Citation Nr: 21006205 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-03 247 DATE: February 3, 2021 ORDER Entitlement to an increased rating for residuals of excision of a left wrist ganglion cyst, rated as 10 percent disabling is denied. FINDING OF FACT The Veteran’s residuals of excision of a left wrist ganglion cyst, post excision of recurrent ganglion cysts, is manifested by pain; limited motion of the wrist: dorsiflexion less than 15 degrees; and palmer flexion limited, but not in line with forearm. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for residuals of excision of a left wrist ganglion cyst, post excision of recurrent ganglion cysts, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, 4.118 Diagnostic Codes 5015, 5214, 5215, 7819. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1975 until his honorable discharge in June 1977. This matter comes before the Board of Veterans’ Appeal (Board) on appeal from July 2012 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran did not file a formal claim for increased rating, but instead wrote to the RO about his claims in general. The RO reached out to the Veteran and clarified that he did in fact wish to pursue an increased rating claim for his left wrist disability with a period on appeal starting on March 31, 2010, one year prior to the receipt of the Veteran’s letter. In January 2013, the Veteran testified before a Decision Review Officer at the RO; and, in December 2015, he testified at a video conference before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the e-file. In June 2018, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to obtain a VA examination addressing the severity of the Veteran’s left wrist disability. 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). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. Entitlement to a non-initial rating for residuals of excision of a left wrist ganglion cyst, post excision of recurrent ganglion cysts, in excess of 10 percent The Veteran asserts that he has completely lost the use of his left hand due to his service-connected residuals of excision of a left wrist ganglion cyst, post excision of recurrent ganglion cysts. He requests through his representative that the Board “consider rating the wrist as ankylosed by analogy or else for extraschedular rating.” The Veteran argues that the symptoms of his left wrist disability are worse than contemplated by the currently assigned 10 percent rating. The rating is assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5215, which assigns a maximum rating of 10 percent for palmar flexion limited in line with forearm or dorsiflexion less than 15 degrees for the wrist. A 30 percent rating under Diagnostic Code 5214 is available for ankylosis, favorable in 20 to 30 degrees dorsiflexion. "Ankylosis" is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary p. 93 (30th ed. 2003). The Veteran’s first VA examination during the period on appeal occurred in March 2012, where the Veteran was diagnosed with a ganglion cyst in the left wrist, synovitis in the left wrist, and bilateral carpal tunnel syndrome. This exam as well as later VA examinations note that he is left hand dominant. The Veteran had ganglion cysts removed twice while he was in the Navy and has experienced swelling, pain, numbness, and tingling since the second surgery. The March 2012 exam found that the Veteran’s left palmar flexion ends and his pain begins at 40 degrees. Likewise, his dorsiflexion ends and his pain begins at 25 degrees. Whereas, the right wrist range of motion was 70 and 50 respectively with no pain. After repetitive use, his left palmar flexion ended at 30 and his dorsiflexion ended at 25; this was 65 and 40 on the right. This change after repetitive use reflected less movement than normal in both wrists and weakened movement and pain on movement in the left wrist. No ankylosis was noted. The exam noted that the Veteran had pain on palpation over palmer aspect of the left wrist due to his arthroscopic surgery during service to remove the ganglion cyst. Diagnostic testing found that there were no fractures or dislocations, no degenerative changes, and the left wrist appeared normal. The Veteran reported that he is left-handed and that he could not grip anything heavy or hold anything more than ten pounds. As noted here, the Veteran still had some left-hand functionality and his range of motion was within the 10 percent rating criteria. No ankylosis was present so the next higher rating was not warranted. The Veteran’s next VA examination occurred in May 2015. His diagnoses were listed as ganglion cyst and strain of the left wrist. The Veteran reported that he has had continued pain since his last exam and that tingling and numbness in his fingers has developed over the last year. He again endorsed flare-ups, stating that there was increased pain, difficulty opening his fingers, and pain when bending his wrist. Although the range of motion of the right wrist was abnormal, the examiner found that it was the normal