Citation Nr: 22015337 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 18-06 595 DATE: March 17, 2022 ORDER Entitlement to a rating in excess of 10 percent for residuals of a right wrist fracture based on limitation of motion is denied. REMANDED Entitlement to service connection for multiple sclerosis is remanded. FINDING OF FACT Throughout the appeal period, the Veteran's chronic right wrist strain was manifested by, at worst, palmar flexion and dorsiflexion to 30 degrees with pain, but without ankylosis. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for status-post fracture of the right wrist are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5215 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1997 to September 2001. This matter comes before the Board of Veterans Appeals (Board) on appeal from an April 2016 rating decision by a Department of Veterans' Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. The issues on appeal were previously remanded by the Board in July 2021. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Ratings - Applicable Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. 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 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See Francisco, 7 Vet. App. at 58; Hart, 21 Vet. App. at 505. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Entitlement to a rating in excess of 10 percent for residuals of a right wrist fracture. The Veteran's right wrist disability, characterized as residuals of right wrist fracture, is rated under 38 C.F.R. § 4.71a, DC 5215. He maintains that a rating higher than 10 percent is warranted. Initially, the Board notes that the original grant of service connection for residuals of a right wrist fracture was based only on the Veteran's subjective report of having fractured his wrist; objectively, his wrist had a normal appearance and normal grip strength. As will be discussed below, the medical evidence refers to the Veteran's disability as a chronic right wrist sprain and not a wrist fracture. Effective February 7, 2021, several changes to the diagnostic codes used for rating musculoskeletal disabilities were made. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). When a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeals process has been concluded, the version of the law or regulation most favorable to the appellant generally applies. Only the former criteria can be applied for the period prior to the effective date of the new criteria. However, both the former and revised criteria can be applied as of that date. See VAOPGCPREC 7-2003 (Nov. 19, 2003); see also 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114. While the Veteran has not yet been notified of all applicable regulatory changes and considered his claim under such regulations, the Board notes that the rating criteria pertaining to the wrists were not changed significantly. In fact, the only change pertaining to the wrists pertains to wrist replacement with prosthesis. As the Veteran in this case has not undergone right wrist replacement, there is no prejudice to him in the Board considering the claim at this time. Under DC 5215, a 10 percent rating is warranted when palmar flexion is limited to a position in line with the forearm, or when dorsiflexion is less than 15 degrees. This 10 percent rating is applicable for either the major or minor limb. A 10 percent rating is the only, and therefore the maximum, rating available under this code. Normal ranges of motion of the wrist are dorsiflexion from zero degrees to 70 degrees, and palmar flexion from zero degrees to 80 degrees. 38 C.F.R. § 4.71, Plate I. VA must also consider whether there is additional functional loss and/or limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination. Chavis v. McDonough, 34 Vet. App. 1 (2021); See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). It is the intention to recognize actual painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Turning to the evidence of record, the Veteran was afforded a VA examination in March 2016. At that time, he reported he had numbness and decreased strength. The Veteran endorsed flare-ups as dropping items from the right hand. He described functional loss as difficulty with prolonged holding or lifting weight. Upon physical examination, the examiner noted that the Veteran had pain on examination with all range of movements and with weight-bearing. There was no evidence of localized tenderness, pain to palpation, or crepitus. Range of motion measurements were as follows: palmar flexion to 40 degrees; dorsiflexion to 40 degrees; ulnar deviation to 20 degrees; and radial deviation to 10 degrees. There was no additional loss of motion after three repetitions of range of motion. The examiner estimated range of motion measurements after repeated use over time and during flare-ups as follows: palmar flexion to 30 degrees; dorsiflexion to 30 degrees; ulnar deviation to 15 degrees, and radial deviation to 5 degrees. Additional factors contributing to disability included less movement than normal and pain on movement. There was no reduction in muscle strength, atrophy, or ankylosis. The Veteran occasionally wore a brace. The examiner diagnosed status post fracture of the right wrist and noted that the condition was quiescent. At the hearing in February 2021, the Veteran reported that that he has weakness in his right wrist, is maybe able to hold a jug of milk but nothing heavier and cannot extend his hand higher than his head. He also stated that he also has pain in his wrist which extends from his wrist up to his shoulder. The Veteran was afforded another VA examination in July 2021 at which time all medical records were reviewed. At that time, the Veteran reported on and off pain in the right wrist when working with the right hand. The Veteran denied flare-ups. He described functional loss or impairment as being unable to do frequent manipulations with the right hand. Active and passive range of motion measurements were as follows: palmar flexion to 70 degrees; dorsiflexion to 60 degrees; ulnar deviation to 35 degrees; and radial deviation to 15 degrees. There was