Citation Nr: 21064762
Decision Date: 10/21/21	Archive Date: 10/21/21

DOCKET NO. 15-04 147
DATE: October 21, 2021

ORDER

Prior to January 12, 2015, an increased disability rating in excess of 10 percent for service-connected left radiocarpal and radioulnar joint with degenerative joint disease, status post-surgery,  is denied.

From January 12, 2015, an increased disability rating of 40 percent, but no higher, for service-connected left radiocarpal and radioulnar joint with degenerative joint disease, status post-surgery, is granted.

FINDINGS OF FACT

1. Prior to January 12, 2015, the Veteran's service-connected left radiocarpal and radioulnar joint with degenerative joint disease, status post-surgery, did not manifest as favorable ankylosis in the form of limitation of 20 degrees to 30 degrees dorsiflexion, nor any other position, nor did it manifest as unfavorable ankylosis. 

2. From January 12, 2015, the Veteran's service-connected left radiocarpal and radioulnar joint with degenerative joint disease, status post-surgery, manifested as the functional equivalent of unfavorable ankylosis, but not extremely unfavorable ankylosis.

CONCLUSIONS OF LAW

1. Prior to January 12, 2015, the criteria for a rating in excess of 10 percent for left radiocarpal and radioulnar joint with degenerative joint disease, status post-surgery, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.63, 4.71a, Diagnostic Codes 5125, 5214, 5215.

2. From January 12, 2015, the criteria for a disability rating of 40 percent, but no higher, for left radiocarpal and radioulnar joint with degenerative joint disease, status post-surgery, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.63, 4.71a, Diagnostic Codes 5125, 5214, 5215.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from January 1990 until his honorable discharge in May 1994.

This appeal is being treated expeditiously on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. §§ 5109B, 7112 and 38 C.F.R. § 20.902(d).

This case comes before the Board on appeal from a March 2013 rating decision by the St. Louis, Missouri, Regional Office of the United States Department of Veterans Affairs (VA), which denied an increased disability rating for the Veteran's service-connected left radiocarpal and radioulnar joint with degenerative joint disease, status post-surgery (hereinafter referred to as "left wrist disability"). The Veteran did not request to testify before the Board.

In a May 2020 decision, the Board denied an increased disability rating in excess of 10 percent prior to June 11, 2019, and granted an increased disability rating of 40 percent, but no higher, from June 11, 2019. The Veteran subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Based on a Joint Motion for Partial Remand submitted by the parties, the Court entered an order in March 2021 vacating the Board's decision in part and remanding the matter to the Board for readjudication. The parties stipulated that the Board erred when it failed to consider whether the Veteran's left wrist disability warranted a higher rating prior to June 2019 based on evidence of record. The case now returns to the Board for readjudication.

Evidentiary Standards

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence when rating disabilities. 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 C.F.R. § 4.3. To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

A claim for an increased rating is a new, distinct claim. See Suttman v. Brown, 5 Vet. App. 127, 136 (1993) (a claim for an increase is "based upon facts different from the prior claim"). The Board is to consider each disability in relation to the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999); 38 C.F.R. § 4.1. The Board must also determine if it is factually ascertainable that the disability worsened within one year preceding the filing of the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).

Separate ratings can be assigned for separate periods of time based on the facts founda practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). A staged rating is a rating that looks backwards and retroactively assigns specific ratings to discrete periods. See Reizenstein v. Shinseki, 583 F.3d 1331, 1337 (Fed. Cir. 2009). This practice accounts "for the possible dynamic nature of a disability while the claim works its way through the adjudication process." O'Connell v. Nicholson, 21 Vet. App. 89, 93 (2007); see also 38 C.F.R. § 4.1. The effective date for a staged rating is when it is factually ascertainable that a particular rating is warranted. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). In cases where staged ratings are appropriate, it is necessary to consider all "the evidence of record from the time of the veteran's application." Fenderson, 12 Vet. App. at 127.

The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim.

Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 

Diagnostic codes (DC) are assigned to individual disabilities. Diagnostic codes provide rating criteria specific to a particular disability. If two diagnostic codes are applicable to the same disability, the diagnostic code that allows for the higher disability rating applies. 38 C.F.R. § 4.7. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Id.

Rating Criteria  Wrist

The Veteran's left wrist disability involves consideration of Diagnostic Codes 5125, 5214, and 5215. 38 C.F.R. § 4.71a. These relevant codes provide as follows:

	Rating (%)

	Major	Minor

5214 Wrist, ankylosis of:		

Unfavorable, in any degree of palmar flexion, or with ulnar or radial deviation	50	40

Any other position, except favorable	40	30

Favorable in 20° to 30° dorsiflexion	30	20

Ankylosis is defined as the "immobility and consolidation of a joint" due to disease, injury, or surgical procedure. Augustine v. Principi, 18 Vet. App. 505, 506 (2004) (citing Dorland's Illustrated Medical Dictionary 86 (28th ed. 1994)).

