Citation Nr: 21030286 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 17-20 797 DATE: May 18, 2021 ORDER A rating in excess of 10 percent for degenerative changes, left wrist, status post-operative non-union of scaphoid is denied. A rating in excess of 10 percent for left knee instability is denied. FINDINGS OF FACT 1. The Veteran's left wrist condition has manifested with painful motion, flare ups, functional impairment, difficulty with heavy lifting and repetitive activities, no other condition is currently present and the disability is not manifested by the functional equivalent of ankylosis, including during flare-ups. 2. The preponderance of the evidence shows that the Veteran's does not suffer from moderate or severe instability in his left knee. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left wrist condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.71a, diagnostic code (DC) 5215. 2. The criteria for a rating in excess of 10 percent for left knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1981 to June 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. This case was previously before the Board in March 2020 and remanded for additional development. In addition, on his February 2020 Board hearing the Veteran and representative indicated that they were not claiming total disability rating based on individual unemployability (TDIU) due to his service-connected disabilities. Therefore, a claim of TDIU is not before the Board. Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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 Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. 1. Left wrist The Veteran is currently rated at 10 percent under DC 5215 for his degenerative changes on his left wrist effective May 18, 2006. He reports that his condition warrants a rating in excess of 10 percent. In support, he stated that he continues to suffer from pain, flare ups, stiffness, limited range of motion, and difficulty with heavy lifting and repetitive activities. See BVA hearing transcript (February 2020), and see also VA Medical examination (April 2020). Under DC 5215, limitation of motion of wrist, a 10 percent rating is warranted for dorsiflexion less than 15 degrees or palmar flexion limited in line with forearm. The RO has continued a 10 percent evaluation due to painful motion of the left wrist. See SSOC (July 2020). On March 2020, the Board remanded this issue to determine the current severity of the Veteran's left wrist condition. Subsequently, the Veteran was afforded a VA examination in April 2020. The VA examination report shows pain, flare ups, functional impairment, abnormal range of motion, use of brace and difficulty with heavy lifting and repetitive activities. See VA medical examination (April 2020). However, the medical and lay evidence, including the April 2020 VA examination do not indicate that the Veteran's suffers from ankylosis, atrophy, arthritis or a neurological condition. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45 The Board finds that the preponderance of the evidence shows that the Veteran's left wrist condition more nearly approximates a 10 percent rating which is the maximum for this condition for limitation of motion. Thus, a rating in excess of 10 percent is not warranted. There is no indication that the Veteran suffers from ankylosis, atrophy, arthritis or a neurological condition in his left wrist. In addition, the Board notes that the Veteran is rated under the correct DC. The Veteran condition and symptoms are covered under DC 5215 and the Veteran is currently rated at the maximum rating allowed. DC 5215 is the appropriate DC for evaluating the Veteran's left wrist condition as the disability is specifically listed. See Copeland v. McDonald, 27 Vet. App. 333, 336-337 (2015). The Board also notes that as 10 percent is the highest schedular rating for limitation of motion his wrist and the preponderance of the evidence shows that his left wrist disability is not productive of functional equivalent of ankylosis during flare-ups. See Chavis v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 660 (Apr. 16, 2021). As such, the preponderance of the evidence is against this claim. Therefore, the Veteran does not warrant a rating in excess of 10 percent for his left wrist condition and the claim is denied. 2. Left knee instability The Veteran is currently rated at 10 percent under DC 5257 for his instability on his left knee effective May 30, 2012. He reports that his condition warrants a rating in excess of 10 percent. In support, he stated that he continues to suffer from instability in his left knee and uses a brace to help with his condition. See BVA hearing transcript (February 2020), and see also VA Medical examination (April 2020). Under DC 5257, recurrent subluxation or lateral instability, other impairment of the knee, a 10 percent rating requires for the condition to be slight, 20 percent for moderate and 30 percent for severe. The RO has continued a 10 percent evaluation due to slight instability of the left knee. See SSOC (July 2020). Moreover, the Veteran credibly and competently reported that he suffers from instability in his left knee. See BVA hearing transcript (February 2020). On March 2020, the Board remanded this issue to determine the current severity of the Veteran's left knee condition. Subsequently, the Veteran was afforded a VA examination in April 2020. The VA examination report shows pain, flare ups, functional impairment, abnormal range of motion, and the use of brace. See VA medical examination (April 2020). Indeed, the Veteran reported the use of a knee brace to help with his instability condition. See BVA hearing transcript (February 2020). However, the medical and lay evidence, including the April 2020 VA examination do not indicate that the Veteran's suffers from moderate or severe instability. The Board finds that the preponderance of the evidence shows that the Veteran's left knee condition more nearly approximates a 10 percent rating. Thus, a rating in excess of 10 percent is not warranted. There is no indication that the Veteran suffers from moderate or severe instability in his left knee. As such, the preponderance of the evidence is against this claim. Therefore, the Veteran does not warrant a rating in excess of 10 percent for left knee instability and the claim is denied. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alvarado- 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.