Citation Nr: 21021137 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 20-08 407 DATE: April 9, 2021 ORDER Prior to March 4, 2020, a disability rating in excess of 10 percent for degenerative joint disease of the right wrist is denied. From March 4, 2020 to November 17, 2020, a disability rating in excess of 50 percent for degenerative joint disease of the right wrist is denied. From November 18, 2020, a disability rating in excess of 30 percent for degenerative joint disease of the right wrist is denied. FINDINGS OF FACT 1. Prior to March 4, 2020, the Veteran’s degenerative joint disease of the right wrist was manifested by pain and limited motion, without ankylosis. 2. From March 4 to November 17, 2020, the Veteran’s degenerative joint disease of the right wrist was manifested by unfavorable ankylosis of the dominant hand, at worst. 3. From November 18, 2020, the Veteran’s degenerative joint disease of the right wrist was manifested by symptoms including limitation of motion that more nearly approximated favorable ankylosis in between 20 and 30 degrees dorsiflexion. CONCLUSIONS OF LAW 1. Prior to March 4, 2020, the criteria for a rating in excess of 10 percent for degenerative joint disease of the right wrist have not been met. 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.59, 4.71a, Diagnostic Code 5003-5215. 2. From March 4, 2020 to November 17, 2020, the criteria for a rating in excess of 50 percent for degenerative joint disease of the right wrist have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.71a, Diagnostic Code 5010-5214. 3. From November 18, 2020, the criteria for a disability rating in excess of 30 percent for degenerative joint disease of the right wrist have not been met. 38 U.S.C.§ 1155; 38 C.F.R. §§ 3.321, 4.7, 4.71a, Diagnostic Code 5010-5214. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1964 to January 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in September 2017 by a Department of Veterans Affairs (VA) Regional Office. This appeal was previously before the Board in July 2020, at which time it was remanded for further development. The Board finds that there has been substantial compliance with its instructions, and further appellate review is warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding veterans are entitled to compliance with Board remand instructions). Increased Disability Ratings The Veteran seeks an increased disability rating for his service-connected degenerative joint disease of the right wrist (hereinafter, “right wrist disability”). Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities found in 38 C.F.R. Part 4. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The assignment of staged ratings is also appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 should be considered. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury or surgical procedure.” See Colayong v. West, 12 Vet. App. 524, 528 (1999); see also Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). As set forth at 38 C.F.R. § 4.71, Plate I, the normal range of motion of the wrist is dorsiflexion from 0 to 70 degrees, and palmar flexion from 0 to 80 degrees, and ulnar deviation is 0 to 45 degrees and radial deviation is 0 to 20 degrees. Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Prior to March 4, 2020 The Veteran asserts that his right wrist disability is more severe than as currently rated, prior to March 4, 2020. During that period, the Veteran’s right wrist disability was rated as 10 percent disabling under Diagnostic Code 5003-5215. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. In this case, Diagnostic Code 5003 pertains to degenerative arthritis, and 5215 refers to wrist limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5215. Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic Code 5215 provides that limitation of motion of the major and minor wrist with palmar flexion limited in line with the forearm warrants a 10 percent disability rating. Alternatively, a 10 percent rating may be assigned for limitation of motion of dorsiflexion of the wrist less than 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5215. Higher ratings are warranted only where there is ankylosis of the wrist under Diagnostic Code 5214. The record shows that the Veteran is right hand dominant. In June 2016, the Veteran underwent a VA examination. Range of motion testing showed palmar flexion to 40 degrees, with dorsiflexion to 35, ulnar deviation to 25, and radial deviation to 10 degrees. He denied flare-ups or any functional loss in the right wrist. Pain was noted on exam but did not cause functional loss. There was objective evidence of mild, localized tenderness. No ankylosis was found. Degenerative arthritis was confirmed by imaging studies. The examiner determined there was no functional impact from the right wrist disability. In December 2019, the Veteran underwent a VA examination of his right wrist. At that time, the diagnosis of degenerative arthritis was confirmed. The Veteran reported flare-ups, and described difficulties using his right wrist and hand when performing some occupational tasks. Range of motion testing showed palmar flexion to 40 degrees, and dorsiflexion to 35. Ulnar deviation was to 20 degrees, and radial deviation to 10. Pain was present at all range of motion testing. The decreased range of motion was considered a functional loss. Pain and incoordination significantly limited functional ability with repeated use over time. Swelling was noted. Muscle atrophy and ankylosis were absent. Imaging