Citation Nr: 21023601 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 18-50 939 SMC SDATE: April 21, 2021 ORDER Entitlement to a rating in excess of 10 percent disabling for left wrist post-traumatic arthritis (previously rated as left wrist limitation of motion) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran is currently rated at the maximum schedular evaluation under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5215, Limitation of motion of wrist. 2. The Veteran does not have X-ray evidence of involvement of two or more major joints or two or more minor joint groups, either with or without occasional incapacitating exacerbations. 3. The Veteran does not have favorable ankylosis of the wrist in 20 degrees to 30 degrees dorsiflexion, ankylosis in any other position, except favorable, unfavorable ankylosis in any degree of palmar flexion, or with ulnar or radial deviation, or extremely unfavorable ankylosis. CONCLUSION OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent disabling for left wrist post-traumatic arthritis (previously rated as left wrist limitation of motion) have not been met. 38 U.S.C. §§ 101, 1110, 1111, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.3, 4.40, 4.44, 4.45, 4.71a. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from October 1975 to May 1982. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In appeal of his claim, the Veteran submitted two notices of disagreement: 1) VA Form 21-0958; and 2) VA Form 10182. See July 2019 VA Form 21-0958, Notice of Disagreement and VA Form 10182, Decision Review Request: Board Appeal. In the VA Form 21-0958, the Veteran indicated that he was disagreeing with the “Effective Date of Award,” in addition to the “Evaluation of Disability.” See July 2019 VA Form 21-0958, Notice of Disagreement. The issue of “Effective Date of Award” was addressed in a March 2020 Board decision and is no longer for appeal. See March 2020 BVA Decision. Additionally, this decision remanded the issues of entitlement to service connection for tinnitus and to special monthly compensation based on the need for aid and attendance. Both appeals were granted following the remand will not be addressed here. As noted, this matter was previously before the Board in November 2020, which also resulted in a remand “for a VA wrist examination to assess the severity of the service-connected left wrist disability.” See July 2019 and November 2020 Board remands. The matter is now returned to the Board for further action. This case has been advanced on the docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). 1. Increased rating for left wrist post-traumatic arthritis (previously rated as left wrist limitation of motion). The Veteran contends that his left wrist condition is more severe than is currently reflected in the schedular rating. See July 2019 VA Form 21-0958, Notice of Disagreement. Increased Ratings Disability evaluations are determined by the application of facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) in 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred in or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate, staged ratings are appropriate in adjudicating increased ratings when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that correspond to different rating criteria. Hart v. Mansfield, 21 Vet. App. 506 (2007). The period of consideration begins one year prior to the claim for increase and extends to the present. In the case of initial ratings, the period for consideration begins with the effective date of service connection. Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35 (1993) (holding that a claim for an original or increased rating remains in controversy when less than the maximum available benefit is awarded). Any reasonable doubt as to the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. Factual Background The Veteran’s left wrist condition was evaluated under 38 C.F.R. § 4.71a, DC 5099 – 5019, at the time of his April 1989 initial rating. Pursuant to 38 C.F.R § 4.59, which addresses “any form of arthritis,” painful motion in the wrist is assigned “at least the minimum compensable rating for the joint” in question. See 38 C.F.R. § 4.59. Under 38 C.F.R. § 4.71a, DC 5215, “Wrist, limitation of motion of,” a 10 percent evaluation is the minimum compensable rating. See March 1989 VA Form 21-6796b, Rating Decision; see also 38 C.F.R. § 4.71a, DC 5003 (2004). Effective March 2015, the Veteran’s left wrist disability was assigned a new diagnostic code, 5215, which was the same schedular criteria used to evaluate his disability prior to March 2015. See January 2016 VA Rating Decision Codesheet. Under DC 5215, a 10 percent rating is assigned for dorsiflexion less than 15 degrees or palmar flexion limited in line with forearm, major and minor joints. Ten percent is the maximum evaluation under DC 5215. See 38 C.F.R. § 4.71a, DC 5215 (2004). Arthritis, due to trauma and substantiated by X-ray findings, was covered under DC 5010 prior to February 7, 2021, and was evaluated as “arthritis, degenerative,” DC 5003. Under DC 5003, degenerative arthritis is established by X-ray findings and is rated based on limitation of range of motion under the appropriate diagnostic code for the specific joint or joints involved. When the limitation of range of motion of the joint in question is noncompensable under the appropriate diagnostic code, a rating of 10 percent is assigned for each such major joint or group of minor