Citation Nr: 21069858 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 17-19 756 DATE: November 22, 2021 ORDER Entitlement to an increased rating above 10 percent for residuals of right wrist (post excision of ulnar styloid and arthrotomy with traumatic arthritis status post carpectomy) is denied. REMANDED Entitlement to service connection for right ear sensorineural hearing loss is remanded. FINDING OF FACT Throughout the appeal period, the Veteran's right wrist disability has manifested in pain and decreased range of motion; however, there is no indication of a probative diagnosis of ankylosis, functional equivalent of ankylosis, or functional loss equivalent to loss of use of the hand. CONCLUSION OF LAW The criteria for entitlement to an increased rating above 10 percent for residuals of right wrist (post excision of ulnar styloid and arthrotomy with traumatic arthritis status post carpectomy) have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5010-5215, 5214 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had qualifying service from November 1970 to August 1973. In November 2019, the Veteran testified at a Board Videoconference Hearing before the undersigned Veterans Law Judge. In a January 2020 Decision, the Board remanded: (a) entitlement to service connection for bilateral sensorineural hearing loss; and (b) entitlement to an increased rating above 10 percent for residuals of right wrist (post excision of ulnar styloid and arthrotomy with traumatic arthritis status post carpectomy). In an October 2020 Rating Decision, the Agency of Original Jurisdiction (AOJ) granted service connection for left ear hearing loss; as such, regarding the claim for entitlement to service connection for bilateral sensorineural hearing loss, the only issue remaining before the Board is entitlement to service connection for right ear sensorineural hearing loss. 1. Entitlement to an increased rating above 10 percent for residuals of right wrist (post excision of ulnar styloid and arthrotomy with traumatic arthritis status post carpectomy) Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where 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 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has 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. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court 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. 38 C.F.R. §§ 4.40, 4.45. 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. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to disabilities involving arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the Court in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. Furthermore, in Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012), the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. Additionally, in Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that, when possible, examiners must include range of motion testing on active and passive motion and in weight-bearing and non-weight-bearing conditions. Further, in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017), the Court held that an examiner must attempt to elicit information regarding the severity, frequency, duration, and functional loss during flare-ups before determining that additional range of motion loss due to flare-ups cannot be estimated. In this case, the Veteran generally contends that, throughout the appeal period, he has met the criteria for a higher rating for his right wrist disability. The Veteran's right wrist disability is currently rated under DC 5010-5215 at: 10 percent from August 14, 1973; 100 percent from November 30, 2017 (pursuant to 38 C.F.R. § 4.30); and 10 percent since February 1, 2018. See October 2020 Codesheet; 38 C.F.R. § 4.71a, DC 5010-5215. Hyphenated diagnostic codes are used when a rating for a particular disability under one diagnostic code is based upon rating of the residuals of that disability under another diagnostic code. 38 C.F.R. § 4.27. Here, the hyphenated DC 5010-5215 indicates that the Veteran's post-traumatic arthritis (DC 5010) is rated by analogy under the criteria for limited motion of the wrist (DC 5215). Additionally, the right wrist has already been granted separate ratings for associated surgical scarring. See October 2020 Codesheet. Notably, DC 5010 directs that post-traumatic arthritis be rated as limitation of motion, dislocation, or other specified instability under the affected joint. 38 C.F.R. § 4.71a, DC 5010. Under DC 5215 (limitation of wrist motion), a 10 percent rating is warranted for: (a) dorsiflexion less than 15 degrees of either the major or minor joint; or (b) palmar flexion limited in line with forearm of either the major or minor joint. 38 C.F.R. § 4.71a, DC 5215. Notably, all VA examinations to date have documented the Veteran as right hand dominant, so his right wrist disability affects a major (dominant) joint. 