Citation Nr: 21063335 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 15-06 644A DATE: October 14, 2021 ORDER Entitlement to a rating in excess of 40 percent for service-connected post-operative residuals of right wrist fracture (right wrist condition) is denied. FINDING OF FACT At no point during the period on appeal has the Veteran's right wrist condition manifested with unfavorable ankylosis in any degree of palmar flexion or with ulnar or radial deviation. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for service-connected right wrist condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.21, 4.71a, DC 5214. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1980 to July 1984 and from November 1990 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision issued by a Department of Veterans Affairs (VA) regional office. This matter was previously remanded by the Board in October 2018, August 2019, and February 2021. In March 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. See March 2018 Board Hearing Transcript. Entitlement to a rating in excess of 40 percent for service-connected right wrist condition is denied. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where a claimant timely appeals the rating initially assigned for the service-connected disability, VA must consider whether the claimant is entitled to "staged" ratings to compensate them for times since filing the claim when their disability may have been more severe than at other times during the course of the appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Similarly, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the assignment of staged ratings may be warranted where the evidence contains factual findings that demonstrate a change in the severity of symptoms during the course of the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating 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. 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. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3. Factual Background. In April 2013, the Veteran filed a claim seeking an increased rating for his service-connected right wrist condition. See April 2013 VA Form 21-526b. In a January 2014 rating decision, the Agency of Original Jurisdiction (AOJ) continued the 40 percent rating for the Veteran's service-connected right wrist condition. In a February 2014 Notice of Disagreement (NOD), the Veteran appealed this decision. The appeal was ultimately perfected. The Veteran's VA treatment records indicate that he has consistently reported experiencing right wrist pain and reduced range of motion (ROM). The records also indicate that, in a March 2013 consult, the Veteran was informed that his treatment options included using a splint, steroid injections, debridement of loose bodies and excision of dorsal osteophytes, and fusion. The records further indicate that, in an October 2016 emergency room visit, ROM testing revealed palmar flexion and dorsal flexion limited to 10 degrees. The records are silent with respect to treatment of or complaints involving ankylosis or an inability to move his right wrist. See Durham VA Medical Center (VAMC) records, received November 2020, July 2021, and August 2021 in CAPRI; Salisbury VAMC records, received September 2021 in CAPRI. The Veteran's private treatment records indicate that he sought treatment in August 2018 for right wrist pain and reduced ROM. The treating physician noted that the Veteran was unable to flex (palmar flexion) his wrist but recorded extension (dorsiflexion) to 20 degrees, radial deviation to 5 degrees, and ulnar deviation to 0 degrees. See Triangle Orthopaedics records, received August 2018. In December 2013, the Veteran underwent a VA examination in which he reported experiencing stiffness and decreased motion in his right wrist; he denied experiencing flare-ups. The examiner noted that the Veteran was right-hand dominant and documented an abnormal initial ROM, without objective evidence of pain, with palmar flexion to 35 degrees and dorsiflexion to 30 degrees; no additional loss was documented with observed repetitive use. The examiner also noted that there was no ankylosis. The examiner did not address the functional impacts of repeated use over time or flare-ups, nor was the left wrist tested. See December 2013 VA Wrist Conditions Disability Benefits Questionnaire (DBQ). In May 2017, the Veteran underwent a VA examination in which he reported experiencing daily wrist pain and difficulty rotating his wrist; he denied experiencing flare-ups. The examiner documented an abnormal initial ROM, with plan, with palmar flexion to 25 degrees, dorsiflexion to 30 degrees, ulnar deviation to 15 degrees, and radial deviation to 10 degrees; no additional loss was documented with observed repetitive use. The examiner also noted that pain would significantly limit functional ability with repeated use over time; however, the examiner stated that they were unable to