Citation Nr: 21068446 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 18-26 843 DATE: November 10, 2021 ORDER Entitlement to a rating in excess of 10 percent for residuals of left wrist fracture is denied. Entitlement to a separate rating of 10 percent for left thumb arthritis is granted. REMANDED Entitlement to service connection for left hip condition is remanded. FINDINGS OF FACT 1. From March 1, 2001 residuals of left wrist fracture has been assigned a 10 percent rating, the maximum rating authorized under Diagnostic Code 5215. 2. The Veteran's residuals of left wrist fracture have not manifested as ankylosis at any time during the pendency of the appeal. 3. The Veteran's left thumb arthritis is a residual of his left wrist fracture that results in painful limitation of motion of the thumb. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for residuals of left wrist fracture are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5215. 2. The criteria for a separate rating of 10 percent for left thumb arthritis with painful limitation of motion are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5228. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1979 to June 1984. In November 2019, the Veteran testified at a Board hearing. The transcript is of record. 1. Entitlement to a rating in excess of 10 percent for residuals of left wrist fracture Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45 (2017). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Veteran's left wrist condition is rated as 10 percent under 38 C.F.R. § 4.71a, DC 5003-5215. The hyphenated DC 5003-5215 indicates that the Veteran's degenerative arthritis is rated by analogy under the criteria for painful limited motion of the wrist. DC 5003, for degenerative arthritis, provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, the rating criteria provides degenerative arthritis shall be rated as follows: a 10 percent rating is warranted where there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent rating is warranted where there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Note (1) provides that the 20 percent and 10 percent ratings based on x-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on x-ray findings, above, will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024, inclusive. 38 C.F.R. § 4.71a. DC 5215, which provides ratings for limitation of motion of the major wrist, provides that a 10 percent rating is warranted for dorsiflexion less than 15 degrees of either the major or minor joint or for palmar flexion limited in line with forearm of either the major or minor joint. DC 5214 provides for ratings for ankylosis of the wrist and for the major wrist provides a 30 percent rating where there is favorable ankylosis of the wrist in 20 to 30 degrees dorsiflexion. A 40 percent rating is warranted where there is ankylosis in any other position, except favorable. A 50 percent rating is warranted where there is unfavorable ankylosis, in any degree of palmar flexion, or with ulnar or radial deviation. The Veteran attended a VA examination in March 2013. He reported flare-ups described as intermittent achiness, lost dexterity, and decreased strength. He expressed difficulty with opening jars, cutting grass, driving, pushing, lifting, shoveling, and typing. Range of motion testing revealed palmar flexion to 60 degrees and dorsiflexion to 10 degrees with no painful motion and no additional loss of motion with repetitive use testing. The examiner noted less movement than normal but no pain on palpation or tenderness, normal muscle strength, no ankylosis, and no arthritis. The examiner found no functional impact on occupational tasks. In December 2016 he underwent another VA examination. The Veteran described daily pain and difficulty with grip and fine motor skills. He reported taking Tylenol as needed, wearing a brace regularly and no additional surgeries. The Veteran disclosed experiencing flare ups when working or exerting his left wrist, resulting in pain at a level of eight out of ten. Range of motion testing revealed palmar flexion to 35 degrees, dorsiflexion to 60 degrees, ulnar deviation to 10 degrees and radial deviation to 20 degrees with pain on motion. Repetitive use testing did not result in additional loss. Physical examination revealed moderate subjective tenderness mid dorsum of the wrist, normal muscle strength and no muscle atrophy or ankylosis. The examiner concluded that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use or flare-ups. Diagnostic testing on December 2, 2016 revealed degenerative arthritis. The examiner found no functional impact on occupational tasks. The Veteran attended another VA examination in March 2018. He reported daily pain, wearing a brace regularly and flare-ups. He disclosed recently seeing an orthopedic surgeon, who advised undergoing a fusion but he was unable to take the time off work. Range of motion testing revealed palmar flexion to 45 degrees, dorsiflexion to 30 degrees, ulnar deviation to 25 degrees, and radial