Citation Nr: 22039620
Decision Date: 07/12/22	Archive Date: 07/12/22

DOCKET NO. 15-29 038
DATE:  July 12, 2022

ORDER

Entitlement to a rating of 50 percent, but not higher, for residuals of a right-hand fracture affecting the wrist (major), hereinafter a "right-wrist disorder," is granted.

FINDINGS OF FACT

1. Resolving all doubt in favor of the Veteran, throughout the period on appeal, his right wrist disorder was manifested with pain, and the functional equivalent of unfavorable ankylosis in palmar flexion.

2. As of the date of this decision, throughout the period on appeal, the Veteran is assigned a 50 percent rating for his right wrist disorder, which is the maximum rating under the VA rating schedule.

CONCLUSIONS OF LAW

1. The criteria for a rating of 50 percent, but not higher, for a right wrist disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5214, 5215. 

2. There is no legal basis for the assignment of a schedular rating in excess of 50 percent for a right wrist disorder at any time during the period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5214, 5215.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from April 1973 to March 1974. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Louisville, Kentucky. Jurisdiction of this appeal is currently with the VBA AMC RO. 

The Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) in October 2018. A transcript of the proceeding is of record. The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38U.S.C. §7107(c); 38C.F.R. §20.707. However, the VLJ who conducted the October 2018Board hearing is no longer employed by the Board. In November 2020, the Veteran and his representative were sent a letter notifying them that the VLJ who presided over the October 2018 hearing is no longer employed by the Board and offering another hearing before a different VLJ. The letter notified the Veteran that he had 30 days from the date of letter to respond and that if no response was received the Board will assume the Veteran does not want another hearing and the Board will proceed accordingly. The Veteran's representative responded that the Veteran did not want another hearing.

This case was most recently before the Board in March 2022, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The case has now been returned to the Board for appellate action.

In addition, in an April 2022 rating decision, the AOJ granted an increased rating for the Veteran's right- wrist disorder, and assigned a 50 percent disability rating effective December 20, 2021. However, as this does not represent a full grant of the benefits sought on appeal, the claim remains before the Board, and the Board has reframed the issue to reflect the rating increase.

Increased Rating  Right Wrist Disorder

The Veteran seeks to establish higher ratings for his right wrist disorder. Specifically, the Veteran's attorney asserts that the functional limitations of his right wrist disorder were not adequately addressed under Diagnostic Code 5215. See e.g., Third Party Correspondence, December 4, 2020. In addition, the Veteran testified at his October 2018 Board hearing that he constant pain, weakness, weakened grip, inability to dress himself, inability to open his hand, difficulty gripping, inability to write or type, and lack of dexterity in his right hand due to his right wrist. See Board hearing transcript, October 10, 2018. In addition, the Veteran testified that his right wrist was "paralyzed" and had lost all function. Id. 

Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to various disabilities.

If 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).

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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria.").]

Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claims.

When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

The Veteran's service-connected right wrist disorder is rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5215. 

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board will consider the old version of the diagnostic code only; however, for the period beginning February 7, 2021 the Board will consider both the old and amended version of the diagnostic code and rate based on whichever is most favorable to the Veteran. 

Diagnostic Codes 5214 and 5215 assign disability ratings based on limitation of motion of the wrist. The Board notes that the rating criteria applicable to musculoskeletal wrist disorders were unchanged by the February 7, 2021 revisions.

Pursuant to Diagnostic Code 5215, a 10 percent rating is warranted for palmar flexion limited in line with the forearm or dorsiflexion less than 15 degrees. The Board notes that Diagnostic Code 5215 does not provide for a rating in excess of 10 percent. Id.

Higher ratings are available under Diagnostic Code 5214 for ankylosis of the wrist. Diagnostic Code 5214 provides that, for the major extremity, a 30 percent rating is warranted where there is favorable ankylosis of the wrist in 20 to 30 degrees of dorsiflexion. A 40 percent rating is warranted where there is ankylosis of the wrist in any other position, except favorable, and a 50 percent rating is warranted where there is unfavorable ankylosis in any degree of palmar flexion, or with ulnar or radial deviation. A note following Diagnostic Code 5214 states that extremely unfavorable ankylosis will be rated as loss of use of hands under Diagnostic Code 5125. 38 C.F.R. §§ 4.71a, Diagnostic Code 5214.

