Citation Nr: 22049042 Decision Date: 08/29/22 Archive Date: 08/29/22 DOCKET NO. 20-19 301 DATE: August 29, 2022 ORDER Entitlement to an initial rating in excess of 10 percent for a right wrist disability is denied. REMANDED Entitlement to separate service connection for an acquired psychiatric disorder, secondary to a service-connected right wrist disability is remanded. Entitlement to a rating of total disability based on individual unemployability (TDIU) is remanded. FINDING OF FACT The evidence demonstrates that the Veteran does not have right wrist dorsiflexion limited to less than 15 degrees or right wrist palmar flexion limited in line with the forearm; the evidence also demonstrates that the Veteran does not have ankylosis of the right wrist or its functional equivalent. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 10 percent for a right wrist disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5214, 5215. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1996 to November 1999. This case comes on appeal of a November 2018 rating decision. The Veteran testified before the Board at a July 2021 virtual hearing, and a transcript of that hearing is of record. This case has been before the Board on multiple occasions. As a matter of background, the Veteran filed a claim of entitlement to service connection for a right wrist disability in May 2018. The agency of original jurisdiction granted entitlement to service connection for a right wrist disability in August 2018. In April 2019, the Veteran submitted a notice of disagreement in which she indicated that she did not agree with the rating applied both to her right wrist scar as well as her underlying right wrist disability. In February 2020, the AOJ issued a statement of the case that addressed only the evaluation of the right wrist scar. The Veteran then perfected an appeal to the Board. In doing so, she once again discussed the underlying right wrist disability. In a December 2021 decision, the Board remanded the issue of entitlement to an increased initial rating for the right wrist disability, instructing the AOJ to issue a statement of the case. In January 2022, the AOJ instead issued a supplemental statement of the case for the right wrist disability. As a supplemental statement of the case did not offer the Veteran the same information regarding appellate rights, the Board once again remanded the claim in March 2022 to ensure substantial compliance with its previous remand instructions. In April 2022, the AOJ issued a statement of the case, continuing the denial of entitlement to an initial rating in excess of 10 percent for a right wrist disability. The Veteran then submitted a VA Form 9 to substantively appeal the claim to the Board. Notably, on the VA Form 9, the Veteran did not indicate whether she wished to provide testimony on the right wrist condition at a Board hearing. Accordingly, the Board requested clarification on this matter. In August 2022 correspondence, the Veteran indicated that she did not wish to testify at a Board hearing, and that the Board should proceed in adjudicating the claim. Based on this procedural background, the issue of entitlement to an initial rating in excess of 10 percent for the Veteran's right wrist disability is now properly before the Board. Entitlement to an initial rating in excess of 10 percent for a right wrist disability Disability evaluations are determined by the application of the facts presented to the VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. (1999); Hart v. Mansfield, 21 Vet. App. (2007). When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. Generally, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The record demonstrates that the Veteran has a diagnosis of de Quervain's syndrome of the right wrist that has progressed to degenerative arthritis. The right wrist disability is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5215. Under Diagnostic Code 5215, a 10 percent rating is warranted for dorsiflexion of either the dominant or non-dominant wrist, measuring less than 15 degrees. A 10 percent rating is also warranted for palmar flexion of either the dominant or non-dominant wrist that is limited in line with the forearm. A 10 percent rating is the maximum schedular rating under Diagnostic Code 5215. Under Diagnostic Code 5214, additional increased ratings are available if there is evidence of ankylosis of the wrist, whether favorable or unfavorable. The Veteran first underwent a VA examination of the right wrist in July 2018. At that time, palmar flexion was to 60 degrees and dorsiflexion was to 40 degrees. The examiner noted that there was pain at 20 degrees of dorsiflexion. The Veteran reported flare-ups of the wrist resulting in a painful, burning sensation from the thumb to the elbow. The Veteran explained that the flare-ups were dependent on activity and could sometimes last an entire day. The Veteran also reported being limited functionally in that she could not lift more than one to three pounds and could not write for greater than five minutes. On physical examination, the examiner found no reduction in right wrist muscle strength and no right wrist ankylosis. The examiner acknowledged additional functional loss due to flare-ups and repeated use over time, but reported that it was not possible to estimate the additional functional loss in terms of range of motion. The Veteran then underwent a new VA examination in January 2022. At that time, the Veteran reported severe flare-ups of sharp pain precipitated by any use of the right wrist, to include doing her hair and cooking. On physical examination, the Veteran's right wrist had dorsiflexion to 30 degrees and palmar flexion to 40 degrees. The examiner observed objective evidence of pain on all ranges of motion. The examiner also noted that there was pain in weight-bearing and non-weight-bearing situations, and that there was pain on active and passive motion. There was no evidence of right wrist muscle atrophy or right wrist ankylosis. The examiner opined that there was additional functional loss due to pain, fatigability, weakness, lack of endurance, and incoordination due to both flare-ups and repeated use over time. Based on repetitive motion testing and the Veteran's descriptions, the examiner estimated that this additional functional loss could be expressed as dorsiflexion limited to 20 degrees and palmar flexion limited to 30 degrees. The examiner noted that, because of the functional limitations presented by the right wrist disability, the Veteran could not lift or carry heavy objects, could not write or type, and could not do most manual work due to pain in the wrist. The Veteran's post-service treatment records document complaints of wrist pain resulting in significant limitation of right wrist function. However, those treatment records do not document limitation of motion as measured in degrees, nor do they document ankylosis. Additionally, the Veteran has provided written testimony regarding the severe limitations she has faced due to the pain she experiences in her right wrist as a result of performing activities of daily living. The Veteran has argued that the rating schedule does not accurately account for these limitations, as they exist beyond considerations of limitation of motion. Based on the evidence of record and the pertinent laws and regulations, the Board must find that entitlement to a rating in excess of 10 percent is not warranted at any point during the period on appeal. As is demonstrated by the evidence discussed above, 10 percent is the maximum rating under Diagnostic Code 5215. Notably, in this case, there is no indication that the Veteran's right wrist dorsiflexion is limited to less than 15 degrees, nor is there indication that the Veteran's right wrist palmar flexion is limited in line with the forearm. The Veteran has been assigned a 10 percent rating based on objective evidence of painful motion of the right wrist, in accordance with 38 C.F.R. §§ 4.40. 