Citation Nr: 21071965 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 16-27 643 DATE: December 1, 2021 ORDER A rating in excess of 10 percent for a left wrist disability is denied. REMANDED Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for varicoceles is remanded. Entitlement to service connection for left hand tremors is remanded. Entitlement to service connection for right hand tremors is remanded. Entitlement to service connection for right carpal tunnel syndrome is remanded. Entitlement to service connection for left carpal tunnel syndrome is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for a hernia, to include residuals, is remanded. FINDING OF FACT The Veteran is in receipt of the highest rating available under the appropriate rating code for his left wrist disability, and there is no ankylosis or the functional equivalent of the wrist. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a left wrist disability are not met for any period on appeal. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5214, 5215. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Navy from July 1981 to July 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified before the undersigned VLJ in a videoconference hearing; a transcript is of record. Subsequently, this matter was remanded by the Board in March 2019 for additional development to provide the Veteran with examinations and they have now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives for the left wrist increased rating. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran was provided with an examination. Service connection for fibromyalgia, varicoceles, bilateral hand tremors, bilateral carpal tunnel syndrome, bilateral hip disabilities, bilateral feet disabilities, and hernia are addressed in the Remand portion below. Additionally, in a July 2021 rating decision, the RO granted service connection for left shoulder, left knee, right knee, left index finger, lumbsacral strain, and right lower extremity disabilities. As these grants represent full grants of the benefits sought, these issues are no longer on appeal. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Increased Rating 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 percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. 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 or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. Where there is noncompensable limitation of motion, a 10 percent evaluation is assigned for each major joint or group of minor joints, where the limitation is objectively confirmed by swelling, muscle spasm, or satisfactory evidence of painful motion. Where there is no limitation of motion, a 10 percent evaluation is assigned for x-ray evidence of involvement of two or more major joints or minor joint groups, and a 20 percent evaluation is assigned for x-ray evidence of involvement of two or more major joints or minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003, Note (1). Effective February 7, 2021, DC 5010 provides that traumatic arthritis is now to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). However, a veteran may be entitled to a higher disability evaluation than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes "additional functional lossi.e., 'the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance'including as due to pain and/or other factors" or "reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination." Lyles v. Shulkin, 29 Vet. App. 107, 117-18 (2017) (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). The intent of the rating schedule is to recognize painful motion with joint and periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. "The question of whether a particular medical issue is beyond the competence of a laypersonincluding both claimants and Board membersmust be determined on a case-by-case basis." Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring). In this case, the Board is competent to observe that voluntary range of motion testing is going to be more favorable to the Veteran than involuntary range of motion testing. In DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1592 (32nd ed. 2012), range of motion redirects the reader to "exercise." Passive exercise "is motion imparted to a segment of the body by another individual, machine, or other outside force, or produced by voluntary effort of another segment of the patient's own body." Id. at 658. Active exercise is "motion imparted to a part by voluntary contraction and relaxation of muscles controlling the part." It is reasonable from these definitions to conclude that active motion is the more difficult of the two types of motion to perform because it is done without assistance from external forces, which would be capable of pushing the Veteran's joint farther than he would be able to move it on his own. Therefore, active motion is more favorable to the Veteran, and the results of active motion testing were provided. Similarly, it is reasonable to conclude that non-weightbearing motion is less difficult than weightbearing motion. The competent evidence of record does not tend to indicate that the structural integrity of the Veteran's service-connected joints is compromised, such that passive range of motion in this case would be more limited than active, and because testing in weight-bearing conditions is more demonstrative of the degree of pathology, the Board finds that the failure to test for limitation of motion on passive range of motion and in non-weight-bearing is not prejudicial. The Board will therefore evaluate the Veteran's range of motion using the available findings of active range of motion and looking at all the relevant medical and lay evidence. It is acknowledged some of the examiners did not provide an estimated loss of motion during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). However, the Board finds that additional development for this purpose or for obtaining retrospective opinions would serve only to delay the claim. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). As noted below, the examination reports contain evidence regarding the frequency, severity, and duration of the Veteran's pain level during flare-ups per his report. The Board finds such information pertinent and useful when evaluating the disability picture concerning the Veteran's service-connected disabilities. Additionally, to receive a higher rating, either favorable or unfavorable ankylosis would need to be shown for the Veteran's left wrist. As such, the Board finds that it has adequate competent evidence when viewed in total to assess the Veteran's disability picture. 1. Entitlement to a rating in excess of 10 percent for a left wrist disability The Veteran receives a 10 percent rating for his left wrist fracture. A rating of 10 is warranted where limitation of motion is less than 15 degrees of dorsiflexion; or when palmar flexion is limited in line with forearm. The 10 percent rating is the maximum allowable under this Diagnostic Code. 38 C.F.R. § 4.71a, DC 5215. For the minor extremity, under Diagnostic Code 5214, a 20 percent rating is warranted where there is favorable ankylosis of the wrist in 20 to 30 degrees of dorsiflexion. A 30 percent rating is warranted where there is ankylosis of the wrist in any other position, except favorable, and a 40 percent rating is warranted where there is unfavorable ankylosis in any degree of palmar flexion, or with ulnar or radial deviation. A note following Diagnostic Code 5214 states that extremely unfavorable ankylosis will be rated as loss of use of hands under Diagnostic Code 5125. 38 C.F.R. § 4.71a, Diagnostic Code 5214. Normal range of motion of the wrist includes dorsiflexion (extension) from zero to 70 degrees, palmar flexion from zero to 80 degrees, ulnar deviation from zero to 45 degrees, and radial deviation from zero to 20 degrees. See 38 C.F.R. § 4.71a, Plate I. The Veteran is right-hand dominant. The Veteran underwent an examination in January 2011. He had stiffness and tenderness. He rated his pain as eight out of ten. He had flare-ups where his pain was 10/10. He had dorsiflexion of 40 degrees with pain of six out of ten. He had palmar flexion of 40 degrees with pain. He had radial deviation of 15 degrees and ulnar deviation of 30 degrees. His most recent examination is from July 2021. He reported flare-ups with overuse and could last a week. He had functional loss in that his pain limited fine-hand movement. His range of motion testing was normal. However, he had pain on all ranges of motion. His passive range of motion was the same as active, and he had pain on passive range of motion. He had pain on weight-bearing. Pain caused functional loss in that it affected his ability to lift and carry. He had objective evidence of crepitus and pain on palpation of palmer surface. He was able to perform three times repetitive use testing with no additional loss of function or range of motion. While he was not examined immediately after repeated use over time, the Veteran's statements did not suggest pain, fatigability, weakness, lack of endurance, or incoordination significantly limited functional ability with repeated use over time. For flare-ups, pain significantly limited functional ability. However, his estimated range of motion, based on information to include the Veteran's statements, remained normal. His disability interfered with his ability to lift and carry. He did not have muscle atrophy or any favorable or unfavorable ankylosis. The July 2021 examiner estimated the Veteran's pain began at 50 degrees for dorsiflexion, 60 degrees for palmar flexion, 35 degrees for ulnar deviation, and 15 degrees for radial deviation. The Board acknowledges that the 2011 examination did not fully report passive, weight-bearing, and non-weight-bearing range of motion. However, the Board finds that based on the July 2021 findings showing the same range of motion for passive and active, as well as weight-bearing and non-weight bearing. Thus, when comparing the available finding of the 2011 examination with the 2021 examination, it is logical to reasonably conclude that it would be likely the 2011 examination would have had comparable findings under such circumstances. Moreover, he had range of motion at the 2011 examination, although reduced, which tends to show he did not have any wrist ankylosis or the functional equivalent thereof. He asserted in August 2014 that he has had pain and loss of movement. He testified that he had radiating pain in his wrist. After review of the competent and probative evidence, the Board finds that a rating in excess of 10 percent for the left wrist disability is not warranted. The Veteran is already in receipt of the highest available schedular rating under the applicable rating code. See 38 C.F.R. § 4.71a, DC 5215; Johnston v. Brown, 10 Vet. App. 80, 85 (1995). As such, evidence of ankylosis is required for an increased rating under the other code that evaluates the wrist, but there is none or the equivalent of ankylosis per the findings noted on the examinations as discussed above. See Chavis v. McDonough, 34 Vet. App. 1, 20-23 (2021) (holding that holding that ankylosis of a joint can be demonstrated by its functional equivalent). Moreover, the records show that the Veteran had range of motion in his wrists in 2011 and 2021. As such, the probative, competent evidence weighs against a rating higher than 10 percent for the Veteran's left wrist disability based on favorable or unfavorable ankylosis. REASONS FOR REMAND 1. Entitlement to service connection for a right hip disability is remanded. 2. Entitlement to service connection for a left hip disability is remanded. The Veteran has a current diagnosis of bilateral hip arthritis. As such, the first element of service connection is met. The Veteran, through his representative, asserts that his bilateral hip disabilities are secondary to his service-connected disabilities. Specifically, he contends his service-connected disabilities have caused an altered gait which caused his hip disabilities. See 9/16, 20221, Appellate Brief. The July 2021 examiner provided a negative nexus opinion. However, she only addressed whether the Veteran's disabilities were due to his military occupational specialty of a first-class diver. As the rationale is incomplete, an addendum or new examination is warranted. 3. Entitlement to service connection for fibromyalgia is remanded. 4. Entitlement to service connection for varicoceles is remanded. 5. Entitlement to service connection for left hand tremors is remanded. 