Normal range of motion (ROM) 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. 38 C.F.R. § 4.71a, Plate I.

Turning to the evidence, the Veteran was afforded a VA examination in October 2013. At that time, the Veteran reported current symptoms include pain in the entire wrist, with radiation of pain into the shoulder; painful to movement of fingers; limited range of motion; pain with movement into the entire right upper extremity; loss of range of motion; inability to hold or grip anything; difficulty twisting; and affected sleep. The Veteran denied flare-ups of the right wrist disorder. 

Upon physical examination in October 2013, range of motion measurements were as follows: palmar flexion to 0 degrees; dorsiflexion to 0 degrees; with pain at 0 degrees each. The VA examiner noted that the range of motion did not conform to the normal range of motion but was normal for the Veteran due to age and body habits of the left side. The Veteran was unable to perform repetitive-use testing with three repetitions because it was too painful to complete. The VA examiner noted the Veteran had functional loss and/or functional impairment of the wrist due to less movement than normal; weakened movement; incoordination, impaired ability to execute skilled movements smoothly; pain on movement; and swelling. Pain, weakness, and incoordination significantly limited functional ability during flare-ups or when the joint was used repeatedly over time. The VA examiner noted the Veteran had no range of motion that was constant. Pain was shown on the right side. 

Muscle strength testing in October 2013 showed palpable or visible muscle contraction without joint movement on right wrist extension and flexion. The VA examiner found the Veteran did not have ankylosis. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. The VA examiner noted the Veteran's right wrist disorder impacted his ability to work due to inability to lift with right upper extremity. The Veteran reported he was right-hand dominant. 

The Veteran was afforded a VA examination for his right wrist in August 2020. At that time, the Veteran reported current symptoms included pain that was described as a 4 out of 10 pain intensity, and 10 out of 10 pain intensity during flare-ups. The Veteran stated he avoided using his right hand as much as possible and relied on his left hand; requested pain medication; used therapy to increase the strength and grip in his right hand; and used a brace. He reported flare-ups of the right hand that was described as pain that radiated up into his arm, swelling, and weakness; occurred daily; severe; and lasting four to five hours in duration. He reported functional loss that included inability to properly grip a cup; inability to grasp objects; difficulty using or operating his wheelchair knob; limited range of motion; and weakness in his right hand. 

Upon physical examination in August 2020, range of motion measurements of the right wrist showed palmar flexion to 5 degrees; dorsiflexion to 5 degrees; ulnar deviation to 10 degrees; and radial deviation to 0 degrees. Range of motion itself contributed to a functional loss because the Veteran had difficulty operating controls on his motorized wheelchair due to pain, limited range of motion, and weakness. Pain was noted on all range of motion movements and caused a functional loss. Tenderness to palpation was shown on the dorsal side of the right hand; pain was mild in severity. There was no evidence of pain with weight-bearing nor crepitus. The Veteran was able to perform repetitive-use testing; there was additional loss of range of motion following repetitive-use testing as follows: palmar flexion was to 0 degrees; dorsiflexion was to 0 degrees; ulnar deviation was to 5 degrees; and radial deviation was to 0 degrees. Pain and weakness were shown to cause this functional loss following repetitive-use testing. The examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive-use over time. Pain and weakness were shown to significantly limit functional ability with repetitive-use over a period of time; the VA examiner was able to describe in terms of range of motion as follows: palmar flexion to 0 degrees; dorsiflexion to 0 degrees; ulnar deviation to 10 degrees; and radial deviation to 0 degrees. The Veteran was not examined during a flare-up; the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during a flare-up. Pain and weakness were shown to significantly limit functional ability during a flare-up; the VA examiner was able to describe in terms of range of motion as follows: palmar flexion to 0 degrees; dorsiflexion to 0 degrees; ulnar deviation to 10 degrees; and radial deviation to 0 degrees. There were no other factors contributing to the disability.

