Citation Nr: 21007203 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-18 159 DATE: February 9, 2021 ORDER Entitlement to an increased evaluation in excess of 10 percent for an injury to the muscle group VIII with contracture of the right abductor pollicis longus and extensor pollicis brevis tendon with right ganglion cyst removal and history of De Quervain’s tenosynovitis (previously post-operative residuals of right wrist condition involving muscle group IX), is denied. FINDING OF FACT The Veteran’s injury to the muscle group VIII with contracture of the right abductor pollicis longus and extensor pollicis brevis tendon with right ganglion cyst removal and history of De Quervain’s tenosynovitis is primarily manifested by subjective complaints of weakness, stiffness, swelling, giving way, lack of endurance, dull aching, and persistent pain without evidence of ankylosis. CONCLUSION OF LAW The criteria for an increased evaluation in excess of 10 percent for an injury to the muscle group VIII with contracture of the right abductor pollicis longus and extensor pollicis brevis tendon with right ganglion cyst removal and history of De Quervain’s tenosynovitis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321 (b)(1), 4.71a, Diagnostic Code 5308-5215. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active duty service with the Navy from March 1971 to February 1972. This matter is on appeal from a January 2014 rating decision. The Veteran was afforded a January 2019 hearing before the undersigned Judge. A transcript of the hearing has been associated with the claims record. The Board remanded this appeal in April 2019 for additional development. Increased Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Fenderson v. West, 12 Vet. App. 119 (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Any reasonable doubt will be resolved in favor of granting the Veteran’s claim. 38 U.S.C. § 5107 (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. § 3.102. Right wrist disability The Veteran is currently service connected for an injury to the muscle group VIII with contracture of the right abductor pollicis longus and extensor pollicis brevis tendon with right ganglion cyst removal and history of De Quervain’s tenosynovitis evaluated at 10 percent under Diagnostic Code 5308-5215. Previously the Veteran’s right wrist disability was described as post-operative residuals of right wrist condition involving muscle group IX, but a September 2020 rating decision updated the Veteran’s disability to reflect a more accurate diagnosis of the Veteran’s right wrist disability. A hyphenated diagnostic code is used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. For example, under Diagnostic Code 5308-5215, the hyphenated diagnostic code indicates that the right wrist disability under Diagnostic Code 5308 for injuries to the extensors of the carpus, fingers, and thumb and supinator muscles (Group VIII) was the service-connected disability, whereas the residual condition (to which the Veteran’s service-connected right wrist disability was rated by analogy) was limitation of motion of the wrist, which would be evaluated under Diagnostic Code 5215. Disabilities of the wrist are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5214 and 5215. The Board notes that the Veteran is right-hand dominant and, as such, his right wrist is considered the major joint for rating purposes. Diagnostic Code 5214 provides for a 30 percent disability rating with favorable ankylosis in 20 to 30 degrees of dorsiflexion, a 40 percent disability for ankylosis in any other positions, except favorable, and a 50 percent disability rating for unfavorable ankylosis in any degree of palmar flexion or with ulnar or radial deviation. Diagnostic Code 5215 provides for a maximum 10 percent disability rating for dorsiflexion to less than 15 degrees or palmar flexion limited in line with the forearm. The Board notes that normal range of motion in the wrist is 70 degrees of dorsiflexion (extension) and 80 degrees of palmar flexion. See 38 C.F.R. § 4.71a, Plate I. Review of the medical treatment record shows in September 2013 the Veteran complained of pain in the radial wrist when gripping, lifting, and writing. The Veteran stated that he had to hold his pen differently due to the pain and would also drop objects due to pain. The provider found the Veteran with limited thumb and wrist range of motion (ROM) as well as limited pinch and grip strength. Followup visits show the Veteran reporting minimal improvement to pain in his wrist. The Veteran was afforded a January 2014 VA examination for his right wrist and muscles. The Veteran reported that he suffered an injury to his right wrist in service when it got twisted, developed a ganglion cyst, and had it removed. The Veteran stated that after removal of the wrist he has suffered from pain and decreased range of motion (ROM) since. Upon physical examination, the Veteran’s right wrist ROM was palmar flexion to 30 degrees with pain at 30 degrees, and dorsiflexion to 25 degrees with pain at 25 degrees. The Veteran demonstrated 4/5 strength and did not have additional loss of motion with repetition, no flareups, and no evidence of ankylosis. The examiner found the Veteran’s pain, reduced and weakened movement, excess fatigue and atrophy from disuse contributed to functional loss. The Veteran reported that he was unable to use his right hand without pain and described that hit hurt to write; hold a cup; or do anything that involved movement of the right wrist or thumb. The examiner noted the Veteran with a positive Finkelstein test showing pain with full flexion of the thumb into the palm