Citation Nr: 21032858 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 12-04 452 DATE: May 28, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for service-connected right wrist strain with joint pain and decreased range of motion (a right wrist disability) is denied. FINDING OF FACT The Veteran's service-connected right wrist disability is primarily manifested by pain and limitation of motion; he is in receipt of the maximum schedular rating for his right wrist disability in the absence of ankylosis. CONCLUSION OF LAW The criteria for disability rating in excess of 10 percent for a service-connected right wrist disability have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5214, 5215. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1984 to March 1990. This matter comes before the Board of Veterans' Appeals (Board) from a January 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). It was previously before the Board in July 2016, November 2019, and June 2020, where it was remanded for additional development. The Veteran testified before the undersigned Veterans Law Judge in November 2015. The Board notes that, On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law created a new framework for Veterans dissatisfied with the VA decision on their claim to seek review. For a rating decision issued prior to the implementation of the AMA on February 19, 2019, a Veteran may opt-in to the AMA system from the former appeals system (also known as the "legacy" system) by submitting a timely VA Form 20-0995 (Supplemental Claim Application) after the issuance of a Statement of the Case. Here, after the issuance of a Supplemental Statement of the Case in March 2021, the Veteran submitted a Form 20-0995 pertaining to the issue on appeal. However, in a follow-up correspondence in May 2021, the Veteran indicated confusion with the current appeals process, stating that he merely sought to "take the quickest" route in having his appeal adjudicated by the Board, and asked to withdraw his Supplemental Claim. As the matter is now again before the Board, dismissal of his appeal from the legacy system into the AMA would result in not only the opposite of the Veteran's stated intent, but unnecessary delay. As such, the Board will continue to adjudicate his claim under the legacy system. Increased Rating for a Right Wrist Disability Disability ratings 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 (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. 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 background 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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria."). Disabilities of the wrist are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5214 and 5215. The Veteran is right-hand dominant and, as such, his right wrist is considered the major joint for rating purposes. Diagnostic Code 5214 provides for a 30 percent disability rating with favorable ankylosis in 20 to 30 degrees of dorsiflexion, a 40 percent disability for ankylosis in any other positions, except favorable, and a 50 percent disability rating for unfavorable ankylosis in any degree of palmar flexion or with ulnar or radial deviation. Diagnostic Code 5215 provides for a maximum 10 percent disability rating for dorsiflexion to less than 15 degrees or palmar flexion limited in line with the forearm. While the Board acknowledges (and as the Veteran has pointed out) that the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71 were amended effective February 7, 2021, the ratings for the wrist were not affected by these amendments. 85 Fed. Reg. 76453 (Nov. 30, 2020) As an initial matter, the Veteran is in receipt of the maximum schedular rating available under Diagnostic Code 5215. Diagnostic Code 5214, however, allows for higher ratings for wrist limitation where ankylosis is shown. VA examinations in November 2010, January 2018, and more recently, September 2020, indicated painful dorsiflexion limited to no more than 20 degrees, to include after repetitive use testing. The September 2020 examiner further estimated that dorsiflexion would be further reduced to 15 degrees given the Veteran's statements describing functional loss with repetitive use over time. The Veteran denied experiencing flare-ups for the purposes of estimating any additional functional loss. Importantly, each examiner specifically noted no ankylosis. Treatment records during the period on appeal are not in significant conflict with the findings of the VA examiners. As the Board noted in its most recent remand, a private physician who examined the Veteran's wrist in March 2020 indicated unfavorable ankylosis at 10 degrees palmar flexion. However, the examiner also noted that the Veteran had dorsiflexion of the right wrist to 25 degrees, which is inconsistent with a finding of ankylosis. As noted above, a subsequent VA examination for the purpose of addressing this inconsistency found no ankylosis in the Veteran's right wrist. The Board has considered whether there is any other basis for assigning a higher or separate rating but has found none. Although medical examiners have found neurological impairments associated with the Veteran's right wrist disability, service connection for right wrist neuropathy was granted at 20 percent disabling in a March 2018 rating decision, based on findings of mild incomplete paralysis of the radial nerve in a January 2018 VA examination of the peripheral nerves. See 38 C.F.R. § 4.124a, Diagnostic Code 8714. The Veteran has not expressed disagreement with the initial rating assigned or its effective date. To the extent the medical evidence suggests that the Veteran's disability affects more than one nerve in the upper extremity, assigning a separate rating on the basis of paralysis of additional peripheral nerves in the upper extremities would violate the rule against pyramiding. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). Based upon the above evidence of record, the Board finds a higher rating is not warranted for the Veteran's right wrist disability. Although the record reveals limitation of motion of the wrist, there is no evidence of ankylosis. Diagnostic Code 5214 is therefore also not applicable and a rating in excess of 10 percent is denied. 38 C.F.R. § 4.71a. The Board acknowledges that the functional equivalent of ankylosis during flare-ups, pursuant to 38 C.F.R. § 4.40 and 4.45, can nevertheless satisfy the criteria for a rating based on ankylosis. See Chavis v. McDonough, No. 18-2928, slip op. at 11 (U.S. Vet. App. Apr. 16, 2021). Here, however, despite the Veteran's complaints, pain did not result in the functional equivalent of ankylosis of the wrist at any time during the period on appeal. In this regard, ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary 93 (30th ed. 2003). The Veteran has not described, including during any medical examination, a limitation of motion during flareups of pain that essentially results in stiffening, fixation, or immobility of his wrist. Notably, the Veteran specifically denied flareups of his wrist disability upon VA examination most recently in September 2020. At worst, the Veteran has described flareups with pain, weakness, numbness, and tingling which results in impairment of motion and grip strength, including during his 2015 hearing before the undersigned. These symptoms are already contemplated by the rating assigned under not only Diagnostic Code 5215, but also his separate rating for associated neuropathy under Diagnostic Code 8714. The Board is sympathetic to the Veteran's lay statements that his disability is worse than currently evaluated and those statements have been considered. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). While the Board acknowledges that the Veteran's employment as a registered nurse and respiratory therapist has provided him with a certain level of medical knowledge, he has not demonstrated that he is competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disability have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disability is evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability rating. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.