Citation Nr: 21012685 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 16-19 651A DATE: March 4, 2021 ORDER Entitlement to a rating higher than 30 percent for post fusion of the carpal bones of the right wrist with arthritis is denied. Entitlement to a separate 20 percent rating for nonspecific neuralgia of the right hand, involving the radial nerve, is granted. REMANDED Entitlement to service connection for degenerative joint disease of the right foot, other than the first metatarsophalangeal (MTP) joint (claimed as second and third MTP joints), to include as secondary to a service-connected disability, is remanded. FINDINGS OF FACT 1. The Veteran’s right wrist disability is not manifested by ankylosis in any other position except favorable, or unfavorable ankylosis in any degree of palmar flexion, or with ulnar or radial deviation. 2. The Veteran’s service-connected right wrist disability is manifested by mild incomplete paralysis of the radial nerve, diagnosed as nonspecific neuralgia of the right hand. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 30 percent for post fusion of the carpal bones of the right wrist with arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.71a, Diagnostic Code 5214. 2. The criteria for a separate 20 percent rating for nonspecific neuralgia of the right hand, involving the radial nerve, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.124a, Diagnostic Code 8514. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1978 to February 1998. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from October 2014 and November 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in December 2018 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In April 2019, the Board remanded these claims for additional development. Increased Rating 1. Entitlement to a rating higher than 30 percent for post fusion of the carpal bones of the right wrist with arthritis. Service connection for right wrist fusion of the scaphoid, trapezoid and trapezium bones was granted in an October 1998 rating decision, at which time a noncompensable rating was assigned, effective March 1998. In a January 2003 rating decision, the disability rating for the Veteran’s right wrist disability was increased to 30 percent, effective August 2002. A claim for entitlement to an increased rating was received in April 2010. In a November 2014 rating decision, the RO decreased the Veteran’s rating to 10 percent, effective February 2015. In an April 2019 decision, the Board found the reduction to be improper, and the 30 percent rating was restored, effective February 1, 2015. The Veteran is currently rated as 30 percent disabled under Diagnostic Code 5214, for ankylosis of the wrist. The criteria for evaluating the wrist make a distinction between the major (dominant) and minor (non-dominant) extremity. Here, the record reflects that the Veteran is right-handed, and, thus, his right wrist is the major extremity. See, e.g., December 2019 VA examination report. Normal range of motion for the wrist is dorsiflexion (extension) to 70 degrees, palmar flexion to 80 degrees, radial deviation to 20 degrees, and ulnar deviation to 45 degrees. 38 C.F.R. § 4.71, Plate I. Under Diagnostic Code 5214, for major extremities, a 30 percent rating is warranted for favorable ankylosis in 20 to 30 degrees dorsiflexion; a 40 percent rating is warranted for ankylosis in any other position except favorable; and a 50 percent rating is warranted for unfavorable ankylosis in any degree of palmar flexion, or with ulnar or radial deviation. Extremely unfavorable ankylosis will be rated as loss of use of hands under Diagnostic Code 5125. 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 and, therefore, not be reflected on range-of-motion testing. 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). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the Veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). 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 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.” 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. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. The Veteran was afforded a VA examination in May 2010. The Veteran reported gaining some movement back after surgery, but the swelling stayed and was worse. He indicated he was told by the physician to put ice on it and take medication. The Veteran reported suffering from pain, weakness, stiffness, swelling, locking, fatigability and lack of endurance. He reported severe flare-ups off and on every day, due to overuse, which moderately impaired his daily activities. On examination, the Veteran had 50 degrees of dorsi-flexion, 30 degrees of palmer flexion, 5 to 8 degrees of radial deviation and 5 to 10 degrees of ulnar deviation. There was painful motion, edema, weakness, and tenderness on examination. There was no additional loss of range of motion after repetitive use. The examiner noted the Veteran was able to