Citation Nr: 21022822 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 15-08 880A DATE: April 19, 2021 ORDER Entitlement to a rating higher than 10 percent for service-connected residuals of a status post right wrist fracture (right wrist disability) is denied. FINDING OF FACT At no time during the appeal period does the evidence show that there has been favorable or unfavorable ankylosis of the Veteran’s right wrist. CONCLUSION OF LAW The criteria for a disability rating higher than 10 percent for a right wrist disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code (DC) 5215. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1965 to March 1969. This matter was previously before the Board in December 2018, at which time it was remanded for additional development. That development is now complete in substantial compliance with remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board will proceed with review. The Veteran and his representative contend that his right wrist symptoms have worsened and that he is entitled to a higher rating for his right wrist disability. See March 2015 VA Form 9; see also November 2018 Appellate Brief. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered because or incident to military service. 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. When evaluating musculoskeletal disabilities, 38 C.F.R. § 4.40 considers the functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, deformity or atrophy of disuse. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal movements of the body with normal excursion, strength, speed, coordination, and endurance. See 38 C.F.R. § 4.40; DeLuca, 8 Vet. App. 205. It is essential that examinations 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 innervation, or other pathology, or it may be due to pain, supported by adequate pathology or evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. The factors involved in evaluation, and rating disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The Veteran’s right wrist disability is rated pursuant to DC 5215. The Veteran’s increased rating claim was received on December 13, 2012. As such, the appeal period for this issue dates back to December 13, 2011. The Board notes that the highest disability rating under DC 5215, for limitation of motion of the wrist is 10 percent for dorsiflexion less than 15 degrees or palmar flexion limited in line with forearm. Thus, the Board will consider other applicable rating criteria to determine whether an increased rating is warranted. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). The medical evidence of record shows the Veteran is ambidextrous. See, e.g., October 2013 VA examination. However, the January 2021 VA examination states the Veteran is right-handed. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one wrist will be considered dominant. The injured wrist or the most severely injured wrist, of an ambidextrous individual will be considered the dominant hand for rating purposes. See 38 C.F.R. § 4.69. Under DC 5003, degenerative arthritis established by x-ray findings will be rated based on of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. 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 confirmed by objective findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of involvement of two or more major joints or two or more minor joint groups warrants a 10 percent rating and x-ray evidence of involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations warrants a 20 percent rating. Under DC 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. During a November 2013 VA examination, the Veteran complained of right wrist pain while lifting and while generally using his wrist. The Veteran was diagnosed with degenerative joint disease of the right wrist which was confirmed by x-ray imaging. No flare-ups were reported. Range of motion testing revealed the following: palmar flexion ended at 60 degrees, pain noted at 50 degrees; dorsiflexion (extension) ended at 45 degrees, pain noted at 35 degrees; radial deviation active range of motion against gravity was 0-20 degrees, pain at 10 degrees and ending at 20 degrees; passive range of motion 0-20 degrees, with pain at 10 degrees, ending at 20 degrees; ulnar deviation active range of motion against gravity 0-35 degrees, pain at 30 and ending at 35 degrees; passive range of motion 0-35 degrees with pain at 30 and ending at 35 degrees. Functional loss was noted as less movement than normal and pain in the right wrist. Range of motion after repetitive testing resulted in palmar flexion that ends at 60 degrees, and dorsiflexion that ends at 45 degrees, which mirrors pre-repetitive use testing. See id. There was no ankylosis of the right wrist. The Veteran had tenderness to palpation of the wrist, and full strength on flexion and extension. During a January 2021 VA examination, the Veteran complained of pain in his right wrist, denied flare ups and stated that he cannot lift a gallon of milk with his right hand. The examiner noted that the Veteran had abnormal range of motion of the following: palmar flexion of 0-10 degrees, ulnar deviation of 0-5 degrees, dorsiflexion of 0-10 degrees and radial deviation of 0-5 degrees. The examiner noted that the range of motion itself did not contribute to a functional loss. Range of motion testing revealed the following: palmar flexion 0-45 degrees, ulnar deviation of 0-45 degrees, dorsiflexion of 0-50 degrees and radial deviation of 0-20 degrees. Repetitive testing did not demonstrate an additional loss of range of motion. Pain, weakness, fatigability, or incoordination limited functional ability over time resulting in range of motion of the following: palmar flexion, ulnar deviation, dorsiflexion, and radial deviation of 0-5 degrees. The examiner did not find ankylosis of the right wrist. Based upon the evidence of record, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran’s right wrist disability. The Board has considered whether the Veteran is entitled to higher disability rating under other potentially applicable diagnostic codes. Both the November 2013 and January 2021 VA examiners concluded there was no ankylosis in the right wrist. There are no medical records reflecting that the Veteran has ankylosis of the right wrist. Accordingly, a higher rating is not warranted under DC 5214 for ankylosis of the wrist. Although VA must in some circumstances consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, see DeLuca v. Brown, 8 Vet. App. 202 (1995) and 38 C.F.R. §§ 4.40, 4.45, this rule is not for application as the Veteran is receiving the maximum schedular evaluation based on limitation of motion and a higher rating requires a finding of ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). As indicated above, the Veteran was diagnosed with arthritis of the right wrist during the November 2013 VA examination. To this extent, degenerative and traumatic arthritis are rated based on limitation of motion under the appropriate diagnostic code for the specific joint involved. See 38 C.F.R. § 4.71a, DC 5003, DC 5010. As the Veteran is already in receipt of the maximum 10 percent rating under DC 5215 and this rating contemplates limitation of motion/function of the wrist due to pain, a separate rating based on arthritis would constitute pyramiding, which is prohibited. 38 C.F.R. § 4.14. In sum, the preponderance of the evidence is against an increased rating for the right wrist disability at any time during the appeal period. The appeal must be denied. J. Komperda Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McKenzie, 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.