Citation Nr: 21015746 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-05 716A DATE: March 18, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for disability of the left wrist is denied. Entitlement to an evaluation in excess of 10 percent for disability of the right wrist is denied. FINDINGS OF FACT 1. There is no evidence of ankylosis in the Veteran’s left wrist. 2. There is no evidence of ankylosis in the Veteran’s right wrist. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for left wrist disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5024-5215. 2. 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. §§ 3.102, 3.321, 4.3, 4.7, 4.10, 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 with the United States Navy from January 1978 to January 2000. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In June 2019, the Board denied the Veteran’s increased rating claim for bilateral wrist disabilities. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (CAVC or the Court), which in April 2020, on the basis of a Joint Motion for Remand (JMR), vacated the Board’s June 2019 denial and remanded the matter for further consideration. The Board in turn remanded the appeal to the Agency of Original Jurisdiction (AOJ) in August 2020 for a VA examination, consistent with the terms of the JMR. 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). Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that “[t]he joints involved should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing and, if possible, with the range of the opposite undamaged joint.” Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The Veteran’s left and right wrist disabilities are evaluated at 10 percent each under 38 C.F.R. § 4.71a, Diagnostic Code 5024-5215. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5024 pertains to tenosynovitis and provides for rating the service-connected disability based on limitation of motion of the affected part as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5024. Degenerative arthritis is evaluated under Diagnostic Code 5003 and provides a rating of 10 percent for noncompensable limitation of motion of an involved joint confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Limitation of motion of the wrist is rated under Diagnostic Code 5215 and provides for maximum 10 percent ratings for limited palmar flexion and limited dorsiflexion in the major and minor wrists. 38 C.F.R. § 4.71a, Diagnostic Code 5215. The Veteran is already in receipt of a 10 percent rating each for his left and right wrist disabilities. Thus, a higher evaluation is not possible under Diagnostic Codes 5003, 5024, or 5215. The only other Diagnostic Code that specifically addresses the wrist is 5214, which deals with ankylosis of the joint. This code provides the following ratings for a major extremity: 30 percent for favorable ankylosis in 20 degrees to 30 degrees dorsiflexion; 40 percent for ankylosis in any other position except favorable; and 50 percent for unfavorable ankylosis in any degree of palmar flexion or with ulnar or radial deviation. Diagnostic Code 5214 notes that extremely unfavorable ankylosis will be rated as loss of use of hands under Diagnostic Code 5125. 38 C.F.R. § 4.71a. Normal range of motion for the wrist is 80 degrees palmar flexion and 70 degrees dorsiflexion. 38 C.F.R. § 4.71, Plate I. The Board acknowledges that the ratings criteria for the musculoskeletal system was updated during the appeal period, effective February 7, 2021; that new criteria will be addressed in a separate section below. Factual Background Turning to the medical evidence, the Veteran was afforded a VA examination in March 2015. The Veteran reported wrist pain when typing more than 2 minutes or trying to do push-ups or push something. The examiner notes the Veteran is right-handed. The Veteran described flare-ups as pain that occurs while typing and he reported that he “cannot pass a typing test because of the wrist pain.” Range of motion in both left and right wrists was normal. There was no evidence of pain with weight bearing, localized tenderness, or pain on palpation of the joint or associated tissue in either wrist. Muscle strength testing was normal bilaterally with no muscle atrophy. The examiner did not provide an answer as to whether ankylosis was present in the wrists. The Veteran was able to complete repetitive-use testing bilaterally without additional loss of motion after 3 repetitions. However, the examiner noted that the Veteran was not examined immediately after repetitive use over time or during a flare-up. She concluded that the examination neither supported nor contradicted the Veteran’s statements describing functional loss with repetitive use and flare-ups. She further concluded that she could not say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limits the Veteran’s functional ability during flare-ups or with repetitive use. However, she did conclude that the Veteran’s condition did not impact his ability to perform any type of occupational task. No diagnostic imaging study was performed for this examination, and the examiner gave a diagnosis of tendonitis in both wrists. In June 2017, the Veteran underwent electromyography (EMG) testing due to complaints of intermittent paresthesia in the middle and ring fingers bilaterally with tightness on wrist extension. Clinically, he presented with full strength in the upper extremities, intact sensation, and negative Tinel’s sign. The EMG was normal with no electrodiagnostic evidence of carpal tunnel syndrome or ulnar neuropathy at the elbow. The physician noted that the Veteran’s clinical presentation was suggestive of overuse tendonitis and referred the Veteran for occupational therapy. The Veteran completed six sessions of occupational therapy in June and July 2017 with fair progress toward his goals. In the initial evaluation, his active range of motion in the left wrist was 0 to 30 degrees on flexion, 0 to 55 degrees