Citation Nr: 21064558 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 17-40 878 DATE: October 20, 2021 ORDER Entitlement to an extraschedular rating in excess of 10 percent for postoperative residuals of a fractured left carpal navicular with arthritic changes (left wrist disability) is denied. FINDING OF FACT The manifestations of the left wrist disability are contemplated by the available rating criteria. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent on an extraschedular basis have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.40, 4.45, 4.71a Diagnostic Code 5215. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1959 to July 1975. In September 2019, the Veteran testified at a Board hearing; a transcript is of record. The Veterans Law Judge (VLJ) who conducted the hearing is no longer employed with the Board. The Veteran was informed of this fact in a March 2021 letter. The letter asked the Veteran to indicate whether he wanted to attend a new hearing and indicated that a failure to respond within 30 days would result in an assumption that another hearing was not desired. The letter was sent to the Veteran's address of record and was not returned as undeliverable. A copy of the letter was also sent to the Veteran's representative. The Veteran did not respond to the March 2021 letter. As such, it is assumed that the Veteran does not want another hearing and the Board shall proceed to consider his appeal. This matter was most recently before the Board in June 2021, when it was remanded for additional development. The Veteran contends that his left wrist disability warrants a higher rating than that assigned. In June 2021, the Director, Compensation and Pension service, issued a memorandum determining that an increased rating was not warranted on an extraschedular basis. After review of the record, the Board concurs. There is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111, 114 (2008); aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). First, it must be determined whether the disability picture is such that the schedular criteria are inadequate, i.e., whether there are manifestations or impairment that are not encompassed by the schedular criteria. If those criteria are not inadequate, the analysis does not need to proceed any further. The Board finds the schedular criteria are not inadequate. Notably, because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun, 22 Vet. App. at 114. Diagnostic Code 5215 provides maximum 10 percent rating for limitation of motion of the wrist. The rating criteria provide higher ratings for ankylosis of the wrist, and the record, including the Veteran's histories, do not suggest that the left wrist disability is associated with ankylosis or the approximation thereof. The Veteran has not reported symptoms that are not contemplated in the diagnostic code. Notably, he has reported pain, weakness, stiffness, incoordination, loss of dexterity, and fatigue with associated functional impairment due to the left wrist disability. These reported manifestations are contemplated under Diagnostic Code 5215 and under sections 4.40 and 4.45 of the regulations, which contemplate functional impairment due to factors such as pain, stiffness, aching, deformity, weakness, instability, fatigability, incoordination, swelling, and deformity of the joint, including on repeated use and during flare-ups. See 38 C.F.R. § 4.71a. The medical evidence does not reveal any manifestation not contemplated which has been attributed to the left wrist disability, and although the Veteran has reported that his hand "goes to sleep" which he attributes to the left wrist disability, he does not provide any explanation for this determination and the Board finds it, standing alone, is not evidence upon which an extraschedular rating is warranted. By regulation, the schedular ratings are assumed to provide adequate compensation for "considerable loss of working time from exacerbation or illness proportionate to" the nature and severity of the Veteran's disability. 38 C.F.R. § 4.1. Their basis is the ability to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Viewed in this light, the rating criteria, which are usually cast in objective clinical terms, must be understood to serve as markers of disability in terms of the ability to function under the ordinary conditions of daily life and employment, including considerable loss of working time. They generally do not describe how a given disability may manifest in everyday life, and thus cannot be found inadequate solely because they do not mention a particular symptom, clinical finding, or example of functional impairment, when they are almost always devoid of any such description whatsoever. Pursuant to 38 C.F.R. § 4.1, the burden is not on the Board to show or explain how the rating criteria are adequate, whose broad net (even with all the gaps in terms of description of symptoms, pathology, functional impairment, etc.) must be assumed as a matter of law and policy to capture in its sweep a wide range of disabling manifestations in the context of daily life and work, but rather on the party seeking extraschedular referral to show how they are inadequate. Accordingly, although not every specific clinical finding pertaining to the Veteran's disability may be mentioned in the rating criteria, the applicable diagnostic code and regulations effectively contemplate all disabling effects from them as shown by the evidence of record discussed above, including pain on use. See 38 C.F.R. § 4.71a, General Rating Formula; 38 C.F.R. §§ 4.40, 4.45. In short, there are no manifestations of the Veteran's pes planus is not accounted for in evaluating it under the schedular criteria. See Thun, 22 Vet. App. at 115; 38 C.F.R. § 3.321(b). Thus, the available schedular evaluations are adequate to rate this disability, and the first step of the inquiry is not satisfied and an increased rating on an extraschedular basis is not warranted. The Board acknowledges that a December 2020 Board decision included instructions for the matter to be referred for extraschedular consideration. The Board did not or make any factual findings as to why the referral was warranted, however; regarding the claim for an increased rating, the Board merely states that the Veteran contended that an extraschedular rating was warranted based on symptoms and functional impairment he attributed to the left wrist disability. In the absence of any analysis, or even a finding that the left wrist disability was associated with a manifestation not contemplated by the rating criteria, the Board finds the case is distinguishable from Smiddy v. Wilkie, 32 Vet. App. 350, 358 (2020) (holding that in the extraschedular rating context, the Board must explain its reasoning when a factual finding made at the referral stage comes out differently at the review stage). See also Ray v. Wilkie, 31 Vet. App. 58, 66 (2020). T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Snyder, 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.