showed right wrist degenerative or traumatic arthritis. Additional post-service treatment records do not show that the Veteran’s right wrist disability warrants a higher disability rating in the period prior to March 4, 2020. The evidence for this period shows that the Veteran’s right wrist disability had palmar flexion limited to, at worse, 40 degrees, with functional loss noted in December 2019. There is no evidence of ankylosis, however, and a higher rating is not warranted under Diagnostic Code 5214. The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; Johnson v. Brown, 9 Vet. App. 7 (1997); DeLuca, supra. However, when the maximum rating for limitation of motion of a joint has already been assigned, a finding of pain on motion cannot result in a higher rating. Johnson, supra. Accordingly, because the Veteran has been assigned the maximum compensable rating for his orthopedic symptoms, he cannot be assigned any additional ratings under sections 4.40, 4.45, or 4.59 for any additional functional loss associated with pain on use or due to flare-ups. In sum, the Board finds that the Veteran has received the highest allowable rating under the schedular criteria for his orthopedic symptoms, and an increase is denied. The Board notes that as a lay person, the Veteran is considered to be competent to report what comes to him through his senses, such as experiencing limited motion of his wrist. Layno v. Brown, 6 Vet. App. 465 (1994). However, to the extent that he was asserting decreased range of motion in his right wrist, his lay description does not adequately rebut the medical evidence, including testing, as discussed above. The Board places more probative value on the objective evidence of record, which is measured in degrees, rather than on subjective complaints, which are less precise. Therefore, the objective evidence does not establish the Veteran met the criteria associated with a higher rating. In sum, the preponderance of the evidence is against a rating in excess of 10 percent for a right wrist disability prior to March 4, 2020. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3; Gilbert, supra. The claim is denied. From March 4, 2020 to November 17, 2020 For this brief rating period, the Veteran’s right wrist was assigned a 50 percent rating under Diagnostic Code 5010-5214. Under Diagnostic Code 5010, arthritis, due to trauma, substantiated by X-ray findings is rated as degenerative arthritis. 38 C.F.R. § 4.71a. Under Diagnostic Code 5214, a 30 percent rating is warranted for favorable ankylosis of the dominant wrist in 20 to 30 degrees of dorsiflexion; a 40 percent rating is warranted for ankylosis of the dominant wrist in any other position except favorable; and a 50 percent rating is warranted for unfavorable ankylosis of the dominant wrist, in any degree of palmar flexion, or with ulnar or radial deviation. 38 C.F.R. § 4.71a. The diagnostic code also directs that extremely unfavorable ankylosis be rated as loss of use of hands under Diagnostic Code 5125, which provides for a single 70 percent rating for loss of use of the major hand. 38 C.F.R. § 4.71a. In March 2020, the Veteran underwent an examination at a VA orthopedic clinic. At that time, the examiner found that he was experiencing a severely limited range of motion in palmar flexion, which was measured at less than 10 degrees, with less than 5 degrees of motion in ulnar or radial deviation. Based on these findings, the examiner concluded that the Veteran was experiencing unfavorable ankylosis. Based on these findings, the Veteran was assigned a 50 percent disability rating under Diagnostic Code 5214, for the presence of unfavorable ankylosis in the major hand. Diagnostic Code 5214 also states that “extremely unfavorable ankylosis” will be rated as loss of use of hands under Diagnostic Code 5125. As noted above, under Diagnostic Code 5125, loss of use of hands is rated at 70 percent for the major extremity. While the regulations do not define “extremely unfavorable ankylosis,” the Court has deemed that if a term does not have a definition in the statute/regulation, then the regular meaning should be used; consequently, “[e]xtremely unfavorable ankylosis is thus ankylosis of a greater degree of severity than mere unfavorable ankylosis.” See Shipwash v. Brown, 8 Vet. App. 218, 225 (1995). Here, there is no evidence of extremely unfavorable ankylosis during the period on appeal. The Board acknowledges that the Veteran was found to be experiencing unfavorable ankylosis; however, slight movement was still possible. The VA evaluator found that the Veteran’s ankylosis was unfavorable in nature, and a 50 percent rating was assigned accordingly. There is no evidence that the Veteran’s ankylosis was so severe during this period that it was comparable to the loss of use of his right hand. Thus, a higher disability rating is not warranted. The Board acknowledges the Veteran’s belief that his right wrist disability caused pain and limited function during this period. See Layno, supra. However, as noted above, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran’s impairment. Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.71a with respect to determining the severity of his service-connected right wrist disability. Further, in this case the Veteran does not have the training, skills, or expertise needed to determine the severity of his wrist disability. The lay opinions of the Veteran are less probative than the VA examination results, and the VA examiner’s opinion. In sum, the preponderance of the evidence is against a rating in excess of 50 percent for a right wrist disability between March 4 and November 17, 2020. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3; Gilbert, supra. The claim is denied. As of November 18, 2020 Starting November 18, 2020, the Veteran’s right wrist disability is rated at 30 percent disabling under Diagnostic Code 5010-5214. Pursuant to that code, a 30 percent rating is warranted for favorable ankylosis of the dominant wrist in 20 to 30 degrees of dorsiflexion; a 40 percent rating is warranted for ankylosis of the dominant wrist in any other position except favorable; and a 50 percent rating is warranted for unfavorable ankylosis of the dominant wrist, in any degree of palmar flexion, or with ulnar or radial deviation. 38 C.F.R. § 4.71a. In November 2020, the Veteran underwent a VA examination. At that time, ankylosis was found, with palmar flexion to 20 degrees, dorsiflexion to 25, ulnar deviation to 30 and radial deviation to 10 degrees. Although the examiner initially characterized this ankylosis as unfavorable, to 20 degrees of palmar flexion, she subsequently submitted two addendum opinions in which she clarified that the ankylosis was favorable due to dorsiflexion of 25 degrees on passive range of motion. His plantar flexion was 20 degrees, giving the Veteran a “small range of motion.” In her second addendum, the examiner again explained that the Veteran was experiencing favorable ankylosis of the right wrist, with 25 degrees of dorsiflexion. To receive a higher disability rating for the Veteran’s right wrist disability, there would need to be an evidentiary showing of ankylosis of the major wrist in any other position, except favorable. 38 C.F.R. § 4.71a, Diagnostic Code 5214. Such is not shown by the evidence of record. Here, the Board assigns significant probative weight to the findings of the November 2020 VA examiner, who reviewed the claims file, considered the Veteran’s account, and conducted an examination. Upon clinical examination, and clarification, she found favorable ankylosis of right wrist in 20 degrees to 30 degrees dorsiflexion. The Board observes that this finding falls squarely within the ambit of a 30 percent disability rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5214. The Board notes that the Veteran is competent to report what comes to him through his senses, such as experiencing pain and limited motion of his wrist. Layno, supra. However, the Board places more probative value on the objective evidence of record. Therefore, the objective evidence does not establish the Veteran met the criteria associated with a higher rating. Therefore, based upon the weight of medical evidence, the Board finds that a disability rating in excess of 30 percent for a right wrist disability is not warranted at any point after November 18, 2020. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3; Gilbert, supra. The claim is denied. Extraschedular consideration The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant’s disability level and symptomatology, then the claimant’s disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant’s disability level and symptomatology, a determination must be made whether the claimant’s exceptional disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” 38 C.F.R. § 3.321 (b)(1) (related factors include “marked interference with employment” and “frequent periods of hospitalization”). Id. Here, the lay and medical evidence of record fails to show unique or unusual symptomatology regarding the Veteran’s service-connected right wrist disability that would render the schedular criteria inadequate. As discussed above, the Veteran’s symptoms (pain, limitation of motion) are contemplated in the assigned schedular ratings. The record also does not reflect any unusual symptoms or affects beyond discomfort and limited diminution in the Veteran’s ability to perform core job functions. The record does not show recurring, extended hospitalization. Thus, the application of the rating schedule is not rendered impractical. While the Veteran’s representative, in a March 2021 Post-Remand Brief, argued that extraschedular consideration is appropriate in this matter, the Board notes that the only symptoms shown by the record are pain and decreased range of motion. These symptoms are contemplated by the rating schedule, and the record does not show any additional symptoms that are not being compensated. Esteban v. Brown, 6 Vet. App. 259 (1994). Importantly, the Veteran has been awarded a total disability rating for compensation based on individual unemployability due to service-connected disabilities, in part due to the effects of his right wrist disability, effective December 16, 2019. Accordingly, the Veteran is already in receipt of the superior benefit for the impact his right wrist has had on his ability to work. See Kellar v. Brown, 6 Vet. App. 157, 162 (extraschedular consideration [under § 3.321] may be warranted for disabilities that present a loss of earning capacity that is less severe than one where the Veteran is totally unemployable). Accordingly, referral for consideration of an extraschedular rating is not warranted, as the manifestations of the Veteran’s service-connected right wrist disability on appeal are considered by the schedular ratings assigned. Based on the foregoing, the Board finds the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321; Thun, supra. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeremy J. Olsen, 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.