Citation Nr: 21001855 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 07-24 164A DATE: January 12, 2021 ORDER Entitlement to a rating in excess of 10 percent for a right wrist sprain (right wrist disability) is denied. Entitlement to an initial compensable rating for a right upper extremity scar associated with a right wrist disability from February 21, 2012, to November 19, 2014, and from October 26, 2016, to the present is denied. Entitlement to a rating of 10 percent, but no higher, for a right upper extremity scar associated with a right wrist disability from November 20, 2014, to October 25, 2016, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s right wrist disability is manifested by pain and limitation of motion. It is not manifested by ankylosis. 2. The Veteran has one scar on his right wrist that measures less than 1centimeter (cm) x 1 cm. The scar is linear, stable, and does not cause any functional loss. 3. The Veteran’s right wrist scar was painful from November 20, 2014, to October 25, 2016, but was not painful outside that period. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for a right wrist sprain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including § 4.7, 4.71a, and Diagnostic Codes 5214-5215. 2. The criteria for an initial compensable rating for a right upper extremity scar associated with a right wrist disability from February 21, 2012, to November 19, 2014, and from October 26, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.118, Diagnostic Code 7805. 3. The criteria for a rating of 10 percent, but no higher, for a right upper extremity scar associated with a right wrist disability from November 20, 2014, to October 25, 2016, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from July 1997 to November 2002. The Veteran had subsequent U.S. Marine Corps Reserve and Army National Guard service, to include periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. In September 2020, the Veteran was sent a letter in error indicating that he had a pending hearing request and could request a virtual tele-hearing instead of waiting for a travel board hearing. In response to that letter, the Veteran requested a virtual hearing, and a hearing was scheduled for December 2020. However, in November 2020, the Veteran withdrew his request for a second hearing. As such, the Board finds there is no pending hearing request. The Board remanded the increased rating claims on appeal in February 2016 and May 2019 for additional development. The Board’s remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that although the issue of entitlement to an increased rating for a left ankle scar has been certified to the Board, a hearing on that issue was held in September 2019. Accordingly, the VLJ who presided at the hearing will address the issue in a separate decision. Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a rating in excess of 10 percent for a right wrist sprain. The Veteran contends that his right wrist disability warrants a rating in excess of 10 percent. For the reasons that follow, the Board finds that an increased rating is not warranted. The appeal period before the Board begins on February 21, 2011, one year prior to the date VA received the claim for an increased rating. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Veteran’s right wrist sprain has been rated 10 percent disabling for the entire appeal period pursuant to Diagnostic Code (DC) 5215. Under this regulatory provision, a 10 percent rating is warranted when plantar flexion is limited in line with the forearm, or when dorsiflexion is less than 15 degrees. This is the only rating allowable under this DC. Pursuant to DC 5214, a 30 percent evaluation is provided for favorable ankylosis of the major (or dominant) wrist in 20 to 30 degrees dorsiflexion; a 40 percent evaluation is provided for ankylosis of the major (or dominant) wrist in any position except favorable; and a 50 percent evaluation is provided for unfavorable ankylosis of the major (or dominant) wrist in any degree of palmar flexion, or with ulnar or radial deviation. 38 C.F.R. § 4.71a, DC 5214. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). “Although pain may cause a functional loss, pain itself does not constitute functional loss.” Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (emphasis in original). Painful motion is deemed to be limitation of motion and warrants the minimum compensable rating for the joint, even if there is no actual limitation of motion. 38 C.F.R. § 4.59; Lichtenfels v. Derwinski; 1 Vet. App. 484, 488 (1991). The provisions of 38 C.F.R. § 4.59 relating to painful motion are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board must also consider whether VA examiners have elicited information concerning the “severity, frequency, duration, or functional loss manifestations” of such flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The United States Court of Appeals for Veterans Claims (Court) also has issued the opinion of Correia v. McDonald, 28 Vet. App. 158 (2016), which clarifies additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically, that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Turning to the evidence of record, in his February 2012 claim for an increased rating, the Veteran reported pain, numbness, limitation of motion, and weakness in the right wrist. The Veteran underwent a VA examination for his right wrist in May 2012. At the examination, the Veteran reported daily wrist pain, with a severity of eight to nine out of ten. He also reported flare-ups that additionally severely limited activity. On clinical evaluation, the Veteran’s palmar flexion was to 30 degrees, with painful motion beginning at 20 degrees, and dorsiflexion was to 60 degrees, with painful motion beginning at 40 degrees. Following repetitive use, dorsiflexion was further limited to 30 degrees. The