Diagnostic Code 5214 also states that when "extremely unfavorable ankylosis" is found, then it will be rated as "loss of use of hands" under Diagnostic Code 5125. 38 C.F.R. § 4.71a, DC 5214, Note. Diagnostic Code 5214 does not define "extremely unfavorable ankylosis." When a term is not defined in a statute or regulation, it should be given its ordinary meaning. Shipwash v. Brown, 8 Vet. App. 218, 225 (1995) (citations omitted). "Extremely" is the adverbial form of the adjective "extreme," which means "in or to the greatest degree." Id. at 225 (citing Webster's New World Dictionary 482 (3d ed. 1988)). Thus, "extremely" unfavorable ankylosis is ankylosis of a greater degree of severity than mere unfavorable ankylosis. Id.

Diagnostic Code 5125, in turn, provides that loss of use of the major hand will be rated as 70 percent disabling and loss of use of the minor hand will be rated as 60 percent disabling. 38 C.F.R. § 4.71a, DC 5125. For VA purposes, "loss of use of a hand" will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the elbow with use of a suitable prosthetic appliance. 38 C.F.R. §§ 3.350(a)(2)(i), 4.63. The determination is made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63.

38 C.F.R. § 4.71a, DC 5215 provides:

	Rating (%)

	Major	Minor

5215 Wrist, limitation of motion of:		

Dorsiflexion less than 15°	10	10

Palmar flexion limited in line with forearm	10	10

The terms "major" and "minor" in these diagnostic codes refer to a veteran's "dominant" and "non-dominant" hand, respectively. See Yonek v. Shinseki, 722 F.3d 1355, 1357 (Fed. Cir. 2013); 38 C.F.R. § 4.69.

In addition, when VA evaluates musculoskeletal disabilities under the Rating Schedule, it must determine whether or not the factors listed in 38 C.F.R. §§ 4.40, 4.45, and 4.59 are properly accounted for within the applicable diagnostic criteria. 

Under section 4.40, VA must consider whether there is evidence of functional loss due to pain on movement and diminished excursion, strength, speed, coordination, and endurance, to include during flare-ups or after repetitive use. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2001). Pain on movement, standing alone, is not sufficient to warrant a higher rating under section 4.40. Id. (reaffirming that pain must affect some aspect of "the normal working movements of the body . . . in order to constitute functional loss"). 

Section 4.45 expands upon the concept of functional loss, noting six factors that  VA must consider when evaluating a disability, namely: (1) less or (2) more movement than is normal; (3) weakened movement; (4) excess fatigability; (5) incoordination; and (6) pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing, to include during flare-ups or after repetitive use. 38 C.F.R. § 4.45. Noticeably, the aspects of functional loss listed in section 4.40 closely parallel the factors listed in section 4.45. Section 4.45 applies to muscles, nerves, as well as the entire musculoskeletal system. DeLuca v. Brown, 8 Vet. App. 202, 207 (1995).

Under section 4.59, a veteran may be awarded the minimum compensable evaluation available under a given musculoskeletal diagnostic code, even if application of that code would not support a compensable evaluation, where there is evidence of "actually painful, unstable, or malaligned joints." 38 C.F.R. § 4.59; Petitti v. McDonald, 27 Vet. App. 415, 427 (2015). Section 4.59 does not require medical evidence; it may be satisfied with lay and other non-medical evidence. Id. at 428. Thus, pain alone is compensable under section 4.59 for joint disabilities in general. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011).

Analysis

Prior to January 12, 2015

The Veteran filed his claim for an increased disability rating for his left wrist disability (non-dominant hand) on August 20, 2012. At that time, he was in receipt of a 10 percent disability rating under 38 C.F.R. § 4.71a, DC 5215. The Board must consider whether an increased disability rating in excess of 10 percent is warranted for the year preceding the filing of his claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). In doing so, the Board finds an increased disability rating in excess of 10 percent is not warranted prior to January 12, 2015, because the evidence of record does not establish that the Veteran's left wrist disability displayed symptoms of favorable or unfavorable ankylosis during the period. 

Of record are the Veteran's VA medical records for the period prior to January 12, 2015. In September 2012, the Veteran received a VA orthopedic surgery consult. The staff physician who examined him documented "good range of motion of his [left] wrist" and "good grip." He received another VA orthopedic surgery consult in January 2014 at which time the Veteran reported continued left wrist pain. The examining physician noted he had limitation of motion and some swelling of his wrist. The examiner did not identify the degree to which the Veteran's range of motion was limited. A June 2014 VA Radiology report documented no abnormal left wrist disabilities aside from arthritic changes. In an August 2014 VA Rheumatology Note, a physician documented that Veteran had mild left wrist tenderness but no restrictions on his range of motion. 