6. Entitlement to service connection for right hand tremors is remanded. 7. Entitlement to service connection for right carpal tunnel syndrome is remanded. 8. Entitlement to service connection for left carpal tunnel syndrome is remanded. The Veteran has current diagnoses of fibromyalgia, bilateral varicoceles, essential tremors, and bilateral carpal tunnel syndrome. The Board remanded these claims to obtain examinations. The July 2021 examiner provided negative opinions. Although the examiner cited various medical literature, the examiner essentially gave the same rationale for all negative opinions. She found that the Veteran's various claims were not due to service as Healthline literature does not support the Veteran's military occupational specialty (first class diver) was a cause or risk factor for his various claims. The examiner did not further discuss whether his disabilities were incurred in or caused by service. Additionally, the Veteran was to be examined by a diving specialist as directed by the Board in the prior remand. If a diving specialist was unavailable, the RO was to document what steps were taken. However, there is no indication that the examiner was a diving specialist or what steps were taken. Additionally, on Remand, the examiner should also sufficiently address the VBA diving training letter (TL 07-04). See 11/1/2018, VA 21-4138 Training Letter (containing a copy of this letter). Concerning his varicocele, a medical treatment records shows treatment in approximately 1988 during a period of active duty. See 5/14/1997, Medical Treatment Record Government Facility Varicocele. As the examiner's rationale is incomplete for each nexus opinion for each disability, new addendums or examinations are warranted. 9. Entitlement to service connection for a left foot disability is remanded. 10. Entitlement to service connection for a right foot disability is remanded. 11. Entitlement to service connection for a hernia, to include residuals is remanded. The Board previously remanded these issues for a SOC. In the May 2012 rating decision, the RO denied service connection for pes planus of the right and left feet. In a letter dated in August 2012, the Veteran requested to reopen his claim for flat feet (pes planus). See 07/05/2007, Correspondence. The Board previously found this statement was a Notice of Disagreement (NOD). Additionally, the Veteran testified at the hearing regarding his claim of service connection for a hernia. A review of the claims file shows an SOC has not yet been issued on these issues. These matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. Request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. 2. After completing #1, regarding the Veteran's bilateral hip disabilities, obtain an addendum opinion or, if necessary, schedule the Veteran for an in-person examination. Then, address whether: (a.) Is it at least as likely as not (probability of approximately 50 percent) that the Veteran's disability was caused by a disease or injury in service? (b.) If no, is it at least as likely as not (probability of approximately 50 percent) that the Veteran's disability was either 1) proximately due to OR 2) aggravated by any service-connected disability? **The examiner is to review and address the Veteran's contentions and records. In particular, the Veteran, through his representative, has stated that his service-connected disabilities have caused him to have an altered gait. The altered gait in turn has caused his hip disabilities. See 9/16/2021, Appellate Brief.** 3. After completing #1, regarding the Veteran's fibromyalgia, varicoceles, bilateral hand tremors, and bilateral carpal tunnel syndrome, schedule the Veteran for an in-person examination. **If possible, schedule the examination with a diving medical specialist. If this specialist is not available for an examination, have a diving medical specialist review the file and provide an assessment and the requested opinions. If this is not possible, please explain why, to include indicate the steps taken.** Then, address whether: (a.) Is it at least as likely as not (probability of approximately 50 percent) that the Veteran's disability was caused by a disease or injury in service? (b.) If no, is it at least as likely as not (probability of approximately 50 percent) that the Veteran's disability was either 1) proximately due to OR 2) aggravated by any service-connected disability? **The examiner must also sufficiently address the diving training letter. See 11/1/2018, VA 21-4138 Training Letter (containing a copy of this letter). Concerning his varicocele, a medical treatment records shows treatment in approximately 1988 during a period of active duty. See 5/14/1997, Medical Treatment Record Government Facility Varicocele. The examiner is advised that the Veteran is competent and credible to report his symptoms and history, and such reports are to be considered in formulating any opinion. Please note that the Veteran's complete service-treatment records are not available. Accordingly, the examiner should not rely solely on the lack of documented in-service complaints when rendering any opinion.** The term "aggravated" refers to a worsening of the underlying condition beyond the natural progression of the disease, as opposed to temporary or intermittent flare-ups or symptoms that resolve with return to the baseline level of disability. If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation. 4. Then, if the Veteran is now service connected for any of the remanded disabilities per the Veterans Benefits Administration (VBA), and any remanded disability is not found to be directly caused by a disease or injury in service, please address whether the disability: (a.) Is it at least as likely as not (probability of approximately 50 percent) that any disability was either 1) proximately due to OR 2) aggravated by any service-connected disability? 5. Inform EACH examiner that a comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 6. After the necessary development, issue a statement of the case (SOC) with regard to the issue of entitlement to service connection for a hernia disability and for a bilateral foot disability. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Morales, 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.