range of motion for this Veteran. The left wrist had a range of motion as follows, palmar flexion of 50 degrees, dorsiflexion of 40 degrees, ulnar deviation of 10 degrees, and radial deviation of five degrees. This caused functional loss as did his pain. The examiner noted pain with weight bearing and tenderness or pain on palpation, but no crepitus. There was no additional loss with repetitive use testing in either wrist. The examiner could not say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time as the Veteran was not having a flare-up. Loss of muscle strength in the left wrist was noted and the examiner found that “weakness partially due to pain, more likely due to his severe distal peripheral polyneuropathy based on emg report.” Again, no ankylosis was found. The Veteran’s disability still met the 10 percent criteria at that time. The examiner found that although the Veteran was not able to do manual labor, he could still use his left wrist for tasks like answering phones or writing. The next higher-level rating is not warranted based on this evidence. The Veteran’s next VA examination in April 2019 again found the Veteran to be in pain. He reported his pain to be an eight to nine out of 10. His palmer flexion was 20, dorsiflexion was 10, ulnar deviation 15, and radial deviation 10. Crepitus and ankylosis were not found. The examiner also found that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time, but it did with flare-ups. However, his range of motion did not change. Muscle atrophy was not present, and his muscle strength was normal. Again, this places the Veteran within the 10 percent rating criteria. The Veteran’s most recent VA examination took place in July 2020 where his diagnoses were listed as tendonitis of the wrist and ganglion cyst. He did not receive or describe any treatment for his disability between the 2019 and 2020 examinations, despite his reports of increased pain. The examiner found the left wrist range of motion to be as follows, palmer flexion of 5 degrees, dorsiflexion of 15 degrees, ulnar deviation of 5 degrees, and radial deviation of 15 degrees. His range of motion during a flare-up was worse with palmer flexion at 10 degrees, dorsiflexion at negative 10 degrees, and ulnar and radial deviation at 0 degrees. The Veteran reported that his wrist was generally immobile during a flare-up. The examiner noted that this “constituted very significantly limited ranges except for radial deviation such that most functions requiring strength of the wrist and hand would at least as likely as not be significantly limited at least to some degree. The Veteran’s flare-ups occur several times a day, four to five times a week, for 15 to 30 minutes. The examiner found that the Veteran would be severely limited in his employment and ability to function. The Veteran is currently in receipt of the maximum schedular rating for limitation of motion of his left wrist disability. As such, a higher rating cannot be awarded on the basis of functional impairment due to manifestations such as flare-ups and pain with repeated use. See, e.g., Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (indicating that consideration of functional loss due to pain under 38 C.F.R. § § § 4.40, 4.45, 4.59 and DeLuca v. Brown, 8 Vet. App. 202 (1995) is not required if the claimant is already in receipt of the maximum schedular rating for limitation of motion under the pertinent diagnostic code). The Veteran’s left wrist disability and resulting limitation in motion are evaluated under the criteria set forth at 38 C.F.R. § 4.71a, Diagnostic Code 5215. The maximum rating available under that diagnostic code is 10 percent for any limitation of motion. Here, the July 2020 VA examination demonstrated that the Veteran had dorsiflexion less than 15 degrees. These findings warrant a 10 percent rating under Diagnostic Code 5215, which is the maximum rating available. As such, a higher rating cannot be awarded on the basis of functional impairment due to manifestations such as flare-ups and pain with repeated use. See, e.g., Johnston and DeLuca, supra. The Board has also considered the application of other Diagnostic Codes. Although higher ratings are available disabilities manifested by ankylosis of wrist (see 38 C.F.R. § 4.71a, Diagnostic Codes 5214), as noted above, the record does not establish the presence of ankylosis. Accordingly, there is no basis for the assignment of a higher evaluation under these codes. In describing the disability above, no medical professional nor the Veteran has attributed any exceptional or unusual symptoms of disability that are not adequately addressed in the criteria applied here pertaining to limitation of motion as well as painful motion. In addition, there is no evidence of marked interference with employment or frequent periods of hospitalization. The disability is appropriately contemplative and compensated within the schedular rating. 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). 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.