Muscle strength testing in August 2020 showed palpable or visible muscle contraction without joint movement in right flexion and extension of the wrist; there was a reduction in muscle strength that was entirely attributable to his right wrist disorder. The Veteran did not have muscle atrophy. Ankylosis was not show. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. The Veteran endorsed the regular use of a wrist brace. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. Diagnostic imaging studies documented traumatic or degenerative arthritis in the right wrist. The VA examiner noted the Veteran's right wrist disorder would impact his ability to work due to 0-1 week of work time last in the past 12 months, difficulty holding cups, and difficulty grasping objects with his right hand. There was objective evidence of pain on passive range of motion, objective evidence of pain when the joint was used in non-weight-bearing, and a new diagnosis of degenerative arthritis. 

The Veteran was afforded a VA examination in December 2021. At that time, the Veteran reported his right wrist disorder had progressed or worsened. Current symptoms reported included pain with limited range of motion and diminished hand grip. The Veteran treated with Tylenol, therapy ball, and a wrist brace. He endorsed flare-ups of the right wrist that occurred two to three times per month, lasting three to four days in duration, characterized with worsening pain, and severe. Alleviating factors to flare-ups included rest. Functional impairment experienced during a flare-up included near to no active range of motion. Functional loss or functional impairment, including but not limited to after repetitive-use over time included inability to lift using his right upper extremity.

Upon physical examination in December 2021, active range of motion measurements were as follows: dorsiflexion was to 5 degrees; palmar flexion was to 5 degrees; ulnar deviation was to 10 degrees; and radial deviation was to 0 degrees. Passive range of motion measurements were as follows: dorsiflexion was to 10 degrees; palmar flexion was to 10 degrees; ulnar deviation was to 10 degrees; and radial deviation was to 5 degrees. Pain was noted on all range of motion movements. There was evidence of pain in weight-bearing, active movement, and passive movement; pain caused a functional loss due to inability to lift using his right upper extremity. There was not objective evidence of crepitus. Severe localized tenderness or pain on palpation was shown on the dorsal surface area of the right ulnar. The Veteran was unable to perform repetitive-use testing due to pain. The Veteran was not examined immediately following repetitive-use over time. The procured evidence suggested that pain, weakness, and "almost no range of motion" significantly limited functional ability with repetitive-use over time. Estimated range of motion measurements following repetitive-use were as follows: dorsiflexion was to 0 degrees; palmar flexion was to 5 degrees; ulnar deviation was to 5 degrees; and radial deviation was to 0 degrees. The Veteran was not examined during a flare-up. The procured evidence suggested that pain, weakness, and near complete loss of active motion significantly limited functional ability during flare-ups. Estimated range of motion during flare-ups were as follows: dorsiflexion was to 5 degrees; palmar flexion to 5 degrees; ulnar deviation to 0 degrees; and radial deviation to 0 degrees. Additional factors contributing to the disability included swelling, less movement than normal, weakened movement, and almost no range of motion that was constant. The Veteran did not have muscle atrophy. Ankylosis was not shown. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. The Veteran denied the use of any assistive device. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. The VA examiner noted the Veteran's right wrist disorder impacted his ability to work due to almost no range of motion that was constant. 

In an April 2022 VA medical opinion, the VA examiner opined that the severe limitation of range of motion of the right wrist was the functional equivalent to ankylosis as: severe ankylosis of the right wrist; unfavorable in 10 degrees of palmar flexion; and unfavorable with 10 degrees of ulnar deviation. In this regard, the VA examiner noted that the Veteran's active range of motion was severely restricted leading to significant functional abnormality of the right wrist as well as his right hand, and therefore, it is considered as the functional equivalent of right wrist ankylosis. 

Further review of the record shows that the Veteran receives VA treatment and from private treatment providers for various disabilities. However, there is no indication from the treatment notes of record that the Veteran has reported right wrist symptoms that are worse than those noted in the various VA examination reports of record and there are no ranges of motion measurements documented in the VA treatment notes of record. 