perform activities of daily living and work but has functional limitations with use of the right wrist as well as problems sleeping due to pain. The Veteran was afforded a VA examination in March 2016. He reported constant pain, weakness, and paresthesias. The Veteran indicated that the repetitive use of tools at his job increased his pain and stiffness. He stated his wrist always felt cold and he was sensitive to weather changes. He indicated he used a cock-up wrist brace as well as a sleeve to keep his hand warm. The Veteran did not report any activities of daily living or occupational limitations but did have increased symptoms at work as described. The Veteran did not report any flare-ups. Examination revealed a palmar flexion to 20 degrees, dorsiflexion to 40 degrees, ulnar deviation to 15 degrees and radial deviation to 10 degrees. The examiner noted that the Veteran had decreased ability to perform basic wrist functions that require normal range of motion. Pain was noted on palmar flexion, dorsiflexion, ulnar deviation and radial deviation. There was objective evidence of localized tenderness to palpation of the entire wrist. The Veteran was able to perform repetitive use testing without any additional loss of range of motion. Muscle strength was 5/5, with no atrophy. There was no ankylosis. The Veteran was noted to regularly use a brace. The examiner indicated that the Veteran was somewhat limited in his ability to engage in activities requiring full wrist range of motion, as well as repetitive motion activities; however, he was still performing full time aviation maintenance by making adjustments when using tools, as sometimes he has pain and weakness that limits his ability to perform certain tasks the normal way. The examiner indicated that at this time, the Veteran did not report any reduction in his overall ability to perform his job full time and he had adjusted his forearm/arm position to increase mechanical advantage when grasping certain tools or aircraft components. The Veteran was afforded a VA examination in December 2019. The Veteran reported his wrist locks up in cold weather and that he has one brace for the daytime and a bigger brace for nighttime. He reported constant throbbing pain on the dorsal wrist, sharp pain when he tries to move the wrist, and that he cannot make a tight fist since surgery. The Veteran indicated that his wrist does not affect activities of daily living, although he must use his left hand for bowel movements and is not able to button shirts. He reported that his right hand feels cold and he wears a thermal glove at work when cold. The Veteran indicated that his right hand was numb from wrist to fingers since his surgery and that he sometimes drops objects because of numbness and pain. He also stated that he pays more attention to his right hand at work to avoid cuts and burns. The Veteran explained that he is currently the lead doing inspections at work and able to continue in this capacity with work adaptations and wearing a wrist splint and thermal gloves, which allows the pain level to be tolerable; he also indicated that he is able to lift if he uses both hands. He did not report any flare-ups. On examination, range of motion was three degrees of palmar flexion, five degrees of dorsiflexion, five degrees of ulnar deviation and 5 degrees of radial deviation. Pain was noted on all range of motion. The Veteran was able to perform repetitive use testing without any additional loss of range of motion. Flexion muscle strength was normal; however, extension strength was reduced to a 4/5, active movement against some resistance. It was noted that the Veteran’s 2nd to 5th fingers of the right hand were cooler than his left hand, which normalized after warming up by keeping his hand under his armpit. The Veteran was noted to regularly wear a brace. The examiner reported that the Veteran had difficulty with activities that require palmar and dorsiflexion of the wrist, such as push ups and pull ups, pushing, lifting heavy objects with his right hand only and prolonged gripping. There was pain on passive range of motion, and pain on non-weight bearing. The examiner indicated the Veteran experienced pain on active motion at 2 degrees of palmar flexion, 5 degrees of dorsiflexion, 5 degrees of ulnar deviation and 5 degrees of radial deviation; pain on passive motion at 5 degrees of palmar flexion, 15 degrees of dorsiflexion, 5 degrees of ulnar deviation and 5 degrees of radial deviation; pain on nonweight bearing at 2 degrees of palmar flexion, 5 degrees of dorsiflexion, 5 degrees of ulnar deviation, and 5 degrees of radial deviation. The examiner indicated there was no standard for weight bearing range of motion of the wrist, so it was not performed. The examiner stated that after examination of the Veteran, listening to the complete history and current subjective complaints, combined with a review of the available records, there is no basis to offer additional losses of