joints affected by such limitation of motion, to be combined, not added, under DC 5003. Limitation of range of motion is objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. See 38 C.F.R. § 4.71a, DC 5003 (2004). In the absence of limitation of range of motion evidence, arthritis is rated: 1) with X-ray evidence of involvement of 2 or more major joints or with 2 or more minor joint groups, with occasional incapacitating exacerbations, 20 percent disabling; and 2) with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, 10 percent disabling. Note (1) to DC 5003 states, “The 20 (percent) and 10 (percent) ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion.” Note (2) to DC 5003 states, “The 20 (percent) and 10 (percent) ratings based on X-ray findings, above, will not be utilized in rating conditions listed under (DC) 5013 to 5024, inclusive.” See 38 C.F.R. § 4.71a, DC 5003 (2004). Ankylosis of the wrist, prior to February 7, 2021, was addressed under DC 5214, where favorable ankylosis, in 20 degrees to 30 degrees dorsiflexion, was evaluated as 20 percent disabling for minor joints and 30 percent disabling for major joints. For any other position, except favorable ankylosis, a 30 percent evaluation was assigned for minor joints, and a 40 percent evaluation was assigned for major joints. Unfavorable ankylosis, in any degree of palmar flexion, or with ulnar or radial deviation, was evaluated as 40 percent disabling for minor joints and 50 percent disabling for major joints. See 38 C.F.R. § 4.71a, DC 5214 (2004). As discussed previously, DC 5215, limitation of range of motion of wrist, assigns a flat 10 percent rating for minor and major joints. Diagnostic code 5215 did not change with the updated musculoskeletal rating schedule on February 7, 2021, and the 10 percent evaluation for dorsiflexion less than 15 degrees or palmar flexion limited in line with forearm still applies for both minor and major joints. See 38 C.F.R. § 4.71a, DC 5215 (2021). Effective February 7, 2021, the Rating Schedule for evaluating musculoskeletal disabilities changed. Under the new criteria, DC 5010 has been renamed post-traumatic arthritis. Under new DC 5010, post-traumatic arthritis is rated as limitation of range of motion, dislocation, or other specified instability for the affected joint. If 2 or more joints are affected, each joint rating is combined in accordance with 38 C.F.R. § 4.25, Combined Ratings Table. See 38 C.F.R. § 4.71a, DC 5010 (2021).   Analysis The Veteran submitted his application for an increased evaluation of left wrist post – traumatic arthritis on March 16, 2015. See March 2015 VA Form 21-526EZ, Application for Disability Compensation. The appropriate period of consideration for “factually ascertainable” evidence of entitlement to an increased evaluation begins one year prior to the claim for increase and extends to the present. See 38 C.F.R. § 3.400(o). In the present case, the earliest date for entitlement to an increase in disability evaluation is March 16, 2014. In his November 2015, the Veteran was afforded a VA Wrist Conditions examination, and evaluated in-person. The examiner reviewed the claims file and considered the statements of the Veteran, including his report of onset of left wrist pain “running scrapers and bulldozers” in service. The Veteran was diagnosed with “Tendonitis.” There was no report of flare-ups. Regarding functional loss, the Veteran stated, “When driving a mixer truck, I can’t handle the chutes because my wrist hurts. I can’t wear a watch on my left wrist because it hurts.” Range of motion testing, which included weight-bearing and repetitive testing, recorded palmar and dorsiflexion at 40 degrees. No crepitus, reduction in muscle strength, atrophy, or ankylosis was reported by the Veteran. Muscle strength was normal. Regarding functional impact, the Veteran indicated that he could not use a keyboard to type with his left hand and could not lift more than 25 pounds. See November 2015 VA Wrist Conditions examination report. A radiograph was ordered pursuant to the November 2015 VA examination and produced the following results: “Findings: Single view of the wrist shows no fracture, osseous malalignment, significant degenerative changes, or focal soft tissue swelling. Impression: Normal single left wrist radiograph. No significant (degenerative joint disease).” No degenerative or traumatic arthritis was documented. See December 2015 VA Wrist Conditions X-ray examination report. Pursuant to the November 2020 Board remand, a new VA examination was ordered “so that a more accurate disability picture is obtained.” See November 2020 BVA decision. The Veteran was afforded an in-person evaluation, and the examiner completed a review of the claims file. The statements of the Veteran were considered, which included history of the onset of left wrist pain consistent with the history provided by the Veteran at the November 2015 VA Wrist Conditions examination. The Veteran added that he “fell off” a front-end loader in 1977 while attempting to dismount the machine, catching himself with his left hand, which resulted in the initial injury. In 1978, the Veteran described a “re-injury” that occurred while using a sledgehammer to change a tire. See January 2021VA Wrist Conditions examination report. At the January 2021 examination, the Veteran reported “daily” flare-ups that include pain and swelling. The spouse of the Veteran reported that Parkinson’s Disease and Tardive Dyskinesia contribute