Citation Nr: 21070293
Decision Date: 11/23/21	Archive Date: 11/23/21

DOCKET NO. 08-05 738
DATE: November 23, 2021

ORDER

Entitlement to an increased rating in excess of 10 percent for arthritis of the right wrist is denied.

FINDING OF FACT

The Veteran failed, without good cause, to appear for his scheduled VA examination in connection with his claim of entitlement to an increased rating for a right wrist disability; moreover, the probative evidence of record shows his right wrist arthritis is manifested by painful and limited motion, without ankylosis, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, swelling, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups.

CONCLUSION OF LAW

The criteria for a rating in excess of 10 percent for arthritis of the right wrist have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5299-5215.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served in the United States Army, on active duty from February 1984 to February 1988. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).

Procedural History

This appeal has a long procedural history. The Veteran filed a claim for an increased rating in November 2006. The RO denied the claim in March 2007, and the Veteran appealed. The Board remanded the claim in February 2011 for a new VA examination. In November 2013, the Board issued a decision denying the claim, and the Veteran appealed.  In February 2015, the Court of Appeals for Veterans' Claims (Court) ordered a Joint Motion for Partial Remand (JMPR), vacating the Board's prior decision due to an inadequate statement of reasons and bases (1) that the Board's 2011 remand was substantially complied with and (2) that referral for an extra-schedular evaluation was not warranted. The Court remanded the matter to the Board to fulfill actions consistent with the JMPR.  The Board remanded the claim in June 2015, February 2016, June 2016, September 2018, and November 2019 to the RO with instructions to fulfill action consistent with the JMPR to obtain new VA examinations, as well as re-adjudication on a schedular and extra-schedular basis.

This claim was last before the Board in September 2020, when it remanded the issue for an additional VA examination as well as for consideration of an extraschedular rating for his service-connected right wrist disability. The Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, the Veteran was afforded a VA examination in May 2021, however, he failed to report. Additionally, an advisory opinion was provided by the Director of Compensation Service in August 2021. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation regarding this issue.  

Increased Ratings

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7.

Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The Court has held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40.

For the entire appeal period stemming from November 9, 2006, the date of his increased rating application, the Veteran is in receipt of a 10 percent rating for his service-connected right wrist pursuant to DC 5299-5215. 38 C.F.R. § 4.71a. In this regard, the assignment of DC 5299 reflects that the Veteran's service-connected right wrist disability is not listed in the Rating Schedule and, thus, was rated by analogy to DC 5215. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, such DC was not changed. The Veteran reports, and the evidence confirms, that he is right hand dominant and, thus ratings for the major side are applicable. However, 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.

Rather, in order to warrant a rating in excess of 10 percent, ankylosis of the wrist must be shown. Specifically, DC 5214 provides that where there is ankylosis of the wrist that is favorable in 20 degrees to 30 degrees of dorsiflexion, a 30 percent rating for the major extremity and a 20 percent rating for the minor extremity is warranted. Where there is ankylosis of the wrist in any other position, except favorable, a 40 percent rating for the major extremity and a 30 percent rating for the minor extremity is warranted. Where there is ankylosis of the wrist that is unfavorable, in any degree of palmar flexion, or with ulnar or radial deviation, a 50 percent rating for the major extremity and a 40 percent rating for the minor extremity is warranted.

Importantly, VA regulations provide that when a Veteran fails to report for an examination scheduled in conjunction with a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b). In this regard, the Board emphasizes that the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 180 (1991). 

Entitlement to a rating in excess of 10 percent for arthritis of the right wrist

The Veteran asserts that his service-connected right wrist condition is worse than presently rated. 

Based upon a review of the record, the Board finds that a rating in excess of 10 percent for the Veteran's right wrist is not warranted. Specifically, for the entire appeal period, such is manifested by painful and limited motion, however without ankylosis, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, swelling, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. The Board reiterates that the Veteran is in receipt of the maximum rating under DC 5215, and that a higher rating under DC 5214 is not warranted if no ankylosis is found. 

