Citation Nr: 21025970 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 09-37 028A DATE: April 29, 2021 ORDER For the entire appeal period, a higher initial 30 percent rating for a left wrist disability, including lunate and navicular chondromalacia, synovitis, and scars, status post arthroscopy, is granted. FINDINGS OF FACT 1. For the entire appeal period from November 10, 2003, the Veteran’s left wrist disability has been characterized by limitation of motion of the wrist with functional loss resulting in 20 degrees of plantar flexion with pain, flare-ups of pain, and pain with repetitive use. 2. Surgical scars on the left wrist are neither unstable nor painful. 3. The schedular rating criteria adequately contemplates the Veteran’s disability picture and an extraschedular rating is not warranted. CONCLUSION OF LAW The criteria for a higher initial 30 percent rating for a left wrist disability, including lunate and navicular chondromalacia, synovitis, and scars, status post arthroscopy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5214. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1968 to November 1972, from December 1990 to June 1991, from October 1991 to July 1992, and from August 1992 to September 1992. The matter comes before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In an April 2014 rating decision, the RO granted service connection for left wrist disability and assigned a 10 percent disability rating from November 10, 2003. The Veteran has appealed the initial rating. In March 2017 the Veteran testified at a Board videoconference hearing. A transcript of the hearing is of record. The Board remanded the appeal in May 2017, November 2018, and July 2020 in pertinent part, to obtain an updated and adequate VA examination and to refer the appeal for an extraschedular rating to the Director of Compensation Service. The Agency of Original Jurisdiction has substantially complied with the Board remands in completing the requested development. Entitlement to a higher initial rating in excess of 10 percent for a left wrist disability, including lunate and navicular chondromalacia, synovitis, and scars, status post arthroscopy The Veteran contends that he is entitled to a higher rating in excess of 10 percent for his left wrist disability, to include on an extraschedular basis. The Veteran’s disability is rated at 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5215, for limitation of motion of the wrist. VA examinations show that the Veteran is left-handed. Under Diagnostic Code 5215, a 10 percent rating is warranted for dorsiflexion of the major or minor wrist at less than 15 percent or palmar flexion limited in line with the forearm. A maximum 10 percent rating allowable under Diagnostic Code 5215. 38 C.F.R. § 4.71a. Under Diagnostic Code 5214, a higher 30 percent rating may be assigned with favorable ankylosis of the wrist in 20 degrees or 30 degrees dorsiflexion. A 40 percent rating may be assigned for the major wrist for ankylosis in any other position other than favorable. Finally, a 50 percent rating is assigned for unfavorable ankylosis of the major wrist, in any degree of palmar flexion, or with ulnar or radial deviation. 38 C.F.R. § 4.71a, Diagnostic Code 5214. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board finds that for the entire appeal period, a higher 30 percent rating is warranted for the Veteran’s service-connected left wrist disability. Diagnostic Code 5215 provides a maximum 10 percent rating for the major wrist. The Board finds, however, that a higher 30 percent rating may be assigned as the Veteran’s disability and functional loss due to pain, weakness, fatigability, and flare-ups of pain result in a disability level analogous to favorable ankylosis of the wrist in 20 degrees or 30 degrees dorsiflexion. Here, initial January 2008 and November 2009 VA examinations were obtained to address service connection for a left wrist disability. While range of motion was noted, to include dorsiflexion to 30 degrees in January 2008 and 65 degrees dorsiflexion and 75 degrees palmar flexion in November 2009, the VA examiners did not adequately address the loss of motion in degrees due to factors such as pain, weakness, or flare-ups of pain. Similarly, November 2015 and November 2017 VA examinations were not adequate. While they identified full range of motion in the left wrist with pain, they did not address at what degree pain occurred, and did not address loss of range of motion due to pain, weakness, fatigability, or flare-ups of pain. The Board will, therefore, use the range of motion findings from the most recent May 2019 VA examination, which the Board finds is adequate. The May 2019 VA examiner identified 45 degrees palmar flexion and 70 degrees dorsiflexion in the right wrist. Pain was noted on examination with palmar flexion and was noted to cause functional loss. There was localized tenderness or pain on palpation of the joint, and pain with weight bearing. Pain, weakness, fatigability, incoordination, as well as flare-ups of pain did significantly limit functional ability with repeated use over time. The impact of this functional loss, described in terms of range of motion, resulted in 20 degrees palmar flexion and 70 degrees dorsiflexion. The Veteran was found to have reduced muscle strength in the left wrist on flexion and extension. There was no muscle atrophy and no ankylosis. The May 2019 VA examiner reported that the functional impact of the Veteran’s wrist disability was that he was not able to work in an occupation requiring lifting, carrying, grasping, or holding any heavy items for prolonged or repeated times. Earlier examinations also noted functional limitations due to the left wrist consistent with the Veteran’s statements and testimony. The January 2008 examiner noted that the Veteran had cramping of the hand upon using the computer, difficulty with opening jars, using tools, or working on the lawn. The November 2009 VA examiner noted mild daily pain with flare-ups two or three days a week. The May 2015 VA examiner noted minimized repetitive use of the hand, with no lifting over 10 pounds. The Veteran reported moderate to severe flare-ups four times a week lasting two to four hours. During a November 2017 VA examination, the Veteran reported that he used a wrist brace when driving, and that