Citation Nr: 21027615 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 15-36 308 DATE: May 6, 2021 ORDER Entitlement to an increased evaluation for left wrist, status-post closed fracture third metacarpal bone (claimed as left wrist disability) is denied. FINDING OF FACT The Veteran's left wrist disability is manifested by pain and limited motion, but is not manifested by ankylosis. CONCLUSIONS OF LAW The criteria for an increased evaluation in excess of 10 percent for left wrist disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.21, 4.31, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5215. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2002 to June 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in May 2019. A transcript of the hearing has been associated with the Veteran's VA claims file. In October 2019, the Board remanded the Veteran's claim for additional development. The case is once again before the Board. The Board notes that there are private medical treatment records that may have been relevant to the Veteran's claim that remain outstanding. Specifically, the record indicates the Veteran sees a private medical provider for his left wrist. The Veteran had the opportunity to provide VA authorization to obtain any outstanding records from this provider on his behalf but failed to return a completed VA Form 21-4142. In this regard, the Board notes that the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). VA is only obligated to obtain records that are adequately identified and for which necessary releases have been submitted. 38 C.F.R. § 3.159(c)(1). Therefore, as the Veteran has not authorized the release of any additional outstanding treatment records, the Board will proceed with adjudicating the claim on appeal based on the available evidence of record. 1. Entitlement to an increased evaluation for left wrist, s/p closed fracture third metacarpal bone (claimed as left wrist disability) Laws and Regulations Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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. It is essential that the examination upon 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 innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. The provisions regarding the avoidance of pyramiding, see 38 C.F.R. § 4.14, do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. However, those provisions should only be considered in conjunction with the DCs predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable DC. DC 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, DC 5215. Higher ratings are warranted only where there is ankylosis of the wrist. DC 5214. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107. Analysis The Veteran contends that he is entitled to an increased disability rating in excess of 10 percent for his left wrist disability. The Veteran's left wrist disability is currently rated as 10 percent disabling, the maximum rating available based on limitation of motion. See 38 C.F.R. § 4.71a, DC 5215. The Veteran underwent a VA wrist conditions examination in September 2015. At the time of the examination, the Veteran's left wrist was noted to be abnormal or outside of normal range. The examiner noted palmar flexion would be limited to 30 degrees (normal being to 80 degrees); dorsiflexion would be limited to 25 degrees (normal being to 70 degrees); ulnar deviation would be limited to 20 degrees (normal being 45 degrees); and radial deviation would be limited to 10 degrees (normal being to 20 degrees). The range of motion itself was noted not to contribute to functional loss. While the VA examiner noted no pain upon examination, there was objective evidence of localized tenderness or pain on palpation which included some tenderness of the dorsal left hand. There was no evidence of pain with weight bearing. The Veteran was not being examined after repetitive use. The examiner noted the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The VA examiner found muscle strength was 5/5. There was no muscle atrophy and no evidence of ankylosis. The VA examiner noted the Veteran could not perform a job requiring overuse of the left wrist. During his May 2019 Board hearing the Veteran testified that his wrist has worsened since his September 2015 VA examination. He testified that the pain is constant and is becoming normal. He testified that for the most part it takes real mental concentration to lift his wrist up outside of the normal. He testified he cannot throw a football or catch a ball; he has difficulty driving; and opening a bottle of water. He testified at times his wrist would lock into more of a curved position and he would have to pop the wrist back. He stated he has to constantly flex it and when he is flexing it is popping. He testified that he sees a private doctor for his hand. The Board remanded the Veteran's claim in October 2019 because the Veteran had described worsening at his Board hearing. In addition, the Board directed the RO to obtain outstanding treatment records. In a letter dated November 26, 2019, VA requested that the Veteran identify any non-VA treatment providers and attached a VA Form 21-4142 (Authorization to Disclose Information to VA) so that it could obtain the authorization to request treatment records from the Veteran's private medical provider identified during the Board hearing. On December 18, 2019, the Veteran submitted a VA Form 21-4138 with the providers information and submitted an incomplete VA Form 21-4142. A notice of an incomplete request, dated December 27, 2019, was sent to the Veteran. To date, the Veteran has not submitted a completed VA Form 21-4142. Pursuant to the Board's remand, the Veteran was afforded a VA examination in December 2019 to determine the nature and current severity of his left wrist disability. At the time, he reported pain and limited range of motion. He reported his wrist hurts all the time, it swells, and gets stuck in certain positions. He reported gripping is difficult, trouble with opening a bottle of water, having to alter his driving and how he holds the steering wheel and difficulty with tying his shoe. He stated the course of the condition since onset is ongoing with pain and decreased range of motion due to hardware. Both passive and active ROM testing showed ROM with all motions to be abnormal or outside of normal range. The VA examiner noted pain upon examination which causes functional loss and objective evidence of moderate localized tenderness or pain on palpation of the dorsum of the left hand/wrist. There was no evidence of pain with weight-bearing. Following repetitive use testing, there was no additional limitation of motion or loss of function. The VA examiner determined the examination was medically consistent with the Veteran's statements describing functional loss with repeated use over time. Further, the VA examiner concluded pain did significantly limit functional ability with repeated use over time. In terms of ROM, the VA examiner estimated his palmar flexion would be limited to 10 degrees (normal being to 80 degrees); dorsiflexion would be limited to 15 degrees (normal being to 70 degrees); ulnar deviation would be limited to 5 degrees (normal being 45 degrees); and radial deviation would be limited to 5 degrees (normal being to 20 degrees). Aside from ROM, the VA examiner found the Veteran's muscle strength was slightly reduced in all respects, scoring at a 4/5 indicating active movement against some resistance on a scale from 0/5 indicating no muscle movement to 5/5 indicating normal muscle strength. There was no evidence of muscle atrophy and no evidence of ankylosis. The VA examiner acknowledged that the Veteran underwent an arthroscopic or other wrist surgery in 2011. Notably, the examiner indicated he suffered from a decreased range of motion as a residual thereof. As for functional impairment, the VA examiner noted grabbing and gripping is difficult. Considering the above, the Board finds the preponderance of the evidence does not support an increased disability rating in excess of 10 percent for the left wrist disability at any time during the pendency of this appeal. Under DC 5215, the maximum disability rating permissible is the presently assigned 10 percent disability rating. As the evidence does not show the left wrist is ankylosed, the Veteran may not receive a higher rating under DC 5214. For example, the September 2015 and December 2019 VA examinations note that the Veteran does not have any ankylosis of the left wrist. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not for application, and the Veteran's claim for an increased rating is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Aston, 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.