Citation Nr: 21076776 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-51 140 DATE: December 27, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for left wrist nonunion fracture, status post left wrist surgery is denied. FINDING OF FACT The Veteran's left wrist nonunion fracture resulted in limitation of motion but not ankylosis. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for left wrist nonunion fracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, DC 5215. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from January 1977 to February 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claim for additional development in June 2019, which has been completed. The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to a disability rating in excess of 10 percent for left wrist nonunion fracture, status post left wrist surgery The Veteran contends that he is entitled to higher ratings for left wrist nonunion fracture. The current claim for increased ratings for left wrist fracture stem from an August 2016 claim for increased rating. Thus, the rating period for consideration on appeal is from August 2015, one year prior to the date of receipt of the claims for increase, if it is factually ascertainable that an increase occurred during that period. The Veteran's left wrist disability rated is under DC 5215 for limitation of motion of the arm and his left wrist ununited fracture of scaphoid is rated DCs 5003-5215. Under DC Code 5003, for degenerative arthritis, a rating shall be on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. If noncompensable limitation of motion is demonstrated, a 10 percent rating is assigned for each major joint or group of minor joints affected. In the absence of any limitation of motion, a 10 percent rating is warranted for involvement of two or more major joints or two or more minor joint groups, and a 20 percent rating is warranted for involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. For the purpose of rating disability from arthritis, the wrist is considered a major joint. 38 C.F.R. § 4.45 (f). Under DC 5215, ten percent is the maximum schedular rating based on limitation of motion of the wrist under this diagnostic code. A higher schedular rating is only warranted when there is evidence of ankylosis (frozen joint). 38 C.F.R. § 4.71a, Diagnostic Code 5214. VA treatment notes reflect a history of a left wrist injury. In November 2017, the Veteran reported that his left wrist was stable at that time, and he treated it with ibuprofen. An August 2016 x-ray report indicated nonunited scaphoid wrist fracture. The Veteran was afforded a VA examination in October 2016. The Veteran reported that he injured his wrist in 1977 or 1978. The Veteran reported flare-ups of the wrist, which he described as aching pain, stiffness, pain with sudden movement, and reduced grip and strength. Physical examination revealed palmar flexion to 45 degrees, dorsiflexion to 40 degrees, ulnar deviation to 40 degrees, and radial deviation to 20 degrees. Pain was noted in all planes tested for range of motion. No additional loss of function was noted with repeated range of motion testing. No ankylosis of the wrist was indicated by the examiner. The Veteran was afforded a VA examination in December 2019. The Veteran reported having more pain in the left wrist. He reported flare-ups that occur once a month. He indicated the flare-ups were precipitated by long, repetitive work and driving. Physical examination revealed palmar flexion to 60 degrees, dorsiflexion to 60 degrees, ulnar deviation to 35 degrees, and radial deviation to 10 degrees. Pain was noted in all planes tested for range of motion. The examiner estimated that during flare-ups palmar flexion would be limited to 55 degrees, dorsiflexion to 60 degrees, ulnar deviation to 35 degrees, and radial deviation to 10 degrees. No additional loss of function was noted with repeated range of motion testing. No ankylosis of the wrist was indicated by the examiner. The assigned 10 percent evaluations for the Veteran's left wrist disability fully contemplate all associated symptomatology and the limitation of motion experienced by the Veteran. The evidence of record, including October 2016 and December 2019 VA examinations, consistently indicated that the Veteran did not have ankylosis of the left wrist. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss. In September 2017, the Veteran reported that driving had become stressful in his wrist because of this injury. In his appeal, the Veteran reported that the pain becomes more than he can bear without stopping. As the December 2019 examiner documented the Veteran reported functional impairment with repetitive work like driving or hammering which could precipitate flare-ups. The December 2019 examiner found the pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups of the Veteran's left wrist. The examiner also estimated the Veteran's flare-ups would cause additional pain with additional limitation of motion in palmar flexion. However, the examiner provided reduced range of motion findings in degrees, rather than suggesting ankylosis or functional equivalence to ankylosis. Ankylosis was not indicated, even when the examiner was considering the Veteran's flare-ups. Additionally, the Veteran's VA treatment records throughout the rating period for consideration do not demonstrate additional symptoms associated with the Veteran's left wrist disability and applicable to the rating criteria that would warrant higher evaluations at any point during the appeal period. Thus, the Board finds that the preponderance of the evidence is against ratings in excess of 10 percent for left wrist ununited fracture of scaphoid. Even with considering pain on motion, the Veteran's symptomology as to the wrist has not approximated ankylosis such that a higher rating is warranted under DC 5214. Neither the October 2016 or December 2019 examiners found ankylosis or provided findings of limitation of motion approximating ankylosis. Additionally, as to the Veteran's left wrist, rating in excess of 10 percent is not warranted under DC 5003 as the involvement of the Veteran's left wrist is a single joint, and DC 5003 requires involvement of two or more joints, either major or minor, with occasional incapacitating exacerbations, for a 20 percent evaluation. Moreover, DC 5003 explicitly notes that the Veteran should be rated under the limitation of motion code for the effected joint - in this case, the Veteran's left wrist joint - unless the limitation of motion of that joint is noncompensable under the applicable code. The Veteran has been evaluated for the appropriate limitation of motion for his left wrist in this case and therefore any further contemplation of that disability under DC 5003 would be impermissible pyramiding. Accordingly, there exists no basis for a left wrist disability rating in excess of 10 percent. 38 C.F.R. § 4.71, DCs 5003, 5214, 5215. The issue of consideration of an extraschedular rating was raised by a June 2019 argument that an extraschedular rating was warranted based on the exceptional and unusual symptoms of the Veteran's left wrist disability. The Board also finds that referral of this claim for a higher rating on an extraschedular basis is not warranted. Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran's disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. In regard to the first element, comparison of the Veteran's symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. The record shows that he has complaints and findings of pain, stiffness, and reduced range of motion. He also reported that repetitive tasks such as manual labor and driving would precipitate flare-ups with additional pain and stiffness. For all musculoskeletal disabilities, the Rating Schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32 (2011). For disabilities of the joints in particular, the Rating Schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. While Diagnostic Code 5215 does not specifically list all the Veteran's symptoms, namely performing repetitive manual tasks and driving, pain associated with the Veteran's left wrist is explicitly considered in the diagnostic code under which such disability is rated. Further, in applying the principles in Doucette, the Board finds that the natural consequences of pain may include interference with manual tasks and driving. Therefore, such functional effects are indeed contemplated in the diagnostic code under which such service-connected left wrist disability is evaluated. (Continued on the next page) Because the Rating Schedule was purposely designed to compensate for such functional effects of the Veteran's disabilities in all spheres of his daily life, including at work and at home, and given the variety of ways in which the Rating Schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. The threshold issue under Thun is thus not met, and further consideration of an extraschedular rating is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claims increased rating for left wrist ununited fracture of scaphoid. In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, entitlement to an evaluation in excess of 10 percent for left wrist ununited fracture of scaphoid is denied. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Lauritzen, 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.