Citation Nr: 21062407 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-33 585 DATE: October 7, 2021 ORDER Entitlement to an increased rating in excess of 10 percent for right wrist tenosynovitis is denied. FINDING OF FACT Throughout the appeal, the Veteran's right wrist tenosynovitis has been manifested by limited and painful motion. CONCLUSION OF LAW The criteria for entitlement to an increased rating in excess of 10 percent for right wrist tenosynovitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5024-5215. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the Army from November 1985 to December 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claim was remanded by the Board in a February 2019 decision for the RO to obtain a VA examination. An examination was obtained in July 2019; thus, the Board finds that the RO has substantially complied with the February 2019 Board remand directive. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to an increased rating in excess of 10 percent for right wrist tenosynovitis The Veteran contends that his service-connected right wrist condition is more severe than reflected in his current evaluation. Additionally, the Veteran contends that his right wrist condition is entitled to extraschedular consideration as his condition requires the regular use of a nighttime brace due to pain and has led to reduced lifting strength. See September 2017 Third Party Correspondence. Disability ratings are determined by the application of the facts presented to VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In rating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A claim for increased rating remains in controversy when less than the maximum available benefit is awarded AB v. Brown, 6 Vet. App. 35 (1993). Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the Veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran's right wrist disability is rated under Diagnostic Codes 5215-5024. The Board notes that hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. The hyphenated disability will be rated by analogy under a diagnostic code for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. 38 C.F.R. §§ 4.20, 4.27. Here, Diagnostic Code 5024 for tenosynovitis is required to be rated on limitation of motion of the affected parts. 38 C.F.R. § 4.71a. As Diagnostic Code 5215 pertains to limitation of motion of the wrist, the Board finds that it is the appropriate diagnostic code to evaluate the Veteran's disability. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, Diagnostic Code 5215 was not changed. Under Diagnostic Code 5215, a 10 percent rating is warranted for both the major and minor extremity when palmar flexion is limited in line with the forearm or when dorsiflexion is less than 15 degrees. Higher ratings under Diagnostic Code 5214 are warranted when there is evidence of ankylosis. See 38 C.F.R. § 4.71a. The Board notes that the Veteran is right-hand dominant; therefore, his right wrist disability affects his major extremity. See 38 C.F.R. § 4.69. The Veteran filed his claim for increased evaluation on October 4, 2015; the Board has considered the evidence of record since October 4, 2014 in conjunction with this decision. See 38 C.F.R. § 3.400 (o). Evidence relevant to the severity of the Veteran's right wrist disability includes the May 2016 VA examination. The Veteran was diagnosed with right wrist tenosynovitis. During the examination, the Veteran reports that his wrist is stiff and sore daily, and he uses a night wrist splint that helps some. He works full time and has no deficits except pain. He types all day and is tolerating this currently. The Veteran denies any deficits in his activities of daily living and has no trauma, falls, or recent injuries to wrist. He describes a stiff wrist with occasional puffiness on the dorsal surface. The Veteran can no longer golf due to pain. He reports flare-ups after lifting and carrying things, which increases his aches to sharper aches. He says that he has functional loss due to decreased motion as a result of pain. Upon range of motion testing, his palmar flexion is limited to 60 degrees; his dorsiflexion is limited to 60 degrees; his ulnar deviation is limited to 45 degrees; and his radial deviation is limited to 20 degrees. There is pain noted on the examination, which causes functional loss. The Veteran is able to perform observed repetitive use testing without additional loss of function or range of motion. After repeated use over time, the examiner is unable to say without mere speculation whether pain, weakness, fatigability, and/or incoordination significantly limit functional ability. During flare-ups, the examiner opines that pain significantly limits functional ability. The estimated range of motion is decreased to 40 degrees for palmar flexion, 50 degrees for dorsiflexion, 45 degrees for ulnar deviation, and 25 degrees for radial deviation. The Veteran has full muscle strength with no signs or symptoms of atrophy or ankylosis. The examiner notes the Veteran's regular use of a brace for nightly wrist pain. The examiner opines that the Veteran's right wrist condition does not impact his ability to perform any type of occupational task and his disability is stable with mild to moderate severity. The Veteran's medical treatment records include an occupational therapy note from September 2017, specifically for the left wrist. However, the Veteran's range of motion was measured for the right wrist. His active range of motion was limited to 70 degrees for extension, 65 degrees for flexion, 45 degrees for ulnar deviation, and 25 degrees for radial deviation. The Veteran was afforded another VA examination in May 2019. The Veteran was diagnosed with right wrist tenosynovitis. He reports worsening pain when attempting to grab and lift objects. The Veteran's current treatment includes a wrist brace. He is unable to lift moderately heavy objects, like a chair, and he uses a wrist brace which makes it difficult to type as necessary for his daily job. The Veteran reports flare-ups occurring when he tries to grab and lift objects, including something as light as a frying pan. His right wrist flare-ups are severe but goes away after a few minutes once he puts the object down. The Veteran reports functional loss, as he is unable to do routine tasks around the house like he used to. Upon range of motion testing, the Veteran's palmar flexion is limited to 70 degrees; dorsiflexion is limited to 65 degrees; ulnar deviation is limited to 35 degrees; and radial deviation os limited to 20 degrees. Pain is noted on the examination, causing functional loss. After observed repetitive use, the Veteran is able to perform repetitive use testing without additional loss of function or range of motion. After repeated use over time, the examiner opines that pain and lack of endurance