Citation Nr: 21003736 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 14-10 822 DATE: January 22, 2021 ORDER Entitlement to an initial rating higher than 10 percent for right (major) wrist disability for the period since October 21, 2016 is denied. Entitlement to an initial rating higher than 10 percent for post-operative residuals of right (major) forearm disability for the period since October 21, 2016 is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that since October 21, 2016 the right wrist disability has continued to manifest with pain and limitation of motion (LOM). 2. The preponderance of the evidence shows that since October 21, 2016 the right forearm/elbow disability has continued to manifest with pain and noncompensable LOM on flexion. CONCLUSIONS OF LAW 1. The requirements for an initial rating in excess of 10 percent for right (major) wrist disability for the period since October 21, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5215. 2. The requirements for an initial rating in excess of 10 percent for right (major) forearm/elbow disability for the period since October 21, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, DCs 5206, 5207, 5213. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has twice remanded this case as part of its initial review. See 04/24/2018 Remand BVA; 04/17/2020 BVA Decision. As discussed further in the decision below, the Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Applicable Legal Requirements Disability ratings are intended to compensate for impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. Id.; 38 C.F.R. § 4.27. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. §§ 4.1, 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran’s favor. 38 C.F.R. § 4.3. Evaluations are based on functional impairments which impact a veteran’s ability to pursue gainful employment. 38 C.F.R. § 4.10. If there is a question as to which disability rating to apply to the Veteran’s disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; see also Peyton v. Derwinski, 1 Vet. App. 282 (1991). Generally, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nonetheless, the Veteran is entitled to a staged rating for any part of the initial rating period on appeal where the disability manifested with greater severity. See O’Connell v. Nicholson, 21 Vet. App. 89, 91-92 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. In DeLuca, the Court of Appeals for Veterans Claims stated that increased symptomatology due to weakness, fatigue, etc., where possible, should be stated by examiners in terms of additional loss of range of motion. DeLuca, 8 Vet. App. at 205. Background Historically, the Veteran severed a tendon in his right forearm during his active service and treatment for the injury included surgery. He applied for VA compensation in 1982. The rating board noted that the VA examination noted a laceration at the right distal forearm; and, examination revealed point tenderness at the post-operative site but no loss of motion or sensation. Service connection was granted for the scar residual and a noncompensable rating assigned. (12/08/1982 Rating Decision) VA received the Veteran’s current claim for an increased rating in October 2011. In a February 2012 rating decision, the AOJ granted service connection for chronic tendonitis of the right wrist, with disruption of the fingers and the forearm and assigned a rating of 10 percent for each, both effective in October 2011. The decision also granted service connection for the scar residual. On initial review, the Board allowed a separate rating for the thumb and affected fingers and denied a rating higher than 10 percent for the wrist and forearm for the period prior to October 21, 2016. The subsequent period was remanded for current examinations. 1. Entitlement to an initial rating higher than 10 percent for right (major) wrist disability for the period since October 21, 2016 is denied. At the Board hearing the Veteran testified that he experienced daily throbbing pain, which had increased in intensity since the last examination, and that his wrist occasionally locked. See 10/21/2016 Hearing Testimony. Wrist disability is rated on the basis of LOM. The sole rating authorized for wrist disability for both the major and minor side is 10 percent. 38 C.F.R. § 4.71a, DC 5215. Normal ROM for the wrist is 0 to 70 degrees on dorsiflexion (extension); 0 to 80 degrees on palmar flexion; 0 to 45 degrees on ulnar deviation; and, 0 to 20 degrees on radiation. 