Specifically, VA examinations conducted during the period on appeal do not indicate ankylosis of the Veteran's right wrist. He underwent VA examinations in December 2007, March 2011, July 2013, and October 2015, with range of motion measurements taken during each of those examinations. None of those examinations evidence any ankylosis of the Veteran's right wrist. Regarding these examinations, the Board notes it found them inadequate because they do not satisfy the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016). However, despite those remands and the need for additional testing and discussion therein, the Board finds there is no reason to wholly discard or discredit the range of motion findings and discussion of the absence of ankylosis that are set forth in the reports of those examinations. As such, the Board finds that the aforementioned findings of no ankylosis are indeed still probative evidence. 

Moreover, VA treatment records dated throughout the appeal period reflect ongoing complaints and treatment referable to right wrist pain but are negative for any indication of ankylosis. For example, a VA treatment note from December 2011 shows that the Veteran had full range of motion with some pain noted. Another VA treatment note from July 2013 noted difficulty gripping and lifting, but that the Veteran had movement of his wrist to several degrees before pain. Therefore, the Board finds that the evidence of record weighs against finding that the Veteran is entitled to an increased rating for his service-connected arthritis of the right wrist. 

Additionally, in accordance with the September 2020 Board remand, the Veteran was scheduled for an additional VA examination to determine the severity of his right wrist condition in accordance with the Correia factors. However, the Veteran failed to report for his VA examination in May 2021. Significantly, a Report of General Information dated June 2021 indicates the Veteran was contacted to assess his willingness to report for a VA examination. The Report shows that following his failure to report to the scheduled examination, the Veteran declined to report to a future examination. The August 2021 Supplemental Statement of the Case (SSOC) informed the Veteran of the finding that he had failed without good cause to report for the scheduled VA examination, and also provided notice of the provisions of 38 C.F.R. § 3.655(b). 

Critically, the Veteran has not disputed the report in the SSOC that he failed without good cause to report for the needed VA examination, or asserted that he did not receive notice of the examination. To the contrary, the record clearly reflects that he was contacted about scheduling the examination and declined. Thus, the Board finds that the provisions of 38 C.F.R. § 3.655(b) apply, and that the Veteran's claim of entitlement to an increased evaluation of his service-connected arthritis of the right wrist, which is currently rated at 10 percent disabling, must be denied. 

In considering the appropriate disability rating, the Board has also considered the statements of the Veteran that his disability is worse than the rating he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40(1994); Gilbert v. Derwinski, 1Vet. App.49, 57 (1990).

Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991).

On the other hand, such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which the disability is evaluated. Therefore, based on the evidence of record, the Board determines that the rating awarded herein is appropriate.

Extraschedular Consideration

This claim was referred to the Director of Compensation Service (Director) for extraschedular consideration. In an August 2021 decision, the Director evaluated the evidence of record regarding the Veteran's right wrist disability, indicated the evidence did not show frequent hospitalizations or marked interference with employment due to his service-connected right wrist, and denied an extraschedular evaluation. The Board also notes that it is not bound by an adverse determination of the Director and must still review whether an extraschedular rating is appropriate. See Wages v. McDonald, 27 Vet. App. 233 (2015).

An extraschedular disability rating is warranted upon 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 that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1).

In this case, the evidence shows functional impairment with activities that involve repetitive firm gripping/holding, turning screw drivers when working as a mechanic, less movement due to pain and difficulty performing manual labor. 

While the Board is sympathetic to the difficulties the Veteran's finger disorder presents for his employment, the Board finds that there is no evidence that these difficulties cause marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. The Veteran has not indicated or provided evidence to show that his right wrist condition caused periods of hospitalization.  While the Veteran has stated at VA examinations that he has functional impairment, these difficulties do not present such an exceptional or unusual disability picture that the regular rating schedule is rendered impractical. Aside from the evidence showing functional impairment, there is otherwise no evidence to show that the Veteran's right wrist disability caused marked interference in his employment.  Indeed, when viewed in its totality, his disability appears actually quite mild.  Accordingly, the Board finds that the Veteran's service-connected right wrist disability is not manifested by such an exceptional or unusual disability picture so as to render impractical the application of the regular schedular standards. The assigned schedular evaluations are, therefore, adequate.  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. 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. McDonald