Citation Nr: 23023950 Decision Date: 04/25/23 Archive Date: 04/25/23 DOCKET NO. 16-35 611A DATE: April 25, 2023 ORDER Entitlement to a rating greater than 30 percent from May 1, 2014, through March 18, 2021, for residuals of a fracture of the left navicular/scaphoid bone, status post carpectomy with radial styloidectomy and fusion, with traumatic arthritis, is denied. FINDING OF FACT The evidence is persuasively against finding that the Veteran's left wrist condition manifests as unfavorable ankylosis in any degree of palmar flexion or with ulnar or radial deviation. CONCLUSION OF LAW The criteria for entitlement to a rating greater than 30 percent from May 1, 2014, through March 18, 2021, for residuals of a fracture of the left navicular/scaphoid bone, status post carpectomy with radial styloidectomy and fusion, and with traumatic arthritis, have not been met. 38 U.S.C. §§ 101, 1154(a), 1155, 5107; 38 C.F.R. §§ 3.102, 3.103, 3.104, 3.307(b), 3.326, 4.1, 4.3, 4.7, 4.16, 4.40, 4.41, 4.45, 4.59, 4.71a, Diagnostic Codes 5214, 5215. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from August 1975 to October 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office, the Agency of Original Jurisdiction (AOJ) in this case. A July 2021 Board decision denied entitlement to disability rating greater than 60 percent from March 19, 2021, for the residuals of a fracture of the left navicular/scaphoid bone, status post carpectomy with radial styloidectomy and fusion, and with traumatic arthritis and remanded entitlement to a disability evaluation greater than 20 percent disabling from May 1, 2014, through March 18, 2021. The remand directed that the claims file be forwarded to an appropriate clinician who has not previously provided an opinion in this case to determine the severity of the Veteran's service-connected left wrist disability from May 1, 2014, through March 18, 2021. The remand directed that the examiner should address any changes in the severity of the Veteran's left wrist fracture during the appeal period from May 1, 2014, to March 18, 2021. The examiner was directed to reconcile the previous findings of favorable and unfavorable ankylosis contained in the record. See July 2021 Board Decision. In April 2022, a Board decision remanded entitlement to a disability rating greater than 20 percent disabling from May 1, 2014, through March 18, 2021, for residuals of a fracture of the left navicular/scaphoid bone, status post carpectomy with radial styloidectomy and fusion, and with traumatic arthritis to obtain an addendum medical opinion. The decision directed the examiner to address the severity of the Veteran's disability, to include whether the Veteran's disability presented as favorable, unfavorable, or extremely unfavorable ankylosis. Furthermore, the clinician was advised that if he or she concluded extremely unfavorable ankylosis was not present, the reasons why it is not considered present should be expressed. See April 2022 Board Decision. A May 2022 rating decision assigned a rating of 30 percent disabling for the Veteran's service-connected left wrist disability from May 1, 2014, to March 18, 2021. See May 2022 VA Rating Decision Narrative. In August 2022, the Board remanded the matter for a medical examination to address whether the evidence of record reflects any changes in the severity of the Veteran's disability from May 1, 2014, through March 18, 2021, and if so, the approximate dates of any such changes. See August 2022 Board Decision. Finally, a November 2022 Board decision remanded the matter for an addendum medical opinion in retrospect to determine if the record reflects any changes in the severity of the Veteran's left wrist disability from May 1, 2014, through March 18, 2021, and if so, the approximate dates of any such changes. See November 2022 Board Decision. The AOJ's efforts have substantially complied with the instructions contained in the July 2019, August 2020, February 2021, July 2021, April 2022, August 2022, and November 2022 Board remands. See Stegall v. West, 11 Vet. App. 268 (1998). Updated treatment records were obtained. VA medical examinations were scheduled and completed for the Veteran. Any perceived or actual deficiencies in the October 2015, February 2020, August 2020, March 2021, December 2021, April 2022, and May 2022 VA examinations were cured by the January 2023 examination. The Board emphasizes that substantial compliance with remand instructions, not strict compliance, is all that is required. See Dyment v. West, 13 Vet. App. 141, 146-47 (aff'd sub nom. Dyment v. Principi, 287 F.37 1377 (Fed. Cir. 2002)). Medical opinions are considered adequate when then fully inform the Board as to the medical question at issue. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-106 (2012). To the extent that the October 2015, February 2020, August 2020, March 2021, December 2021, April 2022, and May 2022 VA examinations were able to record and address any applicable rating criteria, the Board will rely on these VA examination reports, in addition to the January 2023 examination, to evaluate the Veteran's claim for increased evaluation. See Monzingo, supra at 107 ("[E]ven if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight."). This case has been advanced on the docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). 