no evidence of localized tenderness or pain on palpation, crepitus, or pain on any movement. The Veteran was able to perform repetitive use testing with no additional loss of range of motion. The examiner estimated range of motion measurements after repeated use over time as follows: palmar flexion to 60 degrees; dorsiflexion to 50 degrees; ulnar deviation to 30 degrees, and radial deviation to 10 degrees. The examiner noted that the examination was not being conducted during a flare-up and evidence did not suggest any limitation of functional ability with flare-ups. There were no additional contributing factors of disability, no muscle atrophy or ankylosis. The Veteran noted occasional use of a brace. X-rays of the right wrist taken in 2010 was normal. The examiner noted a changed diagnosis of chronic right wrist sprain and explained that the Veteran did not have a fracture of the right wrist. As the Veteran is already receiving the maximum rating allowable for limitation of motion under DC 5215, based on palmar or dorsiflexion, a higher rating is not available under that code. The Board also considers DC 5214, which provides for higher ratings based on ankylosis of the wrist. Under this code, a 50 percent rating is warranted when there is unfavorable ankylosis, in any degree of palmar flexion, or with ulnar or radial deviation of the major wrist. A 40 percent rating is warranted when there is ankylosis of the major wrist in any other position, except favorable. A 30 percent rating is warranted when there is favorable ankylosis in 20 degrees to 30 degrees dorsiflexion in the major wrist. The Court has noted that the rating criteria define ankylosis in terms of limitation of motion, and that ankylosis is an objective finding, not a diagnosis. 38 C.F.R. § 4.71a, General Rating Formula, Note (5) (ankylosis is a condition in which the spine or a spinal segment is fixed in flexion or extension). Here, a review of all the medical records, to include VA examinations in March 2016 and July 2021, reveals no objective findings of ankylosis, or the functional equivalent thereof. While the Veteran reported dropping items at times and some limitation of functional ability due to pain, weakness, fatigability, and lack of endurance with repeated use over time, the Veteran retains movement in the wrist with some limitation of motion. Therefore, a higher rating is not warranted under DC 5214. The Board also considered the application of other rating criteria. The evidence of record however does not demonstrate that the wrist disorder has caused a flail false joint, any marked deformity of the radius, any impairment of supination and pronation, or other elbow and forearm symptoms. See 38 C.F.R. § 4.71a, DCs 5205-13. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his right wrist disability. The Board acknowledges that the Veteran, in advancing this appeal, believes that his right wrist strain has been more severe than the assigned disability rating reflects. However, the competent medical evidence offering detailed and specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms of the wrist disability. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of his chronic right wrist strain symptoms. In finding that a rating higher than 10 percent is not warranted, the Board acknowledges the Veteran's primary complaint which is weakness in the right upper extremity. That neurological complaint will be addressed in the remand section below as a part of the claim for service connection for multiple sclerosis. Having said that, there is no objective evidence of any neurological impairment caused by the service-connected right wrist disability. Accordingly, the Board finds that the evidence does not support the criteria for rating in excess of 10 percent for the chronic right wrist strain. The claim must therefore be denied. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Entitlement to service connection for multiple sclerosis A remand is necessary to afford the Veteran another VA compensation examination and obtain an adequate opinion. Most recently, a July 2021 VA examiner opined that the Veteran's multiple sclerosis was less likely than not related to service as the Veteran's service treatment records do not contain complaints, treatment, or a diagnosis of multiple sclerosis in service and there are no relevant treatment records or complaints through 2010. The examiner stated that the Veteran's symptoms in the right upper extremity were more than likely related to his radial nerve palsy and carpal tunnel syndrome due to cumulative trauma as a result of working as a welder after separation from service. For the reasons expressed below, the July 2021 VA examination is deemed inadequate, and the medical opinions do not adequately address the directives of the July 2021 Board remand. Although the Board regrets the additional delay, remand is again necessary to ensure compliance with the Board's July 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). First, the July 2021 Board remand specifically requested the VA examination to be conducted by a specialist in neurology to determine the nature and etiology of the Veteran's multiple sclerosis. The July 2021 VA examiner is an Internal Medicine doctor with commendation in dermatology but with no demonstrated specialty in neurology. Indeed, the Veteran testified that the examiner's sign on the office door reflected that he was a dermatologist. The Veteran further stated that this examiner appeared confused about his disability, about multiple sclerosis, and did not seem familiar with the medications that he is prescribed for the disability. In view of the nature and complexity of multiple sclerosis, the Board finds that an additional remand is needed to afford the Veteran an examination with a neurologist. Second, in addition to the July 2021 VA examination being conducted by a doctor with no demonstrated neurology training, the opinion is also inadequate because the examiner relied upon a lack of multiple sclerosis complaints and treatment records in service and following service in providing a negative opinion. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (holding that the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible). Third, based on his rationale, the examiner does not appear to understand the primary contention of the Veteran. The examiner opined that the Veteran's multiple sclerosis is less likely as not related to service and found that the Veteran's radial nerve palsy is related to events after service, including welding. However, the Veteran was diagnosed with radial nerve palsy in service as early as December 1997, within a month after basic training. Therefore, the opinion that the radial nerve palsy is related to events after service is based on an inaccurate factual premise. In the same vein, the examiner did not address the letters from the Veteran's treating neurologist, Dr. J.H.F. In a March 2016 letter, this doctor opined that it is medically probable that the Veteran's initial symptoms that occurred while in the military were caused by unrecognized multiple sclerosis. Indeed, the primary contention presented by the Veteran is that the radial nerve palsy was an early manifestation of his multiple sclerosis. In a January 2018 letter, Dr. J.H.F. stated that there was no basis for the VA examiner to conclude that an EMG finding of right carpal tunnel syndrome supported a conclusion that the Veteran did not have a central nervous disorder when serving in the military and reasoned that the Veteran's initial symptoms were left sided and an EMG/NCV study did not show abnormalities in the left extremity which would be the case if symptoms and findings were a central nervous system disorder such as MS. At his hearing in February 2021, the Veteran stated that his private physician indicated that his symptoms from his wrist and multiple sclerosis are "basically all from his multiple sclerosis." See Hearing Transcript, p.11, VBMS entry dated February 26, 2021. On remand, these letters must be addressed and reconciled. Accordingly, the matter is REMANDED for the following action: 1. Afford the Veteran a VA examination with a neurologist. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. If an examination with a neurologist is not feasible, the Veteran should be examined by a medical doctor, but the opinions must be provided by a neurologist. Although a thorough review of the Veteran's claims file is imperative, attention is called to the following: (i) The Veteran's contentions that his left and right extremity complaints in service were early manifestations of his multiple sclerosis; (ii) December 1997 probable diagnosis of radial nerve palsy after falling on right elbow and January 1998 Injury report from Sports Medicine and Reconditioning Therapy showing a diagnosis of right radial nerve palsy; (iii) February 2001 report referencing March 2001 x-rays showing a right-hand spiral fracture of the 5th metatarsal that was treated with a splint; (iv) August 2001 Report of Medical Examination noting right, 5th metacarpal fracture, February 2001, healed, status-post right ulnar neuropathy, 1998, well-resolved; (v) May 2002 VA examination showing complaints of pain and weakness in the right wrist and pain in the left shoulder, diagnosis of peripheral neuropathy of the right wrist (rendered prior to his post-service welding job), and the Veteran's contention that his residuals of a right wrist fracture/sprain have been manifested by pain and weakness in his right upper extremity since service; (vi) June 2014 letter from the Veteran's treating neurologist, Dr. J.H.F., indicating a 2013 diagnosis of MS; (vii) May 2016 letter from Dr. J.H.F., indicating that the Veteran had symptoms of numbness and weakness in the right hand which continued during his time in the Marine Corps and in retrospect, it is medically probable that the initial symptoms that occurred in the military were caused by unrecognized MS; (viii) January 2018 letter from Dr. J.H.F., indicating that there was no basis for the VA examiner to conclude that an EMG finding of right carpal tunnel syndrome supported a conclusion that the Veteran did not have a central nervous disorder when serving in the military and noting that the Veteran's initial symptoms were left sided, that an EMG/NCV study did not show abnormalities in the left extremity which would be the case if symptoms and findings were a central nervous system disorder such as MS; (ix) March 2021 VA examiner attributing the Veteran's weakness of the right upper extremity to his multiple sclerosis; and (xi) July 2021 VA opinion indicating that the Veteran's symptoms in the right upper extremity were more than likely related to his radial nerve palsy as a result of falling asleep on his right arm and diagnosis of carpal tunnel syndrome due to cumulative trauma from working as a welder following service. The examiner is asked to respond to the following with complete rationale: (a) Detail the reported symptoms in service and thereafter, including the nature, onset, and progression of the Veteran's multiple sclerosis, including any related neurologic symptoms in the upper extremities (to include the radial, medial, and ulnar nerves). (b) Provide an opinion as to whether the December 1997 injury to right elbow resulting in diagnosis of radial nerve palsy, and/or the 2001 spiral fracture of the right 5th metacarpal are related to any current nerve impairment in the right upper extremity. Explain. (c) Provide an opinion as to whether any symptoms and diagnoses rendered in service, including the neurological impairment in the upper extremity, were early manifestations of the current multiple sclerosis. *In doing so, reconcile the opinion with the March 2016 and January 2018 letters from the Veteran's treating neurologist, Dr. J.H.F. Fully explain your stance. (e) Did multiple sclerosis manifest within seven years of the Veteran's September 2001 separation from service? A complete rationale should be provided for all opinions. The standard of review is "at least as likely as not" (at least an approximate balance of favorable and unfavorable evidence). 2. Then readjudicate the remanded claim on appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Beach, Julia M. 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.