additional functional loss following repetitive use was due to less movement than normal, weakened movement, incoordination, pain on movement, swelling, and atrophy of disuse. No ankylosis was noted. Imaging studies of the right wrist did not show degenerative or traumatic arthritis. A September 2014 VA treatment record shows that no significant abnormality was noted following an x-ray of the right wrist. Right wrist pain with limited palmar flexion was noted. An October 2014 VA treatment record notes no pain with wrist range of motion (ROM) and that the Veteran was able to achieve full ROM of the wrist. A subsequent October 2014 VA treatment record shows right wrist flexion to 51 degrees, with extension to 30 degrees. The Veteran also reported numbness and tingling in the ulnar side of his right hand. He reported that he could not use his right hand to pick up or open anything. He also reported weakness and fatigue in the right wrist and hand, particularly when it was swollen. Pain in the right dorsal wrist also was noted. A December 2014 VA treatment record noted good wrist ROM. The Veteran underwent another VA examination in April 2015. At the examination, the Veteran reported chronic wrist pain with normal daily activities when using his right hand. The Veteran reported flare-ups of the right wrist. He explained that he experienced flare-ups of right forearm pain with repetitive use activities involving the right wrist. On clinical evaluation, his palmar flexion and dorsiflexion were to 10 degrees. There was no additional loss of ROM following repetitive use. The examiner opined that he could not say whether the Veteran’s functional ability would be significantly limited following repeated use over a period of time or during flares without resorting to mere speculation, essentially because the Veteran was not being observed following repeated use over a period of time or during a flare-up. No ankylosis was noted. The Board acknowledges that the April 2015 VA examiner also diagnosed the Veteran with De Quervain’s syndrome, which is currently not service-connected. However, the evidence of record indicates that the De Quervain’s syndrome and service-connected wrist condition manifest in the same or similar symptomatology. See October 2014 VA treatment record; April 2015 VA examination. Additionally, the April 2015 examiner opined that the Veteran’s De Quervain’s syndrome was secondary to his service-connected right wrist disability. As such, the Board will attribute all of the Veteran’s right wrist symptomatology to his service-connected right wrist disability. In a July 2015 correspondence, the Veteran reported that he continued to experience constant pain, fatigue, pain with movement, limited motion, lack of endurance, limited strength, weakness, stiffness, instability, intermittent swelling, tenderness, and cramping of his wrist. At his April 2017 hearing, the Veteran testified that he experienced flare-ups of his right wrist. He also reported that he experienced pain, limited mobility, and swelling with heat and redness. Pursuant to the May 2019 Board remand, the Veteran underwent a VA examination for his right wrist in December 2019. At the examination, the Veteran denied flare-ups related to his right wrist. He reported that since his last examination, his right hand and wrist have become “tingly.” He also noted that his dexterity has been affected. He reported that his decreased dexterity affects his ability to open things, brush his teeth, and eat. The examiner opined that the Veteran’s dexterity issues and tingling sensations were due to his traumatic brain injury (TBI) that the Veteran sustained as a result of a motorcycle accident. On clinical evaluation, the Veteran’s palmar flexion was to 70 degrees and dorsiflexion was to 30 degrees. No pain was noted on examination. There was no additional functional loss following repetitive use testing. The examiner opined that weakness would significantly limit functional ability with repeated use over a period of time. However, the examiner noted that he could not describe in terms of ROM because he did not expect the weakness to change the Veteran’s ROM. No ankylosis was noted. The Board notes that although the December 2019 VA examiner opined that the Veteran’s complaints of weakness (loss of dexterity) were due to a nonservice-connected TBI that the Veteran sustained in 2018, the evidence of record shows that the Veteran reported experiencing weakness and fatigue prior to his 2018 accident. See February 2012 Veterans Application for Compensation or Pension; October 2014 VA treatment record. Accordingly, the Board will attribute such symptomatology to the Veteran’s service-connected right wrist disability. Based on the foregoing, the Board finds that a higher rating is not warranted. The Veteran is already in receipt of the highest schedular rating available under DC 5215. In order to receive a higher rating, ankylosis of the right wrist must be shown. There is no evidence of record that indicates, and the Veteran has not contended, that he experiences ankylosis of his right wrist. Specifically, all of the examinations showed no ankylosis. VA treatment records also are silent for any notation of ankylosis and instead show that the Veteran has been able to achieve at least partial ROM of his right wrist. Although the Veteran experiences weakness and other DeLuca factors that affect his functional ability, they do not warrant a higher rating. As the maximum schedular evaluation based on ROM has been granted for the right wrist disability, the DeLuca considerations are inapplicable to this case. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Likewise, to extent the VA examinations are not be fully compliant with the holdings of DeLuca, Sharp, and Correia, as the Veteran is in receipt of the maximum schedular rating for lost range of motion for the entire appeal period, the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca, Sharp, and Correia do not apply. Id. The Board also acknowledges the Veteran’s contention that his right wrist disability should be alternatively rated under a DC for arthritis, such as DC 5003 or 5010. However, such diagnostic codes (DCs) are inapplicable to this case as arthritis has not been established by x-ray findings. Moreover, even if the Board were to rate the Veteran’s right wrist disability pursuant to DC 5003 or 5010, such DCs would not allow for a higher rating because under those DCs, where there is limitation of motion, such as here, the disability is to be rated based on limitation of motion. Thus, the Board would still apply DCs 5214 and 5215 to rate the Veteran’s disability. The Board also acknowledges the Veteran’s contention that his right wrist disability should be alternatively rated under DC 8516, impairment of the ulnar nerve. While the Veteran has reported numbness and tingling of his right upper extremity, the evidence of record indicates that the symptoms are due to a nonservice-connected condition. See October 2014 VA treatment record (indicating that the symptoms are due to ulnar nerve innervation); December 2019 VA examination (indicating that the Veteran’s symptoms are due to a TBI). The Veteran is not currently service-connected for a nerve condition, and a formal claim has not yet been filed. See also May 2019 Board remand. Thus, as the symptoms of numbness and tingling are not due to his service-connected right wrist disability, rating the disability pursuant to DC 8516 would not be appropriate. In sum, in the absence of ankylosis which would allow the Veteran’s disability to be rated under DC 5214, the preponderance of the evidence is against this claim. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for a rating in excess of 10 percent for right wrist disability must be denied. 2. Entitlement to an initial compensable rating for a right upper extremity scar associated with a service-connected right wrist sprain. The Veteran seeks a compensable rating for his right upper extremity scar associated with his right wrist disability (right wrist scar). For the reasons that follow, and resolving all reasonable doubt in favor of the Veteran, the Board finds that a compensable rating is warranted from November 20, 2014, to October 25, 2016. Scars are rated under 38 C.F.R. § 4.118, schedule of ratings for disorders of the skin, under DCs 7801, 7802, 7804, and 7805. Effective August 13, 2018, the rating criteria for skin disabilities were revised. See 73 Fed. Reg. 32, 592 (July 13, 2018). As this appeal was pending on August 13, 2018, the revised criteria are applicable, but only for the period beginning August 13, 2018. The Veteran’s scar is rated as noncompensable pursuant to 38 C.F.R. § 4.118, DC 7805. Under the version of the Schedule for Rating Disabilities in effect prior to August 2018, scars were rated under DCs 7800 to 7805. DC 7800 applied scars or disfigurement of the head, face, or neck. DC 7801 applied to burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear. A minimum 10 percent rating was assigned for an area(s) of at least 6 square inches (30 sq. cm.) but less than 12 sq. inches (77 sq. cm.). A deep scar was associated with underlying soft tissue damage. DC 7802 applied to burn scars or scars due to other causes, not of the head, face, or neck, that are superficial and nonlinear. A 10 percent rating was assigned for area(s) of 144 sq. inches (929 sq. cm.). DC 7804 pertains to unstable or painful scars. A 10 percent evaluation is assigned for one or two scars that are unstable or painful. A 20 percent evaluation is assigned for three or four scars that are unstable or painful. A 30 percent evaluation is assigned for five or more scars that are unstable or painful. Note (1): an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2): If one or more scars are both unstable and painful, 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. Note (3): Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804, when applicable. DC 7805 applies to limitation of function of the affected part and specifically provides: Evaluate any disabling effect(s) not considered in rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code. Under the post-August 2018 rating criteria, DCs 7800, 7804 and 7805 remain the same. DC 7801 was amended to state that burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage, in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) will be assigned a 10 percent rating. Notes (1) and (2) were amended, but not in a manner that is pertinent to this particular case. DC 7802 was amended to state that burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage in an area or areas of 144 square inches (929 sq. cm.) or greater will be assigned a 10 percent rating. Notes (1) and (2) were amended, but not in a manner that is pertinent to this particular case. Turning to the evidence of record, at the May 2012 VA examination for the Veteran’s right wrist, the examiner noted that the Veteran had a scar related to his right wrist disability but that it was not painful or unstable and the total area of all related scars was not greater than 39 square centimeters (cms). The Veteran underwent a VA examination for his scars in May 2015. One scar on the Veteran’s right wrist was noted. The examiner reported that the scar was a linear trauma scar on the radial side of his right wrist which caused sharp pain. It measured 1 cm by 1 cm. The Veteran’s scar was not unstable. In a July 2015 statement, the Veteran reported that his right wrist scar was painful. The Veteran underwent another VA examination in October 2016. At the examination, the Veteran only reported pain and numbness associated with his shoulder and ankle scars. The Veteran’s right wrist scar was noted to be a linear scar measuring 