Citation Nr: 21072383 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 12-27 007 DATE: December 3, 2021 ORDER Effective December 11, 2009, a 20 percent rating, throughout the appeal, for left wrist neuropathy is granted. A rating in excess of 10 percent for left wrist post traumatic myositis and limitation of motioned is denied. FINDINGS OF FACT 1. Effective December 11, 2009, resolving all doubt in the Veteran's favor, throughout the appeal, the Veteran's left upper extremity neuropathy shows at least moderate symptoms with constant and intermittent pain, and paresthesias. 2. The Veteran's left wrist condition has manifested with painful motion, functional impairment, difficulty with heavy lifting and repetitive activities, no other condition is currently present, and the disability is not manifested by the functional equivalent of ankylosis. CONCLUSIONS OF LAW 1. Throughout the appeal, the criteria for a rating of 20 percent for left upper extremity neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.124a, diagnostic code (DC) 8516. 2. The criteria for a rating in excess of 10 percent for left wrist condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.71a, DC 5215. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from March 1980 to March 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in July 2015, March 2020 and March 2021 and remanded for additional development. In May 2015, the Veteran testified at a hearing before a former Veterans Law Judge (VLJ). In a January 2021 letter, the Board notified the Veteran that the VLJ who conducted that hearing is no longer employed by the Board. The Board advised the Veteran that he had the right to request another optional Board hearing but that if he failed to respond the Board would assume that he would not want the opportunity to testify at another Board hearing. In January 2021, the Veteran responded that he did not wish to appear at another Board hearing and to consider the evidence of record. Thus, the Board will adjudicate the appeal based on the current record. Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. 1. Left wrist neurological impairment The Veteran is currently rated at 10 percent under DC 8516 for left upper extremity neuropathy. The RO granted a 10 percent rating due to mild neuropathy effective December 11, 2009, the date the Veteran filed this claim. The Veteran seeks a higher initial rating in excess of 10 percent on the basis that his disability is more severely impairing than contemplated by the rating, explaining that his left upper extremity disability impacts his daily life activities. For rating purposes, a distinction is made between major (dominant) and minor musculoskeletal groups. The Veteran is right-handed dominant and his increased rating on appeal is on his left hand. Thus, the minor rating criteria applies. Under DC 8516 minor rating criteria a Veteran is entitled to a 10 percent rating for mild incomplete paralysis of the ulnar nerve. A 20 percent rating for moderate incomplete paralysis of the ulnar nerve. A 30 percent rating for severe incomplete paralysis of the ulnar nerve. A 50 percent rating for complete paralysis of the ulnar nerve with "griffin claw" deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened. Also, 38 C.F.R. § 4.124a defines the term "incomplete paralysis" as indicating a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.123 provides that neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. The Board acknowledges that the terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board finds that a rating of 20 percent is warranted. Indeed, his last VA examination shows moderate symptoms with constant and intermittent pain paresthesias. See VA medical examination (August 2021). Thus, when considering the medical and lay evidence of record and after resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's neuropathy of his left upper extremity more nearly approximates the criteria for a 20 percent rating under DC 8516. Thus, a rating of 20 percent, throughout the appeal, for left upper extremity is granted. However, a rating in excess of 20 percent for the Veteran's left upper extremity radiculopathy is not warranted since the record does not show severe incomplete paralysis or complete paralysis. 38 38 C.F.R. § 4.123. 2. Left wrist limitation of motion The Veteran is currently rated at 10 percent under DC 5215 for his degenerative left wrist condition. He reports that his condition warrants a rating in excess of 10 percent. In support, he stated that he continues to suffer from pain, limited range of motion, and difficulty with heavy lifting and repetitive activities. See VA Medical examination (March 2021). For rating purposes, a distinction is made between major (dominant) and minor musculoskeletal groups. The Veteran is right-handed dominant and his increased rating on appeal is on his left hand. Thus, the minor rating criteria applies. Under DC 5215, limitation of motion of wrist, a 10 percent rating is warranted for dorsiflexion less than 15 degrees or palmar flexion limited in line with forearm. The RO has continued a 10 percent evaluation due to painful motion of the left wrist. See SSOC (August 2021). The Board remanded this issue to determine the current severity of the Veteran's left wrist condition. Subsequently, the Veteran was afforded a VA examination in March 2021. The VA examination report shows pain, functional impairment, abnormal range of motion, use of brace and difficulty with heavy lifting and repetitive activities. See VA medical examination (March 2021). However, the medical and lay evidence, including the March 2021 VA examination do not indicate that the Veteran's suffers from functional equivalent of ankylosis or atrophy. Id. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court 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." 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. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45 The Board finds that the preponderance of the evidence shows that the Veteran's left wrist condition more nearly approximates a 10 percent rating which is the maximum for this condition for limitation of motion. Thus, a rating in excess of 10 percent is not warranted. There is no indication that the Veteran suffers from ankylosis or atrophy in his left wrist. In addition, the Board notes that the Veteran is rated under the correct DC. The Veteran condition and symptoms are covered under DC 5215 and the Veteran is currently rated at the maximum rating allowed. DC 5215 is the appropriate DC for evaluating the Veteran's left wrist condition as the disability is specifically listed. See Copeland v. McDonald, 27 Vet. App. 333, 336-337 (2015). The Board also notes that as 10 percent is the highest schedular rating for limitation of motion his wrist and the preponderance of the evidence shows that his left wrist disability is not productive of functional equivalent of ankylosis. See Chavis v. McDonough, 34 Vet. App. 1 (2021). As such, the preponderance of the evidence is against this claim. Therefore, the Veteran does not warrant a rating in excess of 10 percent for his left wrist condition and the claim is denied. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alvarado- 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.