deviation to 10 degrees with pain on motion. He had moderate to severe pain in the snuff box and crepitus. There was no additional loss after repetitive use testing. The Veteran had normal muscle strength, no muscle atrophy, and no ankylosis. The examiner concluded that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use or flare-ups and no functional impact on occupational tasks. The March 2018 VA examiner also provided a medical opinion finding the Veteran's painful joints are at least as likely as not proximately due to or the result of his service-connected scaphoid fracture with fragment displacement. The examiner explained that the Veteran clearly has pain within the left wrist mobility and radial snuff box where the scaphoid fracture occurred and now as a nonunion with advanced collapse. Trauma, as documented in literature, leads to arthritis, which causes painful joints and the x-rays reveal multiple areas of arthritis in the wrist and carpal bones causing pain. In December 2020 the Veteran underwent a VA examination and reported undergoing a left thumb arthroplasty in November 2019, which allowed him to gain some movement but the pain continued. He reported continued wrist pain ranging from a two to an eight out of ten depending on activity and flare-ups described as a dull ache to sharp stabbing pain on the thumb side of his wrist that occurs when he overdoes activity and can last for a few hours. He also reported being unable to grasp, difficulty with fine motor movement and using a special adaptive grip in order to kayak. Range of motion testing revealed limitations in palmar flexion, dorsiflexion, and ulnar deviation to 45 degrees and radial deviation to 10 degrees with pain on motion. He had achiness to sharp pain on the medial wrist to the palm of the hand and no crepitus. The Veteran was unable to complete repetitive use testing. The examiner concluded that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use. However, pain, fatigue, and weakness did significantly limit functional ability with flare-ups resulting in additional limitations of 40 degrees for palmar flexion, dorsiflexion, and ulnar deviation and five degrees for radial deviation. The examiner noted less movement than normal due to the Veteran's two wrist surgeries and daily pain. The Veteran also had atrophy of disuse due to lost muscle mass. His left palm measured half a centimeter smaller and his wrist a centimeter smaller than the right palm and wrist. He had reduced muscle strength of four out of five but no ankylosis. Functionally, the examiner reported that the Veteran has daily pain and wears a splint to work as he requires the constant use of a brace. In the past four years the Veteran reported missing two days of work as he is used to the pain. Review of the post-service medical records reveal consistent complaints and treatment for left wrist pain. The clinician at the September 2013 appointment observed that the Veteran has pronounced objective findings that appear horribly symptomatic but are not actually all that symptomatic. Range of motion testing revealed flexion and extension to 40 degrees with full digital range of motion, some tenderness to palpation and synovitis of the wrist. In August 2017 The Veteran reported that his wrist was gradually worsening with pain that increased throughout the day and paresthesias in the first three fingers of his hand. In October range of motion testing revealed flexion limited to 30 degrees and extension to 34 degrees. The Veteran went to the emergency department in September 2018 with complaints of increased wrist pain for over a week. Physical examination revealed tenderness but full range of motion of the thumb and wrist. In October 2018 he had reduced range of motion of flexion to 40 degrees, extension to 20 degrees radial deviation to 10 degrees and ulnar deviation to 20 degrees. The orthopedic surgeon noted significant degenerative changes to the wrist managed by splinting and injections. The Veteran reported pain that was becoming unbearable and limiting his daily life, to include flare-ups which impede his ability to work. In November 2018, at the hand clinic appointment, the clinician noted minimally symptomatic left wrist arthritis with the source of pain being thumb arthritis. He had tenderness, crepitus, and mild instability and a slightly weak grip strength. In March 2019 the Veteran again complained of increasing pain, especially in the afternoon and evening after work. The Veteran had tenderness, severe crepitus, and instability with stress in October 2019. He went to the emergency department for increased wrist pain in November 2019, the examination revealed tenderness over the carpal joints but normal muscle strength. In September 2020 he reported less pain and better range of motion after his arthroplasty of the left thumb in November 2019. The Board finds that a rating in excess of 10 percent under DC 5215 is not warranted as the Veteran is currently rated at the maximum disability rating based on limitation of the