Citation Nr: 21068616 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 16-00 416 DATE: November 10, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for the service-connected status post fracture, to include post-traumatic arthritis, of the right wrist, manifested by limited motion (right wrist disability) is denied. Entitlement to an effective date prior to April 9, 2014 for the award of service connection for a right wrist disability is denied. REMANDED The issue of entitlement to service connection for a sinus disorder is remanded. The issue of entitlement to service connection for a hernia disorder, claimed as residuals of hernia surgery, is remanded. The issue of entitlement to a separate rating for neurological manifestations associated with the service-connected right wrist disability is remanded. FINDINGS OF FACT 1. The Veteran's right wrist disability is manifested by limitation of motion without ankylosis. 2. April 9, 2014 is the earliest communication from the Veteran regarding his intention to file a claim for service connection for post-traumatic right wrist arthritis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for the service-connected right wrist disability manifested by limited motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, & 5215. 2. The criteria for an effective date prior to April 9, 2014 for the award of service connection for a right wrist disability have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S Army from July 1979 to April 1983. In August 2021, the Board of Veteran's Appeals (Board) remanded this appeal for further development, to include according the agency of original jurisdictdion (AOJ) the opportunity to review additional evidence submitted in his appeal. In September 2021, the Agency of Original Jurisdiction (AOJ) awarded a 10 percent rating for the Veteran's right wrist disability for the entire initial rating period. However, as the maximum benefit was not granted now, the issue of entitlement to a higher evaluation remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). Entitlement to a rating in excess of 10 percent the service-connected right wrist disability manifested by limited motion The Veteran's right wrist disability has been evaluated under Diagnostic Codes (DC) 5003, 5010, and 5215. Prior to the amendments made to the rating criteria of the musculoskeletal system effective February 9, 2021, DC 5010 provided that arthritis due to trauma that is substantiated by X-ray findings is to be rated as degenerative arthritis (DC 5003). DC 5003 provided 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 there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, DC 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings 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. From February 9, 2021, DC 5010 evaluates post-traumatic arthritis, which provides to rate as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with §4.25. DC 5215 evaluates limitation of motion of the wrist. This code remains unchanged by the amendments. The sole and maximum evaluation of 10 percent is assigned for limitation of (major or minor) wrist motion, where dorsiflexion is less than 15 degrees or palmar flexion is limited in line with the forearm. The Board notes that normal range of motion in the wrist is 70 degrees of dorsiflexion (extension) and 80 degrees of palmar flexion. See 38 C.F.R. § 4.71a, Plate I. Turning now to the relevant evidence of the record, at the July 2014 VA Examination, the Veteran reported that he fractured his wrist in service. He reported experiencing on and off wrist pain. Pain occurred during flare-ups. Flexion was 60 degrees or greater and dorsiflexion was 70 degrees or greater. There was no objective evidence of painful motion. He was able to perform repetitive use testing without additional limitation of range of motion. He had localized tenderness or pain on palpation of the joints or soft tissue but no ankylosis. Arthritis was documented. There was no functional impact noted due to his wrist condition. At the February 2021 VA Examination, the Veteran explained that, since the initial injury, his symptoms have worsened. He reported that he developed arthritis approximately four to five years ago and that he was diagnosed with carpal tunnel syndrome approximately two years ago. The Veteran reported that he felt that "needles are sticking" him. He also endorsed pain, weakness, and difficulty lifting objects with significant weight. He reported flare-ups that occurred during the wintertime or when it was going to rain. He described the flare-ups as severe and lasting two to three days. Palmar flexion was 65 degrees, and dorsiflexion was 55 degrees. Abnormal range of motion contributed to functional loss, as the Veteran had increased pain and difficulty lifting objects. Pain was noted in rest or non-movement. Pain was noted in all planes. He experienced tightness with palpation. There was evidence of pain with weight bearing, non-weight bearing, and on passive range of motion. Evidence of crepitus was noted. There was no additional loss of motion after repetitive use testing. He was not being examined immediately after repetitive use over time or during flare-ups, but the examination was medically consistent with the Veteran's statements describing functional loss during these times. Pain and weakness significantly limited functional ability. Estimate range of motion was 60 degrees for palmar flexion and 50 degrees for dorsiflexion. Muscle strength was reduced. Muscle atrophy or ankylosis were not present. The Veteran did not use any assistive devices. As previously noted herein, the Veteran's right wrist disability is evaluated as 10 percent disabling, which is the maximum rating allowed under DC 5215 based on limitation of motion. Therefore, a higher rating under this code is not allowed, and the Board will consider whether there are higher ratings available under other diagnostic codes that assesses this disability. Prior to February 9, 2021, DC 5010 instructed to rate traumatic arthritis as degenerative arthritis under DC 5003. Ratings (10 or 20 percent) under DC 5003 for arthritis is only assigned when the limitation of motion is otherwise noncompensable under the appropriate