38 C.F.R. § 4.69. Higher ratings are available under DC 5214 (wrist ankylosis) when the major joint has: (a) favorable ankylosis in 20 degrees to 30 degrees dorsiflexion (warranting a 30 percent rating); (b) ankylosis in any other position except favorable (warranting a 40 percent rating); (c) unfavorable ankylosis in any degree of palmar flexion or with ulnar or radial deviation (warranting a 50 percent rating); or (d) extremely unfavorable ankylosis (warranting a 70 percent rating under DC 5125 for loss of use of the hand). 38 C.F.R. § 4.71a, DC 5214. Ankylosis has been defined as the "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). The Board highlights that, throughout the appeal period, the Veteran has received the maximum schedular rating of 10 percent under DC 5215 for his limitation of wrist motion; further, where a musculoskeletal disability is currently evaluated at the maximum schedular rating based on limitation of motion, DeLuca consideration is not applicable. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). As such, no higher rating based on limitation of motion under DC 5215 is possible. Thus, the question remaining before the Board is whether the right wrist has been diagnosed with ankylosis or has had the functional equivalent of ankylosis during the appeal period. However, after reviewing the evidence of record, the Board finds that the preponderance of the probative evidence weighs against finding that a higher rating is warranted under DC 5214 during the appeal period because there is no probative evidence diagnosing ankylosis or documenting the functional equivalent of ankylosis. In a September 2015 Third Party Correspondence, the Veteran's representative contended that there was right wrist ankylosis. However, the November 2016 VA wrist examiner found no right wrist ankylosis or functional loss equivalent of ankylosis (the Veteran still had some motion but had pain with pushing, pulling, driving a car, and lifting more than five pounds). In November 2016, the Veteran also submitted private treatment records from provider MM; although these records pertained to the right wrist, they were silent regarding any right wrist ankylosis. The February 2017 VA wrist examiner also found no right wrist ankylosis or functional loss equivalent of ankylosis (the Veteran still had some motion but had pain with lifting, carrying, and repetitive use). In an October 2017 Notice of Disagreement, the Veteran reported that he had limited range of motion of the right wrist and that he had an upcoming surgery in November 2017. The January 2018 VA wrist examiner also found no right wrist ankylosis or functional loss equivalent of ankylosis (the Veteran still had some motion but had constant pain that increased depending on the weather and depending on movements). In a March 2018 VA Form 21-526EZ, the Veteran contended that the January 2018 VA examination findings were incomplete because the examiner could not fully test the wrist as the Veteran was still recently post-op (surgery in November 2017). In the March 2018 VA Form 9, the Veteran contended that his wrist surgeon indicated that the wrist had ankylosis during an appointment on February 28, 2018; the Veteran also contended that the January 2018 VA examiner was unable to examine the right wrist due to swelling but still indicated that there was no ankylosis without examination. However, the February 28, 2018, post-op note from Cleveland VAMC is silent regarding right wrist ankylosis or functional loss equivalent of ankylosis (the provider noted pain, stiffness, weakness, swelling, and range of motion loss consistent with normally-anticipated expectations after surgery; the provider ordered continuing occupational therapy and did not document any findings or concerns regarding ankylosis or the functional loss equivalent of ankylosis, as the Veteran retained some motion in the wrist). During the November 2019 Board Hearing, the Veteran testified, in pertinent part, that: (a) his surgeon told him that his right wrist had ankylosis; (b) he cannot move his right wrist to the right or left, up or down, or in turning motions; (c) he has difficulty opening doors and performing activities of daily living, including personal hygiene; and (d) he had motion in the wrist before surgery, but has had very limited motion in the wrist after surgery. The Veteran's brother also testified that: (a) he was not a physician but had been in the medical field for a long time (although he did not specify in what capacity); and (b) the Veteran cannot rotate his wrist because it is solidified in one spot. In its January 2020 Decision, the Board remanded this issue for the AOJ to obtain: (a) outstanding VA treatment records (VA treatment records had most recently been associated with the claims file on March 9, 2018, before the completion of the Veteran's post-operative physical therapy for the right wrist); and then (b) a new VA examination to assess the current severity of the Veteran's right wrist disability, specifically including whether there is ankylosis of the right wrist. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The July 2020 VA wrist examiner also found no right wrist ankylosis or functional loss equivalent of ankylosis (the Veteran still had some motion but had pain preclusive of significant physical labor). In the October 2021 Brief, the representative contended that the July 2020 VA findings regarding limitation of motion in dorsiflexion warranted a 30 percent rating under DC 5214; however, the representative failed to identify, and the record does not otherwise document, a probative diagnosis of ankylosis or functional loss equivalent of ankylosis. Further, the Veteran and his brother's lay contentions that ankylosis exists are not probative because the evidence of record does not indicate that either has the medical background necessary to competently opine regarding a condition that is not lay observable (although the brother testified that he "had been in the medical field for a long time," he failed to specify in what capacity; accordingly, because ankylosis is a medical diagnosis rendered after testing and imaging has shown restricted movement due to abnormal fusion of the joint's bones and tissues, a competent provider must diagnose the condition). Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Notably, the other VA and private medical records also fail to indicate a probative diagnosis of ankylosis, functional loss equivalent of ankylosis, or functional loss equivalent to loss of use of the hand. As such, higher ratings under DC's 5125 and 5214 are also not warranted. Lastly, the Board has considered whether extraschedular consideration is warranted in this case. In the October 2021 Brief, the representative contended that the Veteran's limitations exceeded those contemplated by the limitation of motion criteria in the Rating Schedule. Generally, evaluating a disability under the Rating Schedule is sufficient. 38 C.F.R. §§ 4.20, 4.27. Because the ratings are averages, it follows that an assigned rating may not completely account for each individual claimant's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Thus, only in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b). The determination of whether a claimant is entitled to an extraschedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If the AOJ or Board determines that (1) the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extraschedular rating is warranted. Id; 38 C.F.R. § 3.321(b)(1). When these exceptional circumstances arise and the schedular ratings are found to be inadequate, VA's Director of Compensation Service may approve an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. As discussed above, the Veteran's right wrist disability has been rated under DC 5215, for limitation of motion, under direct application of the provisions of the VA Rating Schedule. 38 C.F.R. § 4.71a, DC 5125. Although the Board acknowledges the Veteran's contention that the schedular rating criteria do not adequately contemplate the manifestations of his disability, the Board highlights that the evidence of record does not show any periods of frequent hospitalizations, marked interference with work, or indications that the Veteran's symptoms were so exceptional or unusual as to render the regular rating schedule impractical. Upon longitudinal review of the pertinent evidence, discussed above, the Board cannot conclude that the schedular criteria under 38 C.F.R. § 4.71, DC 5215 are inadequate or impractical for evaluating a disability of the severity experienced by the Veteran. Rather, the existing rating criteria appear to properly recognize and compensate the Veteran for the objective symptomatology shown. The predominant symptoms of pain and diminished range of motion are already wholly addressed by the relevant DC, as discussed above; further, a comparison of the Veteran's level of severity and reported symptomatology with the established criteria found in the Rating Schedule demonstrates that the criteria reasonably describe the Veteran's disability. Therefore, the assigned schedular evaluation is adequate. VAOGCPREC 6-96 (Aug. 16, 1996). The Board is still mindful, however, of the Veteran's lay assertions regarding functional limitations, and of the need for direct consideration of an extraschedular rating pursuant to the applicable rubric for adjudicating such claims. However, the evidence of record fails to document that the Veteran's level of disability resulted in marked interference with employment or frequent periods of hospitalizations during the appeal period. 