Citation Nr: 21075098 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 17-53 784 DATE: December 17, 2021 ORDER An increased rating in excess of 10 percent disabling for a right wrist condition is denied. A separate 20 percent rating for painful and weakened motion of the right hand and fingers is granted. FINDINGS OF FACT 1. The Veteran is in receipt of the maximum available rating for limitation of motion of his right wrist; ankylosis of the right wrist has not been shown. 2. The Veteran's right hand and fingers have shown objective evidence of painful and weakened motion with functional loss. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent disabling for a right wrist condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5215. 2. The criteria for a separate 20 percent rating for painful and weakened motion of the right hand and fingers are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.71a, DC 5228. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1986 to June 1986. The case is on appeal from an October 2016 rating decision. In May 2021, the Veteran testified at a Board hearing. The claim was last before the Board in May 2021. At that time, the Board remanded the claim for further development. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 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. 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; 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 criteria."). As of February 7, 2021, changes have been implemented to the musculoskeletal rating criteria. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. Prior to the regulatory change, under DC 5215, a 10 percent disability rating (maximum) is warranted for palmar flexion limited in line with the forearm or dorsiflexion less than 15 degrees. DC 5215 does not provide for a rating in excess of 10 percent. 38 C.F.R. § 4.71a. The criteria applicable to musculoskeletal wrist disorders were unchanged by the revised regulations effective February 7, 2021. Also, under DC 5228, for limitation of motion of the thumb, with a gap of more than two inches (5.1 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers, a 20 percent rating is warranted for either a major or minor extremity. With a gap of one to two inches (2.5 to 5.1 cm), with the thumb pad attempting to oppose the fingers, a 10 percent rating is warranted. 38 C.F.R. § 4.71a, DC 5228. 1. An increased rating in excess of 10 percent disabling for a right wrist condition. 2. A separate 20 percent rating for painful and weakened motion of the right hand and fingers. The Veteran contends that his right wrist condition is more disabling than reflected by the 10 percent rating currently assigned. The Veteran's right wrist condition is rated as 10 percent disabling under DC 5215 for residuals of a non-union fracture of right scaphoid, status post right proximal row carpectomy (claimed as extreme loss of motion with pain and fatigue). Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69. In this case, the Veteran is left-hand dominant; thus, his service-connected right wrist disability involves his major upper extremity. Additionally, he has a noncompensable rating under DC 7805 for an incision, right dorsal wrist associated with residuals of non-union fracture of right scaphoid, status post right proximal row carpectomy (claimed as extreme loss of motion with pain and fatigue). Pursuant to the Board's May 2021 remand, the Veteran was afforded a VA examination in June 2021. The examiner reported no ankylosis of the right wrist. Thus, as the 10 percent rating currently assigned is the maximum rating for limitation of motion, as opposed to ankylosis, or even functional ankylosis the regulatory provisions pertaining to functional loss are not applicable. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 202; Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Notwithstanding that there is one allowable rating for limitation of motion of the wrist, the Board finds that a separate rating is warranted based on functional impairment of the right hand and fingers associated with the right wrist disability. In that respect, the June 2021 examiner reported pain with dorsiflexion, ulnar deviation, palmar flexion, radial deviation, and weight-bearing. There was also pain along the radial side of the wrist. Despite the examiner finding there was no evidence suggesting pain, fatigability, weakness, lack of endurance, or incoordination which significantly limit functional ability with repeated use over time, during the June 2021 examination, the Veteran reported having very limited range of motion such that it interferes with many of his daily activities, such as opening jars, lifting, carrying, pushing, and pulling, which are very difficult/not possible. Additionally, during the May 2021 virtual Board hearing, the Veteran testified that he was in constant pain from the moment he woke up, rating it at least a 5 out of 10. He also described his wrist as weak, suffering from loss of grip and strength, and that his hand and wrist shake. He also noted difficulty doing tasks like cutting food with a knife or using a hammer. Further, he mentioned that his motor skills are not good (e.g., he cannot button or unbutton clothing). He also wears a brace and described numbness and tingling in his fingers that goes all the way up the wrist. In reaching a determination, the Board has considered the Veteran's competent lay statements with respect to symptoms, including constant pain and numbness resulting in inability to do many everyday tasks. As noted above, the 10 percent rating is the maximum for limitation of motion under DC 5215, and thus, a higher rating based on functional loss under these criteria is not warranted. The Board notes that, although there is functional loss due to pain, weakness, and numbness in the right hand and fingers, other than the Veteran's report of decreased range of motion of the right wrist and hand, there is no evidence that pain and/or weakness restrict range of motion. The Board chose to rate this disability under DC 5228 because DCs 5216-5227 pertain to ankylosis, which the Veteran does not have, and out of DCs 5228-5230, DC 5228 is the only code that provides for a rating above 10 percent. All of the Veteran's fingers of the right hand appear to be involved but there is no such corresponding DC for limitation of motion of all the fingers. (Continued on the next page) The Board further notes that the grant herein of a 20 percent rating for painful and weakened motion of the right hand and fingers, together with the 10 percent rating currently assigned for a right wrist condition, contemplate exacerbations of the right wrist/hand and fingers. 38 C.F.R. § 4.1. In sum, the Board finds the evidence supports a separate 20 percent rating for painful and weakened motion of the right hand and fingers. Thus, a 20 percent rating for painful and weakened motion of the right hand and fingers is warranted. The preponderance of the evidence is against a rating higher than 10 percent for a right wrist condition; the benefit of the doubt doctrine is not applicable. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Becton, 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.