1 cm by .1 cm. The scar was not tender to palpitation or unstable. While the Veteran underwent a VA examination for his scars in September 2018, his right wrist scar was not examined. At the April 2017 hearing, the Veteran only reported symptomatology related to his right shoulder scars. The Veteran most recently underwent a VA examination for his right wrist scar in December 2019. The Veteran reported that his scar had not changed since he was last examined. He only reported pain related to his shoulder scars. No scars were noted to be unstable. The Veteran’s right wrist scar was noted to be linear, measuring 1 cm by .2 cm. No underlying tissue damage was noted. Based on the evidence presented, the Board finds that a 10 percent rating, but no higher, for the Veteran’s right wrist scar is warranted pursuant to DC 7804 from November 20, 2014, to October 25, 2016. Specifically, at the May 2015 VA examination and in a July 2015 statement, the Veteran reported that his right wrist scar was painful, which he is competent to report. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Accordingly, the Board finds that a 10 percent rating under DC 7804 is warranted for one painful scar. The Board finds November 20, 2014, is the proper effective date for this rating as it is the date it was factually ascertainable that the Veteran’s right wrist scar increased in severity. See November 2014 Application for Disability Compensation and Related Compensation Benefits (reporting an increase in his right wrist scar). An even higher rating under DC 7804 requires at least three or more scars that are painful or unstable. As the Veteran does not have at least three painful scars related to his right wrist, a 20 percent rating is not warranted. Furthermore, there is no evidence that the right wrist scar is unstable. See 38 C.F.R. §§ 4.7, 4.118, DC 7804. Thus, a 10 percent rating, and no higher, is assigned for the right wrist scar from November 20, 2014, to October 25, 2016. However, the Board finds that a compensable rating is not warranted outside the period the aforementioned period. Outside that period, the record does not demonstrate that the Veteran’s right wrist scar was painful, unstable, or nonlinear, and no functional loss was attributable to the scar. A compensable rating under DC 7804 is not warranted prior to November 20, 2014, or after October 25, 2016, as the Veteran’s scar was not shown to be painful or unstable. Specifically, the scar was not noted to be painful at the May 2012 VA examination, and the Veteran did not report experiencing any symptomatology related to his right wrist scar at the October 2016 or December 2019 VA examinations. Likewise, he did not report any symptomatology related to his right wrist scar at the April 2017 Board hearing. At the aforementioned VA examinations and the Board hearing, the Veteran only reported pain and symptomatology related to his shoulder and/or ankle scars. The Board has considered whether other diagnostic codes could potentially afford the Veteran a compensable or higher rating at any point during the appeal period. However, evaluation under DC 7800 is not appropriate because the scar is not of the head, face, or neck. Evaluation under the former DC 7801 is not appropriate as the scar is not deep and nonlinear. A compensable or higher evaluation is also not warranted under the revised criteria of DC 7801 as the scar is not associated with underlying soft tissue damage. Evaluation under the former DC 7802 is not appropriate because the scar is not nonlinear. Under the revised criteria, a 10 percent rating requires the scar involve an area or areas of 144 square inches (929 sq. cm.) or greater. Thus, even if this DC was applied from August 13, 2018, its ratings are predicated on the size of the scar, and the Veteran’s scar would not more nearly approximate the criteria corresponding to the minimum rating. A compensable rating under DC 7805 is not warranted at any point as there is no evidence that the scar causes a limitation of function in the affected area. Accordingly, the Board finds that a 10 percent rating for one painful scar is warranted only from November 20, 2014, to October 25, 2016, but that a compensable rating is not warranted outside that period. REASONS FOR REMAND Entitlement to a TDIU. Finally, a claim for TDIU is raised by the evidence of record. See, e.g., December 2019 VA examination (reporting that the Veteran has not returned to work due, in part, to his service-connected right wrist disability). The claim is part-and-parcel of the right wrist increased rating claim on appeal. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). However, the Veteran has not been sent notice for his TDIU claim, has not completed a TDIU application, and the issue has not been addressed by the RO. Therefore, on remand, the RO should comply with the duties to notify and assist in connection with the Veteran’s TDIU claim. The Board notes that the Veteran has been in receipt of a schedular total rating (100 percent) for portions of the appeal period, specifically from October 2014 to November 2014 and from May 2015 to the present. Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation (SMC). Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008). Therefore, the total schedular rating does not render the TDIU issue moot, except for the period that the Veteran is in receipt of a total rating and SMC (i.e. from November 2015 to February 2016). The matters are REMANDED for the following action: 1. Send the Veteran VCAA notice informing him how to substantiate a claim for TDIU. He should also be asked to complete a VA Form 21-8940, Veteran’s Application for Increased Compensation based on Unemployability. 2. Adjudicate the issue of entitlement to a TDIU. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mortimer, 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.