Citation Nr: 21073421 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 14-38 545A DATE: December 8, 2021 ORDER An evaluation in excess of 10 percent for residuals of right wrist fracture is denied. REMANDED Entitlement to service connection for a skin condition, to include as secondary to service-connected right wrist fracture residuals (now claimed as right hand disability) is remanded. FINDING OF FACT The Veteran's right wrist disability manifests at worst with palmar flexion to 50 degrees, dorsiflexion to 50 degrees, ulnar deviation to 30 degrees, and radial deviation to 15 degrees, and no ankylosis. CONCLUSION OF LAW The criteria for an increased rating in excess of 10 percent for residuals of right wrist fracture have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5215. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from February 1966 to January 1969. This matter comes before the Board of Veterans Appeals (Board) on appeal from May 2014 and October 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). A May 2014 rating decision denied an increased rating in excess of 10 percent for residuals of a right wrist fracture. An October 2015 rating decision denied service connection for a skin condition, to include as secondary to service-connected right wrist fracture residuals. In May 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. The Board previously considered this appeal in April 2018 and remanded this issue for further development including scheduling VA examinations. The RO issued a supplemental statement of the case (SSOC) in March 2020. After reviewing the evidence of record, the Board finds that the RO has partially complied with its remand directives. However, for the issue of service connection for a skin disability an additional remand is warranted to ensure substantial compliance with the remainder of the Board's directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (providing that a remand confers upon the Veteran the right to substantial compliance with remand instructions). Increased ratings Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C. § § 1155; 38 C.F.R. Part 4. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In adjudicating increased rating claims, the level of disability in all periods since the effective date of the grant of service connection must be taken into account, to include the possibility that a staged rating may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). As such, the Board will consider whether staged ratings are appropriate to the pending appeals. In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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. 38 C.F.R. § 4.7. When evaluating musculoskeletal disabilities, the Board must also consider whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § § 4.40 and 4.45 under any applicable diagnostic code pertaining to limitation of motion. See DeLuca v. Brown, 8 Vet. App. (1995). However, where a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). With any form of arthritis or other orthopedic disorders, painful motion is an important factor of disability. Joints that are actually painful, unstable, or misaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59; see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). While pain alone does not constitute functional loss, the U.S. Court of Appeals for Veterans Claims (Court) has clearly indicated that the Board must consider the effects of pain, particularly as to any adverse impact on the normal working movements of the body. Mitchell, 25 Vet. App. at 44 (noting that although "pain itself does not rise to the level of functional loss," pain which "affects some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" may constitute functional loss). Additionally, the Board must consider pain on both active and passive motion of the affected joint, in weight-bearing and non weight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). 1. An evaluation in excess of 10 percent for residuals of right wrist fracture The Veteran is service connected for residuals of right wrist fracture under DC 5299-5215, effective January 9, 2004. A 20 percent rating was assigned. The Veteran filed his claim for increase in October 2013, therefore the appeal period begins October 2012. The record reflects that the Veteran is right-handed. As such, the service-connected right wrist disability affects his major extremity. During the pendency of the appeal, portions of the rating schedule for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). However, the rating criteria applicable to the Veteran's right wrist disability under DC 5215 was not changed by the new regulation. As a result, the amendment of the rating criteria will not have an impact on Veteran's right wrist increased rating claim. Diagnostic Code 5215 code addresses the wrist joint motion and allows for a single 10 percent rating if dorsiflexion is less than 15 degrees or palmar flexion is limited in line with the forearm. 38 C.F.R. § 4.71a. Normal range of motion of the wrist includes dorsiflexion (extension) from 0 to 70 degrees, palmar flexion from 0 to 80 degrees, ulnar deviation from 0 to 45 degrees, and radial deviation from 0 to 20 degrees. See 38 C.F.R. § 4.71a, Plate I. Under DC 5215, 10 percent is the maximum schedular rating based on limitation of motion of the wrist. A higher schedular rating is only warranted when there is ankylosis of the wrist. 38 C.F.R. § 4.71a, DC 5214. Unfavorable ankylosis, in any degree of palmar flexion or with ulnar and radial deviation warrants a 50 percent rating in the major extremity. Ankylosis in any other position, except favorable, warrants a 40 percent rating in the major extremity. Favorable ankylosis in 20 degrees to 30 degrees dorsiflexion warrants a 30 percent rating in the major extremity. 