Citation Nr: A21020019 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 190123-2611 DATE: December 15, 2021 ORDER Entitlement to an increased rating in excess of 10 percent disabling for right wrist synovitis is denied. REMANDED Entitlement to an increased rating in excess of 10 percent disabling for residuals of a fracture of the 2nd metacarpal of the right hand is remanded. FINDINGS OF FACT The Veteran's right wrist disability is manifest by dorsiflexion of 50 degrees and palmar flexion of 60 degrees; it is not shown to result in ankylosis. CONCLUSIONS OF LAW The criteria for a disability rating in excess of 10 percent for residuals of a right wrist fracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5214, 5215. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1970 until his honorable discharge in March 1972. A rating decision was issued under the Legacy Appeals System in May 2016. In September 2018, the appellant opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the higher-level review option. The Regional Office then issued an AMA rating decision pursuant to RAMP in January 2019, which is the decision on appeal. The Veteran was notified of the January 2019 AMA rating decision and then received a letter in April 2019 stating "The Board of Veterans' Appeals received your Board Appeal request (VA Form 10182). Based on the Board appeal option you selected on the form, your appeal has been placed on the Hearing docket." A hearing was then held in June 2021 and his attorney submitted evidence to the Board. After a thorough review of the record, the Board cannot locate his VA Form 10-182. However, as the Board sent a letter to the Veteran stating the form had been received and a hearing was subsequently held, the Board finds that VA implicitly accepted receipt and acceptance of a VA form 10182 in the hearing docket. The Veteran also had an opportunity to be heard and to object to the docket he was in at the hearing. Therefore, the Board now addresses the merits of the claim. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). 1. Entitlement to an increased rating in excess of 10 percent disabling for right wrist synovitis. The Veteran asserts that he is entitled to the highest available rating for his right wrist synovitis. See December 2016 Notice of Disagreement. The Veteran's service connection claim was granted, and a 10 percent rating awarded for right wrist synovitis in a January 2011 rating decision. This decision then became final as he did not file a Notice of Disagreement and new and material evidence was not received within one year. He then filed a VA Form 21-0966 in June 2015 and a claim for an increased rating in February 2016. See § 3.155(b). As a result, the period on appeal is from one year before the date VA received his intent to file, June 6, 2014, to the present. Right wrist synovitis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5215, for limitation of motion of the wrist. Under Diagnostic Code 5215, limitation of motion of the major and minor wrist with palmar flexion limited in line with the forearm warrants a 10 percent disability rating. Alternatively, a 10 percent disability rating may be assigned for limitation of motion of dorsiflexion of the wrist less than 15 degrees. 38 C.F.R. § 4.71A, Diagnostic Code 5215. Higher disability ratings are warranted only where there is ankylosis of the wrist. Diagnostic Code 5214. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. As the Veteran is right-handed, the minor wrist disability ratings are applicable to that side. Over the period on appeal, he has had one VA examination for his wrist in April 2016. In this examination he had a palmar flexion of 60 degrees and dorsiflexion of 50 degrees. Ankylosis was not present. As such, he would receive a noncompensable rating. The medical evidence submitted by his representative for the hearing is not from the period on appeal and VA treatment records do not show that he ever had ankylosis of the right wrist. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Repetitive use testing was conducted and further loss of range of motion was not noted. The examiner was not able to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time because repeated use over time testing was not conducted. Imaging was available and showed degenerative or traumatic arthritis; however, there was no significant change since the last exam. The Veteran reported having more pain. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." Such testing was completed, and the left wrist had normal range of motion testing results. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Veteran reported flare-ups that caused pain, especially after his ADL's. The examination did not take place during a flare-up and the exam was neither medically consistent nor inconsistent with his statements. Pain was noted on examination and it caused functional loss. Pain with weight bearing was also present and mild to moderate tenderness to the entire right wrist joint. The Veteran was awarded 10 percent service connection in January 2011 under §4.59 because his symptoms did not meet the 10 percent schedular requirements of §4.71a, DC 5215. The wrist range of motion findings do not meet the rating criteria in §4.71a, DC 5215. The record does not contain evidence that wrist dorsiflexion or limitation of palmar flexion met the criteria for any compensable rating based solely on limitation of motion and the Veteran did not have other manifestations of the right wrist joint disability that would be appropriately rated under an alternate diagnostic code. However, the intent of the Rating Schedule is to recognize actually painful, unstable, or malaligned joints with entitlement to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In this instance, the minimum compensable rating for the Veteran's wrist disability under Diagnostic Code 5215 is also the maximum compensable rating under the relevant Diagnostic Code, 10 percent. Therefore, a 10 percent rating is warranted under DC 5215 after applying the principles set forth in 38 C.F.R. §§ 4.40, 4.45, 4.59. The Veteran has never had ankylosis of the right wrist and so is not entitled to the next highest rating under DC 5214. The Board has considered the applicability of other Diagnostic Codes that could support a higher rating but finds none. It finds that the 10 percent rating adequately compensates for the pain, weakness, and associated functional limitations of the right wrist joint. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 2. Entitlement to an increased rating in excess of 10 percent disabling for residuals of a fracture of the 2nd metacarpal of the right hand. Unfortunately, the claim must be remanded for additional medical findings. The Veteran previously was afforded a VA examination for his right hand in April 2016, however, that examination failed to accurately test the Veteran's range of motion. The examiner found that every finger had a normal range of motion except the "long finger." Although the Veteran has stated, including at his June 2021 Board hearing, that his index is finger is the injured finger he cannot move fully and where he has pain, the examiner found that this finger had a normal range of motion. For this reason, the Board finds that the April 2016 is inadequate. The examination may also be too remote in time to accurately rate his disability. Where the exam only finds one finger has an abnormal range of motion, the Veteran testified that he has issues with the strength and agility of multiple fingers and his hand as a whole. He testified that "it isn't just my index finger" during a flare up and that all of his fingers are the same. This represents a pre-decisional duty to assist error as the Regional Office should have provided the Veteran with an accurate examination before issuing a new rating decision under the AMA. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The discrepancy in the April 2016 examination is even more pronounced in the light of his testimony at the Board hearing. As a result, the claim is remanded for a new VA examination. The matters are REMANDED for the following action: 1. Obtain a new examination to evaluate the severity of the Veteran's right-hand disability from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. An explanation for all opinions expressed must be provided. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. The examiner should record the results of range of motion testing for pain on active motion, passive motion, weight-bearing, and non-weight-bearing in light of Correia. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, they should clearly explain why that is so. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups assessed in terms of the degree of additional range of motion loss. In regard to flare-ups (pursuant to Sharp v. Shulkin), if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. The examiner is reminded to review the Veteran's June 2021 Board hearing testimony where he stated that he had difficulty moving all of his finger on the right hand. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Johnston, 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.