Citation Nr: 21040924
Decision Date: 07/07/21	Archive Date: 07/07/21

DOCKET NO. 16-59 586
DATE: July 7, 2021

ORDER

Entitlement to an initial rating in excess of 10 percent for right wrist sprain with non-displaced scaphoid fracture is denied.

FINDING OF FACT

For the entire appeal period, the Veteran's right wrist disability has been manifested by painful and limited motion, without ankylosis.

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 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.40. 4.45, 4.59. 4.124a, Diagnostic Code 5215 (2019).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from November 1999 to November 2002.

This matter comes before the Board of Veterans Appeals (Board) on appeal from an August 2015 rating decision by a Department of Veterans' Affairs (VA) Regional Office (RO).

This matter was previously before the Board in December 2018 and March 2020. Most recently, the Board remanded instructing the RO to readjudicate the Veteran's claim, giving consideration to new VA medical records and an October 2019 VA examination that had been added to the claims file since the prior decision. The RO did so and issued a supplemental statement of the case (SSOC) in March 2020. The Board finds that the RO has complied with the March 2020 remand instructions, and therefore may proceed with adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

The Board notes that VA treatment records reveal the Veteran is in receipt of Social Security Administration (SSA) disability benefits. See September 2019 VA treatment records. Although the records related to his claim for SSA disability benefits have not been obtained, the adjudication of the increased rating claim for his wrist may be adjudicated because the SSA records are not relevant to the increased rating claim on appeal. Not only has the Veteran failed to offer any evidence or argument suggesting that the SSA disability records are potentially pertinent to the pending increased rating claim on appeal, but during an October 2019 VA examination, he reported receiving SSA benefits because of lupus and kidney disease. See Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010) ("The legal standard for relevance requires VA to examine the information it has related to medical records and if there exists a reasonable possibility that the records could help the veteran substantiate his claim for benefits, the duty to assist requires VA to obtain the records"). As there is no indication that the outstanding SSA records would be pertinent to the nature and severity of his wrist, the Board will therefore proceed with adjudication of the increased rating claim.

Increased Ratings

Disability evaluations are determined by comparing the manifestations of a disability with the criteria set forth in the Diagnostic Codes (DCs) of the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. § Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1.

The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, separate ratings may be assigned to different conditions if they do not constitute the same disability or manifestation thereof. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994).

When 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 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 shall be resolved in favor of the claimant. 38 C.F.R. § 4.3.

A schedular rating may be increased if there is objective evidence during examination or treatment of functional loss exceeding that fixed by a schedular rating. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); Mitchell v Shinseki, 25 VA 32 (2011); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. 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 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; 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).

The Board notes that the regulations pertaining to rating the musculoskeletal system were amended effective February 7, 2021. Pending claims will be considered under both the old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied from that date. As there is no relevant evidence pertaining to the Veteran's right wrist dated after February 7, 2021, the amended regulations do not apply in this case.

Entitlement to a higher initial rating for a right wrist disability

The Veteran's right wrist sprain with non-displaced scaphoid fracture (herein referred to as: right wrist disability) is currently rated under 38 C.F.R. § 4.71a, DC 5215 for limitation of motion of wrist. 

Typically, a compensable rating under DC 5215 requires either dorsiflexion limited to less than 15 degrees, or palmar flexion limited in line with forearm. (Normal range of motion for the wrist is 70 degrees of dorsiflexion, 80 degrees of palmar flexion, 45 degrees of ulnar deviation, and 20 degrees of radial deviation. See 38 C.F.R. § 4.71, Plate I.) However, under 38 C.F.R. § 4.59, a Veteran with a painful, unstable, or malaligned joint, due to healed injury, is entitled to at least the minimum compensable rating for the joint. 

In instances where there is wrist ankylosis (Diagnostic Code 5214), unfavorable ankylosis, in any degree of palmar flexion, or with ulnar or radial deviation is rated at 50 percent for major and 40 percent for minor. Ankylosis at any other position other than favorable is rated at 40 percent for major and 30 percent for minor.  Ankylosis which is favorable on 20 degree-to-30-degree dorsiflexion is rated at 30 percent for major and 20 percent for minor.  In a NOTE, extremely unfavorable ankylosis will be rated as loss of use of hands under Diagnostic Code 5125.