The right wrist disorder is rated under Diagnostic Code 5215. This provision addresses ankylosis and authorizes a maximum 50 percent rating for the major extremity and a maximum 40 percent rating for the minor extremity. As noted above, the Veteran is right-hand dominant. In this regard, the Board notes that the Veteran has consistently reported painful motion of the wrist that resulted in severe limitation of range of motion. Notably, the Veteran was shown to have no more than 10 degrees of ulnar deviation, and was consistently shown to have range of motion measurements of right wrist movements measured at 5 degrees or less upon physical examination throughout the period on appeal. Pain was noted on range of motion at his various VA examinations, that did result in additional functional loss even in contemplation of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, supra. Although pain may cause functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, supra. Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40. Here, the Veteran has reported functional loss due to pain that included disrupted sleep, significantly weakened muscle strength, and severely limited range of motion resulting in no movement at times. Of significance, the April 2022 VA examiner found the Veteran's limited range of motion was the functional equivalent of 10 degrees of palmar and ulnar ankylosis of the right wrist. The Veteran's right wrist symptoms and demonstrated range of motion measurements upon physical examination have remained consistent throughout the period on appeal. Accordingly, a 50 percent rating, but not higher, is warranted for the Veteran's right wrist disorder throughout the period on appeal. 38 C.F.R. § 4.71a, Diagnostic Codes 5214, 5215.

Throughout the period on appeal, the Board concludes that there is no legal basis for the assignment a schedular rating in excess of 50 percent for his right wrist disorder. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.71a, Diagnostic Codes 5214, 5215. As noted above, Diagnostic Code 5214 provides a maximum schedular rating of 50 percent where there is unfavorable ankylosis in any degree of palmar flexion, or with ulnar or radial deviation in the major extremity. Therefore, a rating in excess of 50 percent for a right wrist disorder is not warranted at any time during the period on appeal.

The Board acknowledges the Veteran's statement that his right wrist disorder is more severe than evaluated. The Veteran is competent to report his symptoms and has presented credible statements in this regard. See, e.g., Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Board finds, however, that neither the Veteran's statements nor medical evidence demonstrates that the criteria for a higher rating have been met. The Board also acknowledges that the Veteran's VA treatment records note complaints of and treatment for his wrist. However, these records do not address the specific rating criteria necessary to substantiate a higher rating. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. The criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal.

The Board has also considered whether a staged rating under Fenderson v. West, supra, is appropriate for the Veteran's service-connected right wrist disorder; however, the Board finds that his symptomatology has been stable throughout the period on appeal. Therefore, assigning a staged ratings for such disability is not warranted. Further, the Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to such claim. Doucette v. Shulkin, 28 Vet. App. 366 (2017).

Finally, the Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examinations in light of the Court's holdings in Correia and Sharp. See Correia v. McDonald, supra, and Sharp v. Shulkin, supra. In this case, the October 2013 VA examination report indicates that pain was noted on examination. The effect of pain on range of motion is described above. Regarding repeated use over time, the Board notes that October 2013 VA examiner conducted repetitive-use testing and concluded that there was no additional limitation in range of motion. The August 2020 and December 2021 VA examinations reflected measurements for active and passive range of motion as well as range of motion testing in weight-bearing and non-weight-bearing and also provided range of motion measurements for the undamaged right wrist. The Veteran denied flare-ups at the October 2013 VA examination, and the functional effect and/or impairment of his flare-ups were described above in the August 2020 and December 2021 VA examination reports. Therefore, the examination of record is adequate for rating purposes.

Additionally, the Board has considered whether an inferred claim for a total disability rating based upon individual unemployability (TDIU) has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran reported being unemployed. However, the Veteran has also not alleged, and the record does not suggest, that he is unable to obtain and maintain employment due solely to his service-connected right wrist disorder. As such, a Rice claim is not raised.

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Accordingly, the Board finds that the evidence is for the assignment of a 50 percent rating, but not higher, for the right wrist disorder throughout the period on appeal, and to that extent the claim is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

 

 

Margaret M. Lunger

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Mariah N. Sim, 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.