to the worsening of his symptoms, which include: pain, weakness, and difficulty with “daily cares,” described as opening jars, turning door knobs, lifting up from a seated position, and leaning on a counter top for support. Range of motion testing, which included active, passive, repetitive, weight-bearing, and non-weightbearing testing, was measured at 40 degrees dorsiflexion and 30 degrees palmar flexion. The same range of motion was recorded after repetitive testing, and the same range of motion was reported by the Veteran during flare-ups. No ankylosis was reported by the Veteran. The examiner noted the diagnosis of posttraumatic arthritis of the left wrist and described the condition as “a common form of wrist arthritis.” See January 2021 VA Wrist Conditions examination report. The Veteran continues to report pain in his left wrist. See October 2017 VA Mental Health Consult (“Limited motion of wrist…Current significant pain problems: back, arms, wrist, headaches”), November 2017 VA Mental Health Care Provider Follow Up (“reports chronic left wrist pain…Left wrist is bothering him today”), and January 2021 VA Primary Care Telephone Encounter Note (“pain score 7 left wrist and lower back”). Turning first to DC 5010, there is no radiographic evidence of “2 or more joints affected” to warrant a separate rating for “limitation of motion, dislocation, or other specified instability” for additional joints. See December 2015 VA Wrist Conditions X-ray examination report. With the exception of “Decompression neuroplasty ulnar nerve left elbow and radial sensory nerve left mid forearm...left cubital tunnel syndrome degeneration, left radial sensory neuroplasty with Wartenberg’s entrapment,” the evidence of record does not identify any additional joints affecting the left wrist of the Veteran. See July 2006 The Hand Clinic of Colorado Springs Patient Consent Form. Considering next DC 5214 and DC 5125, there is no report by the Veteran or notes by the examiners of either favorable, unfavorable, or extremely unfavorable ankylosis in the left wrist of the Veteran. Both the November 2015 and January 2021 VA examination reports are negative for evidence of ankylosis. Regarding DC 5215, there is no evidence in either the November 2015 or the January 2021 VA examinations that dorsiflexion is less than 15 degrees. Dorsiflexion was measured at 40 degrees in November 2015 and 40 degrees in January 2021. See November 2015 and January 2021VA Wrist Conditions examination reports. Further, the Board notes that the Veteran is currently service-connected for bradykinesia, tremors and muscle rigidity / stiffness of the left upper extremity associated with antipsychotic-induced movement. See February 2021 VA Rating Decision Codesheet. Given the January 2021 statements of the Veteran’s spouse regarding a combination of factors that contribute to the Veteran’s left wrist disability, the Board finds that the Veteran is adequately compensated for the average impairment in earning capacity due to his service-connected left wrist disability symptoms under the current schedular ratings. See Thun v. Peake, 22 Vet. App. at 115 (2008). The Veteran has not claimed uncompensated functional disability or impairment related to the wrist, and none has been disclosed by the evidence of record. Conclusion The Board has carefully reviewed and considered the Veteran’s statements regarding the severity of his left wrist disability. To that end, the Board acknowledges that the Veteran, in advancing this appeal, believes that the wrist injury is more severe than is reflected in the assigned evaluation rating. The Board is likewise aware of the Veteran’s contentions that his wrist disability impacts his daily activities. Moreover, the Board notes that the Veteran is competent to report observable symptoms such as pain, swelling, and weakness. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In this case, however, the competent medical evidence offering detailed, specific, and specialized determinations pertinent to the rating criteria, namely, determinations of degree of motion, the existence of ankylosis, the significance of X-ray findings, and affected joints is the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The evidence also contemplates the Veteran’s descriptions of his symptoms both at VA examinations and in treatment, including his reports of impairment with respect to limits on “daily cares.” The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. In summary, considering all evidence in the record, the Veteran’s current symptoms for a wrist disability, evaluated at 10 percent under 38 C.F.R. § 4.71a, DC 5215, more nearly approximates the criteria required for that rating. The Veteran is documented to have range of motion at greater than 15 degrees. There is no evidence of ankylosis to require the application of DC 5214, nor is there X-ray evidence of involvement of 2 or more joints to necessitate the application of DC 5010 for additional joint ratings. Further, the prohibition against the pyramiding of claims would prevent a separate rating for the same manifestation of symptoms under any combination of DC 5010, Post-traumatic arthritis, DC 5214, Wrist, ankylosis of, DC 5215, Wrist, limitation of motion of, and DC 5125, Loss of use of hands. Accordingly, a preponderance of the evidence is against a finding that the Veteran is entitled to a rating in excess of 10 percent for his left wrist condition, either under 38 C.F.R. § 4.71a, DC 5010, 5214, 