function or motion when it comes to during a flare-up. After considering all procurable data, the examiner opined that any member of the medical community at large could not provide such an opinion without resorting to speculation. Finally, the examiner stated the purpose of the wrist brace is to provide local rest and support of the wrist and ensure proper positioning of the wrist with use or at rest. The examiner reported that the Veteran’s wrist brace does not restrict movement to the point of functional equivalent of ankylosis with respect to his ability to perform the functions associated with the wrist. The Board finds the current 30 percent rating is appropriate, which is warranted for favorable ankylosis in 20 to 30-degree dorsiflexion. Throughout the appeal period, the measured ranges of motion are not consistent with a finding of true ankylosis, as motion has always been demonstrated clinically. However, while there is not true ankylosis within the meaning of the rating criteria, the Board notes that the criteria for a 30 percent rating under Diagnostic Code 5214 are more nearly approximated based on the severely reduced range of motion of the right wrist. Motion of the wrist is also associated with pain, reduced strength, and difficulty holding on and lifting objects. A rating higher than the currently assigned 30 percent rating, however, is not warranted. As noted, a 40 percent rating is warranted for ankylosis in any other position except favorable and a 50 percent rating is warranted for unfavorable ankylosis. Ankylosis in any other position except favorable is not demonstrated. Furthermore, unfavorable ankylosis is not demonstrated and is not more nearly approximated. Unfavorable ankylosis is determined by the position in which the joint is fixed. Highly probative evidence in this regard comes from the findings on VA examinations, which showed motion through the neutral position (0 degrees), and that the wrist could attain a position of 5 degrees of dorsiflexion, even considering pain and repetitive use. Furthermore, the December 2019 VA examiner specifically opined that the Veteran’s wrist brace does not restrict movement to the point of functional equivalent of ankylosis with respect to his ability to perform the functions associated with the wrist. The Board acknowledges the Veteran’s lay reports of symptoms and that there is functional loss due to pain, weakened movement, excess fatigability, repetitive use, etc. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation would not result in symptoms more nearly approximating unfavorable ankylosis of the wrist or ankylosis in any other position except favorable. The Board also notes the argument that the Veteran’s wrist is functionally ankylosed. Importantly, as noted, the Veteran is currently receiving a 30 percent rating, which is assigned for favorable ankylosis. However, even when considering the functional limitations, the Veteran’s symptoms do not more nearly approximate the functional equivalent of unfavorable ankylosis or ankylosis in any other position except favorable. The Board also notes the January 2021 arguments from the Veteran’s representative that an opinion should be obtained as to whether the Veteran’s use of a brace is the equivalent to functional ankylosis and that he should be afforded a new VA examination since it has been more than three years since the prior VA examination and the Veteran now suffers from neurological symptoms. The Board acknowledges that it has been two years since the last VA examination; however, the medical evidence of record in this case is not too old to adequately evaluate the disability at issue. A new VA examination is not warranted based on the mere passage of time. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). The most recent VA examination in December 2019 examined and discussed the Veteran’s neurological symptoms. Furthermore, a medical opinion regarding functional ankylosis due to wearing a brace was also obtained in December 2019. Finally, the Board notes that throughout the course of the appeal the Veteran complained of symptoms such as numbness, coldness, and paresthesias of the right hand and fingers. In December 2019, the Veteran was afforded a VA examination for his neurological symptoms. He reported no constant pain, no intermittent pain, no paresthesias or dysesthesias, and mild numbness. He also reported right hand temperature asymmetry. Muscle strength was normal; reflex exam was normal. Sensory exam revealed decreased sensation to the right hand and fingers. There were no trophic changes, and Tinel’s sign was negative. Phalen’s test was unable to be completed due to limited wrist flexion. The Veteran was diagnosed with nonspecific neuralgia of the right hand, related to his right wrist function. The VA examiner noted that the Veteran had neurological symptoms that were sensory, based on subjective numbness and vasomotor based temperature assymetry and the Veteran had mild, incomplete paralysis of the right radial nerve. Diagnostic Code 8514 pertains to disease of the musculospiral nerve (radial nerve). 