Citation Nr: 21013190 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 14-18 290 DATE: March 8, 2021 ORDER Entitlement to a rating in excess of 10 percent for a right wrist disability is denied. FINDING OF FACT The Veteran’s residuals right wrist, s/p triquetrum fracture do not cause ankylosis. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent for right wrist disability have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.71a, Diagnostic Code 5010. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from June 1981 to September 2001. This appeal comes to the Board of Veterans’ Appeals (Board) from a June 2014 rating decision, which granted service connection and assigned a 10 percent rating, with an effective date matching the date the claim was received by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, CA. During the pendency of this claim, October 1, 2001, the day after the Veteran’s separation from service, was assigned as the effective date of service connection for his right wrist disability. In December 2018, the Board remanded the Veteran’s claim for the issuance of a Supplemental Statement of the Case (SSOC), which occurred in September 2020. The claim has since been returned to the Board for further appellate action. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Increase Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Another way stated, VA has an equipoise standard akin to the rule in baseball that “the tie goes to the runner.” Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Notably, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102. Entitlement to a disability rating in excess of 10 percent for residuals right wrist, s/p triquetrum fracture The Veteran contends an increased evaluation is warranted for residuals, right major wrist, s/p triquetrum fracture currently rated as 10 percent disabling. His right wrist is rated under DC 5215-5010, which pertains to limited motion of the wrist due to arthritis. 38 C.F.R. § 4.71a. Under DC 5010, which pertains to post-traumatic arthritis, the rater is directed to rate under DC 5003, for degenerative arthritis. Degenerative arthritis is rated based on limitation of motion. Under DC 5251, a 10 percent disability rating is warranted for limitation of motion of dorsiflexion less than 15 degrees in either the major or minor wrist. A 10 percent disability rating is warranted for limitation of motion of palmar flexion limited in line with forearm in either the major or minor wrist. 38 C.F.R. § 4.71a. The Veteran’s current 10 percent rating is for painful motion of the wrist under 38 C.F.R. § 4.59, which allows for consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint. 10 percent is the maximum schedular rating allowed for painful motion of the wrist, and a higher rating requires ankylosis. Therefore, the provisions regarding the consideration of functional loss are not for application. Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). Ankylosis refers to immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Shipwash v. Brown, 8 Vet. App. 218, 221 (1995), citing to Dorland’s Illustrated Medical Dictionary 91 (27th ed. 1988). Review of the record does not show the Veteran’s right wrist is ankylosed, and he has not so asserted. Accordingly, a rating higher than 10 percent for the right wrist is not warranted. The RO scheduled the Veteran for a VA contract examination of his right wrist in October 2019, but the Veteran did not attend the examination, because he worried the notification was a scam. Although the AOJ (agency of original jurisdiction) should have rescheduled the VA examination pursuant to the duty to assist, the Board does not find that this claim should be remanded for another VA examination. Rather, the record is complete enough to make this decision. Indeed, the record contains treatment records through February 2020. As discussed above, in order to meet the criteria for the next higher rating, the evidence must show ankylosis, which is not shown or suggested in his current treatment records or alleged by the Veteran. Under such circumstances, a remand would serve no useful purpose, as it would unnecessarily impose additional burdens on VA and cause a delay in the decision of this case, with no benefit to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Amanda E.H. Gibson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Black, 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.