The Veteran also received two VA examinations assessing the severity of his left wrist disability, one in March 2013 and another in October 2014. During the March 2013 examination, the examiner documented 20 degrees of palmar flexion and 0 degrees of dorsiflexion in the Veteran's left wrist. No objective evidence of pain was noted. No additional loss of function of range of motion occurred after repetitive testing. He reported flare-ups three or four times per week with mild to moderate pain. The examiner noted the Veteran could not use his wrist during flare-ups. The Veteran had localized tenderness/pain on palpation of his left wrist. The examiner did not find ankylosis or similar symptoms equivalent to ankylosis. 

During his October 2014 examination, the Veteran reported could not lift more than five to ten pounds with his left hand and had difficulty turning doorknobs and locks. The examiner documented 33 degrees of palmar flexion and 10 degrees dorsiflexion in the Veteran's left wrist. No additional loss of function of range of motion occurred after three repetitions. The examiner noted pain with all range-of-motion testing. The Veteran did not report experiencing flare-ups at that time. The Veteran had localized tenderness/pain on palpation of his left wrist. The examiner did not find ankylosis or similar symptoms equivalent to ankylosis.

As of August 20, 2011 (one year preceding the filing of his instant claim), the Veteran was in receipt of the highest disability rating under Diagnostic Code 5215, 10 percent. In order to receive a disability rating of 20 percent or higher under Diagnostic Code 5214, his left wrist disability needed to demonstrate or approximate ankylosis. None of the evidence during the relevant timeframe indicates the Veteran experienced ankylosis in a consistent manner for VA rating purposes. None of his treating VA medical professionals or the VA examiners diagnosed him with left wrist ankylosis. Recently, in Chavis v. McDonough, 34 Vet. App. 1 (2021), the Court held that in the absence of a medical diagnosis of ankylosis, a claimant may still receive benefits associated with ankylosis based on the functional equivalent of ankylosis (i.e., the claimant's symptoms sufficiently resemble ankylosis despite the absence of a formal diagnosis). In short, if a claimant's functional loss "is the functional equivalent of ankylosis," a higher rating may be warranted on that basis. Id. at 11.

The Board acknowledges that prior to January 12, 2015, the Veteran experienced constant pain in his left wrist. This pain was accompanied by functional loss, to include reduced strength. In addition, in March 2013, his flare-ups resulted in an inability to use his wrist. Nevertheless, the Veteran's left wrist symptoms did not amount to immobility and consolidation of a joint due to disease, injury, or surgical procedure. Augustine, 18 Vet. App. at 506. The Veteran's medical records indicated he maintained some lost range of motion during the period. His VA examinations, while noting reduced range of motion, do not indicate severe loss of range of motion that would amount to immobility. His March 2013 flare-ups were not consistently frequent in duration or severity, as the Veteran indicated he did not experience flare-ups during the October 2014 examination. Nor does the evidence of record indicate the frequency, severity, or duration of flare-ups prior to March 2013. There is an absence of evidence indicating he experienced flare-ups equivalent to functional ankylosis during this period. The Veteran maintained an ability to lift items, albeit reduced in weight, and the ability to grip. Overall, the evidence does not establish the Veteran's left wrist symptoms reached the functional equivalent of ankylosis prior to January 12, 2015.

Accordingly, a disability rating in excess of 10 percent is not warranted for the Veteran's left wrist disability prior to January 12, 2015.

From January 12, 2015

On January 12, 2015, the Veteran submitted his VA Form 9, Appeal to the Board, and stated he had "little to no flex" of his left wrist. His VA Form 646, Statement of Accredited Representative, likewise asserted his left wrist functional loss had increased since the October 2014 VA examination. Of record are multiple medical records from the Veteran's private provider since 2015. 

Beginning in February 2015, his private physician documented use of a left wrist brace, which he did wear prior to February 2015. The Veteran had "quite limited [left] wrist range of motion." He experienced pain rated at 10 out of 10 when trying to use his wrist. The physician documented pain on palpation on the ulnar and dorsal aspect of the left wrist. The physician recorded 15 degrees of extension and 35 degrees of flexion as compared to the right wrist which demonstrated 50 degree and 70 degrees, respectively. He had "very limited supination on the left with full pronation of the forearm." X-rays revealed "significant degenerative arthritis with collapse at the lunate facet on the distal radius." Based on the examination, his physician recommended Darrach procedure (involving resection of the entire ulnar head), which the physician stated would result in reduced pain, but the Veteran would no longer have any range of motion in the lateral plane of his wrist as well as the AP plane. 