38 C.F.R. § 4.124a. Under Diagnostic Code 8514, as it applies to the major extremity, a 20 percent rating is assigned for mild incomplete paralysis, a 30 percent rating is assigned for moderate incomplete paralysis, a 50 percent rating is assigned for severe incomplete paralysis, and a 70 percent rating is assigned for complete paralysis of the radial nerve. 38 C.F.R. § 4.124a. The term “incomplete paralysis,” with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to the partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Based on the evidence of record, the Board finds the Veteran is entitled to a separate, 20 percent rating for mild, incomplete paralysis of the right radial nerve under Diagnostic Code 8514. The December 2019 VA examiner specifically noted that the Veteran’s symptoms were sensory in nature and the examination revealed no decrease in muscle strength or reflexes to warrant a rating higher than 20 percent. For the foregoing reasons, the Board finds that a rating higher than 30 percent for post fusion of the carpal bones of the right wrist with arthritis is denied; however, entitlement to a separate 20 percent rating for nonspecific neuralgia of the right hand, involving the radial nerve, is granted. In so finding, the Board has resolved all reasonable doubt in favor of the Veteran. REASONS FOR REMAND 2. Entitlement to service connection for degenerative joint disease of the right foot, other than the first MTP joint (claimed as second and third MTP joints), to include as secondary to a service-connected disability. The Veteran seeks entitlement to service connection for degenerative joint disease of the right foot. The Board notes that the Veteran is currently service connected for degenerative joint disease of the first MPT joint of the right foot and claimed entitlement to service connection for the second and third MPT joints of the right foot; however, recent medical evidence indicates that there is no diagnosis of degenerative joint disease of the second and third MPT joints. Instead, the medical evidence indicates that the Veteran has degenerative changes of the interphalangeal joints of the right foot. See December 2019 VA examination. As noted in the April 2019 Board remand, the Veteran asserts that he was informed his degenerative joint disease, currently diagnosed and service connected in his shoulder and his right foot first MPT joint, would spread throughout his bones. The claim was remanded in April 2019 to obtain a medical opinion as to whether the Veteran’s claimed disorder was secondary to his degenerative joint disease of the first MPT joint. The Veteran was afforded a VA examination in December 2019, at which time the VA examiner explained that there is no clinical or radiological evidence of degenerative joint disease of the second and third MPT joints of the right foot; however, x-rays demonstrated degenerative joint disease of the interphalangeal joints of the right foot. The examiner opined that the Veteran’s degenerative joint disease of the interphalangeal joints was not due to his time in service and was not proximately due to or aggravated by his degenerative joint disease of the first MPT joint. To date, however, a medical opinion has not been obtained as to whether the Veteran’s diagnosed degenerative joint disease of the interphalangeal joints of the right foot is proximately due to or aggravated by his shoulder disability. The Board finds a remand is necessary to obtain an addendum opinion. Additionally, the examiner should address the Veteran’s asserted theory that his degenerative joint disease has spread throughout his bones. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated treatment records. 2. Obtain a VA addendum opinion for the Veteran’s claimed degenerative joint disease of the interphalangeal joints of the right foot. The examiner is requested to review all pertinent records associated with the claims file. The examiner should state that the claims file was reviewed. The examiner should respond to the following: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s degenerative joint disease of the interphalangeal joints of the right foot is proximately due to or aggravated (beyond a natural progression) by his service-connected shoulder disability? The examiner should consider and discuss the Veteran’s asserted theory that he was informed his degenerative joint disease from his shoulder would spread through his bones, and has resulted in the degenerative joint disease of the right foot, to include the interphalangeal joints of the right foot. A detailed explanation (rationale) is requested for all opinions provided, citing to supporting clinical data and/or medical literature, as appropriate. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Andersen, 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.