describe this loss in terms of ROM. The examiner further noted that there was no ankylosis. See May 2017 VA Wrist Conditions DBQ. In March 2018, the Veteran testified that he has difficulty bending his wrist, which results in difficulty performing simple tasks such as turning a doorknob, holding a toothbrush, or starting a car. The Veteran also reported that emergency room visits have shown that the only remaining treatment option would be to fuse the joint, rendering the wrist permanently straight. Additionally, the Veteran's representative asserted that the Veteran has no motion in his right hand due to ankylosis and that the May 2017 examiner determined that the Veteran's ROM resulted in functional loss of the right hand. See March 2018 Board Hearing Transcript. In June 2018, the Veteran underwent a VA examination in which he reported experiencing weakness, pain, and very little movement in his right wrist. The examiner documented an abnormal initial ROM, with pain, with palmar flexion to 40 degrees, dorsiflexion to 10 degrees, ulnar deviation to 15 degrees, and no radial deviation; the Veteran was unable to perform repetitive-use testing due to pain. The examiner also noted that pain would significantly limit functional ability following repetitive use over time and during flare-ups; however, the examiner stated that they were unable to describe this loss in terms of ROM as the Veteran was unable to perform repetitive use testing and the examination did not occur during a flare-up. The examiner further noted that there was no ankylosis. See June 2018 VA Wrist Conditions DBQ. In December 2018, the Veteran underwent a VA examination in which he reported experiencing weakness and decreased ROM; he denied experiencing pain. The examiner documented an abnormal initial ROM, without pain, with palmar flexion to 35 degrees, dorsiflexion to 25 degrees, and ulnar and radial deviation to 20 degrees; no additional loss was documented with observed repetitive use. The examiner also noted that there was no ankylosis. The examiner did not address the functional impacts of repetitive use over time or flare-ups, stating that they could not do so without directly observing function under such conditions. See December 2018 VA Wrist Conditions DBQ, received January 2019. In November 2019, the Veteran underwent a VA examination in which he reported experiencing worsening stiffness, weakness, discomfort, and reduced ROM. The Veteran also reported experiencing flare-ups approximately 26 times over the past year. The examiner documented an abnormal initial ROM, without pain, with palmar flexion to 20 degrees, dorsiflexion to 25 degrees, and ulnar and radial deviation to 15 degrees. The examiner also documented additional loss of ROM during observed repetitive use due to weakness, lack of endurance, and incoordination, with palmar flexion to 15 degrees, dorsiflexion to 20 degrees, and ulnar and radial deviation to 15 degrees. The examiner opined that, following repetitive use over time and during flare-ups, weakness, lack of endurance, and incoordination would result in reduced ROM, with palmar flexion to 15 degrees, dorsiflexion to 20 degrees, and ulnar and radial deviation to 15 degrees. The examiner also noted that there was no ankylosis. See November 2019 VA Wrist Conditions DBQ, received December 2019. In September 2020, the Veteran underwent a VA examination in which he reported experiencing weakness and limited motion of his right wrist. The Veteran also reported experiencing flare-ups up to three times per week, lasting a few days each. The examiner documented an abnormal initial ROM, with pain, with palmar flexion to 40 degrees, dorsiflexion to 30 degrees, and ulnar and radial deviation to 15 degrees; no additional loss was documented with observed repetitive use. The examiner opined that repetitive use over time would not result in functional loss, but that during flare-ups, pain, fatigue, and weakness would result in reduced ROM, with palmar flexion to 30 degrees, dorsiflexion to 25 degrees, and ulnar and radial deviation to 15 degrees. The examiner also noted that there was no ankylosis. See September 2020 VA Wrist Conditions DBQ. In March 2021, the Veteran reported that his right wrist condition made day to day tasks, such as turning a doorknob, opening a jar, or holding a toothbrush, challenging. See March 2021 VA Form 21-4138. In May 2021, the Veteran underwent a VA examination in which he reported experiencing decreased grip strength and dexterity, weakness, pain, and swelling with prolonged use of his right wrist. The Veteran also reported experiencing flare-ups up to twice per week, lasting up to five days, during which he experienced severe pain. The examiner documented an abnormal initial ROM, with pain, with palmar flexion to 35 degrees, dorsiflexion to 25 degrees, and ulnar and radial deviation to 15 degrees; no additional loss was documented with observed repetitive use. The examiner opined that, following