Citation Nr: 21041864 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-46 303 DATE: July 10, 2021 ORDER Entitlement to a 30 percent rating for residuals of right wrist fracture resulting in ankylosis is granted. Entitlement to a total rating based on individual unemployability due to service-connected disability is granted. FINDINGS OF FACT 1. The Veteran's right wrist fracture is manifested by favorable ankylosis. 2. The Veteran is in receipt of VA compensation for right upper extremity peripheral nerves, evaluated as 40 percent disabling; residuals of right wrist fracture, evaluated as 30 percent disabling; and right wrist scars, evaluated as noncompensable; and with a total disabling evaluation of 60 percent. 3. The Veteran's service-connected disabilities render the Veteran unable to obtain and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating for residuals of right wrist fracture have been met for the entire appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5214. 2. The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1, 4.15, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from February 1981 to January 1985. This matter comes before the Board of Veterans' Appeals (Board) from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). 1. Entitlement to a 30 percent rating for left for residuals of right wrist fracture resulting in ankylosis The Veteran contends that he is entitled to a higher rating because he can no longer use his right hand. The Veteran's right wrist disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5215, limitation of motion of the wrist. Under Diagnostic Code 5215, for palmar flexion limited in line with forearm, a 10 percent rating is warranted. Under Diagnostic Code 5214, unfavorable in any degree of palmar flexion or with ulnar or radial deviation warrants a 50 percent rating for the dominant wrist. Any other position except favorable warrants a 40 percent rating. Favorable in 20 degree to 30 degrees dorsiflexion warrants a 30 percent rating for the dominant hand. Extremely unfavorable ankylosis will be rated as loss of use of hands under DC 5125. Although the Veteran was originally evaluated under Diagnostic Code 5215, the Board finds that DC 5214 is now for application as he now has ankylosis of his right wrist. 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 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) ("[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 criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the evidence shows a 30 percent evaluation is warrant for the Veteran's right wrist. The Veteran testified that he could no longer straighten his hand out because his providers had to fuse his wrist. He explained that his hand is now perfectly straight and does not bend. He explained that he cannot use his right hand. He reported that he cannot coach anymore or train because he had to use his hands. The Veteran explained that he has a high school education. He also reported pain in his hand. He noted that cannot use a glass to drink from because he drops them and instead must use plastic cups so that he does not break them. The evidence suggests that his hand is perfectly straight which meets the criterium of favorable ankylosis in 20 degrees to 30 degrees dorsiflexion. Although the Veteran's right wrist was not fused for the entire appeal period, the Veteran's flare-ups and pain that is documented in examinations and at the hearing demonstrate that a 30 percent evaluation reflects the Veteran's right wrist disability picture. See January 2020 Wrist examination, see also September 2018 Wrist examination, see also March 2015 examination, see also December 2011 examination. A higher evaluation is warranted only for unfavorable ankylosis. As the Veteran reported that his hand is perfectly straight but not bending, this suggests that the Veteran's wrist ankylosis is favorable. The Board acknowledges the Veteran's lay statements of functional loss i.e., pain. However, even considering the Veteran's lay reports of symptoms and functional loss, it would not result in symptoms more nearly approximating unfavorable ankylosis of the right wrist. The Board has considered whether any other Diagnostic Codes related to disabilities of the wrist would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. For instance, Diagnostic Code 5125 for loss of use of the hand is for circumstances where there is extremely unfavorable ankylosis of the hand which is not the case there. In conclusion, the Board finds that a 30 percent evaluation is warranted for the Veteran's residuals of right wrist fracture manifested by favorable ankylosis. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a total rating based on individual unemployability due to service-connected disability Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability evaluation may be assigned based on individual unemployability if a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16 (a). The Veteran is in receipt of VA compensation for right upper extremity peripheral nerves, evaluated as 40 percent disabling; residuals of right wrist fracture, evaluated as 30 percent disabling; and right wrist scars, evaluated as noncompensable. The Veteran has a total disabling evaluation of 60 percent. The Veteran's service-connected disabilities result from a single accident. Namely, the Veteran's right wrist fracture results in nerve damage, a scar and damage to this right wrist which resulted in ankylosis. Therefore, the Veteran's disabilities are considered one disability under 38 C.F.R. § 4.16. As his total disabling evaluation is 60 percent, the Veteran meets the objective criteria under 38 C.F.R. § 4.16 for consideration of TDIU. Moreover, the Board concludes that TDIU is warranted. Regarding his educational and occupational history, the Veteran is a high school graduate. In terms of work history, the Veteran reported working as a junior engineer at a hospital, worked for his father's carpet company, barber, and worked as a coach (basketball and boxing). See August 2018 VA treatment record. He testified to having periods of unemployment and difficulty working due to his wrist disability. The Veteran testified that he was unable to coach any longer because he was unable to use his right hand. He explained that he cannot demonstrates the moves he wants his students to make. In the January 2020 Wrist Disability Benefits Questionnaire (DBQ), the Veteran reported that he had stopped worked three to four years earlier. He trained athletes primarily in the boxing and basketball sports. In terms of medical opinions on his ability to work, the March 2015 examiner opined that physical employment and sedentary employment were not at least as likely as not precluded. However, the examiner noted that physical employment would be significantly limited by limitations of the right wrist related to degenerative changes with decreased range of motion, persistent pain, and decreased grip strength. The examiner also noted that sedentary employment would be limited but not precluded as using the phone or working with the computer could be performed but would likely require accommodations for decreased productivity. The January 2020 examiner found that the Veteran's right wrist condition at least as likely as not impacted functional ability with repeated use over time. The examiner found that the Veteran's pain in his right wrist would have a severe impact on all right wrist range of motions after repeated use and during flare-ups. The examiner also noted that he had difficulty holding dust pain and difficulty holding a leash to walk his dog. To do laundry, he slides the laundry basket down the stairs instead of carrying it. He relies on Facetime or speaker phone instead of texting, and he is unable to use a keyboard. (Continued on the next page) In weighing the lay and medical evidence of record, the Veteran's occupational history and his educational level, the Board finds that the evidence is in relative balance as to whether he is rendered unable to obtain and maintain a substantially gainful employment as the result of his service-connected disabilities. As such, entitlement to TDIU is warranted. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tahirih S. Samadani, 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.