Citation Nr: 21014312 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 17-47 257 DATE: March 11, 2021 REMANDED Entitlement to a disability rating in excess of 50 percent for ankylosis of the right wrist status-post right wrist fusion (right wrist ankylosis), effective June 1, 2016, is remanded. Entitlement to a disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1979 to June 1982. This matter comes to the Board of Veterans’ Appeals (Board) from a March 2017 rating decision which granted a 100 percent rating for convalescence of status-post right wrist fusion, effective June 23, 2016, to May 31, 2016, and a 10 percent rating, effective June 1, 2016, under Diagnostic Code (DC) 5010-5215. A June 2017 rating decision changed the 10 percent rating under DC 5010-5215 to a 50 percent rating for right wrist ankylosis, effective June 1, 2016, under DC 5214. In August 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board notes that VA treatment records were added to the Veteran’s claims file after certification of this case to the Board. A review of the record shows that the AOJ did not have the opportunity to review this new evidence or issue a supplemental statement of the case. As the Board is remanding this case, the AOJ will have an opportunity to review the evidence such that no prejudice results to the Veteran as a result of the Board’s consideration of this evidence for the limited purpose of issuing a comprehensive and thorough remand. 1. Right wrist ankylosis The Veteran is currently assessed with a 50 percent rating for right wrist ankylosis, effective June 1, 2016, under DC 5214. This rating is the highest rating available under DC 5214, but a note states that extremely unfavorable ankylosis will be rated as loss of use of hands under DC 5125. See 38 C.F.R. §§ 4.63, 4.71a, DC 5214. The Board notes that the rating criteria for wrist disabilities was amended effective February 7, 2021, but no changes were made to DCs 5125 and 5214. See 85 Fed.Reg. 76453 (Nov. 30, 2020). In February 2016, the Veteran underwent a right wrist fusion. In written pleadings and at the August 2020 hearing, the Veteran asserts that a 70 percent rating is warranted for extremely unfavorable ankylosis rated under DC 5125. The Board cannot make a fully-informed decision at this time. At the May 2017 VA examination, the Veteran reported that his right wrist disability severely compromises his ability to perform daily activities, to include difficulty holding items, frequently dropping items, and not being able to use hand tools. While this lay evidence suggests significant limitations, the Board notes that this evidence does not clearly indicate no effective functioning other than that which would be equally well served by an amputation, as required for loss of use of hands. See 38 C.F.R. § 4.63. Given the Veteran’s subsequent assertions in the September 2017 Form 9 and at the August 2020 hearing, the Board finds that the Veteran has alleged worsening of his right wrist disability and should be provided with a new examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). On remand, the examiner should consider the Veteran’s lay evidence and the medical evidence, to include a January 2017 VA treatment record where the Veteran reported being very active and using his right hand to lift furniture and perform heavy lifting, and an April 2017 VA treatment record where the Veteran reported being able to use his right hand but has pain disability. In May 2017, Dr. A.H., opined that the Veteran’s functional loss would not be equally well served by amputation, but that the Veteran was unable to effectively engage in daily activities involving use of the right wrist. Dr. H. stated that she reviewed the Veteran’s military records, service treatment records, and VA medical records. Given Dr. H.’s statement regarding amputation, the Board notes that it is unclear whether the remainder of Dr. H.’s opinion supports a 70 percent rating. The Board further notes, however, that Dr. H. did not explain why the Veteran was unable to effectively engage in daily activities involving use of the right wrist and did not consider medical evidence that appears inconsistent with this opinion, to include the January and April 2017 VA treatment records. On remand, the Veteran can submit an addendum opinion from Dr. H. As this case is being remanded, the AOJ should also update the Veteran’s VA treatment records. 2. TDIU Regarding the issue of entitlement to a TDIU, a decision on the increased rating claim for right wrist ankylosis being remanded herein may affect the claim for TDIU. Any grant of an increased rating could significantly change the adjudication of the TDIU issue because such a grant could increase the Veteran’s overall combined disability percentage. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. Appl 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a veteran’s claim for the second issue). Consideration of entitlement to a TDIU must therefore be deferred until the intertwined issue is resolved or prepared for appellate consideration. See id. (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). After the above development, if the Veteran’s service-connected disabilities do not meet the schedular TDIU requirements, the AOJ refer the Veteran’s claim for a TDIU to VA’s Director of Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16(b). The matters are REMANDED for the following actions: 1. Update the Veteran’s VA treatment records, to include the Coatesville VA, New York VA, and Wilkes Barre VA. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right wrist ankylosis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria of Diagnostic Code 5125. The examiner should consider the Veteran’s lay evidence and the medical evidence, to include a January 2017 VA treatment record where the Veteran reported being very active and using his right hand to lift furniture and perform heavy lifting, and an April 2017 VA treatment record where the Veteran reported being able to use his right hand but has pain disability. The examiner also should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of his service-connected right wrist disabilities on employment. The examiner should identify all limitations or functional impairment caused solely by the Veteran’s service-connected disabilities. 3. After the above development, if the Veteran’s service-connected disabilities do not meet the schedular TDIU requirements, refer the Veteran’s claim for a TDIU to VA’s Director of Compensation Service for extraschedular consideration. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ormson, 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.