Citation Nr: 21007756 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 14-41 661 DATE: February 10, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for status post left wrist fracture with posttraumatic degenerative arthritis (left wrist disability) is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT Throughout the appeal period, the Veteran’s left wrist disability has been rated at the maximum schedular level for limitation of motion in wrist (major or minor); ankylosis of the left wrist has not been shown. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for status post left wrist fracture with posttraumatic degenerative arthritis disability have not been met at any point throughout the duration of this appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5215. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1998 to January 2003 in the United States Navy. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Board remanded the claims of entitlement to service connection for an acquired psychiatric disorder and a rating in excess of 10 percent for left wrist disability. Except as addressed by the below remand as to the psychiatric claim, the Board finds there has been substantial compliance with the Board prior remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Entitlement to an initial rating in excess of 10 percent for left wrist disability. The Veteran contends that his left wrist disability warrants an initial rating higher than 10 percent disabling. In a September 2016 statement, the Veteran reported left wrist pain limitation of motion noting he could barely move his wrist up and down and could no longer move it side to side. See VA Form 21-4138 (September 2016). The Veteran’s left wrist disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5215, for limitation of motion. The Veteran is right-handed; therefore, his left wrist disability involves the minor joint. Under the Schedule of Ratings for the wrist, limitation of motion of the wrist with palmar flexion limited in line with forearm or dorsiflexion less than 15 degrees warrants a 10 percent rating either the major or minor wrist joint. 38 C.F.R. § 4.71a, DC 5215. Under DC 5214, where there is ankylosis of the wrist, favorable or unfavorable, the schedule provides ratings for the minor joint from 20 to 40 percent. See 38 C.F.R. § 4.71a, DC 5214. Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). The Board concludes that the preponderance of the evidence is against a rating in excess of 10 percent for left wrist disability with limitation of motion and no ankylosis. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5215. The evidence of record establishes that the Veteran has left wrist limitation of motion. Indeed, June 2016 and September 2020 VA examinations of the left wrist disclose limitation of motion. Further, these examination reports show that there is no ankylosis of the left wrist joint. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” See Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Neither the lay nor the medical evidence during the appeal period shows ankylosis. In this case, because the currently assigned 10 percent rating is the maximum rating and ankylosis was not shown by the evidence, it is not necessary for the Board to consider functional loss, including flare-ups. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (“...the appellant is already receiving the maximum disability rating available under DC 5215 and, thus, remand is not appropriate. “). See also, Spencer v. West, 13 Vet. App. 376, 382 (2000); Hollenquest v. Wilkie, No, 17-4846 (Vet. App. May 15, 2019) (explaining why Johnston and Spencer allow for denial of a claim for a higher rating based on ankylosis without considering flare-ups); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). Further, even were the Board to accept that a higher rating may be assigned based on the functional impairment equivalent of ankylosis, neither the lay nor the medical evidence shows that the Veteran experienced functional impairment equivalent to ankylosis. In this regard, the Board, first, observes that the medical evidence is negative for a finding of ankylosis of the left wrist. Next, the preponderance of the evidence is against finding that left wrist symptomatology is equivalent to ankylosis. The Veteran's left wrist was examined two times during the appeal period; the examinations, overall, showed that the Veteran's left wrist was not manifested by immobility and consolidation of the wrist joint on the left. Indeed, the VA examinations reflect. Although the September 2020 VA examination indicates there was functional loss due to pain, weakness, and lack of endurance, there was, nonetheless, retained range of motion in all planes; and dorsiflexion to 40 degrees. See 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59; See DeLuca v. Brown, 8 Vet. App. 202 (1995). Lastly, any inadequacy in the VA examinations as addressing flare-ups is harmless error given flare-ups are not for consideration when the disability is rated at the highest schedular level based on limitation of motion. See Spencer, supra; Hollenquest v. Wilkie, No, 17-4846 (Vet. App. May 15, 2019). The Board has considered whether a higher disability evaluation is available under any other potentially applicable provision of the Rating Schedule. However, a higher evaluation is not warranted based on any other provision of the Rating Schedule. Accordingly, a rating in excess of 10 percent for left wrist disability is denied. There is no basis to stage the rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). See Fenderson v. West, 12 Vet. App. 119, 126 (1999). There is no doubt to resolve. 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD is remanded. The Veteran contends that his acquired psychiatric disability is due to service. He argues that he has experienced a “traumatic event” as a result of an accident where his left hand was injured while being trapped in airplane landing gear. See NOD (September 2014). The Veteran submitted a correspondence from a fellow-servicemember, Mr. JS, who described a May 2002 incident where the Veteran’s left hand was injured due to an aircraft landing gear malfunction. See Buddy/Lay Statement (September 2014). Here, the Board’s prior remand directives were not substantially complied with. In this regard, the Board directed, among other things, that the examiner opines on whether any diagnosed psychiatric disorder at least as likely as not (50 percent probability or greater) began in or is the result of military service. Although the opinion addressed the etiology of diagnosed PTSD, it did not address any other psychiatric disorder diagnosed during the appeal period. The Board’s prior remand noted that the Veteran had been diagnosed with depression and, indeed, a February 22, 2019 VA treatment records shows that the Veteran carried diagnoses that included depression. Importantly, service connection may be granted for a disability shown and resolved during the appeal period. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the “current disability” requirement is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim" and reversing Board's denial of service connection where disability resolved itself during pendency of appeal). Further, the VA medical opinion is inadequate because, while it reflects another etiology or cause for the Veteran’s PTSD, it does not directly answer whether his PTSD is due to, at least as likely as not, the traumatic left wrist injury that occurred in service. The opinion assumed that there can be only one cause of the Veteran's PTSD and that in-service traumatic left wrist injury incident could not be a contributory cause. See, e.g., Taylor v. McDonald, 27 Vet. App. 158, 166 (2014). Given the above, remand is necessary for an examination and medical opinion to address whether any acquired psychiatric disorder diagnosed in accordance with the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DMS-V), shown at any time during or approximate to the filing of the claim, to include PTSD and depression, began in service or is otherwise related to in-service injury or disease, to include the traumatic left wrist injury incident that occurred in service. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (When VA provides the Veteran with an examination in a service connection claim, the examination must be adequate.) The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from February 2019 to the Present. 2. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of acquired psychiatric disorder diagnosed in accordance with the DMS-V, shown at any time during or approximate to the filing of the claim, to include PTSD and depression. The claims file should be reviewed along with a copy of this remand. Detail the Veteran’s reported symptoms in service and thereafter, including the nature, onset, progression and severity of his reported symptoms. If there is any medical reason to accept or reject the proposition that his reported symptoms in service and thereafter represented the onset of a current psychiatric disability, this should be noted. (a.) To the extent that the Veteran has or had a diagnosis for PTSD during or approximate to the appeal period, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. Indicate whether the claimed in-service stressor (i.e. traumatic left wrist injury incident) is sufficient to support a diagnosis of PTSD and, if not, why. Explain. (b.) To the extent that the Veteran has or had a diagnosis for any other acquired psychiatric disorder during or approximate to the appeal period, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include the in-service traumatic injury to the Veteran’s left wrist. (Continued on next page) 3. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. A. Macek, 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.