Citation Nr: 23001032 Decision Date: 01/06/23 Archive Date: 01/06/23 DOCKET NO. 17-03 762 DATE: January 6, 2023 ORDER Entitlement to an evaluation in excess of 10 percent from December 7, 2016, for status post crush injury and fracture to the right forearm with surgical repair is denied. Entitlement to an evaluation in excess of 20 percent prior to August 23, 2019, and 10 percent thereafter, for status post crush injury and fracture to the right forearm with surgical repair and limitation of pronation is denied. FINDINGS OF FACT 1. From December 7, 2016, the Veteran's status post crush injury and fracture to the right forearm with surgical repair did not manifest in flexion limited to 90 degrees or less, even considering pain, weakness, and flare ups. 2. Prior to August 23, 2019, the Veteran's status post crush injury and fracture to the right forearm with surgical repair and limitation of pronation did not manifest in limitation of pronation with motion lost beyond the middle arc or bone fusion. 3. From August 23, 2019, the Veteran's status post crush injury and fracture to the right forearm with surgical repair and limitation of pronation did not manifest in motion lost beyond the last quarter of arc, hand approaching full pronation. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent from December 7, 2016, for status post crush injury and fracture to the right forearm with surgical repair have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5206. 2. The criteria an evaluation in excess of 20 percent prior to August 23, 2019, and 10 percent thereafter, for status post crush injury and fracture to the right forearm with surgical repair and limitation of pronation have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Code 5213. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 2006 to November 2010. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2017, the Veteran testified at a hearing before a Veterans Law Judge (VLJ). A transcript of that hearing is of record. The VLJ who held that hearing is no longer available to participate in the decision. The law requires that the VLJ who conducts the hearing on appeal participate in any decision made on appeal. 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. In a September 2022 letter, the Veteran was informed of his right to have another hearing with another VLJ. The Veteran was also informed that the Board would assume that the Veteran did not want another hearing if he did not respond within 30 days. To date, the Board has not received a response. The Board previously remanded the issues on appeal in May 2018 and in April 2020. There has been substantial compliance with the remand directives. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities found in 38 C.F.R. Part 4. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their 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 evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). 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."). The Board must consider whether a higher rating is warranted under any applicable Diagnostic Code or permitted combination of separate ratings under multiple Diagnostic Codes. However, assigning separate compensable ratings for the same symptoms/functional impairment under different diagnoses would violate the prohibition against pyramiding in 38 C.F.R. § 4.14. 1. Entitlement to an evaluation in excess of 10 percent from December 7, 2016, for status post crush injury and fracture to the right forearm with surgical repair is denied. 2. Entitlement to an evaluation in excess of 20 percent prior to August 23, 2019, and 10 percent thereafter, for status post crush injury and fracture to the right forearm with surgical repair and limitation of pronation is denied. The Veteran contends that he is entitled to higher ratings because of pain, numbness, and limited range of motion in his hand, arm, and fingers. See January 2014 VA Form 9. Service connection for status post crush injury and fracture to the right forearm with surgical repair was granted in a March 2011 rating decision. An initial noncompensable rating was assigned effective November 27, 2010; a 10 percent rating was assigned effective December 7, 2016, under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5206. The Veteran appealed from the initial ratings assigned. In a January 2017 rating decision, the RO awarded a separate evaluation for status post crush injury and fracture to the right forearm with surgical repair and limitation of pronation. A 20 percent rating was assigned effective December 7, 2016; and a 10 percent rating was assigned from August 23, 2019. These ratings were made under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5206 In an April 2020 decision, the Board denied an initial compensable rating for the period prior to December 7, 2016, for the status post crush injury and fracture to the right forearm with surgical repair. The Board is bound by that prior, final adjudication. The issues currently on appeal for adjudication are as shown on the title page. Although this Board decision referred to the assignment of the 10 percent rating from August 23, 2019, for status post crush injury and fracture to the right forearm with surgical repair and limitation of pronation as a "reduction;" this was not a 'reduction' in the traditional sense. The Board finds the RO's action is properly construed as a continuation of the initial rating assigned for that separate condition and not a reduction subject to the safeguards for reductions in disability ratings. See 38 C.F.R. § 3.105 (e). The Veteran's right upper extremity is the dominant (major) upper extremity. See July 2017 Board hearing transcript; August 2019 VA examination report. Under Diagnostic Code 5206, for the dominant