on extension, 0 to 40 degrees on ulnar deviation, and 0 to 15 degrees on radial deviation. His passive range of motion in the left wrist was 0 to 45 degrees on flexion, 0 to 75 degrees on extension, 0 to 40 degrees on ulnar deviation, and 0 to 15 degrees on radial deviation. With respect to the right wrist, his active range of motion was 0 to 25 degrees on flexion, 0 to 50 degrees on extension, 0 to 35 degrees on ulnar deviation, and 0 to 20 degrees on radial deviation. His passive range of motion in the right wrist was 0 to 45 degrees on flexion, 0 to 65 degrees on extension, 0 to 35 degrees on ulnar deviation, and 0 to 20 degrees on radial deviation. In July 2017, the Veteran was discharged from skilled occupational therapy because he reached his maximum potential. He had met his goals of decreasing pain with motion, increasing grip strength, and improving functional skills for daily performance. He partially met his goal of increasing wrist flexion and extension. He reported more flexibility but continued pain after typing for prolonged periods. On examination, his active range of motion in the left wrist was 0 to 55 degrees on flexion, 0 to 60 degrees on extension, 0 to 40 degrees on ulnar deviation, and 0 to 20 degrees on radial deviation. His passive range of motion in the left wrist was 0 to 60 degrees on flexion, 0 to 75 degrees on extension, 0 to 40 degrees on ulnar deviation, and 0 to 20 degrees on radial deviation. With respect to the right wrist, his active range of motion was 0 to 45 degrees on flexion, 0 to 55 degrees on extension, 0 to 40 degrees on ulnar deviation, and 0 to 30 degrees on radial deviation. His passive range of motion in the right wrist was 0 to 50 degrees on flexion, 0 to 65 degrees on extension, 0 to 40 degrees on ulnar deviation, and 0 to 30 degrees on radial deviation. In September 2017, the Veteran was afforded another VA examination. The Veteran reported that both his wrists ache all of the time and flares up with activity. He elaborated that he has wrist pain when typing more than 3 minutes, which he described as a burning sensation that leads to stopping whatever he is doing to rub them for a few minutes. He also reported that his pinky and ring fingers feel like they lock up and he has trouble performing chores. Range of motion testing was abnormal in both wrists for all but palmar flexion. Bilaterally, dorsiflexion was 0 to 60 degrees, ulnar deviation was 0 to 40, and radial deviation was 0 to 15 degrees. The examiner concluded that the abnormal motion from stiffness and pain contributed to functional loss. The examiner documented crepitus bilaterally, grasp weakness bilaterally, and localized tenderness or pain on palpation at the scapho capitate/thumb metacarpophalangeal (MCP) joint and capitate lunate bilaterally. Muscle strength was normal bilaterally without signs of atrophy. The examiner did not provide an answer with respect to ankylosis. However, the examiner noted that additional factors contributing to disability included weakened movement (due to the muscle or peripheral nerve, etc.) and instability of station. Ultimately, the examiner concluded that fatigue is a major factor in the Veteran’s ability to perform work activities. With respect to repetitive use, the Veteran was able to complete testing without additional loss of motion in either wrist after 3 repetitions. This examiner noted that the Veteran was evaluated immediately after repetitive use over time and he concluded that pain, weakness, fatigability, or incoordination does not significantly limit functional ability in either of the Veteran’s wrists. With respect to flare-ups, the examiner concluded that pain, weakness, fatigue, and lack of endurance significantly limit the Veteran’s functional ability. He indicated that the Veteran was not being examined during a flare-up, but he concluded that the examination was medically consistent with the Veteran’s statements describing functional loss. The examiner described this functional loss in terms of range of motion in both wrists as follows: palmar flexion 0 to 65 degrees, dorsiflexion 0 to 50 degrees, ulnar deviation 0 to 25 degrees, and radial deviation 0 to 10 degrees. Imaging studies were performed and did not show degenerative or traumatic arthritis. However, they did show flattening of the scapholunate angle in the lateral view on both sides and bilateral MCP arthritis of the thumbs and beaking of the lunate. The examiner also noted positive dorsal impingement tests to each wrist and provided diagnoses of dorsal wrist syndrome and dorsal impingement of both wrists. This examiner found evidence of pain with active range of motion testing, passive range of motion testing, weight bearing, and non-weight bearing. Accordingly, this examination substantially complies with the requirements of Correia. Another VA examination was conducted in November 2020. At this time, the Veteran reported that pain in each wrist was equally severe. He indicated that he experiences pain with typing, using a screwdriver, doing yardwork, or performing any other activity requiring repetitive use. However, he indicated that the pain eases quickly after he stops using the wrist. From this description, the examiner concluded that the Veteran’s pain is related to use and not flare-ups. With respect to the right wrist, range of motion testing was abnormal as follows: palmar flexion was 0 to 60 degrees, dorsiflexion was 0 to 50 degrees, ulnar deviation was 0 to 45, and radial deviation was 0 to 20 degrees. With respect to the left wrist, range of motion testing was abnormal as follows: palmar flexion was 0 to 65 degrees, dorsiflexion was 0 to 55 degrees, ulnar deviation was 0 to 45, and radial deviation was 0 to 20 degrees. Pain and mild tenderness were noted bilaterally on examination, but the examiner concluded that it does not result in functional loss. The examiner also noted that the abnormal range of motion itself does not contribute to functional loss. The