38 C.F.R. § 4.71a, DC 5214. The Board finds that a maximum of a 10 percent rating, at most, is warranted for the entire appeal period for right wrist disability. The Veteran has been assigned the maximum schedular rating based on limitation of motion of the wrist under DC 5215, and he does not have evidence of ankylosis. Thus, a higher schedular rating is not warranted for the period of the appeal. A May 2014 VA Wrist examination shows a diagnosis of Right wrist scaphoid/navicular fracture, healed with residual pain. The Veteran did not report flare ups. On examination, right wrist palmar flexion is to 80 degrees, objective evidence of painful motion begins at 70 degrees; dorsiflexion is to 70 degrees, objective evidence of painful motion begins at 65 degrees. The examiner noted right wrist ulnar deviation 0 to 40 degrees with pain at 40 degrees, radial deviation 0 to 20 degrees with pain at 20 degrees. No change with repetitive motion testing. The Veteran has functional loss and/or impairment of the right wrist, in that he has less movement than normal and pain on movement. He has pain on palpation on the right wrist. He has no ankylosis of the right wrist. He does not have degenerative or traumatic arthritis. His right wrist condition does not impact his ability to work. A May 2018 VA examination report shows a diagnosis of residuals of right wrist fracture. The examiner noted the dominant hand is the right hand. The Veteran did not report flare ups. The Veteran has functional loss or impairment described as loss of fine motor skills such as buttoning his shirt, unable to golf, bowl, and or garden due to pain in right wrist, and unable to practice karate with grandsons. On examination, the right wrist had palmar flexion to 50 degrees and dorsiflexion to 50 degrees. Ulnar deviation to 30 degrees and radial deviation to 15 degrees. After repetitive use over time testing, palmar flexion was to 50 degrees, dorsiflexion to 50 degrees, ulnar deviation to 30 degrees, and radial deviation to 15 degrees. Pain significantly limits functional ability with repeated use over a period of time. The Veteran's residuals of right wrist fracture impact his ability to perform any type of occupational task as pain occurs with movement at the wrist which impacts the physical part of a job. There is pain in non-weight bearing, passive ROM is same as active. Based on the medical evidence, the most severe limitation of motion for the wrist warrants a 10 percent disability rating. It is not in dispute that the Veteran has limitation of motion in his right wrist. However, a 10 percent rating is the highest schedular rating possible for limitation of motion of the wrist. To warrant a higher rating, the record must show ankylosis of the wrist. The Board has considered whether the requirement of ankylosis can be met with evidence of the functional equivalent of ankylosis (i.e., functional immobility of the joint) during a flare-up. Chavis v. McDonough, 34 Vet. App. 1 (2021). However, the evidence does not indicate that immobility of the wrists during flare-ups. On the contrary, the Veteran did not report flare-ups at either of his VA examinations, and on all recorded assessments, the Veteran was noted to retain some range of wrist motion. Here, the Board finds that the requirement of ankylosis cannot be met with evidence of the functional equivalent of ankylosis. The Board has considered the Veteran's lay contentions and finds the lay statements are competent insofar as they report observable symptoms, such as pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent the Veteran asserts that his current disability entitles him to a higher disability rating, such statements are inconsistent with, and therefore less probative than, the objective medical evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Indeed, with regard to the actual degree of the Veteran's impairment, the objective findings contained within the VA examination reports of record are more probative because they are based on actual range of motion testing in an examination setting. This medical evidence preponderates against the notion that the Veteran's limited motion warrants higher ratings than those currently assigned. The Board has considered alternative Diagnostic Codes, and there is no available Diagnostic Code that would afford the Veteran a higher disability rating. All of the Veteran's additional reported symptoms have been considered, to include his reports of wrist pain and weakness. The Board is sympathetic to the pain experienced by the Veteran. However, these symptoms do not approximate ankylosis at any time during the appeal period. The VA examiners noted that the Veteran experienced pain, which is consistent with the Veteran's reports of wrist pain. However, the Veteran nonetheless retained some range of wrist motion, including after performing repetitive use test. Thus, despite the noted wrist pain the evidence preponderates against finding that the resulting functional loss approximated ankylosis of the right wrist. Based on the foregoing, the Board finds that a disability rating in excess of 10 percent for the Veteran's right wrist disability is not warranted. Therefore, the claims must be denied. The evidence preponderates against an increase, so reasonable doubt provisions are inapplicable. 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a skin condition, to include as secondary to service-connected right wrist fracture residuals (now claimed as right hand disability) is remanded. The Veteran contends that he developed a skin disability as a result of his service-connected residuals of a right wrist fracture (now claimed as a right hand disability). Specifically, he claims that the steroid injection used to treat his right hand disability caused his skin on the right hand and arm area to change to a lighter color and requires further treatment. Private treatment records reflect treatment for various skin conditions; however, a VA examination is necessary prior to adjudication. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his claimed skin disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the skin disability at least as likely as not related to service? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his/her in-service injury and symptoms as well as his post-service symptoms. Is the skin disability] at least as likely as not proximately due to the service-connected right wrist, to include medications and steroid injections he received for the wrist? Is the skin disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the service-connected right wrist, to include medications and steroid injections he received for the wrist? H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Romero-Sanchez, 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.