following ulnar deviation of the wrist. X-rays taken in January 2013 showed a fracture at the base of the ulnar styloid wrist with incomplete osseous bridging. In the January 2014 VA examination for muscles, the examiner diagnosed the Veteran with De Quervain’s tenosynovitis of the right wrist and status post right wrist ganglio cyst removal with residual scar and involvement of muscle group IX. The examiner found involvement of group IX for intrinsic movements of the right hand, noting some impairment of muscle tone and loss of muscle substance with right “thenar atrophy” noted. The examiner did not indicate the level of severity. The Veteran stated that he was unable to use the right thumb without pain but did not use any assistive devices. In the May 2014 notice of disagreement (NOD), the Veteran stated that at his January 2014 VA examination he felt severe pain while bending his right wrist during the examination and “4 months later I still feel the effects of the exam.” The Veteran stated that he had trouble doing anything due to the pain, could not hold things with his right hand, and that his disability had worsened as he was in pain all the time. In June 2015 and December 2015, the Veteran reported pain in his right wrist and forearms for several years; the Veteran stated that since his ganglion cyst removal in 1976 he has suffered from flareups with slowly worsening pain. The Veteran stated that he wore a custom splint and that activity increased his pain. Upon physical examination the treating provider found deformity of the first dorsal compartment, very little flexion of the right thumb and assessed the Veteran with extensor contracture of the right thumb. X-ray tests were found to be negative other than a “chronic ulnar styloid avulsion.” The Veteran was afforded a March 2016 disabilities benefits questionnaire (DBQ) examination. The examiner diagnosed the Veteran with chronic right wrist strain; ganglion cyst surgery on the right wrist; de Quervain’s syndrome; and chronic partial avulsion of the ulna styloid, old fracture. The Veteran reported flareups and functional impairment where any use of his right wrist would result in increased pain to the point where he would drop simple things such has coffee cups. Upon physical examination, the Veteran’s right wrist ROM was palmar flexion to 25 degrees, and dorsiflexion to 25 degrees. Pain was noted with palmar flexion and dorsiflexion. The provider found evidence of pain with weight-bearing and reduced ROM with pain. The provider also noted that there was decreased strength; moderate to severe pain upon palpation of the wrist; and very limited gripping strength secondary to pain. The provider noted that they were unable to determine functional impairment with repeated use over time or flareups; and such determination would require “pure guessing or speculation.” The Veteran demonstrated 5/5 strength with no reduction in strength or evidence of atrophy or ankylosis. The provider found the Veteran’s symptoms resulted in functional impairment due to “pain and limited ROM of the wrist…[especially] the thumb (secondary to de Quervain’s syndrome)”. The provider found the Veteran was very limited with any use of the right hand with reports of dropping cups. In an April 2016 form 9 statement, the Veteran asserted that at the January 2014 examination he did not deny flareups but instead “put up with them until I sought treatment at my expense.” The Veteran reiterated that he had severe limitation of functional ability, asserted the January 2014 examiner’s measure of strength was subjective or mechanically measurable, and that the repetitive use testing was “not comparable to any real-life use or movement.” The Veteran stated that he suffered from sharp, stabbing, and severe pain while using his right thumb and wrist that “makes my right hand almost useless” with severe limitation of functional ability. The Veteran stated that he is unable to grab things with his right hand “which is why I fell and broke my ulnar styloid.” The Veteran also stated that the March 2016 VA examination that measured strength was subjective and consisted of “squeezing the examiner’s fingers.” The Veteran stated that his original injury was a severe twisting and wrenching of the right wrist which caused a ganglion cyst to develop and require a surgical procedure to remove. At the Veteran’s January 2019 hearing, the Veteran’s representative stated that the Veteran’s claim was not about his joint but the tendon that was affected by the ganglion cyst removal. The representative described the Veteran’s tendon as “taught…like a rubber band stretched all the way” and also that the Veteran “takes exception to the C&P examination…and the Statement of the Case (SOC) interpretation” with the examination. The Veteran stated that at his VA examination he pushed his ROM further than he should have with the intent “to see how far I could take it without super severe pain.” The Veteran noted that he was able to make a fist with his fingers but not with his thumb. The Veteran stated that he uses a wrist brace whenever he had flareups that occur “when I do much of anything,” The Veteran described during flareups when using his right hand the pain would become so severe that he would drop thing such as books or cups. The Veteran stated that he would have flareups every three months that would last two to four months. The representative pointed out during the hearing that he observed the Veteran’s wrist was “a little off-shaped” but it was unclear if this appearance was due to atrophy of muscle. The Veteran testified that when he was younger and more active he had observed his right wrist area