repetitive use over time and during flare-ups, pain, weakness, lack of endurance, and fatigability would result in reduced ROM, with palmar flexion to 30 degrees, dorsiflexion to 20 degrees, and ulnar and radial deviation to 10 degrees. The examiner also noted that there was no ankylosis. See May 2021 VA Wrist Conditions DBQ. In July 2021, an addendum opinion was obtained from the May 2021 examiner, the examiner noted that the Veteran's wrist fusion was still present and that he had "near ankylosis" as he had very limited ROM. However, the examiner concluded that, as the Veteran did have some ROM, he did not have "true ankylosis." See July 2021 VA Addendum Report. Analysis. The Veteran contends that he is entitled to a rating in excess of 40 percent for his service-connected right wrist condition. Importantly, the relevant temporal focus is from April 15, 2012, one year prior to the receipt of the Veteran's claim for an increased rating to present. The Veteran's right wrist condition is rated pursuant to 38 C.F.R. § 4.71a, DC 5214, based on ankylosis of the wrist. The Board notes that the rating criteria applicable to musculoskeletal system conditions was revised effective February 7, 2021. See 38 C.F.R. § 4.71a; 85 Fed. Reg. 76453 (Nov. 30, 2020); 85 Fed. Reg. 85523 (Dec. 29, 2020); 86 Fed. Reg. 8142 (Feb. 4. 2021). However, the rating criteria for conditions of the wrist, including DC 5214, was unchanged. 38 C.F.R. § 4.71a, DC 5201 (2020); 38 C.F.R. § 4.71a, DC 5201 (2021). As such, a determination as to whether the prior or revised criteria is more beneficial to the Veteran is not necessary here. Under DC 5214, for ankylosis of the major, or dominant, wrist: a 30 percent rating is warranted when the wrist is fixed in a favorable position, defined as 20 degrees to 30 degrees dorsiflexion; a 40 percent rating is warranted when the wrist is fixed in any position other than favorable; and a 50 percent rating is warranted when the wrist is fixed in any degree of palmar flexion or with ulnar or radial deviation. Extremely unfavorable ankylosis is rated as loss of use of the hand under DC 5125. Additionally, where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and 4.45 must be considered. See DeLuca v. Brown, 8 Vet. App. 202 (1995). However, pain may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination, or endurance. See Mitchell v. Shinseki, 25 Vet. App. 31 (2011). Within this context, the Board notes that a veteran may be entitled to a higher disability evaluation for a musculoskeletal disability than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes additional functional loss, such as the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance, including as due to pain. 38 C.F.R. § 4.40 (2020); see Lyles v. Shulkin, 29 Vet. App. 107, 117 (2017). A higher disability evaluation may also be awarded where there is a reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination. 38 C.F.R. § 4.45 (2020). However, the veteran's functional loss must result in limitation of motion sufficient to satisfy the next disability rating allowable for that particular disorder to be entitled to a higher disability rating under §§ 4.40 and 4.45. See Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016). The Board finds that at no point during the period on appeal has the Veteran's right wrist condition manifested with unfavorable ankylosis, with the wrist fixed in any degree of palmar flexion or with ulnar or radial deviation. Ankylosis is defined as immobility of a joint due to disease, injury, or surgical procedure. See Chavis v. McDonough, 34 Vet. App. 1, 13 (2021). Additionally, a joint disability may manifest with functional impairment equivalent to ankylosis if there is immobility of such joint due to pain, such as during flare-ups or following repetitive use over time. See id. Here, while the Veteran's medical records indicate that his right wrist condition manifests with pain and reduced ROM, they are silent with respect to ankylosis or immobility. Indeed, his medical records indicate that, at worst, his ROM has been restricted to palmar flexion to 10 degrees and dorsiflexion to 10 degrees. See Durham VAMC records; Salisbury VAMC records; Triangle Orthopaedics records. Similarly, VA examinations have consistently shown that the Veteran's right wrist condition manifests with reduced ROM, but without ankylosis or the functional equivalence thereof. Indeed, these examinations have found that the Veteran's right wrist condition manifests with reduced ROM of, at its worst, palmar flexion to 15 degrees, dorsiflexion to 20 degrees, and ulnar and radial deviation to 10 degrees. See December 2013 VA Wrist Conditions DBQ; May 2017 VA Wrist Conditions DBQ; June 2018 VA Wrist Conditions DBQ; December 2018 VA Wrist Conditions DBQ; November 2019 VA Wrist Conditions DBQ; September 2020 VA Wrist Conditions DBQ; May 2021 VA Wrist Conditions DBQ. Further, in a July 2021 addendum, the May 2021 examiner explained that, while