diagnostic codes. The Veteran is assigned a compensable rating under DC 5215 based on limited motion. Again, ratings based on X-ray findings of arthritis cannot be combined with ratings assigned based on limitation of motion. Therefore, a separate rating (10 or 20 percent) for X-ray evidence of arthritis is not applicable under DC 5003 in this matter. From February 9, 2021, Diagnostic Code 5010 instructs to rate as limitation of motion, dislocation or other specified instability. Again, the Veteran's wrist disability is rated based on limitation of motion. There has been no dislocation or instability attributed to the Veteran's right wrist. The Board will address indications of neurological (nerve) impairment in the remand section below. Also, DC 5214 provides for higher ratings for ankylosis of the wrist. As extensively outlined above, the evidence does not show that the Veteran has ever presented with ankylosis of his right wrist. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland's Illustrated Medical Dictionary 93 (30th ed. 2003). See also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, NOTE (5) (defining ankylosis as fixation of a joint in a particular position). Therefore, the assignment of a rating under DC 5214 is not applicable in this matter. The Board has considered diagnostic codes that evaluate the elbow and forearm (DCs 5205 to 5213). However, the medical evidence does not support that the Veteran's wrist disability reflects any of the symptoms or impairments contemplated by those codes. Lastly, the Board has considered the Veteran's complaints relating to his right wrist disability in accordance with 38 C.F.R. §§ 4.40, 4.45, and 4.59, and DeLuca v. Brown, 8 Vet. App. 202 (1995) and Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board has considered his assertions of pain and weakness. However, he is now in receipt of the maximum evaluation available for limitation of motion of the wrist under the rating schedule, and therefore 38 C.F.R. §§ 4.40, 4.45, and 4.59 are not applicable. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In summation, the Board finds that the assignment of an initial rating in excess of 10 percent for limited motion of right wrist is not warranted. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is not applicable. Entitlement to an effective date prior to April 9, 2014 for the award of service connection for right wrist disability Except as otherwise provided, the effective date of a rating and compensation award based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Effective dates for service connection based on an original claim generally are not based on the date the condition began and cannot be any earlier than date of receipt of claim. See, e.g., Lalonde v. West, 12 Vet. App. 377, 382 (1999) (holding that "the effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was . . . awarded was filed with VA"). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." It must "identify the benefit sought." 38 C.F.R. § 3.155 (a). VA must look to all communications from a claimant that may be interpreted as applications or claims, formal and informal, for benefits and is required to identify and act on informal claims for benefits. Servello, supra. Turning now to the relevant procedural history in this matter, on April 9, 2014, VA received a VA Form 21-4138 (Statement in Support of Claim), in which the Veteran expressed that he had problems with his right wrist during his service. In a letter received on April 21, 2014, he shared more details regarding his right wrist injury during service. He noted that he tried to call VA but was unable to reach anyone. He indicated that he wrote the letter so that he can obtain help with his claims. See April 2014 Correspondence. According to a June 2014 Report of General Information (VA Form 27-0820), the Veteran was asked to clarify his claimed conditions, and he specifically stated that he was seeking service connection for residuals of a right wrist injury, to include arthritis. In July 2014, a VA examination was provided to the Veteran regarding his right wrist disability. See July 2014 VA Examination Report for Wrist Conditions. In the July 2014 Rating Decision, the AOJ granted service connection for post-traumatic right wrist arthritis from April 9, 2014, the date of receipt of claim. Based on the laws and regulations, April 9, 2014 is the earliest effective date allowed in this matter. There is no claim or other communication, formal or informal, regarding the Veteran's intent to file a claim for service connection for his right wrist condition prior to that time. The Board notes that the Veteran filed a claim for service connection in July 2013, but that it was specific to residuals of a hernia surgery. See July 2013 VA Form 21-526 (Veterans Application for Compensation or Pension). As already stated, the effective date for service connection is not based on the earliest medical evidence documenting the condition. Further, the Veteran did not file his service connection claim for right wrist disability within one year following separation from service (April 1983). In summation, based on the laws and regulations, entitlement to an earlier effective date for the award of service connection for right wrist disability is denied. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is not applicable. REASONS FOR REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the remaining claims on appeal. Service Connection Sinus Disorder The Veteran asserts that his sinus problems began in service. In the May 1979 Report of Medical History, he noted that he had experienced occasional sinus drainage. However, the clinical evaluation conducted showed that his were normal. See May 1979 Report of Medical Examination. Thus, he was sound on enlistment. Regarding a current diagnosis, post service medical records show that he has been assessed to have allergic rhinitis in January 2020. See April 2021 Medical Treatment Record. Importantly, no VA examination or medical opinion has been obtained to determine the nature and etiology of the Veteran's sinus condition. Such is necessary resolve the medical questions surrounding his sinus condition and its relation to his service prior