arm, forearm flexion limited to 110 degrees warrants a noncompensable rating. Forearm flexion limited to 100 degrees warrants a 10 percent rating. Forearm flexion limited to 90 degrees warrants a 20 percent rating. Forearm flexion limited to 70 degrees warrants a 30 percent rating. Forearm flexion limited to 55 degrees warrants a 40 percent rating. Forearm flexion limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a. Diagnostic Code 5213 is applicable to impairment of supination and pronation. Under Diagnostic Code 5213, for the dominant arm, a rating of 10 percent for limitation of supination to 30 degrees or less. A 20 percent rating is warranted for limitation of pronation with motion lost beyond last quarter of arc, where the hand does not approach full pronation. For limitation of pronation with motion lost beyond middle of arc, a 30 percent rating is warranted. For loss supination and pronation (bone fusion) with the hand fixed near the middle of the arc or moderate pronation, a 20 percent rating is warranted. For loss of supination and pronation (bone fusion) with the hand fixed in full pronation, a 30 percent rating is warranted. For loss of supination and pronation (bone fusion) with the hand fixed in supination or hyperpronation, a 40 percent rating is warranted. A note following Diagnostic Codes 5205-5213 states that in all the forearm and wrist injuries, multiple impaired finger movements due to tendon tie-up, muscle or nerve injuries, are to be separately rated and combined not to exceed the rating for loss of use of hand. As the Board noted in April 2020, the Veteran has been granted service connection and separate ratings for the right wrist, right thumb, and four fingers of the right hand. The Board previously noted that these matters are not now before the Board because the record does not contain any disagreement regarding the ratings assigned. Turning to the evidence of record, the Veteran was examined by VA in December 2016. In the medical history, the Veteran reported that his disability results in worsening flexibility, strength, and overall function. He also reported that his hand frequently locks up. He has difficulty writing, and randomly drops things. The Veteran reported significant loss of strength, motor function, and flexibility in fingers, hand, and forearm. The Veteran denied having had flare-ups. Range of motion testing showed flexion from 0 to 135 degrees. Extension was limited from 135 to 0 degrees. The Veteran exhibited forearm supination from 0 to 85 degrees, and pronation from 0 to 50 degrees. The Veteran was able to perform repetitive-use testing without additional loss of function or range of motion. There was pain on all ranges of motion, and with weight bearing motion. There was reduced muscle strength flexion and extension. However, there was no atrophy, ankylosis, flail joint, joint fracture, ununited fracture, malaligned fracture, or impairment of supination or pronation. Although pain and weakness significantly limited functional ability with repeated use over a period of time, the examiner was unable to describe it in terms of range of motion. At his July 2017 Board hearing, the Veteran testified that his disability results in right upper extremity cramping, numbness, locking and limited motor function. He also reported that his right hand is easily fatigued, his wrist gives way, and his grip is weak and painful. There is pain throughout the forearm and muscle. Due to his symptoms, he is unable to straighten his thumb, rotate his arm about half-way, or extend his hand and fingers at same time. The Veteran testified that he has to take days off from work to recover after a large job a couple times per year, and that other employees assist him by doing some of his tasks. The Veteran was afforded another VA examination in August 2019. The examiner noted a diagnosis of status post crush injury and fracture to the forearm with surgical repair and limitation of pronation, limitation of forearm supination, and limitation of elbow flexion. The examiner noted the additional conditions of limitation of right forearm supination and elbow flexion are directly due to or related to the Veteran's service-connected diagnosis. The Veteran reported right elbow and forearm pain with use, functional loss with lifting or carrying, and flare-ups with frequent rotation. Range of motion testing showed flexion limited to 118 degrees and extension limited to 0 degrees. The Veteran's forearm supination was limited to 28 degrees and pronation was limited to 70 degrees. There was pain on flexion, supination, and pronation, which causes functional loss. There was pain on weight bearing motion, but there was no objective evidence of pain on non-weight bearing. The Veteran was able to perform repetitive-use testing without additional loss of function or range of motion. The examiner noted that pain significantly limited functional ability with repeated use over a period of time and during flare-ups. However, the examiner noted that there is no further anticipated loss in terms of range of motion albeit there was an expectation of increased symptoms of pain. There was muscle atrophy, with a difference of 10 centimeter distal to lateral epicondyle of elbow. There was no ankylosis. The examiner noted functional impact on the ability to perform occupational tasks with limitations as to heavy lifting, repetitive lifting, and frequent twisting motions of the right arm. Based upon the above, the Board finds that higher ratings are not warranted. In the April 2020 remand, the Board directed VA to obtain a VA examination to ascertain the current severity of the Veteran's service-connected disabilities and an estimation of the loss in terms of range of motion during flare-ups and with repeated use over time. In