the Veteran's ROM was "near ankylosis", as he did have some ROM, he did not have "true ankylosis." See July 2021 VA Addendum Report. Based on the above, the Board finds that at no point during the period on appeal has the Veteran's right wrist condition manifested with ankylosis or the functional equivalence thereof. Even if the Board were to find that the Veteran's right wrist condition manifested with the functional equivalence of ankylosis, a rating higher than the 40 percent currently assigned would not be warranted unless the evidence indicated that the wrist is fixed in any degree of palmar flexion or with ulnar or radial deviation. Here, as discussed above, the Veteran's right wrist condition has manifested with, at worst, palmar and dorsiflexion flexion from 0 to 10 degrees and ulnar and radial deviation from 0 to 10 degrees. See Durham VAMC records; Salisbury VAMC records; Triangle Orthopaedics records; December 2013 VA Wrist Conditions DBQ; May 2017 VA Wrist Conditions DBQ; June 2018 VA Wrist Conditions DBQ; December 2018 VA Wrist Conditions DBQ; November 2019 VA Wrist Conditions DBQ; September 2020 VA Wrist Conditions DBQ; May 2021 VA Wrist Conditions DBQ. As the Veteran has ROM in both palmar and dorsiflexion, the Board cannot find that the Veteran's right wrist in fixed in any degree of palmar flexion. Similarly, as the Veteran has ROM in both ulnar and radial deviation, the Board cannot find that the Veteran's right wrist is fixed in ulnar or radial deviation. As such, the Board cannot find that the Veteran's right wrist condition has, at any time during the appeal period, manifested with unfavorable ankylosis, with the wrist fixed in any degree of palmar flexion or with ulnar or radial deviation. The Board acknowledges that the Veteran's representative has argued that the Veteran has no motion in his right hand due to ankylosis. See March 2018 Board Hearing Transcript. However, as discussed above, the Veteran's medical records and VA examinations all document that the Veteran maintains ROM in his right hand, albeit reduced. As such, a rating in excess of the 40 percent currently assigned is not supported by the evidence of record. The Board has considered whether the Veteran is entitled to higher or separate ratings under other pertinent diagnostic codes. However, the Veteran has not been diagnosed with nonunion of the radius and ulna, impairment of the radius or ulna, or impairment of supination or pronation. Therefore, separate ratings for such conditions are not warranted. Additionally, the maximum schedular rating based on limitation of motion under DC 5215 is 10 percent and, therefore, a rating under DC 5215 would not be more beneficial to the Veteran. The Board has also considered whether the Veteran's right wrist condition has manifested with loss of the use of his hand, as contemplated by DC 5125. In this regard, the Board acknowledges that the Veteran's representative has argued that the May 2017 examiner determined that the Veteran's ROM resulted in functional loss of the right hand. See March 2018 Board Hearing Transcript. While the May 2017 examiner did note that the Veteran's reduced ROM contributed to functional loss. However, the examiner also found that the functional impairment was not of such severity that no effective functions remained. See May 2017 VA Wrist Conditions DBQ. Indeed, upon examination, VA examiners have consistently found that the functional impairment caused by the Veteran's right wrist condition was not of such severity that no effective functions remained. See December 2013 VA Wrist Conditions DBQ; May 2017 VA Wrist Conditions DBQ; June 2018 VA Wrist Conditions DBQ; December 2018 VA Wrist Conditions DBQ; November 2019 VA Wrist Conditions DBQ; September 2020 VA Wrist Conditions DBQ; May 2021 VA Wrist Conditions DBQ. Moreover, in this context, functional loss simply means the inability, due to damage of the system, to be able to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. See 38 C.F.R. §§ 4.10, 4.40. In sum, a rating in excess of the 40 percent currently assigned is not supported by the evidence of record and, therefore, the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In making this determination, the Board has considered, along with the schedular criteria, the Veteran's functional loss due to pain. See 38 C.F.R. §§ 4.40, 4.45; Deluca v. Brown, supra. Lastly, the Board notes that ratings under DC 5214 are based on functional impairment attributable to ankylosis of the wrist. As discussed above, the evidence indicates that the Veteran's right wrist condition does not manifest with ankylosis. As such, the evidence indicates that the Veteran's right wrist condition would be more appropriately rated under DC 5215 based on limitation to ROM, which has a schedular maximum rating of 10 percent. However, the Board will not disturb that currently assigned diagnostic code or rating thereunder. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.