5215, or 5125. The November 2015 and January 2021 VA examination reports are the most probative evidence of record on the question of entitlement to an increased rating. The opinions were based on an extensive review of all the evidence, including lay statements from the Veteran, were supported by a detailed rationale, provided data to support any conclusions, and each provided a clear and reasoned analysis, the source of the most probative value in a medical opinion. See Nieves-Rodrigues v. Peake, 22 Vet. App. 295 (2008). Moreover, the November 2015 and January 2021 VA examiner opinions are consistent with one another and the evidence of record. The VA examiner opinions provide compelling evidence against the Veteran’s claim for increase. There is no competent, credible evidence to refute the November 2015 or January 2021 VA examiner opinions. The weight of the probative evidence of record is against a finding that the Veteran is entitled to a disability rating in excess of 10 percent for a left wrist disability. Consequently, the claimed increase is not warranted. In reaching the conclusions stated above, the Board has considered the applicability of the benefit of the doubt doctrine. The rule does not apply when the Board finds that a preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2020); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 2. Entitlement to a TDIU is remanded. The Board notes that the Veteran is in receipt of a total schedular rating for his service-connected acquired psychiatric disorder, to include pervasive depressive disorder with anxious distress, major depressive episode, severe, with psychotic features, and alcohol use disorder, in remission. See February 2021 VA Rating Decision Codesheet. While the Veteran has never made a formal or informal claim for a total rating based on unemployability (TDIU), the Board is aware that the Veteran is in receipt of a Social Security Administration determination that he is unable to perform “past relevant work as a heavy equipment operator,” and, “the requirements of the claimant’s past relevant work exceed the claimant’s residual functional capacity.” See January 2009 Social Security Administration Order of Administrative Judge. The Board notes the award of a 100 percent disability rating does not necessarily render moot a claim of entitlement to a TDIU. See Bradley v. Peake, 22 Vet. App. 280 (2008). Instead, a TDIU claim can be granted, despite the existence of a total schedular rating, for the purpose of establishing entitlement to an award of Special Monthly Compensation (SMC). Id. In this regard, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the United States Court of Appeals for Veterans Claims’ (Court’s) decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of SMC. Specifically, under 38 U.S.C. § 1114(s), SMC is payable at the housebound rate where the veteran has a single service-connected disability rated as 100-percent disabling and, in addition, (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. See 38 C.F.R. § 3.350(i). In Bradley, the Court held that 38 C.F.R. § 3.350(i) permits a TDIU rating based on a single disability to satisfy the statutory requirement of the 100 percent rating. See 22 Vet. App. at 280; see also Buie v. Shinseki, 24 Vet. App. 242, 249-250 (2011) (“A total disability rating based on individual unemployability that is based on multiple underlying disabilities cannot satisfy the section 1114(s) requirement of ‘a service-connected disability’ because that requirement must be met by a single disability.”). The Board must always assume that the Veteran is seeking the maximum benefit allowable. See generally 38 C.F.R. §§ 3.102, 4.3; Bradley v. Peake, 22 Vet. App. 280 (2008). Therefore, the Board will consider whether TDIU is warranted for the Veteran’s service-connected disabilities, other than the Veteran’s service-connected acquired psychiatric disorder, to include PTSD and depressive disorder, in order to determine if the Veteran is eligible for an award of SMC. The Veteran should be provided the opportunity to complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, and VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, and to provide any additional evidence relating to his inability to work during the appeal period. The matter is remanded for the following actions: 1. The AOJ should obtain copies of any outstanding VA or non-VA treatment records for the Veteran’s disabilities. 2. The AOJ should provide the Veteran with the appropriate notice of VA’s duties to notify and assist regarding how to substantiate a claim for entitlement to TDIU, to include the provision of VA Forms 21-8940 and 21-4192. The Veteran should assist in the matter by completing the Forms and providing the requested information. 3. After completing the directed actions, to include any further development required to fully comply, adjudicate the claim for entitlement to a TDIU and SMC under 38 C.F.R. 3.350(i) as appropriate. If, based on the entirety of the evidence, the relief sought on appeal is not granted in full, the Veteran should be provided a Supplemental Statement of the Case (SSOC) and given the appropriate opportunity to respond. 4. If, upon completion of the above actions, the issue remains denied, the case should be returned to the Board after compliance with appellate procedures. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Small, Attorney Advisor 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.