Citation Nr: 21030183 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 13-20 388 DATE: May 18, 2021 ORDER Entitlement to a rating in excess of 10 percent for a right wrist disability is denied. FINDINGS OF FACT 1. The Veteran was scheduled for an examination in July 2019 in association with his claim for an increased rating for a right wrist disability. He did not report. 2. The Veteran is currently in receipt of the highest disability rating under Diagnostic Code (DC) 5215 for limitation of motion of the wrist and the evidence does not reflect that the Veteran has ankylosis of the wrist. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a right wrist disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5215. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1978 to October 1980. A Board of Veterans' Appeals (Board) hearing was held in March 2017. A transcript is contained within the claims file. The Board remanded this matter in October 2017 for further evidentiary development. The case has returned to the Board for appellate review. The Veteran is seeking entitlement to a rating in excess of 10 percent for his service-connected right wrist sprain, status-post right wrist fracture. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the appeal stems from a request for higher rating following the award of service connection, evaluation of the medical evidence pertinent to the original claim, and consideration of the appropriateness of staged rating (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Moreover, when evaluating musculoskeletal disabilities, the VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The March 2013 VA examination reflects that the Veteran is right-handed; therefore, ratings for the major wrist are applicable. 38 C.F.R. § 4.69. The Veteran's right wrist sprain is currently rated under DC 5215. DC 5215 provides ratings for limitation of motion of the major wrist, provides that a 10 percent rating is warranted for dorsiflexion less than 15 degrees of either the major or minor joint or for palmar flexion limited in line with forearm of either the major or minor joint. Id. The Board notes that normal range of motion in the wrist is 70 degrees of dorsiflexion (extension) and 80 degrees of palmar flexion. See 38 C.F.R. § 4.71a, Plate I. DC 5214 provides for ratings for ankylosis of the wrist and for the major wrist provides a 30 percent rating where there is favorable ankylosis of the wrist in 20 to 30 degrees dorsiflexion. A 40 percent rating is warranted where there is ankylosis in any other position, except favorable. A 50 percent rating is warranted where there is unfavorable ankylosis, in any degree of palmar flexion, or with ulnar or radial deviation. 38 C.F.R. § 4.69. Additionally, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). The Board has reviewed the evidence of record, to include the VA outpatient treatment records, private treatment records, the Veteran's contentions, and the reports from VA examinations. In consideration of the applicable rating criteria of the wrist, the Board finds that the objective medical evidence does not support a disability rating in excess of 10 percent for the Veteran's right wrist disability. Turning to the record, the Veteran was afforded a VA examination in March 2013. At the March 2013 VA examination, the Veteran reported flare-ups of right wrist pain with cold weather and when repetitively using his hand. Initial range of motion (ROM) testing revealed right wrist palmar flexion to 80 degrees or greater with objective evidence of painful motion beginning at 70 degrees. Right wrist dorsiflexion to 70 degrees or greater with objective evidence of painful motion beginning at 70 degrees or greater. There was no additional limitation of motion after repetitive use testing. Functional loss was described as pain on movement. Muscle strength testing was normal. The examiner noted that the Veteran did not have ankylosis of the wrist. Imaging studies were performed, and degenerative or traumatic arthritis was not documented. The Board observes that the Veteran's VA treatment records are silent for complaints of or treatment for his right wrist disability. As previously mentioned, the Board remanded this matter in October 2017. Pursuant to the Board remand, the VA scheduled the Veteran for a VA examination in July 2019. However, he did not report. See July 2019 Exam Scheduling Request Contention Cancellation. The failure to report was noted in the July 2019 supplemental statement of the case (SSOC). Neither the Veteran nor his representative presented any argument as to why the Veteran failed to report to the examination. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim and the claimant does not subsequently provide good cause for his failure to do so, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655 (b). When the examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit that was previously disallowed or a claim for increase, the claim shall be denied. See 38 C.F.R. § 3.655. See also Engelke v. Gober, 10 Vet. App. 396, 399 (1997); Ashley v. Derwinski, 2 Vet. App. 307, 311 (1992). Here, the Board finds that the medical evidence of record does not demonstrate that a rating of more than 10 percent is warranted. As already stated above, the Veteran is rated at 10 percent. The 10 percent rating has been assigned for painful motion of the wrist in reference to Diagnostic Code 5215, under which the Veteran is now assigned the maximum disability rating that diagnostic code offers. Therefore, for the Veteran to attain a higher rating, it must be available under another related or analogous diagnostic code, to which findings in the record are pertinent. In looking to analogous or related diagnostic codes, once again, no higher rating is available. In the absence of impairment of the radius or ulna or impairment of supination and pronation, Diagnostic Codes 5210, 5211, 5212, and 5213 are not for application and, to the extent of any existing limitation, treatment notes and examinations have not attributed it to the Veteran's right wrist disability. No other examination or treatment note contains findings for ulnar and radial deviations. A higher schedular rating is possible if ankylosis of the left wrist is demonstrated, under DC 5214. Ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders' Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). However, this has not been shown or argued. As indicated in the summary of the record above, the VA examiner made no finding of ankylosis, nor does such finding appear in treatment records. The Board has considered the Veteran's subjective complaints relating to his right wrist disability in accordance with 38 C.F.R. §§ 4.40, 4.45, and 4.59, and the DeLuca and Mitchell cases, discussed above. Although the Veteran has consistently reported pain in his wrist throughout the appeal period, in Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the Court has determined that, if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, as has the Veteran, it is not necessary to consider whether 38 C.F.R. § 4.40 and § 4.45 are applicable. Therefore, a higher rating on pain, painful movement, and the further effects on weakness, fatigability or incoordination, are not applicable. For the foregoing reasons and based on the objective medical evidence, the Board finds a preponderance of evidence is against the claim for an increased disability rating in excess of 10 percent for a right wrist disability based on limitation of motion. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. As the preponderance of the evidence is against the claim, the doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Frazier, Associate Attorney 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.