Citation Nr: 21021008 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 08-36 294 DATE: April 9, 2021 ORDER A 10 percent rating prior to February 1, 2012 for left wrist ganglion cyst is granted, subject to the rules and regulations governing the award of monetary benefits. A 10 percent rating prior to February 1, 2012 for right wrist ganglion cyst is granted, subject to the rules and regulations governing the award of monetary benefits. REMANDED Entitlement to a separate disability rating for neurological abnormalities associated with bilateral wrist ganglion cysts is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. Prior to February 1, 2012, the evidence is at least in equipoise as to whether the Veteran’s left wrist ganglion cyst was manifested by pain with limitation of motion (i.e., stiffness), without ankylosis. 2. Prior to February 1, 2012, the evidence is at least in equipoise as to whether the Veteran’s right wrist ganglion cyst was manifested pain with limitation of motion (i.e., stiffness), without ankylosis. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating prior to February 1, 2012 for left wrist ganglion cyst have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 7819. 2. The criteria for a 10 percent rating prior to February 1, 2012 for left wrist ganglion cyst have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 7819. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1985 to June 1994. Historically, the Board notes that, in January 2018, the Board, in pertinent part, denied entitlement to a compensable disability rating for bilateral ganglion cysts prior to February 1, 2012. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In February 2016, the parties filed a Joint Motion for Partial Remand ("JMPR") and the Court vacated/remanded the January 2018 decision with respect to entitlement to a compensable disability rating for bilateral ganglion cysts prior to February 1, 2012. This claim was most recently remanded by the Board in December 2018 for additional development. 1. Entitlement to an increased rating for left and right wrist ganglion cysts prior to February 1, 2012. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” 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. 38 C.F.R. §§ 4.40. It is important that when evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. §§ 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. §§ 4.45. It is the intent of the schedule to recognize painful motion with joint or periarticular pathology as productive of disability. It is also the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. §§ 4.59. Although the first sentence of 38 C.F.R. § 4.59 refers only to arthritis, the regulation applies to joint conditions other than arthritis. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). Prior to February 1, 2012, the Veteran’s bilateral wrist disorders were rated under DC 7819, for benign skin neoplasm, which directs that the disability at issue be rated based on limitation of function. 38 C.F.R. § 4.118. Limitation of motion of the wrist is evaluated under DC 5215 and/or DC 5214. DC 5215 provides for a maximum 10 percent rating for limitation of dorsiflexion to 15 degrees or less or limitation of palmar flexion to in line with forearm. 38 C.F.R. § 4.71a, DC 5215. The Board notes that there is no evidence of ankylosis and, therefore, a rating under DC 5214 is not warranted. See 38 C.F.R. § 4.71a. If the evidence for and against a claim is an equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 56 (1990). Where 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. VA treatment records from May 2006 indicate that the Veteran was ordered a left wrist brace and he had pain and numbness when he used his left hand. The Veteran indicated that the pain and paresthesias was mainly in his left thumb. In July 2006, the Veteran underwent a VA examination to evaluate his bilateral wrist disorders. The Veteran reported that he had bilateral wrist pain, some intermittent numbness and tingling into the right thenar eminence, and he wore a right wrist brace. The Veteran did not state that this condition has ever limited his attempts to work. The examiner diagnosed the Veteran with bilateral ganglion cysts and documented slight diminishment to deep pressure on the right thenal eminence, with no limitation of motion. In July 2008, the Veteran underwent another VA examination to evaluate his bilateral wrist disorders. The Veteran demonstrated symptoms consisting of intermittent pain, stiffness, swelling, instability, fatigability, and lack of endurance. The Veteran reported that his flare-up pain was a 6 out of 10 and was caused by writing and pushing. However, he did not miss any work due to his wrist conditions in the past 12 months. The examiner stated that, if this condition was not flared up, it would not impair his ability to perform activities of self-care or ability to perform his job. Range of motion testing was normal and grip strength was mildly diminished bilaterally. There was no evidence of ankylosis. In February 2012, the Veteran was again evaluated by VA to determine the current severity of his bilateral wrist disorders. The Veteran reported that he had to wear braces on his wrists when he worked. The examiner documented decreased range of motion of the bilateral wrists with palmar flexion at 30 degrees with painful motion and dorsiflexion at 45 degrees. There were contributing factors of disability to include pain on movement and less movement than normal. There was no ankylosis. In March 2019, the RO procured a VA medical opinion to ascertain whether the Veteran’s symptoms of pain, numbness, stiffness, instability, lack of endurance, swelling, fatigability, limitation of motion, and inability to grasp were related to the diagnosis of ganglion cysts. After examination of the Veteran and a review of the claims file, the examiner determined that the Veteran’s pain and stiffness were related to his bilateral ganglion cysts. The examiner also found that the other symptoms of swelling, fatigability, limitation of motion, and inability to grasp were not associated with the Veteran’s bilateral ganglion cysts. Based on the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s left and right wrist ganglion cysts meet the criteria for a higher 10 percent ratings prior to February 1, 2012. The Board notes that, while the July 2006 VA examination did not document limitation of motion, the examiner did not consider or discuss whether the Veteran had