wrist. In evaluating musculoskeletal disabilities, the VA must determine whether the joint in question exhibits weakened movement, excess fatigability, incoordination, and whether pain could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time. See DeLuca, 8 Vet. App. at 206-207; see also 38 C.F.R. §§ 4.40, 4.45. However, where a musculoskeletal disability is currently evaluated at the maximum schedular rating based on limitation of motion, DeLuca consideration is not applicable. See Johnston v. Brown, 10 Vet. App. at 85 (1997). Therefore, no higher rating based on limitation of motion of the Veteran's left wrist is possible. The Board considered whether a higher evaluation is warranted under DC 5214 for ankylosis of the wrist. However, the evidence of record does not show that the Veteran's left wrist disability manifested as ankylosis at any time during the pendency of the appeal. Nor does the medical or lay evidence establish the functional equivalent of ankylosis. The Board does find that a separate rating is warranted for left thumb arthritis with painful limitation of motion under DC 5003-5228. The March 2018 VA examiner concluded that the Veteran's painful joints due to arthritis are at least as likely as not proximately due to or the result of his service-connected scaphoid fracture with fragment displacement. The medical evidence indicates that the Veteran experiences painful motion in the thumb and difficulty with fine motor skills. Therefore, the medical evidence is sufficient to establish a 10 percent rating for left thumb arthritis for painful motion. REASONS FOR REMAND 1. Entitlement to service connection for left hip condition The Board regrets the additional delay; however, a remand is necessary to ensure compliance with the Board's prior remand instructions and to ensure that due process is met. Stegall v. West, 11 Vet. App. 268, 271 (1998). In March 2020 the Board remanded for a VA examination and medical opinion discussing the nature and etiology of the Veteran's residuals of his left hip injury. The examiner was advised that the Veteran is competent and credible to report his symptoms, treatment history and onset of injury. Additionally, the examiner was directed to consider and discuss the medical findings of Dr. S., specifically the significance of advanced degenerative arthritis only affecting the left hip. The Veteran underwent a VA examination in December 2020. The examiner opined that the Veteran's left hip degenerative joint disease and left total hip replacement is less likely than not incurred in or caused by the claimed in service injury. The rationale notes that the Veteran stated he injured his hip when he fell four feet from an ATV that rolled on its side but there are no service records showing any treatment for a left hip injury or pain. Additionally, there are no continued care notes after leaving service until 2010 and the Veteran had left "THA and had been doing well overall." See Compensation and Pension Examination December 2020. First, the Board notes that the examiner failed to follow the remand directives as Dr. S.'s medical findings were not considered or discussed and the examiner did not consider the Veteran's credible report of first seeking chiropractic treatment for his hip in 1992. Additionally, the rationale provided is inadequate as it relies on the absence of evidence in service and the length of time between separation and the complaints documented in the post-service medical records without a reasoned medical explanation as to the significance of such. See Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015) (indicating that a VA examiner may not generally rely on the absence of evidence as negative evidence). The matters are REMANDED for the following action: 1. Obtain updated VA and/or private treatment records. If such records are unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA examination with a medical professional with appropriate expertise to determine the nature and etiology of the Veteran's residuals for left hip injury. The examiner should review the Veteran's claims file. Based on a review of the record, the examiner must address the following: Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's residuals of left hip injury are related to active service, or is caused by or aggravated by military service, to include the Veteran's documented fall from an armored truck. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In all opinions rendered, the examiner is advised that the Veteran is competent and credible to report his symptoms, treatment history and onset of injury. The Veteran's lay statements should be considered and discussed. The examiner is also to consider and discuss the medical findings of Dr. S., specifically the significance of advanced degenerative arthritis only affecting the Veteran's left hip. See Medical Treatment Record Non-Government Facility May 17, 2016. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Prinsen 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.