38 C.F.R. § 4.71a, Plate I. As noted, the Board remanded for current examinations. The VA examination report (09/09/2019 C&P Exam, 2nd Entry) reflects that the examiner conducted a review of the claims file as part of the examination. A review of the Veteran’s records revealed that the Veteran had complained of wrist pain that he assessed as of 4/10 severity. His chief complaint was that his fingers locked in flexion about 4 times a week. The Veteran reported that he worked as a process server and a part-time landscaper. He denied the use of any assistive device. Physical examination revealed normal, pain-free ROM in all planes, to include no pain on weight bearing. There was no evidence of localized tenderness or crepitus, and muscle strength was normal. The examiner noted that there was no additional loss of ROM on repetitive-use testing, and he opined that the examination findings were not consistent with the Veteran’s reports or complaints. The examiner opined further that the Veteran would not experience any additional loss of ROM due to flare-ups or functional loss, and that the Veteran had not lost the use of the right wrist. The examiner diagnosed chronic flexor tendonitis. The examiner opined that it was not at least as likely as not that the Veteran had any associated neurological pathology. The examination report reflects that the objective findings on clinical examination showed no basis for a higher rating. As noted, only one rating is authorized for wrist disability; the Veteran is separately rated for the symptomatology in his fingers; and, neither the Veteran’s reports nor the examination findings revealed any symptoms not contemplated by the schedular rating criteria. Subsequent to the examinations, the Veteran asserted that he deemed the examination improper. Specifically, the examiner was rude from start to finish, in that he accused the Veteran of “wanting more” compensation. He also did not allow the Veteran to fully respond to the questions. Finally, the examiner did not use any tools or equipment when he assessed the Veteran’s grip strength. The Veteran requested another examination by a different examiner. See 09/13/2019 VA 21-4138. Concerning the adequacy of the examination, the Board notes that the Veteran did not dispute any of the objective findings noted in the report, nor did he assert that grip strength was not tested, only that no tool or item of equipment was used. In any event, because the examiner did not conduct testing of passive ROM, see Correia v. McDonald, 28 Vet. App. 158 (2016), and out of an abundance of caution as concerns the duty to assist, the Board remanded for another examination by a different examiner. The AOJ arranged the examination as directed. The examination report (11/02/2020 C&P Exam, 1st Entry) reflects that the examiner conducted a review of the claims file as part of the examination. The Veteran reported complaints of pain from his right hand, wrist, and forearm, right 5th digit pain that radiated to the forearm, and difficulty gripping and grasping. He reported flare-ups on gripping, and the functional loss that he reported was that he cannot grip items. Physical examination revealed ROM to 30 degrees on palmar flexion (normal 80 degrees); to 55 degrees on dorsiflexion (70); ulnar deviation to 25 degrees (45); and radial deviation to 15 degrees (20), all movements with pain. The examiner opined that the LOM did not cause functional loss. There were positive indications of pain on weight bearing, and evidence of crepitus. Strength was 4/5 but there was no evidence of muscle atrophy. Repetitive-use testing was not performed due to the Veteran’s complaint of pain. The Veteran denied the use of any wrist assistive device. The left wrist examination was normal in all facets. The examiner noted that passive ROM (PROM) and active ROM (AROM) were the same. see Correia, 28 Vet. App. 158. As the Board noted earlier, only one rating is authorized for the wrist, 10 percent. 38 C.F.R. § 4.71a, DC 5215. Hence, the absence of repetitive-use test results does not impact the Board’s review of the rating. See 38 C.F.R. §§ 4.40, 4.45. As was the case with the 2019 examination, the examination did not reveal any symptoms not contemplated by the Schedular Rating criteria. The examiner noted that the Veteran’s pain on motion caused functional loss, which is contemplated in the LOM rating criteria. Further, the examiner opined that the Veteran had not lost the use of his right wrist. Exam Report, P. 13. Hence, there is no factual basis for the allowance of special monthly compensation. See 38 C.F.R. § 4.63. Based on the above, the Board finds that the preponderance of the evidence is against a rating higher than 10 percent for the period since October 21, 2016. 38 C.F.R. §§ 4.1, 4.71a, DC 5215. Since the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); see also 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an initial rating higher than 10 percent for post-operative residuals of right (major) forearm/elbow disability for the period since October 21, 2016 is denied. The discussion above on the right wrist, where relevant on the Veteran’s history and complaints, is incorporated here by reference. Forearm/elbow disability is also rated on the basis of LOM. Normal ROM for the forearm/elbow is 0 to 145 degrees on flexion; 0 to 80 degrees on pronation; and 0 to 85 degrees on supination. See 38 C.F.R. § 4.71a, Plate I. Under those criteria, flexion limited to 110 degrees is rated noncompensable; LOM to 100 degrees warrants a 10 percent rating for both major and minor side; LOM to 90 degrees warrants a 20 percent rating for both sides; and LOM to 70 degrees warrants a 30 percent rating for the major side [higher ratings are not set forth since the evidence does not warrant a discussion on them]. 