Citation Nr: 22014563 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 16-09 849 DATE: March 14, 2022 ORDER Entitlement to an evaluation in excess of 10 percent for status post fracture distal radius and ulna, left wrist, is denied. FINDING OF FACT Throughout the appeal period, the Veteran's post fracture distal radius and ulna, left wrist, was manifested by osteoarthritis in the left (minor) wrist, and exhibited pain, weakness, and limitation of motion, that was not analogous to ankylosis even when considering functional loss and flare-ups. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for status post fracture distal radius and ulna, left wrist, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5215. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Coast Guard from November 1982 to November 1986. For his honorable service, the Veteran was awarded (among other decorations) a Meritorious Service Medal and Coast Guard Restricted Duty Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified at a video conference hearing held before the undersigned Veterans Law Judge. A transcript of this hearing has been added to the record. In March 2019 and in January 2021, the Board remanded this matter for additional evidentiary development. The RO subsequently obtained February 2021 and September 2021 VA examinations of the wrists to determine the severity and extent of the Veteran's left wrist disability. The Board finds these actions to be in substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that substantial, rather than strict, compliance with remand directives is required). 1. Entitlement to an evaluation in excess of 10 percent for status post fracture distal radius and ulna, left wrist. The Veteran contends that he is entitled to an evaluation in excess of 10 percent because his left wrist disability has worsened. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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; 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." The Veteran's status post fracture distal radius and ulna, left wrist, is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5215, using the minor side ratings. The Board will consider whether the Veteran is entitled to receive higher ratings for his left wrist condition under all applicable diagnostic codes. At the outset, the Board notes that Diagnostic Code 5210, which provides ratings for nonunion of the radius and ulna; 5211 and 5212, which provide ratings for impairment of the ulna and radius; and 5213, which provides rating for impairment of supination and pronation of the hand are not applicable in this case, as there is no evidence that the Veteran has nonunion of the radius and ulna, or nonunion of the ulna, or supination or pronation of the hand. Ankylosis of the wrist is rated under Diagnostic Code 5214. A 20 percent rating is warranted for favorable ankylosis of the minor wrist in 20 to 30 degrees dorsiflexion. A 30 percent rating is warranted for ankylosis of the minor wrist in any other position except favorable. A 40 percent rating is warranted for unfavorable ankylosis of the minor wrist, in any degree of palmar flexion, or with ulnar or radial deviation. 38 C.F.R. § 4.71a. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Limitation of motion of the wrist is rated under Diagnostic Code 5215. A 10 percent rating is warranted where palmar flexion is limited in line with the forearm, or where dorsiflexion is less than 15 degrees. 38 C.F.R. § 4.71a. This is the maximum schedular rating based on limitation of motion of the wrist under this diagnostic code. A higher schedular rating is only warranted when there is evidence of ankylosis. 38 C.F.R. § 4.71a, Diagnostic Code 5214. Normal range of motion of the wrist includes dorsiflexion (extension) from zero to 70 degrees, palmar flexion from zero to 80 degrees, ulnar deviation from zero to 45 degrees, and radial deviation from zero to 20 degrees. See 38 C.F.R. § 4.71a, Plate I. The Board finds that the evidence of record persuasively weighs against a rating in excess of 10 percent for the Veteran's status post fracture distal radius and ulna, left wrist. As noted, when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca, supra. Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. See also, Sharp, supra; Correia, supra. The Board acknowledges the Veteran's lay reports of symptoms and that there is functional loss due to pain, stiffness, weakness, and decreased range of motion in his left wrist. However, even considering the Veteran's lay reports of symptoms and his noted functional loss, the degree of additional limitation reflected by the statements and testimony would not result in limitation of motion more nearly approximating ankylosis of the left wrist. The Veteran's September 2021 VA examination of the wrist noted that during flare ups, the Veteran's left wrist has symptoms of pain, fatigue, weakness, and lack of endurance leading to functional loss. Nevertheless, the approximated range of motion of the Veteran's left wrist during a flare up consisted of palmer flexion to 70 degrees, dorsiflexion to 65 degrees, ulnar deviation to 30 degrees, and radial deviation to 5 degrees. The Veteran's February 2021 VA examination of the wrist also noted that during flare ups, the Veteran's left wrist has symptoms of pain, fatigue, and weakness leading to functional loss. Nevertheless, range of motion of the left wrist during a flare up consisted of palmer flexion to 65 degrees, dorsiflexion to 60 degrees, ulnar deviation to 35 degrees, and radial deviation to 15 degrees. Prior VA examinations of the wrist, performed in December 2018 and April 2016, also noted substantial ranges of motion in the left wrist that were not analogous to ankylosis. The Veteran's left wrist disability does not reflect findings of ankylosis at any time during the pendency of the appeal, therefore, Diagnostic Code 5214 does not apply. 38 C.F.R. § 4.71a. The medical evidence of record clearly shows that the Veteran's left wrist is not ankylosed at any level. Although the Veteran's left wrist disability does manifest in some limitation of motion from pain and weakness, it is not in a fixed position without motion at any degree or angle, nor does the Veteran contend otherwise. Other appropriate diagnostic codes for application have been considered. However, as the Veteran's left wrist disability does not reflect findings of nonunion of the radius and ulna, with a flail false joint; nonunion of the ulna with bad alignment; impairment of the radius; or impairment of supination and pronation of the hand at any time during the pendency of the appeal, Diagnostic Codes 5210 to 5213 do not apply. 38 C.F.R. § 4.71a. The medical evidence of record does not show that the Veteran has other impairment of the left radius or ulna. The evidence does not reflect that the Veteran underwent prosthetic replacement of the wrist. Therefore, the provisions of Diagnostic Code 5053 do not apply. Finally, the February 2021 VA examiner further noted that the Veteran's left wrist disability is not manifested by any nerve damage. The Board also notes that the Veteran has previously been granted service connection at a separate ten percent disability rating for the surgical scar related to his status post fracture distal radius and ulna, left wrist. (Continued on next page) Based on the foregoing, the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 10 percent for status post fracture distal radius and ulna, left wrist. As the evidence of record persuasively weighs against a rating in excess of 10 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Yates, 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.