Citation Nr: 21002716 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 10-00 211 DATE: January 14, 2021 ORDER Entitlement to a disability rating of 10 percent, but no higher, for the service-connected residuals of a left-hand fracture disability is granted. REMANDED Entitlement to a compensable rating prior to March 13, 2019 and a rating in excess of 10 percent since March 13, 2019 for the service-connected hypertension, to include a separate rating for hypertensive heart disease with heart failure, is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, for the entire appeal period, his left-hand fracture residuals have been manifested by painful motion, without evidence of ankylosis. CONCLUSION OF LAW The criteria for a rating of 10 percent, but no higher, for residuals of a left-hand fracture disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5215. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1975 to March 1996. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a January 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded these claims for additional development in February 2015 and December 2017. In an August 2019 rating decision, the RO granted service connection for right knee patellofemoral pain syndrome and scars, status post basal cell carcinoma. As these are full grants of service connection for the benefits sought, these issues are no longer on appeal at the Board. In an electronic mail correspondence to the Board, dated in October 2020, the Veteran requested to revoke his representative because he wished to represent himself. Pursuant to VA regulations, an appellant has 90 days following notification of certification of an appeal to the Board to request a change in representation. 38 C.F.R. § 20.1305(a). Thereafter, good cause must be shown for the delay in making the request. 38 C.F.R. § 20.1305 (b)(1). Here, although the Veteran’s request was received more than 90 days after certification of his appeal, and the representative has submitted additional arguments on behalf of the Veteran, the Board finds that the Veteran has shown good cause to revoke his representative. As the Veteran has not obtained another representative, the Board now recognizes the Veteran as proceeding pro se with respect to this appeal. The Board also notes that, in a September 2020 electronic mail correspondence, the Veteran requested to have his prior request for a hearing withdrawn. As such, his hearing request is considered withdrawn. 38 C.F.R. § 20.704 (e). Increased Rating – Residuals of a Left-Hand Fracture Disability evaluations are determined by comparing a veteran’s present symptoms with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of a veteran’s disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. In the current appeal, the Veteran’s left-hand fracture disability has been evaluated as zero percent disabling pursuant to Diagnostic Code (DC) 5215. Although DC 5215 does not specifically allow for a zero percent rating, 38 C.F.R. § 4.31 notes that, in every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable rating are not met, as here. Evaluation percentages vary under DCs 5214 and 5215 based on whether the major or minor arm is affected. The record reflects the Veteran’s right hand is his dominant hand. See August 2008 and March 2019 VA examination reports. Therefore, his left hand is considered his minor arm for VA rating purposes. 38 C.F.R. § 4.69. DC 5215 evaluates limitation of motion of the wrist and provides a 10 percent rating for the major or minor wrist where dorsiflexion is less than 15 degrees or where palmar flexion is limited in line with the forearm. 38 C.F.R. § 4.71a, DC 5215. The Rating Schedule further provides that the normal range of motion for the wrist is from 0 to 70 degrees of dorsiflexion and 0 to 80 degrees of palmar flexion. Normal wrist ulnar deviation is from 0 to 45 degrees, while normal wrist radial deviation is from 0 to 20 degrees. See 38 C.F.R. § 4.71a, Plate I. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” 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. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that “[t]he 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.” Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The appeal period before the Board begins on January 25, 2008, the date VA received the Veteran’s claim for an increased rating, plus the one-year look-back period. Gatson v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Veteran contends that he experiences from residuals of his left-hand fracture that warrant a compensable rating. The Veteran was examined for this disability in August 2008. On examination, the examiner found no gross deformity, swelling, or tenderness. There was no pain associated with range of motion, with gravity and against resistance. Dorsiflexion was normal at 0 to 70 degrees; palmar flexion was normal at 0 to 80 degrees; radial deviation was normal at 0 to 20 degrees; and ulnar deviation was also normal at 0 to 45 degrees. Repetitive range of motion testing did not reveal any pain, fatigue, weakness, or lack of endurance or incoordination. It was noted that additional limitations