he had pain every time he used his wrist. The VA examiner stated that the Veteran would have difficulty with work requiring repetitive or prolonged use of wrist, the use of tools, typing, any activity with dorsiflexion, or heavy lifting. The Veteran had 45 degrees plantar flexion, and with consideration of his functional loss due to pain and other factors, the May 2019 VA examiner indicated that he would have 20 degrees plantar flexion in the left wrist. The Board finds, however, that with consideration of the Veteran’s lay reports of symptoms and VA examinations showing functional loss due to pain, loss of strength, fatigability, pain during flare-ups, and pain during repetitive use, as well as functional limitations to lifting, typing, and using tools, or any type of repetitive use, the Veteran’s left wrist disability more nearly approximates the next higher 30 percent rating under Diagnostic Code 5214 based on favorable ankylosis of the major wrist. While VA examinations show that the Veteran does not have ankylosis of the wrist, a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis—i.e., functional loss consistent with that contemplated by ankylosis. See 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). Here, the Veteran’s wrist disability is shown to result in frequent flare-ups of pain, pain with use of the wrist, and precludes any activities requiring repetitive use of the wrist. Accordingly, resolving reasonable doubt in the Veteran’s favor, the Board finds that the evidence as described above demonstrates a functional equivalent to favorable ankylosis of the wrist in 20 degrees or 30 degrees dorsiflexion. The Board finds that the Veteran did not have actual ankylosis of the wrist, and even considering the Veteran’s lay reports of symptoms and functional loss, the degree of additional limitation reflected by VA examinations, that his disability does not approximate or demonstrate a functional equivalent to ankylosis in any other position other than favorable to warrant the next higher 40 percent rating. The Veteran is shown to have surgical scars present on the left wrist. May 2015 and May 2018 VA examinations show that the left wrist scars were not painful or unstable, and did not have a total area greater than 39 square centimeters to warrant a compensable evaluation under Diagnostic Codes 7804 pertaining to scars. 38 C.F.R. § 4.118. The scars did not result in any functional loss. Accordingly, a separate rating is not warranted for surgical scars on the Veteran’s left wrist. Finally, the issue of consideration of an extraschedular rating was raised by the Veteran’s representative in a June 2020 written argument. The first question is whether the schedular rating criteria adequately contemplate the veteran’s disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant’s symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). The Board finds that an extraschedular rating is not warranted. The Veteran was assigned an initial 10 percent rating under Diagnostic Code 5215, which contemplates ratings based on limitation of motion of the wrist, specifically, dorsiflexion of the major or minor wrist at less than 15 percent or palmar flexion limited in line with the forearm. While that Diagnostic Code provided a maximum 10 percent rating, higher ratings were available based on ankylosis under Diagnostic Code 5214, and in this case, a higher 30 percent rating was granted under that Diagnostic Code where the Veteran’s was found to demonstrates functional loss analogous to favorable ankylosis of the left wrist based on his frequent flare-ups of pain, pain with use of the wrist, and functional loss due to weakness, fatigability, and with repetitive use. Thus, in regard to the first element, comparison of the Veteran’s symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. The record shows that he has complaints and findings of loss of motion, loss of strength or weakness, inability to perform repetitive use tasks with the left wrist, and flare-ups of pain with use of the wrist. Diagnostic Code 5214 and 5215 do not specifically list all the Veteran’s symptoms. However, 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; Mitchell, 25 Vet. App. at 37. For disabilities of the joints in particular, the Rating Schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. Thus, the Veteran’s functional loss, pain, loss of motion, and associated inability to perform repetitive use tasks, lift, type, and use tools are well contemplated by the Rating Schedule for disabilities of the joints and Diagnostic Codes 5214 and 5215. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. As a result, Diagnostic Codes 5214 and 5215 contemplate the entire range of impairment resulting from a major wrist disability. For this reason, the Veteran’s specific symptoms and their severity are contemplated by the rating schedule. See, e.g., Spellers v. Wilkie, 30 Vet. App. 211, 219 (2018). (Continued on the next page)   Because the Rating Schedule was purposely designed to compensate for such functional effects of the Veteran’s disabilities in all spheres of his daily life, including at work and at home, and given the variety of ways in which the Rating Schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran’s disability picture. Thus, the Board finds that an extraschedular rating is not warranted. The Board finds that the Veteran’s left wrist disability does not otherwise present an exceptional disability picture and he does not exhibit other related factors, such as marked interference with employment or frequent periods of hospitalization. While the Veteran’s left wrist disability does interfere with employment, the Board finds that such interference is addressed by his 30 percent rating, and higher ratings are available based on unfavorable ankylosis of the wrist. The Board finds that the left wrist disability is not so severe as to cause marked interference with employment or frequent hospitalizations. Therefore, the Board concludes that the Veteran’s disability picture does not exhibit other related factors such as marked interference with employment or frequent periods of hospitalization that would warrant further extraschedular consideration. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christine C. Kung 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.