38 C.F.R. § 3.321(b)(1). Notably, the Veteran has contended that his right wrist disability makes it difficult to open doors, drive, lift, carry, push, pull, engage in repetitive use actions, and perform activities of daily living, including personal hygiene; however, the Board notes that examiners have only translated this level of functional loss into occupational limitations of not engaging in significant physical labor involving the right wrist (although moderate, light, and less active forms of labor would likely be tolerated according to the examiners). Further, the Veteran has not described, and the evidence does not otherwise indicate, any history of inability to obtain and/or maintain a substantially gainful occupation due to limitations of the right wrist. As such, the Board finds that no higher rating is warranted on an extraschedular basis. The Board additionally notes that a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014). In the present case, in addition to the service-connected right wrist disability, the Veteran is also service connected for associated right wrist surgical scarring, tinnitus, and left ear hearing loss. However, at present, these issues are not on appeal before the Board as part of any increased rating claim. Furthermore, the Veteran has not alleged, and the evidence does not establish, that the combined effects of all of the Veteran's service-connected disabilities "collectively impact" his disability picture in a way not contemplated by the Rating Schedule. Yancy v. McDonald, 27 Vet. App. 484 (2016). Accordingly, award of an extraschedular rating is not warranted on a collective basis either. In sum, the claim for entitlement to an increased rating above 10 percent for the right wrist disability is denied on both schedular and extraschedular bases. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for right ear sensorineural hearing loss In its January 2020 Decision, the Board found the November 2016 VA etiological opinion to be inadequate because the examiner failed to consider potentially-favorable evidence, including: (a) the medical literature by Kujawa and Liberman discussing cochlear nerve degeneration after temporary noise-induced hearing loss (cited in the December 2016 Notice of Disagreement and added to the claims file in its entirety on March 24, 2017); (b) the possibility of late-onset hearing loss (contended during the November 2019 Board Hearing); and (c) the conceded acoustic trauma during service (consistent with the circumstances of the Veteran's service, which include duties on the flight line). Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In a July 2020 VA addendum opinion, the examiner opined that the bilateral hearing loss was less likely than not caused by or a result of service because: (a) in-service audiograms (dated September 23, 1970, and June 11, 1973) showed normal hearing bilaterally without a significant positive threshold shift from enlistment to separation; and (b) there is no medical research to support delayed onset of hearing loss due to noise exposure. Notably, the July 2020 VA examiner ignored the Board's directive to specifically consider the medical literature by Kujawa and Liberman. Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr, supra. In September 2020, the AOJ obtained another VA examination with etiological opinion, in which the examiner again opined that the right ear hearing loss was less likely than not caused by or a result of service because in-service audiograms (dated September 23, 1970, November 23, 1970, and June 11, 1973) showed normal hearing without a significant shift in hearing. Like the July 2020 VA examiner, the September 2020 VA examiner also ignored the Board's directive to specifically consider the medical literature by Kujawa and Liberman. Stegall, supra; Barr, supra. Based on this evidence, the Board must again remand to obtain an addendum etiological opinion that addresses all potentially-favorable evidence, including: (a) the medical literature by Kujawa and Liberman discussing cochlear nerve degeneration after temporary noise-induced hearing loss (cited in the December 2016 Notice of Disagreement and added to the claims file in its entirety on March 24, 2017); (b) the possibility of late-onset hearing loss (contended during the November 2019 Board Hearing); and (c) the conceded acoustic trauma during service (consistent with the circumstances of the Veteran's service, which include duties on the flight line). The matters are REMANDED for the following action: 1. Regarding the right ear sensorineural hearing loss, obtain an addendum etiological opinion that addresses all potentially-favorable evidence, including: (a) the medical literature by Kujawa and Liberman discussing cochlear nerve degeneration after temporary noise-induced hearing loss (cited in the December 2016 Notice of Disagreement and added to the claims file in its entirety on March 24, 2017); (b) the possibility of late-onset hearing loss (contended during the November 2019 Board Hearing); and (c) the conceded acoustic trauma during service (consistent with the circumstances of the Veteran's service, which include duties on the flight line). The Board defers to the examiner's discretion to determine whether in-person examination is required to render the requested opinion. 2. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Daus, 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.