In a February 2015 self-assessment, the Veteran reported severe difficulty with opening a jar, tuning a key, doing heavy household chores, gardening, and carrying items due to his left wrist disability. He reported being unable to engage in recreational activities that required use of his left wrist. He reported moderate difficulty with writing, preparing meals, pushing, and some household chores and daily tasks. 

After further consultation, in April 2015, the Veteran underwent surgery, left wrist fusion with distal ulna resection. Following his surgery, he completed multiple self-assessments as to his left wrist. In two April 2015 self-assessments, he reported being unable to open lids on new jars, write, turn a key, place an object on a shelf above his head, do heavy household chores, do yard work, carry bags, carry heavy objects, use a knife to cut food, or engage in recreational activities that required force through the use of his left wrist. The Veteran also indicated severe difficulty with washing and recreational activities that required minor use of force of his left wrist. He also indicated moderate difficulty with food preparation, household chores, and dressing himself. 

He competed self-assessments in May and June 2015. He indicated he was either unable do the following or had severe difficulty in doing the following: opening tight jars, turning a key, pushing open a heavy door, doing heavy household chores, carrying items, gardening, engaging in activities using force of his left wrist, placing objects on shelves, and washing himself. He also continued to experience difficulty with meal preparation, some other household chores, and using a knife to cut food. Generally, his left wrist symptoms decreased in severity from April to June 2015 following his surgery, but he still experienced significant restrictions. See May 2015 Private Medical Record (physician noting left wrist range of motion was better following surgery); June 2015 Private Medical Record (the Veteran still experienced pain and paresthesias). 

In June 2019, the Veteran received a VA-contracted examination assessing the severity of his left wrist disability. The most significant finding of that VA examiner was that the Veteran experienced left wrist ankylosis. The examiner commented that the Veteran experienced increased pain that caused difficulty with his range of motion and his left wrist fusion caused ankylosis. He also experienced issues with gripping and grasping. In an addendum opinion, the examiner clarified that the Veteran experienced unfavorable ankylosis with ulnar and radial deviation of 0 degrees, as well as dorsiflexion of 5 degrees.  

Following the June 2019 examination, the VA Regional Office awarded the Veteran a disability rating of 40 percent as of June 11, 2019 (the date of the examination). Since that time, the U.S. Court of Appeals for Veterans Claims issued Chavis, 34 Vet. App. 1, which permits the Board to consider whether the Veteran's symptoms represent the functional equivalent of ankylosis despite no such diagnosis. In this case, the Board finds the Veteran's left wrist symptoms demonstrated the functional equivalent of unfavorable ankylosis as of January 12, 2015. 

At the time the Veteran filed his VA Form 9 on January 12, 2015, he stated he had no ability to flex his wrist. His medical records around that time corroborate his statement. The Board finds the Veteran's statements to his medical professionals and those within his self-assessments credible and probative descriptions of the functional loss associated with his left wrist. Furthermore, his left wrist surgery had the potential to result in functional loss (but reduced pain) in his left wrist as noted by his physician. Significantly, the June 2019 VA-contracted examiner cited the Veteran's functional loss due to his surgery as a basis for finding unfavorable ankylosis; he had 0 degrees of ulnar and radial deviation, where 45 degrees and 20 degrees were normal, respectively. Moreover, the June 2019 examiner did not indicate a progression of ankylosis or an intervening cause of ankylosis. Therefore, it stands to reason that he experienced unfavorable ankylosis in April 2015, on the date of his surgery, as it caused unfavorable ankylosis. Finally, the Board finds the Veteran's left wrist symptoms, primarily his functional loss, were substantially similar around January 12, 2015, as they were in April 2015 through the present. He had an inability to move his wrist in January 2015 just as he does now. The Board finds no evidence in the record to distinguish whether the Veteran had favorable or unfavorable ankylosis prior to the June 2019 VA-contracted examination. Thus, the Board affords the Veteran the benefit of the doubt and finds that he experienced functional unfavorable ankylosis since January 12, 2015. 

Accordingly, the Veteran is entitled to an increased disability rating of 40 percent, but no higher, for his left wrist (non-dominant hand) disability from January 12, 2015, under 38 C.F.R. § 4.71a, DC 5214. 

The Board has considered whether the Veteran's left wrist symptoms resemble extremely unfavorable ankylosis and finds they do not. Throughout the relevant period, he had some use of his left wrist as indicated within his self-assessments and as indicated by his June 2019 VA-contracted examination. The Veteran is able to do daily tasks with zero to moderate difficulty. None of his private physicians have indicated that his left wrist disability is equivalent to loss of use of the hand completely. Likewise, the June 2019 VA-contracted examiner did not endorse such a diagnosis, noting the Veteran had 40 degrees of flexion and 5 degrees of dorsiflexion. Therefore, a disability rating of 60 percent is not warranted under 38 C.F.R. § 4.71a, DC 5125. 

 

 

M. Tenner

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. F. Sawka, 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.