to the Board's final adjudication of this claim. Service connection Residuals of Hernia Surgery The Veteran asserts that he sustained a hernia injury during his service. He cannot remember the exact date, but he believes that he had surgery as a result of a straining drill at Fort Hood, Texas. See April 2014 Correspondence. Post-service medical records on file have noted hernia as a part of his prior surgical history. See May 2020 VA Medical Treatment Records (CAPRI). Service medical records currently on file do not document any complaints, diagnosis, or treatment regarding a hernia or surgical treatment. Clinical records, such as inpatient hospitalization records from a military facility, are stored separately from other service treatment records and a specific request must be made to the National Personnel Records Center (NPRC) by the AOJ. Based on the Veteran's assertions, it is possible that he received inpatient hospital treatment from a military facility. Accordingly, on remand, the AOJ should make the necessary efforts to obtain any relevant medical records from any hospital stationed at Fort Hood. After obtaining such records, an examination should be obtained to determine the nature and etiology of any hernia condition he may have. Separate Rating Neurological Impairment of the Right Wrist Medical records show that the Veteran has been assessed to have carpal tunnel syndrome of his right wrist. At the February 2021 VA Examination, he reported experiencing numbness and feeling of needles sticking to him. There has been no opinion addressing whether these symptoms are distinct neurological manifestations associated with his service-connected right wrist disability. Thus, the Board finds that a remand is necessary for a VA examination to be conducted to determine if he has neurological manifestations associated with his right wrist disability that warrant a separate rating. Accordingly, these matters are REMANDED for the following action: 1. Attempt to obtain the Veteran's records from his reported hospitalization/treatment while stationed at Fort Hood, specifically as it pertains to a hernia injury. The AOJ should request from the Veteran any information deemed necessary to obtain such records. Development should include contacting the National Personnel Records Center (NPRC). All efforts to obtain such records should be associated with the claims file. If any treatment records cannot be obtained after necessary efforts, issue a formal determination documented in the claims file that such records do not exist or that further efforts to obtain such records would be futile. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, per 38 U.S.C.§ 5103A (b)(2) and 38 C.F.R. §3.159 (e). 2. Provide the Veteran an opportunity to identify any pertinent treatment records. The AOJ should secure any necessary authorizations. Copies of all available private and VA documents should be associated with the Veteran's claims folder. If the records are unavailable, inform the Veteran of such and of the efforts made to obtain them. The Veteran should also be notified that he may submit any such records himself. All efforts should be recorded in the claims folder. 3. Then, accord the Veteran appropriate VA examinations regarding his claimed conditions. His claims file should be made available to the examiners in conjunction with the examinations. Any testing deemed necessary should be conducted. After record review and examinations, the VA examiners should offer the following opinions with supporting rationale. In rendering the requested opinions, the examiners are advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiners should provide a reason for doing so. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiners should discuss the particulars of this Veteran's medical history, pertinent lay evidence, and the relevant medical literature or studies as applicable to this case, which may reasonably explain the medical analysis in the study of this case. If the examiners cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiners 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. Sinus Condition (a) Provide the diagnosis(es) of a sinus disorder found to be present during the pendency of this appeal. If there are different diagnoses than those currently of record, the examiner should attempt to reconcile the diagnoses with the evidence of record. (b) For any such diagnosed disorder, is it at least as likely as not (a 50 percent or greater probability) that any such diagnosed sinus disorder manifested in, or is etiologically related to, the Veteran's active duty? Hernia Condition (a) Provide the diagnosis(es) of a hernia disorder found to be present during the pendency of this appeal. If there are different diagnoses than those currently of record, the examiner should attempt to reconcile the diagnoses with the evidence of record. (b) For any such diagnosed disorder, is it at least as likely as not (50 percent or greater probability) that such condition was incurred in, caused by, or etiologically related to the Veteran's service? Neurological (Nerve) Manifestations associated with Right Wrist Disability All clinical neurological manifestations of the service-connected right wrist disability should be reported in detail. If neurological manifestations are present, the VA examiner must identify the specific nerve(s) affected and the severity (mild, moderate, moderately severe, or severe). The examiner must also identify if the paralysis is incomplete or complete. The examiner should provide opinion on the following: Does the Veteran have neurological manifestations associated with his service-connected status post fracture, including post-traumatic arthritis, of his right wrist? In addressing this matter, the examiner must consider and address the medical records documenting a diagnosis of carpal tunnel syndrome of the right wrist. 4. Then, review the record, conduct any additional development deemed necessary, and readjudicate the appeal. If any benefit sought remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC). The Veteran and his representative should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Middleton, 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.