flare-up episodes of either wrist. Significantly, it appears that, the Veteran had symptoms of pain during his July 2006 VA examination and, in July 2008, he was documented as having flare-up episodes with pain and stiffness. This evidence indicates that the Veteran’s flare-up episodes, at the very least, caused pain and limitation of motion (i.e., stiffness). The March 2019 VA examiner also noted that the Veteran’s pain and stiffness were related to his bilateral ganglion cysts. As noted above, 38 C.F.R. § 4.59 provides for a compensable rating for painful motion when the Veteran does not meet the criteria for a minimum rating based on limitation of motion under DC 5215. Likewise, as the Veteran did not meet the criteria for the minimum rating under DC 5215 based on decreased palmar flexion and/or dorsiflexion, the Board, nevertheless, finds that a 10 percent rating is warranted for left and right wrist ganglion cysts based on evidence of pain with stiffness. A 10 percent rating is the maximum schedular rating under DC 5215. A higher rating may be warranted under DC 5214 with a showing of ankylosis. This has not been shown. The Board acknowledges the attorney’s contentions, by and on the Veteran’s behalf, that the Veteran’s symptoms of pain, stiffness, instability, fatigability, lack of endurance, difficulty grabbing things, and numbness are not otherwise contemplated by the rating criteria. See July 2016 and January 2021 Third Party Correspondence. The attorney also suggested that the Veteran met the first and second elements for extraschedular consideration under Thun, in that, the schedular criteria do not adequately contemplate the Veteran’s disability and his exceptional disability picture exhibits other related factors. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The determination of whether a claimant is entitled to an extraschedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If the Regional Office (RO) or Board determines that (1) the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extraschedular rating is warranted. Id; see also 38 C.F.R. § 3.321(b)(1). It is important to note that, during the pending appeal, VA amended its adjudication regulation pertaining to extraschedular consideration of a service-connected disability in exceptional compensation cases. This rule clarifies that an extraschedular rating may not be based on the combined effect of multiple service-connected disabilities. 82 Fed. Reg. 57830 (Dec. 8, 2017). In Thurlow v. Wilkie, 30 Vet. App. 231 (2018), the United States Court of Appeals for Veterans Claims (Court) found that this amendment applied retroactively as it does not have an impermissible retroactive effect. Thus, as the Veteran's appeal is pending before VA, this final rule is applicable to this case and an extraschedular rating based on the combined effect of multiple service-connected disabilities is not available. Based on the attorney’s contentions above, the Board remanded the Veteran's claim for a determination as to whether the Veteran was entitled to assignment of an extraschedular compensable rating for bilateral ganglion wrist cysts prior to February 1, 2012. [Parenthetically, the Board notes that no determination was made as to whether the schedular evaluation contemplated the Veteran’s level of disability/symptomology or whether there was marked interference with employment or frequent periods of hospitalization.] A July 2018 advisory opinion was obtained, however, in the December 2018 remand, the Board determined that such opinion only addressed whether extraschedular consideration was warranted for a rating higher than the currently assigned 10 percent (for the period after February 1, 2012). In compliance with the Board's December 2018 remand, the RO referred the Veteran's claim to the Director of Compensation Service and an administrative decision was rendered denying the Veteran's extraschedular rating. The Director considered the applicable appeal period and explained that there was no unusual or exceptional disability pattern that would render application of the regular rating criteria as impractical. In spite of the Director’s determination, the Board must still consider whether this case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical. Nevertheless, the Board finds that this case does not present such an exceptional or unusual disability picture. In this regard, for the period prior to February 1, 2012, the Veteran's VA examination and treatment records, as indicated above, show complaints of wrist pain, stiffness, swelling, instability, fatigability, lack of endurance, decreased grip strength, and numbness. The Veteran was also treated with bilateral wrist braces and over the counter Tylenol and ibuprofen. The Board notes that, while the March 2019 VA examiner found that the symptoms of swelling, fatigability, limitation of motion, and inability to grasp were not associated with the Veteran’s bilateral ganglion cysts, these findings were not adequately explained. Therefore, these symptoms were nevertheless considered for extraschedular purposes. The diagnostic codes in the rating schedule corresponding to disabilities of the wrist provide disability ratings on the basis of limitation of motion, ankylosis, and neurologic manifestations. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased, or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; see Mitchell v. Shinseki, 25 Vet. App. 32 (2011). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement, excess fatigability, pain on movement, and disturbance of locomotion. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. In light of the governing regulations and based on a thorough review of the evidence of record, the Board finds that the schedular rating criteria reasonably contemplate the Veteran's bilateral wrist symptoms. In pertinent part, while the Veteran's VA examinations and VA treatment records have shown symptoms of wrist pain, stiffness, instability, fatigability, and lack of endurance, which are not specifically listed in the diagnostic criteria, as indicated, the rating schedule for musculoskeletal disabilities, nevertheless, contemplates functional loss due to the effects weakened movement, excess fatigability, pain on movement, and disturbance of locomotion. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. As of the date of this decision, the Veteran was also receiving the highest rating assignable for limitation of function of the wrists, without evidence of ankylosis. See 38 C.F.R. § 4.71a, DC 5215. The Board notes the evidence indicates that the swelling of the Veteran’s bilateral ganglion cysts is the characteristic manifestation of the disability and is not an actual symptom of the disability. See March 2019 VA Examination report. Likewise, an extraschedular rating would not be warranted based on this finding. Moreover, while the Veteran may have neurologic manifestations associated with his bilateral wrist disorders, to include numbness and/or decreased grip strength. These symptoms are contemplated by the award of separate ratings for neurological abnormalities under separate diagnostic codes. See 38 C.F.R. § 4.124A. The issue of whether the Veteran is entitled to separate ratings for neurological manifestations of his bilateral wrists is addressed in the remand section below. In spite of the attorney’s contentions above that the Veteran’s disability picture exhibits other related factors, the Board also finds that, for the period prior to February 1, 2012, the preponderance of the evidence is against a finding that the Veteran’s bilateral wrist disorders resulted in other related factors such as marked interference with employment or frequent periods of hospitalization. In pertinent part, prior to February 1, 2012, there was no evidence of hospitalization due to the Veteran’s bilateral wrists. Additionally, as noted above, for this period, VA treatment records and VA examination reports show that the Veteran’s bilateral wrist symptoms were not severe enough to have caused marked interference with employment. In that regard, in July 2006, the Veteran did not report that his wrists limited his attempts to work; in July 2008, he denied that he missed any work due to his bilateral wrists; and in February 2012, the Veteran indicated that he was still able to work with his bilateral wrist disorders, albeit, with wrist braces. The Board acknowledges the July 2016 vocational assessment that indicates the Veteran has been unable to secure and follow substantially gainful employment since the end of 2011. The vocational expert explained that, at that time, the Veteran left his current job and then participated in isolated/intermittent work tasks. The vocational expert stated that the Veteran would be unemployable as a result of his absenteeism, limited hand and upper extremity use, inability to sit, stand, or walk for extended periods, lack of skills to secure less physically demanding work, and decreased productivity. This vocational assessment, however, does not indicate that the Veteran would have marked interference with employment due to his bilateral wrist disabilities, alone. Instead, the vocational expert appears to rely on the combined effects of the Veteran’s service-connected disabilities. As indicated above, an extraschedular rating may not be based on the combined effect of multiple service-connected disabilities. Accordingly, the Board finds that this vocational assessment is not probative as to the question of whether the Veteran’s bilateral wrist disorders caused marked interference with employment. In sum, the Board finds that the Veteran's service-connected bilateral wrist disorders are not manifested by such an exceptional or unusual disability picture so as to render impractical the application of the regular schedular standards. The assigned schedular evaluations are, therefore, adequate. REASONS FOR REMAND 1. Entitlement to a separate disability rating for neurological abnormalities associated with bilateral wrist ganglion cysts is remanded. In the December 2018 remand, the Board specifically instructed that the VA examiner should determine whether or not the Veteran’s symptom of numbness was related to his service-connected bilateral ganglion cysts. In light of this, the RO procured a March 2019 VA examination and medical opinion to assess the Veteran’s bilateral ganglion cysts. The examiner, however, did not provide a clear opinion as to whether or not the Veteran’s numbness was related to his bilateral ganglion cysts. Rather, the examiner stated that the Veteran has other conditions that may be the cause, such as carpal tunnel syndrome, left shoulder pathology, and a cervical spine condition. The examiner explained that the current medical literature suggests that numbness is possible; but in this case, there are other more likely causes. This explanation, however, is deficient because it does not otherwise clarify why the other causes (carpal tunnel syndrome, left shoulder pathology, and a cervical spine condition) were more likely. Accordingly, the Board finds that remand is warranted for a new VA medical opinion consistent with the directives herein. 2. Entitlement to a TDIU is remanded. Consideration of entitlement to a TDIU is dependent upon the impact of the Veteran's service-connected disabilities on his ability to obtain or retain substantially gainful employment. Accordingly, the matter of a TDIU is inextricably intertwined with the Veteran's claim remanded herein. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined TDIU claim is, thus, also required. The matters are REMANDED for the following action: Obtain a VA medical opinion from an appropriate examiner to ascertain the nature of the Veteran's bilateral wrist disorders. (If it is determined that additional examination is needed, it should be scheduled in accordance with applicable procedures and all necessary tests should be conducted.) The claims file should be made available to and be reviewed by the examiner in conjunction with the medical opinion. The examiner must address whether the Veteran has neurological abnormalities, associated with his left and/or right wrist disorder, including numbness/paresthesias and diminished hand grip, and, if so, the severity of such abnormalities. In rendering the above opinion, the examiner must specifically consider and discuss the following: a) the July 2006 VA examination documenting intermittent numbness and tingling into the right thenar eminence, b) the October 2006 VA treatment record showing constant numbness in the space between the left thumb and index finger, and c) the July 2008 VA examination showing decreased grip strength. The examiner is advised that the Veteran is competent to report his symptoms or history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions should be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. J. NICHOLS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Metzner, Paul 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.