Citation Nr: 21063573 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-14 991 DATE: October 14, 2021 ORDER Entitlement to an evaluation higher than 10 percent for left navicular joint fracture with arthritis is denied. FINDING OF FACT The Veteran's left navicular joint fracture with arthritis is productive, at worst, of palmar flexion to 10 degrees, dorsiflexion to 15 degrees, ulnar deviation to 10 degrees, and radial deviation to 0 degrees; there is no evidence of ankylosis. CONCLUSION OF LAW The criteria to establish an evaluation higher than 10 percent for left navicular joint fracture with arthritis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5215. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1966 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) from an October 2014 rating decision by the Agency of Original Jurisdiction (AOJ). A Board hearing was held in November 2019. A transcript is of record. The Veteran seeks a higher evaluation for his left wrist disability. Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity. 38 U.S.C. § 1155 (2012). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation 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 determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. 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. 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. 38 C.F.R. § 4.59. The Veteran's left wrist disability is currently evaluated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5215. Limitation of motion of the major or minor wrist with dorsiflexion less than 15 degrees or with palmar flexion limited in line with forearm is assigned a 10 percent disability rating. Higher evaluations require evidence demonstrating ankylosis. The Veteran has described pain and limitations caused by arthritis in his wrist. During his November 2019 hearing, he stated that his left wrist was weaker than the right, and that during flare-ups, he had no motion. The Board remanded the appeal in January 2020, specifying that an October 2014 VA examination was inadequate for adjudication purposes. On VA examination in March 2020, the examiner noted that the Veteran was right hand dominant. The Veteran reported that he experienced stiffness in his left fingers and wrist, and that he had no flexibility in the wrist. He noted difficulty with lifting, grabbing, squeezing, and twisting. He endorsed flare-ups, with throbbing pain and 7/10 pain occurring four to five times per month lasting for hours. Range of motion testing revealed palmar flexion to 20 degrees, dorsiflexion to 25 degrees, ulnar deviation to 20 degrees, and radial deviation to 10 degrees. The Veteran experienced pain in all planes of motion. There was no additional loss of motion following repetitive use. The examiner estimated that, on flare-ups, motion would be additionally limited, with palmar flexion to 10 degrees, dorsiflexion to 15 degrees, ulnar deviation to 10 degrees, and radial deviation to 0 degrees. The examiner specifically indicated that there was no ankylosis. The examiner indicated that, due to the Veteran's left wrist disability, there was no functional impairment such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The Board acknowledges that the Veteran's attorney submitted a Disability Benefits Questionnaire completed by a private physician in June 2021. However, this report indicates that the Veteran had motion in all planes and that there was no ankylosis. This examiner failed to address any additional limitation during flare-ups or with repetitive use. Having carefully reviewed the record, the Board concludes that an evaluation higher than 10 percent for the Veteran's left wrist disability is not warranted. The current evaluation contemplates dorsiflexion less than 15 degrees or palmar flexion limited in line with the forearm. A higher evaluation requires evidence of ankylosis. (Continued on the next page) Ankylosis is defined as "stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint[.]" Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). In Chavis v. McDonough, 34 Vet. App. 1, 13-24 (2021), the Court of Appeals for Veterans Claims (Court) determined that ankylosis can also mean the "functional equivalent" of ankylosis. Here, while the March 2020 VA examiner estimated that the Veteran would have zero degrees of radial deviation with flare-ups, he also estimated that the Veteran would retain motion in other planes during flares. Thus, it cannot be stated that flare-ups would produce the functional equivalent of stiffening or fixation of the left wrist joint as contemplated by the Court in Chavis. The Board therefore finds that the currently assigned evaluation is appropriate for the Veteran's left wrist disability and the appeal is denied. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Barone, 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.