would significantly limit functional ability. With estimated range of motion reduced to 60 degrees for palmar flexion, 45 degrees for dorsiflexion, 30 degrees for ulnar deviation, and 15 degrees for radial deviation. During flare-ups, the examiner opines that the pain and lack of endurance would significantly limit functional ability. With estimated range of motion reduced to 60 degrees for palmar flexion, 55 degrees for dorsiflexion, 30 degrees for ulnar deviation, and 15 degrees for radial deviation. The Veteran has full muscle strength with no signs or symptoms of atrophy or ankylosis. The examiner opines that the Veteran's right wrist condition impacts his ability to perform occupational tasks as the Veteran is unable to lift or carry 20 pounds without feeling pain. Based on the foregoing, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for right wrist sprain. The Board acknowledges the objective evidence of less movement than normal and pain on movement. However, the Veteran is already in receipt of a 10 percent rating for limited movement and pain on motion as required under 38 C.F.R. §§ 4.40 and 4.59. It is also significant to note that the Veteran's range of motion improved throughout the appeal. During the May 2016 VA examination, his palmar flexion and dorsiflexion each measured at 60 degrees, and improved to 70 degrees and 65 degrees, respectively, during the September 2017 occupational therapy appointment and May 2019 VA examination. The Board has considered the May 2016 and May 2019 VA examiners' findings that pain, and lack of endurance would significantly limit the Veteran's functional ability during flare-ups. However, the estimated range of motion is still greater than required for a compensable evaluation under Diagnostic Code 5215. 38 C.F.R. § 4.71a. Furthermore, the decreased range of motion would not result in symptoms more nearly approximate to ankylosis of the right wrist to warrant a rating in excess of 10 percent. The Board also considered the functional impact of the Veteran's condition but finds that his limited ability to lift moderately heavy objects does not result in additional functional loss or impairment and is not analogous to symptoms of ankylosis to warrant a higher rating. The Board has considered whether any other diagnostic codes related to disabilities of the wrist would provide for a higher disability rating. Specifically, the Board considered whether a rating under Diagnostic Code 5125 for loss of use of the hand would warrant a higher rating. Id. However, the evidence does not suggest that the Veteran has any symptoms analogous to loss of use of his hand. The evidence shows that the Veteran is still able to lift objects, albeit not heavy objects, and is still able to type for his job and perform activities of daily living. Thus, the Board concludes that a rating under any other diagnostic codes would not result in a higher rating. The Board also acknowledges the Veteran's contentions, included in the September 2017 Third Party Correspondence, that his right wrist condition is entitled to extraschedular consideration as his condition requires the regular use of a nighttime brace due to pain and has led to reduced lifting strength. However, pursuant to Morgan v. Wilkie, 31 Vet. App. 162 (2019), the United States Court of Appeals for Veterans Claims (Court) found that VA's duty to maximize benefits requires it to exhaust all schedular alternatives for rating a disability, including, but not limited to, secondary service connection, analogous ratings, the requirement to assign a higher schedular rating if a Veteran's disability more nearly approximates the higher rating, the requirement that VA resolves doubt in favor of claimants, ratings based on individual unemployability, special monthly compensation, and the ability to rate a single disability under multiple diagnostic codes without pyramiding, before the extraschedular analysis is triggered. Here, the Board has already determined that a 10 percent rating under Diagnostic Code 5215 is the appropriate rating for the Veteran's right wrist disability, as it is the highest schedular rating available under the diagnostic code. 38 C.F.R. § 4.71a. Additionally, as previously found, there are no other diagnostic codes or analogous diagnostic codes that would warrant a higher rating for the Veteran's right wrist disability, including Diagnostic Codes 5214 and 5125. The Veteran has not alleged that is right wrist tenosynovitis has symptomatology that would warrant secondary service connection. 38 C.F.R. § 3.310. The Veteran's only noted symptoms are pain on movement and limited movement, which are both already considered when evaluating the severity of his condition under Diagnostic Code 5214. Additionally, the Veteran has not contended that he is unable to secure or maintain employment due solely to his service-connected right wrist disability. 38 C.F.R. § 4.16. In fact, during the Veteran's May 2016 VA examination, he stated that he is able to type for his work without any issues. During the May 2019 VA examination, he did state that his brace makes it difficult to type, but he did not indicate that his disability or his brace prevented him from completing the tasks necessary to perform his job. Thus, entitlement to a total disability based on unemployability is not warranted in the Veteran's case. Nevertheless, as the issue of extraschedular consideration has been expressly raised by the Veteran, the Board will consider whether referral for an extraschedular rating is appropriate in this case. See Yancy v. McDonald, 27 Vet. App. 484 (2016). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court articulated a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director, Compensation Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. Here, the Board finds that the Veteran's reported symptoms of pain and limited movement are directly considered under Diagnostic Code 5215 and pursuant to 38 C.F.R. §§ 4.40, 4.59, which require the Board to consider the functional loss and painful motion of the affected joints when evaluating the severity of the condition. As previously noted, the Veteran's 10 percent evaluation for his right wrist disability expressly considers the Veteran's painful and limited motion which prevent the Veteran from lifting objects. As the Veteran's symptoms do not present such an exceptional disability picture that the available schedular evaluation for his service-connected disability is inadequate, the Board concludes that referral to Under Secretary for Benefits or the Director, Compensation Service for extraschedular consideration is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a rating in excess of 10 percent for the right wrist disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hartford, 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.