July 2021, the Veteran was informed of an examination scheduled for August 2021; however, the Veteran failed to appear for the examination. In April 2022, VA informed the Veteran that the contracted examination vendor could not contact him. In a May 2022 letter, the Veteran was informed that the claim shall be rated based on the evidence of record, or even denied, where a claimant fails to report for an examination or reexamination without good cause. The Veteran was again scheduled for an examination in August 2022, with notice going to his last known address. In addition, the contracted vendor attempted to contact the Veteran through multiple telephone calls and text messages. There is no indication that notices were not received, and the Veteran has not otherwise provided good cause for his failure to appear to the examination. As such, the Board finds substantial compliance with the prior remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In general, the Veteran has a duty to cooperate with VA in developing a claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one-way street"). Moreover, VA's duty must be understood as a duty to assist the Veteran in developing his claim, rather than a duty on the part of VA to develop the entire claim with the Veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). In this instance, the Veteran failed to attend his scheduled VA examinations and did not show good cause for his absence. Thus, the Board will decide his claim based on the evidence of record. See 38 C.F.R. § 3.655. The evidence of record indicates that the Veteran's right forearm flexion was not limited to 90 degrees at any time during the rating period. Rather, the December 2016 VA examination indicates that the Veteran's flexion was limited to 138 degrees, and the August 2019 VA examination indicated that flexion was limited to 118 degrees. The August 2019 VA examiner also indicated that there was no further loss in terms of range of motion during flare-ups and repeated use over time. Furthermore, the competent and probative evidence indicates that limitation of pronation was to 28 degrees. There was no evidence of limitation of pronation with motion lost beyond last quarter of arc, limitation of pronation with motion lost beyond middle of arc, or bone fusion with loss of supination and pronation. In this regard, the Board finds the December 2016 and August 2019 VA examinations the most competent and probative evidence. The examiners each have the appropriate training, expertise and knowledge to evaluate the claimed disability. Furthermore, the examination reports and opinions provided the Board with a clear description of all relevant data points necessary to evaluate this claim. The Board recognizes that the Veteran is competent to report symptoms he experiences and functional loss due to such symptoms. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). However, the Board accords more probative value to medical clinicians trained to perform testing and interpret testing results in relation to the severity of a disability. The Board has also considered the applicability other diagnostic codes. However, there is no evidence to warrant separate or higher ratings. Notably, the evidence did not persuasively weigh in favor of limitation of extension; favorable or unfavorable ankylosis of the forearm (or functional equivalent thereof); other impairment of the flail joint; joint fracture; nonunion or flail joint of the radius and ulna; impairment of the ulna; or impairment of the radius. 38 C.F.R. § 4.71a, Diagnostic Code 5205, 5207-5212. As noted above, the Veteran is already in receipt of a separate ratings for his wrist, thumb, and four fingers. Finally, separate ratings for both limited supination and pronation are not available. See Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010) (holding that within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise); 38 C.F.R. § 4.71a, Diagnostic Code 5213. The Board notes that the August 2019 VA examination indicated that there was atrophy of the forearm muscle. The rating criteria for muscle injuries provides for impairment of different muscle groups of upper extremity, with the rating corresponding to a slight, moderate, severe, and severe degree of impairment 38 C.F.R. § 4.73, Diagnostic Code 5305-5309. However, the criteria contemplate range of motion within such categories. Moreover, ratings for limitation of motion of the elbow, thumb, wrist, and other fingers contemplate consideration of associated functional loss due to pain, weakness, excess fatigability, or incoordination. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). As such, another rating for muscle injury would impermissibly overlap with the impairment that would be compensated through assignment of a rating under Diagnostic Codes for limitation of flexion and pronation. Thus, there is no basis for an award of increased disability compensation presented through application of Diagnostic Code 5307 in this case. Based on the foregoing, the evidence persuasively weighs against a disability rating in excess of 10 percent from December 7, 2016, for limitation of flexion for status post crush injury and fracture to the right forearm with surgical repair. The evidence also persuasively weighs against a rating in excess 20 percent prior to August 23, 2019, or 10 percent thereafter, for status post crush injury and fracture to the right forearm with surgical repair and limitation of pronation. (Continued on the next page) As the evidence of record persuasively weighs against the issues on appeal, 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, 21 F.4th 776, 781-82 (2021). D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Vuong, 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.