Citation Nr: 21009977 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-01 861 DATE: February 23, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for left wrist radius fracture status post open reduction internal fixation (ORIF) with tenosynovitis, is denied. REMANDED Entitlement to a disability rating in excess of 20 percent from September 27, 2018 for a back disability is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT 1. The Veteran’s left wrist radius fracture status post ORIF with tenosynovitis, is manifested by pain and limited motion; the wrist is not ankylosed. CONCLUSION OF LAW 1. The criteria for a rating in excess of 10 percent for left wrist radius fracture status post ORIF with tenosynovitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5024-5215. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 2007 to April 2011. These matters come to the Board of Veterans’ Appeals (Board) on appeal from October 2014 and October 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s claim for a disability rating in excess of 20 percent from September 27, 2018, for a back disability, was most recently before the Board April 2019. At the time the Board denied entitlement to an initial rating in excess of ten percent for a back disability, prior to September 27, 2018, and remanded entitlement to a rating in excess of 20 percent from September 27, 2018, to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. The Veteran’s claim for a disability rating in excess of ten percent for left wrist radius fracture status post ORIF with tenosynovitis, was most recently before the Board in September 2019 when it was remanded to the Board by the United States Court of Appeals for Veterans Claims (Court) and the Board remanded it to the AOJ. In April 2019, the Court granted a Joint Motion for Partial Remand (JMR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board’s June 2018 decision as it related to his claim for a compensable rating for his left wrist radius fracture status post ORIF. In July 2020 the RO increased the Veteran’s rating to ten percent disabling, a disability rating in excess of ten percent remains on appeal. As discussed below the Veteran’s claim for TDIU is part and parcel of his claim for a disability rating in excess of 20 percent from September 27, 2018 for a back disability. See, Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Rating 1. Entitlement to a disability rating in excess of ten percent for left wrist radius fracture status post open reduction internal fixation (ORIF) with tenosynovitis. The Veteran seeks to establish a higher rating for his left wrist radius fracture status post ORIF with tenosynovitis. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If 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. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). The Veteran’s left wrist radius fracture status post ORIF with tenosynovitis, is rated under 38 C.F.R. § 4.71a, DCs 5024-5215. Under DC 5024, disorders are to be rated as limitation of motion of affected parts as degenerative arthritis, as set forth in 38 C.F.R. § 4.71a, DC 5003. In turn, DC 5003 requires that arthritis be evaluated on the basis of limitation of motion, if a compensable rating is warranted based on the effect of arthritis on the affected joints. When limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Diagnostic Codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Under rating criteria pertaining to limitation of motion of the wrist, DC 5215 provides that a maximum 10 percent rating is assigned for limitation of dorsiflexion of the major or minor wrist to less than 15 degrees, or limitation of palmar flexion in line with forearm. 38 C.F.R. § 4.71a. The Veteran’s wrist strain and resulting limitation in motion are evaluated under the criteria set forth at 38 C.F.R. § 4.71a, Diagnostic Code 5215. The maximum available rating available under that diagnostic code is 10 percent. The Veteran is currently in receipt of the maximum schedular rating for limitation of motion of his left wrist. 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). Higher ratings are available for ankylosis of the wrist. See 38 C.F.R. § 4.71a, Diagnostic Code 5214. The Veteran was afforded VA examinations in July 2012, April 2017, and December 2019. None of those examinations showed the Veteran had ankylosis of the left wrist. As such a higher rating under DC 5214 is not warranted. Because the Veteran is already entitled to the maximum schedular rating for limitation of motion of his left wrist, and the record does not show the presence of ankylosis of the left wrist, a disability rating in excess of ten percent is not warranted and his appeal must be denied. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 20 percent from September 27, 2018 for a back disability. Although the Board sincerely regrets the additional delay, it does not appear that there has been substantial compliance with the Board’s prior remand directives. This issue was most recently before the Board in April 2019. The Board remanded the issue so that The Veteran could be afforded an updated VA examination. The Board directed, in part, that if pain on motion is observed, the examiner should indicate the point at which pain begins. The Veteran was afforded a VA examination of his back in December 2020. The examiner noted there was pain noted on examination, and that forward flexion, right lateral flexion, and left lateral flexion exhibited pain on range of motion examination. However, the examiner did not indicate the point at which pain began. As such, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. TDIU is remanded. As discussed above the Veteran was afforded a VA examination in December 2020 in relation to his claim for a disability rating in excess of 20 percent from September 27, 2018 for a back disability. The examiner stated that due to the Veteran’s thoracolumbar spine disability he was unable to work, and unable to tolerate prolonged sitting or standing. This evidence reasonably raises a claim for TDIU as part and parcel of his claim for increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As of yet the AOJ has yet to adjudicate, or develop, the Veteran’s claim for a TDIU as such a remand is necessary. The matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any relevant VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issue on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 3. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his back disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint (in the case of the right shoulder). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. If pain on motion is observed, the examiner should indicate the point at which pain begins. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. The AOJ should develop, and adjudicate, the Veteran's claim for TDIU, which was raised as part of his claim for an increased rating for his back disability. The Veteran should be provided notice of the requirements to establish a claim for TDIU. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, 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.