4.45, and 4.59. As the Veteran is at the maximum rating under Diagnostic Code 5215, any additional rating based on consideration of painful motion due to repeated use over time or flare-ups is not warranted. See Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997) (when a claimant is receiving the maximal evaluation for a joint disability not manifesting in ankylosis under a particular diagnostic code, the Board need not evaluate under 38 C.F.R. §§ 4.40, 4.45). The Board has also considered whether a higher or additional rating is warranted under Diagnostic Code 5214. As was discussed, there were no findings of ankylosis upon examination. Nevertheless, in Chavis v. McDonough, 34 Vet. App. 1 (2021), the United States Court of Appeals for Veterans Claims (Court) ruled that, when the rating schedule considers ratings for ankylosis, VA must consider whether additional functional loss due to flare-ups or repeated use over time amounts to functional ankylosis. In other words, the Court found that, even in the absence of diagnosed ankylosis, if the Veteran's functional loss was so severe as to effectively cause the same results as if the joint were fixed in place, VA must consider whether a rating for ankylosis would be most appropriate. Importantly, in Chavis, the Court distinguished its ruling from that in Johnston because, in the Chavis case, additional ratings remained available for ankylosis under the relevant Diagnostic Code. Here, the Board finds that additional rating under Diagnostic Code 5215 is not warranted. The Veteran's examination findings demonstrated that, even when accounting for additional functional loss due to flare-ups or repeated use over time, there is still some motion of the wrist; that motion is simply limited. See Chavis, 34 Vet. App. at 8 (2021) (noting that various medical definitions of "ankylosis" all include immobility or fixation of the joint). Therefore, despite additional functional loss due to flare-ups and repeated use over time, there is no evidence that such limitation is the functional equivalent of ankylosis. The Board has also considered the Veteran's argument presented with her VA Form 9 that the rating schedule does not adequately compensate her symptoms and that she is seeking a rating of 100 percent. An extraschedular disability rating is warranted when the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). After considering the contentions and the evidence in this case, the Board finds that referral for extraschedular consideration is not warranted. Specifically, the Board notes that the Veteran's primary argument for the insufficiency of the rating schedule is that it does not adequately contemplate the painful motion associated with her right wrist. However, painful motion is explicitly considered in the rating assigned to the Veteran's right wrist disability, in accordance with 38 C.F.R. §§ 4.40, 4.45, and 4.59. Thus, the case does not present such an unusual disability picture that referral for an extraschedular rating is appropriate. The Board acknowledges the Veteran's contention that the rating schedule under 38 C.F.R. § 4.71a does not account for the mental health symptoms that she has experienced as a result of the wrist disability. The Board will address that contention in the Remand section below. Therefore, based on the evidence discussed above, the evidence persuasively favors a finding that an initial rating in excess of 10 percent for a right wrist disability is not warranted. As the evidence persuasively favors this finding, the "benefit of the doubt" rule is not applicable and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to separate service connection for an acquired psychiatric disorder, secondary to a service-connected right wrist disability is remanded. As the Board alluded to above, the Veteran has presented written testimony that her right wrist disability should be afforded a higher evaluation due to the mental health problems it has caused. Before exercising a referral for an extraschedular rating, VA has a duty to maximize benefits under the rating schedule. This includes determining whether secondary service connection is warranted for additional symptoms and effects not contemplated by an applicable diagnostic code. See Morgan v. Wilkie, 31 Vet. App. 162 (2019). To date, the Veteran has not been afforded appropriate development to determine whether her right wrist disability causes or aggravates an acquired psychiatric disorder. Therefore, on remand, the Veteran should be scheduled for a VA mental disorders examination and all other appropriate development should be performed to adjudicate whether an acquired psychiatric disorder is secondary to the service-connected right wrist disability. 2. Entitlement to a rating of total disability based on individual unemployability (TDIU) is remanded. The Veteran has provided written testimony that the physical and mental symptoms associated with her service-connected right wrist disability have caused her to be unable to work. Accordingly, the issue of entitlement to a TDIU is raised in conjunction with the appeal for an increased initial rating for the right wrist disability. As that issue is inextricably intertwined with the issue of entitlement to separate service connection for an acquired psychiatric disorder, entitlement to a TDIU must be remanded as well. The matters are REMANDED for the following action: 1. Request the relevant documentation to adjudicate a claim of entitlement to a TDIU, to include providing the Veteran with a VA Form 21-8940. 2. Schedule the Veteran for a mental conditions examination. The examiner should review the entire claims file, and the report of examination should include discussion of the Veteran's documented history and assertions. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should clearly identify all current acquired psychiatric disorders. Then, with respect to each such diagnosed disability, the examiner should render an opinion, as to whether it is at least as likely as not (i.e., likelihood is at least approximately balanced or nearly equal, if not higher) that the disability was caused or aggravated by the Veteran's service-connected right wrist disability. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. Complete rationale should include an explanation of the evidence used in support of the conclusion, as well as an explanation as to why such evidence supports the conclusion. 3. Once the above development has been achieved, readjudicate the claim. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Giaquinto, 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.