appeal period beginning November 27, 2019. Other Considerations In reaching such conclusions, the Board acknowledges the Veteran’s belief that her right wrist symptoms are more severe than as reflected by the currently assigned disability ratings. The Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to provide evidence regarding her symptomatology, she is not competent to provide an opinion regarding the severity of such in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged her reported symptoms, and described the manifestations of her service-connected right wrist disability with associated neuritis of the right upper extremity in light of the rating criteria to be more persuasive than her own reports regarding the severity of such disabilities. The Board has also considered whether additional staged ratings under Hart, supra, are appropriate for the Veteran’s service-connected right wrist disability with associated neuritis of the right upper extremity; however, the Board finds that her symptomatology has been stable throughout each period on appeal. Therefore, assigning staged ratings for such disabilities is not warranted. Further, neither the Veteran nor her representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claims adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In reaching the foregoing determinations, the Board has resolved all doubt in the Veteran’s favor, which has resulted in a partial award of a separate rating for neuritis of the right upper extremity for the appeal period prior to November 27, 2019. However, insofar as the Board has denied higher or separate ratings for the disabilities on appeal, the preponderance of the evidence is against such aspects of the Veteran’s claims. Therefore, the benefit of the doubt doctrine is not applicable in such regard and her increased rating claims must otherwise be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Breckenridge, 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.