The Veteran contends that he is entitled to a higher rating for his right wrist disability. He filed a claim for an increased rating for his right wrist in March 2015.

Upon examination in August 2015, the Veteran reported that he had right wrist pain over the ulnar area which increased with activity. He told the examiner that he was no longer able to lift barbells or play sports, but that he did lift 50 pounds repeatedly. He denied any flare-ups. Range of motion testing revealed palmar flexion to 60 degrees, dorsiflexion to 50 degrees, ulnar deviation to 40 degrees, and radial deviation to 15 degrees. Pain was noted during the examination but determined not to cause functional loss. He was able to perform repetitive use testing without any additional loss of motion. The examiner noted that the Veteran was being examined immediately after repetitive use over time and pain, weakness, fatiguability, and incoordination did not significantly limit functional ability. The Veteran had full muscle strength. The examiner concluded that the Veteran's right wrist disability would not impact his ability to work.

On his March 2016 notice of disagreement, the Veteran reported that he was periodically unable to grip anything with his right hand because of the pain caused by his wrist disability. 

The Veteran attended another VA examination in October 2019. He reported difficulty playing with his children, working out, and opening jars and medication. He also reported difficulty holding heavy objects like groceries. The Veteran reported flare-ups of pain a few times a month usually due to weather. Range of motion testing revealed 0 to 55 degrees palmar flexion in the right wrist, 0 to 40 degrees dorsiflexion, 0 to 20 degrees ulnar deviation, and 0 to 15 degrees radial deviation. Pain was noted during range of motion testing and the examiner determined pain caused functional loss. The examiner determined there was objective evidence of moderate localized tenderness or pain on palpation of the join or associated soft tissue. During repeated use over time, the Veteran's right wrist range of motion was further limited due to pain and weakness, with estimated range of motion 0 to 50 degrees palmar flexion, 0 to 30 degrees dorsiflexion, 0 to 20 degrees ulnar deviation, and 0 to 15 degrees radial deviation. During flare-ups, the examiner estimated that the Veteran's right wrist range of motion was further limited due to pain and weakness, with 0 to 30 degrees palmar flexion, 0 to 30 degrees dorsiflexion, 0 to 20 degrees ulnar deviation, and 0 to 15 degrees radial deviation. The examiner noted reduced muscle strength of 4/5 due to the Veteran's wrist disability, but no muscle atrophy. There was no evidence of crepitus, and no ankylosis. The examiner determined that the Veteran's right wrist disability would impact any type of repetitive movement, including pushing, pulling and lifting tasks. 

VA treatment records associated with the claims file during the appeal period do not reflect any treatment for or reports of right wrist pain.

The Veteran is already in receipt of the maximum schedular rating under DC 5215 for limitation of motion of wrist. As the clinical evidence of records fails to disclose the presence of any degree of right wrist ankylosis, Diagnostic Code 5214 is not for application. No other diagnostic code is applicable to the Veteran's service-connected right wrist disability.

The Board recognizes evidence of functional loss due to pain in the Veteran's examination reports and lay testimony. However, the Veteran's wrist pain is accounted for in his currently assigned rating, and the degree of limitation does not more nearly approximate a higher rating under any applicable diagnostic code. The RO and the Board are bound by applicable laws and regulations promulgated by the VA. 38 U.S.C. § 7104(c); 38 C.F.R. § 20.101(a). Consideration of factors wholly outside the schedular rating criteria would constitute error as a matter of law. Massey v. Brown, 7 Vet. App. 204 (1994); Pernorio v. Derwinski, 2 Vet. App. 625 (1992).

In consideration of the above, the Board denies the claim for a rating in excess of 10 percent for a right wrist disability. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

 

 

TRINA FITZGERALD

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Shermila Sundquist

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.