38 C.F.R. § 4.71a, DC 5206. LOM on extension limited to 45 or 60 degrees warrants a 10 percent rating for the major side; limitation of extension to 75 degrees warrants a 20 percent rating for the major side; and, extension limited to 90 degrees warrants a 30 percent rating for the major side. 38 C.F.R. § 4.71a, DC 5207. Where forearm flexion is limited to 100 degrees and extension to 45 degrees, a 20 percent rating is warranted. 38 C.F.R. § 4.71a, DC 5208. The 2019 examination report (09/09/2019 C&P Exam, 1st Entry) reflects that physical examination of the forearm/elbow revealed normal, pain-free ROM in all planes. There was no evidence of tenderness or pain on palpation or crepitus. Muscle strength was normal, there was no evidence of muscle atrophy, and repetitive-use testing revealed no additional loss of ROM. The examiner opined that it was not at least as likely as not that the Veteran had any associated neurological pathology. The objective findings on clinical examination did not reveal a factual basis for a rating higher than 10 percent, as the examiner noted a normal examination. The November 2020 examination report (11/02/2020 C&P Exam 2nd Entry) reflects that the examiner reviewed the claims file as part of the examination. The Veteran reported the same history and complaints as he did for his wrist. Physical examination revealed ROM of 0 to 125 degrees, with pain on flexion and extension. Motion on supination and pronation were normal. There was no evidence of localized tenderness or pain on palpation, but there was pain on weight and non-weight bearing, and evidence of crepitus. The examiner noted that functional loss was not due to the LOM but pain. Muscle strength was 4/5 without evidence of muscle atrophy. PROM and AROM were the same. The objective results on clinical examination show that the right forearm/elbow did not manifest at a rate higher than 10 percent, as flexion was greater than 0 to 90 degrees, and extension was normal. 38 C.F.R. § 4.71a, DCs 5206, 5207. Further, the examiner noted that repetitive-use testing did not reveal any additional loss of ROM. Hence, a higher rating was not met or approximated on that basis. See 38 C.F.R. §§ 4.40, 4.45. Based on the Veteran’s reported complaints and the examination findings, the examiner opined that the Veteran would experience an additional loss of 5 degrees of ROM due flare-ups from pain, fatigue, etc., and repeat use over time. Exam Report. P. 7-8. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Deducting another 10 degrees from ROM on flexion means that the Veteran’s right forearm/elbow ROM would be 0 to 115 degrees when under stress from flare-ups and repeat use. ROM of 0 to 115 degrees is still noncompensable LOM. DC 5206. Further, although flexion is limited to 115 degrees after functional loss assessment, extension was full at 125 to 0 degrees. Hence, there is no factual basis for a higher rating under DC 5208. Hence, the Veteran’s disability still warrants no more than the assigned minimum compensable rating of 10 percent for his pain. See Southall-Norman v. McDonald, 28 Vet. App. 346 (2016); see also 38 C.F.R. § 4.59. The examiner also opined that the Veteran had not lost the use of his right forearm or elbow. Further, the examination report reflects that the examination did not reveal any evidence of loss of supination or pronation, or impairment of the ulna. Thus, neither provides a factual basis for a separate rating. See 38 C.F.R. § 4.71a, DCs 5211, 5213. Based on the evidence discussed above, the Board finds that the preponderance of the evidence is against a rating higher than 10 percent for the period since October 21, 2016. 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, DCs 5206, 5207, 5208. Since the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve. See Gilbert, 1 Vet. App. 49, 53-56 (1990); see also 38 C.F.R. §§ 4.3, 4.7. (Continued on the next page)   Service connection is also in effect for the scar residual from the Veteran’s in-service surgery. All of the examination reports reflect that the scar is not painful. Hence, a separate compensable rating for a painful scar is not indicated. See 38 C.F.R. §§ 4.31, 4.118, DC 7804. The Veteran is entitled to a staged rating for any part of the rating period on appeal where his disability manifested at a more severe rate. The Board finds, however, that there is no factual basis for a staged rating, as both the right wrist and right forearm/elbow have manifested at the same rate throughout the rating period on appeal. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. T. Snyder 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.