where he had the procedure done “turn purple … like a bruise” without hitting anything; the Veteran stated that it was because his “tendon being so tight that it would actually turn purple” and later swell up. The Veteran stated that he has a severe reduction in strength in his wrist and could only lift 10 pounds at most; the Veteran noted that he has learned to not use his thumb while picking up things. The Veteran stated that ten years ago around 2010 he had a bad flareup and went to physical therapy with a private provider for three times a week for two months where they also made a brace for him as well. The Veteran was afforded an August 2020 VA examination to evaluate his wrist, hand, muscles, and peripheral nerves. The Board first notes that in the examination for peripheral nerves, the Veteran denied having a nerve condition associated with his right wrist disability; the Veteran reported only a “worsening of my botched-up surgery in the service.” As such, the examiner did not diagnose the Veteran with any peripheral nerve condition. In the examination for muscles, the examiner did not diagnosis the Veteran with a muscle injury but noted a diagnosis for abductor pollicis longus and extensor pollicis brevis tendon contracture. The examiner found involvement of Group VIII muscles involving the extensors of the wrist, fingers and thumb but found no symptoms of weakness, fatigue, pain or impairment of coordination. The Veteran demonstrated full strength with no atrophy. In the examination for hand and fingers, the Veteran was diagnosed with right thumb extension contracture. In the examination for wrist, the Veteran was diagnosed with right wrist ganglio cyst removal with residual pain. The Veteran reported flareups every three months or so when he has to wear his brace; the Veteran noted that it was very painful to open doors and he could no longer open jars, use his wrists to drive, write, lift or carry. Upon physical examination, the Veteran’s right wrist ROM was palmar flexion to 55 degrees, and dorsiflexion to 41 degrees. Pain was noted with all motions. The examiner found no evidence of pain with weight bearing. The Veteran was able to perform repetitive testing without loss of motion. The examiner found the examination medically consistent with the Veteran’s statements describing function loss with repetition over time and with flareups. The Veteran demonstrated full strength with no evidence of atrophy or ankylosis. In the examinations, the Veteran reported that following his separation from service he was “able to do everything” with his hand wrist and that in the last “few years” he noticed increased difficulty in grasping and lifting with his right hand. The Veteran was noted to deny any peripheral nerve disorder and was “adamant” that his wrist impairment was due to “botched up surgery” while in service. The examiner noted there was no Dequervain’s found at the current examination and there were no other instances of the condition documented in the claims file. The examiner stated “this is not to say that the [January 2014] exam was wrong, just that there are no findings today or on the documentation as far back as 1972 that the Veteran’s Dequervain’s tenosynovitis, hence, this diagnosis cannot be rendered.” The examiner noted review of the claims file showed x-ray reports from 2013 showing a styloid fracture of the ulna. The Veteran stated that he sustained a fall in 2013 which injured his ulna and was seen in the emergency room for treatment. However, the examiner noted that the claims record did not show any visits to the emergency room for a fracture and that the styloid fracture had been documented on multiple prior radiographs and other physicians did not find it relevant to the Veteran’s claimed wrist impairment. The examiner found that the Veteran’s condition had improved since the onset of his disability. The examiner found that the claims record did not document any surgical complications from the Veteran’s surgical procedure in 1976 and followup evaluations showed normal ROM and no residual complications other than subjective complaints of pain with flexion and without functional limitation. The Veteran reported that he saw a doctor who told him that his surgery was “botched up”; however, the examiner did not find any documentation of this visit or such statement in the claims record. The Veteran reported his current symptoms as difficulty using his right hand for writing, using tools, and grasping. The Veteran stated that he uses a brace all the time with minimal relief to residual wrist pain. The Veteran denied any flareups in his hand, finger or thumb joints. The Veteran reported functional impairment where he had a “hard time sometimes with writing and grasping and even opening jars.” Upon physical examination the Veteran was noted to have difficulty holding on his pen to write and with reduced ROM in his thumb MCP flexion. The Veteran demonstrated 5/5 strength with no atrophy and no evidence of ankylosis. The examiner remarked that the Veteran’s diagnosis at this examination was corrected to reflect the information between the Veteran’s exam and his claims file. The examiner noted that the Veteran’s abductor pollicis longus and extensor pollicis brevis tendon were involved as the two muscles providing extension of the thumb as documented in 1976. The examiner found that these corresponded to Group VIII and not Group IX as previously documented; the examiner found it unclear why Group IX was used and the claims record documents involvement of the extensor muscles of the thumb. The examiner noted that “given the Veteran had a ganglion cyst removed from the right