due to flare-ups could not be determined without resorting to mere speculation. No ankylosis was present. The examiner remarked that there was no discomfort or difficulty in range of motion testing. No edema, effusion, tenderness, deformities, weakness, fatigue, or instability was found except as noted. In March 2019, the Veteran was afforded another VA examination. At that examination, the Veteran did not report having any flare-ups of the hand, finger or thumb joints. It was indicated that he did not have any functional loss or functional impairment of the joint or extremity being evaluated at the time of the examination. Range of motion measurements (flexion) were all reported as normal for the Veteran’s five fingers on his left hand, ranging, at a minimum, from 0 to 70 degrees. Although pain was not noted on examination, the examiner indicated that there is evidence of pain with use of the hand. The examiner noted that 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; however, there was no additional functional loss or range of motion after three repetitions. He was also examined immediately after repetitive use over time. It was further noted that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. Muscle strength testing results were normal. There was no muscle atrophy, and ankylosis was not present. It was indicated that the Veteran’s left-hand fracture disability did not affect his ability to work. Based on the evidence of record, and in resolving all reasonable doubt in the Veteran’s favor, the Board finds that a disability rating of 10 percent, but no higher, is warranted for the Veteran’s left-hand fracture disability. Although dorsiflexion was not less than 15 degrees, and palmar flexion was not exactly limited in line with forearm, as required for a 10 percent rating under DC 5215, there is evidence to indicate that the Veteran experiences pain that results in functional loss. The Board has reviewed the Veteran’s multiple lay statements, as well as arguments from his former representative, which indicate that the Veteran experiences constant pain from the use of his left hand. Moreover, the March 2019 VA examiner noted that there is evidence that the Veteran experiences pain when using the left hand. The Veteran has also argued that the pain impacts his ability to conduct activities of daily living. Although these statements were not documented on the VA examination reports, the Board finds that they are credible. The Veteran is competent to report that he experiences pain in his left hand and that the pain results in functional impairment. As such, in resolving all reasonable doubt in his favor, the Board finds that a 10 percent rating is warranted for the Veteran’s service-connected left-hand fracture disability. The Board has determined that a rating higher than 10 percent is not warranted for the Veteran’s left-hand fracture. When reviewing the evidence of record, including private treatment reports and the VA examinations dated throughout the appeal period, there is no indication that the Veteran’s left hand was ever ankylosed. Rather, his dorsiflexion and palmar flexion of the left wrist have actually been greater than that which is required for a 10 percent evaluation under DC 5215. As previously stated, a 10 percent rating is being assigned for the Veteran’s described left-hand pain and related functional impairment. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 202. For the entire appeal period, considering the lay and medical evidence, the service-connected left hand disability has been manifested by symptoms and impairment that more nearly approximates palmar flexion limited in line with forearm, including as due to pain and other orthopedic factors, as well as functional impairment of limited ability to write, lift, throw, and conduct some household chores. Additional functional limitations due to left hand pain when engaging in activities of daily living, as described by the Veteran, are already contemplated as orthopedic factors in the schedular rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca; see also 38 C.F.R. § 4.71a, DC 5215 (contemplates pain related to limitation of motion). The Board has also considered whether any staged rating is appropriate. However, evidence regarding the level of disability for the left hand is consistent with the assigned rating for the entire relevant time period on appeal. Accordingly, a rating of 10 percent is warranted for the service-connected left-hand fracture disability, as reasonable doubt is resolved in the Veteran’s favor. However, the preponderance of the evidence is against the assignment of a rating in excess of 10 percent. Additional Considerations The Board has considered whether the Veteran’s disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular rating is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Peake, 22 Vet. App. 111, 118 (2008). Here, although the Veteran’s former representative asserts that the Veteran is entitled to an extraschedular rating for his service-connected left-hand fracture disability, the Board finds that the rating criteria reasonably describe the Veteran’s disability level and symptoms. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40 (2018); Mitchell, 25 Vet. App. 32, 37. For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement, excess fatigability, and interference with weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. The schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board finds that the schedular rating criteria reasonably describe the Veteran’s left-hand fracture disability picture, and referral for extraschedular consideration is not warranted. In addition, the Veteran’s disability picture is not so unusual or exceptional in nature as to render the schedular evaluation assigned for his service-connected left-hand fracture disability inadequate. In this regard, pain, weakness, and fatigue, are already contemplated by the rating schedule. As the Veteran’s disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate. Accordingly, referral for extraschedular consideration for the service-connected left-hand fracture disability is not warranted. REASONS FOR REMAND A compensable rating prior to March 13, 2019 and a rating in excess of 10 percent since March 13, 2019 for the service-connected hypertension, to include a separate rating for hypertensive heart disease with heart failure The Veteran contends that his service-connected hypertension is more severe than what is reflected by his current rating. Although the Board regrets the additional delay, another remand is required to determine more adequately the extent and severity of the Veteran’s hypertension. Notably, it is necessary to obtain a clarifying medical opinion on the etiology of the Veteran’s heart diagnoses. The Veteran has been service-connected for hypertension since April 1, 1996. He was assigned an initial noncompensable disability rating under Diagnostic Code 7101. That rating was subsequently increased to 10 percent as of March 13, 2019. In recent correspondence to the Board, dated in September 2020, the Veteran indicated that his hypertension had progressed to hypertensive heart disease with heart failure. On a March 2019 VA Disability Benefits Questionnaire (DBQ) for hypertension, the examiner diagnosed the Veteran with only one disability - hypertension. She vaguely mentioned that the Veteran was diagnosed with hypertensive heart disease with heart failure. There is no discussion of whether this is congestive heart failure. Additionally, the examiner indicated that the Veteran does not have any other pertinent physical findings, complications, conditions, signs, or symptoms related to the diagnosed disability of hypertension. No further remarks were provided on the DBQ. As the Veteran asserts that the severity of his hypertension warrants a higher rating, and as information related to his hypertensive heart disease and heart failure is pertinent to this claim, it is necessary to obtain a clarifying medical opinion regarding the relationship between the Veteran’s hypertension, hypertensive heart disease, and heart failure. The Board finds that the Veteran’s hypertension symptomatology is addressed by the rating criteria under which the disability is currently rated. The clinical evidence of record reflects elevated systolic and diastolic blood pressure readings and the Veteran’s need for continuous medication to control such elevated blood pressure. The rating criteria adequately contemplate the severity of such elevated blood pressure readings and resulting functional impairments attributable to hypertension. See 38 C.F.R. § 4.104, Diagnostic Code 7101. Accordingly, the Veteran was awarded a 10 percent schedular rating for his hypertension, effective March 13, 2019, in recognition of the severity of his elevated blood pressure and resulting functional impairments. However, to the extent that the Veteran has reported additional symptoms and diagnoses related to his service-connected hypertension, which are not discussed on his VA examination report, it is necessary for those symptoms and diagnoses to be noted and explained, to determine whether separate ratings are warranted for those additional symptoms and diagnoses. Importantly, it is necessary for the examiner to provide the etiologies, if known, of each of the Veteran’s heart conditions. Thus, a remand is necessary to obtain a medical opinion that clarifies the diagnoses related to his hypertension, and the etiology of each diagnosis. Accordingly, this matter is REMANDED for the following action: Obtain a medical opinion concerning the etiology of all heart diagnoses. All relevant diagnoses should be noted, to include, hypertensive heart disease and heart failure. For each diagnosis, the examiner should provide a medical opinion on whether it is at least as likely as not (50 percent or greater probability) that the diagnosis was caused, or aggravated beyond normal progression (e.g., worsened) by the Veteran’s service-connected hypertension. Explanatory rationale must be provided for all opinions expressed, preferably citing to supporting evidence in the claims file and/or accepted medical authority. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Trowers, 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.