examiner also concluded that there was no evidence of ankylosis in either wrist. Muscle and grip strength were normal bilaterally and there was no evidence of crepitus or atrophy. Concerning repeated use, the Veteran was able to complete testing without additional loss of motion in either wrist after 3 repetitions. This examiner noted that the Veteran was not evaluated immediately after repetitive use over time and he concluded that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing repetitive use over time. He further concluded that pain significantly limits the Veteran’s functional ability with repeated use over time. For the right wrist, the examiner described this functional loss in terms of range of motion as follows: palmar flexion 0 to 50 degrees, dorsiflexion 0 to 40 degrees, ulnar deviation 0 to 45 degrees, and radial deviation 0 to 20 degrees. For the left wrist, the examiner described this functional loss in terms of range of motion as follows: palmar flexion 0 to 55 degrees, dorsiflexion 0 to 45 degrees, ulnar deviation 0 to 45 degrees, and radial deviation 0 to 20 degrees. Ultimately, the examiner concluded that the Veteran’s symptoms would make it difficult to work a labor job with repeated use of the wrists in lifting or manipulating tools. Concerning flare-ups, the examiner concluded that an assessment of either wrist was not applicable because the Veteran reported pain from activity, which ceases fairly quickly after he stops the activity. Additionally, the examiner concluded that there were no other pertinent physical findings, complications, conditions, signs, or symptoms related to the Veteran’s wrist conditions. The examiner found evidence of pain with active range of motion testing, passive range of motion testing, weight bearing, and non-weight bearing. Accordingly, this examination substantially complies with the requirements of Correia. Analysis for Increased Evaluation of Bilateral Wrist Disabilities Initially, the Board notes that this case is the subject of a JMR, under which a remand was warranted for the Board to obtain a new VA medical examination that complies with the Court’s holding in Correia. Specifically, the JMR indicated that the September 2017 VA examination was inadequate because the examiner did not conduct range of motion testing for both active and passive motion and under weight bearing and non-weight bearing conditions. However, the September 2017 VA examiner documented evidence of pain with active range of motion testing, passive range of motion testing, weight bearing, and non-weight bearing. See September 2017 VA examination, pp. 3-4, 7. Thus, it appears that the September 2017 VA examination complies with the requirements of Correia. Nevertheless, the Board remanded the claim for a new VA examination in August 2020. This examination was conducted in November 2020 and the examiner also found that there was evidence of pain with active range of motion testing, passive range of motion testing, weight bearing, and non-weight bearing. See August 2020 VA examination, pp. 3-4, 9. Accordingly, this examination also complies with the requirements of Correia. The JMR also instructed that remand was warranted to address whether the evidence demonstrates that the Veteran has ankylosis of the wrists because the September 2017 VA examiner did not provide an answer to this question. On remand the November 2020 VA examiner affirmatively indicated that there is no evidence of ankylosis in either wrist. Accordingly, there has been substantial compliance with the JMR and August 2020 Board remand. With respect to the Veteran’s claim for an increased evaluation, the Veteran is in receipt of the maximum schedular rating for limitation of motion in his wrists. Accordingly, a higher evaluation is not possible under Diagnostic Codes 5003, 5024, or 5215. Furthermore, a separate evaluation under 5214 is not warranted because the Veteran does not experience ankylosis of the wrists. Although the March 2015 and September 2017 VA examiners did not answer this question, the November 2020 VA examiner specifically indicated that the Veteran did not present with ankylosis on examination. Accordingly, the Board finds that there is no basis for an evaluation in excess of 10 percent for either of the Veteran’s wrist disabilities. New Regulations Effective February 7, 2020 The Board notes that the criteria for wrist disabilities have changed during the period covered by this appeal, effective February 7, 2021. See 85 Fed. Reg. 75453 (November 30, 2020). When a law or regulation changes during the pendency of a Veteran’s appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change. However, the old regulations will be considered for the periods both before and after the change was made. s 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33422 (2000); Kuzma v. Principi, 3541 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. Here, the changes to the rating criteria do not affect how the Veteran’s wrist disabilities are evaluated. Diagnostic Code 5024 has been reworded to include tendinitis, tendinosis, and tendinopathy with tenosynovitis. Diagnostic Code 5003 has been reworded to make clear that the code does not apply to post-traumatic arthritis. Under these provisions, the Veteran’s disability continues to be rated by limitation of motion under the affected joint. Limitation of motion for the wrist is rated under Diagnostic Code 5214, which has not changed under the new regulations. Additionally, ankylosis of the wrist, which is rated under Diagnostic Code 5215 has also not changed under the new regulations. Accordingly, the Board does not find that a higher evaluation for the Veteran’s bilateral wrist disabilities, for the period beginning February 7, 2021, is warranted when contemplating the new Rating Schedule criteria effective that date. KANISHA R. LAFFITTE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Beech, 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.