wrist … to include Group IX, the intrinsic hand muscles, lacks anatomical foundation as this would imply that all hand muscles on the right would be affected even though they are nowhere near where the wrist scar is.” As such, the examiner corrected the diagnosis to pertain to the thumb extension tendons. The examiner noted that prior evaluations in 1973, 1974 and 1976 noted pain with wrist movement and with noted pain in all planes of ROM at the current examination, the examiner found the pain to be a residual from the Veteran’s surgery and not due to another wrist injury. The examiner further noted that there were no Group IX muscles in the wrist or that were affected because “this is not foundational and not anatomically possible” and therefore not part of the wrist portion of the examination. In September 2020, the Veteran indicated that he had no more evidence to submit in support of his claim. After review of the evidence of record, the Board finds an evaluation in excess of 10 percent for the Veteran’s right wrist disability is not warranted. As noted above, The Veteran is currently in receipt of the maximum schedular rating available under Diagnostic Code 5215 for wrist disabilities for the entire appeal period. Further, a higher rating is not warranted under Diagnostic Code 5214 for ankylosis of the wrist as the record contains no finding of favorable or unfavorable ankylosis upon medical examination, and the Veteran has not contended otherwise. The Board has considered whether a higher or separate rating is warranted under any other Diagnostic Codes, specifically Diagnostic Code 5308. Diagnostic Code 5308 provides ratings for Muscle Group VIII, which affects the following functioning: extension of wrist, fingers, and thumb; abduction of thumb. Under Diagnostic Code 5308, slight impairment for both dominant and non-dominant hands is assigned a noncompensable rating, moderate impairment is assigned a 10 percent rating, moderately severe impairment is assigned a 20 percent rating, and severe impairment requires a 30 percent rating in the dominant hand and a 20 percent rating in the non-dominant hand. A Note following Diagnostic Code 5308 specifies that the hand is so compact a structure that isolated muscle injuries are rare, being nearly always complicated with injuries of bone, joints, tendons, etc. Therefore, it calls for rating on limitation of motion with a minimum of 10 percent. Again, however, the Veteran is already in receipt of the maximum rating available based on limitation of motion for wrists during the entire appeal period, and to separately rate the Veteran for problems with limitation of extension of the wrist, as would be the case if a rating under Diagnostic Code 5308 were assigned, would constitute impermissible pyramiding as limitation of dorsiflexion (extension) of the wrist is clearly contemplated in the ratings assigned under Diagnostic Code 5215. See 38 C.F.R. §§ 4.14, 4.71, 4.71a, 4.73, Diagnostic Codes 5215, 5308. Additionally, an alternative rating would also not be warranted for either wrist if Diagnostic Code 5308 was used instead of Diagnostic Code 5215, as the equivalent of a moderately severe muscle injury is not shown by the record. While weakness might have been noted upon examination, no examination has indicated that such weakness changed the range of motion, which was not itself even to a compensable degree at any point during the appeal. Lack of endurance did not affect the joint at that time. In fact, the measured ROM at the August 2020 VA examination was improved in comparison to the March 2016 VA examination ROM results and the Veteran demonstrated full strength with no evidence of atrophy in both examinations. As such, the preponderance of the evidence is against a finding that the symptomatology is the functional equivalent of at least a moderately severe muscle injury. The Board has also considered diagnostic codes pertaining to neurological symptomology, however the Veteran in August 2020 denied having any peripheral nerve disability or neurological impairment related to his right wrist disability and no diagnosis was found by the examiner or indicated in the claims record. Accordingly, because the Veteran’s wrist disabilities are not manifested by a degree of incomplete paralysis of any of the applicable nerves in the upper extremities, neither an increased nor a separate rating based upon neurological symptomology is warranted. The Board is sympathetic to the Veteran and representative lay statements that his right wrist disability is worse than currently evaluated and those statements have been considered. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to them through their senses. Layno v. Brown, 6 Vet. App. 465 (1994). However, as lay persons, they do not have the training or expertise to render or identify a specific level of disability according to the appropriate diagnostic codes of the rating schedule as this is a medical determination that is complex. Such competent evidence concerning the nature and extent of the Veteran’s disability have been provided by the medical personnel who have examined the Veteran during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical examination reports and clinical records directly address the criteria under which the disability is evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability rating. As such, the Board finds that the preponderance of the evidence is against the award of a disability rating in excess of 10 percent for the right wrist disability. As a preponderance of the evidence is against the award of an increased rating, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.