1. Entitlement to a rating greater than 30 percent from May 1, 2014, through March 18, 2021, for residuals of a fracture of the left navicular/scaphoid bone, status post carpectomy with radial styloidectomy and fusion, and with traumatic arthritis. "The Veteran contends that he has basically lost the use of his left hand to his surgeries. He also has no grip and his fingers tend to stay separated on their own. Veteran contends that there is severe nerve damage because of the surgeries that prevent him from using his left wrist and hand." See September 2017 American Legion Appellate Brief. Disability evaluations are determined by the application of the facts presented to 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. §§ 3.321(a), 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). the Veteran is right-hand dominant or right-handed, making his left wrist the "minor" joint for evaluation purposes. See October 2015 and February 2020 VA Wrist Conditions examination reports. For the period in question, the Veteran's left wrist disability was evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5214. This hyphenated diagnostic code indicates that traumatic arthritis of the wrist was evaluated as ankylosis of the wrist. Under Diagnostic Code 5214, a 20 percent rating is assigned for favorable ankylosis in 20 degrees to 30 degrees dorsiflexion for both the major and minor joints. A 40 percent rating is awarded for ankylosis in any other position, except favorable, for the major joint; the maximum 50 percent rating is appropriate for unfavorable ankylosis in any degree of palmar flexion or with ulnar or radial deviation for the major joint. See 38 C.F.R. § 4.71a, Diagnostic Code 5214. Another potential rating criteria is Diagnostic Code 5215, for limited motion of the wrist. However, as the Veteran's left wrist rating for the period of time on appeal is already 30 percent disabling, and the sole/maximum rating under Diagnostic Code 5215 is 10 percent disabling (for palmar flexion limited in line with the forearm for both the major and minor joints and for dorsiflexion less than 15 degrees, no further consideration of Diagnostic Code 5215 is required as assignment of a rating under this Diagnostic Code would not benefit the Veteran. Applying the criteria for Diagnostic Code 5214, the Veteran does not meet the requirements for an increased evaluation at any point during the relevant appeal period. See October 2015 VA Wrist Conditions examination report ("Additional factors contributing to disability…Left Wrist: In addition to those addressed above, are there additional contributing factors of disability…Less movement than normal due to ankylosis…Ankylosis: Indicate severity of ankylosis and side affected…Left side: [X] Favorable in 20 degrees to 30 degrees dorsiflexion."); see also August 2020 VA Wrist Conditions Addendum examination report ("[W]ithout seeing the wrist, it is uncertain what angle the wrist is fused in. The surgery had no known complications, and these fusions are typically surgically fused in a 'favorable' position, as it is not painful. This was not a[n] ankylosis due to a trauma, rather a well-planned surgery by an Orthopedic Specialist at University of Florida to undergo a fusion for pain relief purposes."); December 2021 VA Wrist Conditions examination report ("Review of the medical record does not reflect changes in the severity of the ankylosis pinpointed to any time frame."). The record reflects some conflicting statements between and within examination opinions throughout the course of the Veteran's appeal. This is due in part to the unavailability of the Veteran for an in-person examination. See August 2022 VA Form 21-4138, Statement in Support of Claim ("The Veteran is requesting the VA make a determination with the information that is currently in the file, he will not be attending any further compensation and pension examinations.") and September 2022 QTC Medical Group, Inc. Note ("On 09/02/2022 by Phone/Verbal, the Veteran explicitly expressed concerns with attending their appointments, contentions, or entire ESR due to COVID-related concerns, and therefore did not attend at least one of their appointments because of this concern."). A final medical opinion was obtained in January 2023 with the following report: I have reviewed the conflicting medical evidence and am providing the following opinion: Review of available records note the Veteran had range of motion in the right wrist of palmar flexion 0 to 40 degrees and dorsiflexion 0-45 degrees on 12/23/13 (6 months prior to the period requested by Remand instructions dated 11/23/22). However, the Veteran had pain with this range of motion in the left wrist hence in for pain relief agreed to have a fusion of the left wrist in 1/24/2014 [sic]. It is after this fusion that the Veteran had significant change in function as evidenced by 10/22/15 wrist DBQ recording a dorsiflexion, palmar flexion, ulnar deviation, and radial deviation of 0 to 0. Hence the Veteran has complete fusion with loss of any range of motion. The 10/22/2015 Wrist DBQ also notes a favorable ankylosis of 20 - 30 degrees dorsiflexion. This is consistent with a fusion surgery of this manner. The surgeon in a fusion surgery of a wrist joint would not place fusion hardware in an unfavorable position. There are no X-rays that support an unfavorable fusion. Though operative reports of this 1/24/2014 fusion surgery are not in available records for this examiner, a 7/2014 VA preventative medicine encounter notes: s/p left wrist fusion with 'considerable improvement' in symptoms. It would likely be notable by this provider if he observed the Veteran's wrist fusion in an unfavorable ankylosed position. It also would be unusual for an orthopedic surgeon to fuse this Veteran's left wrist (based upon this Veteran's left wrist pathology) in an unfavorable fused position. 5/2014 the Veteran likely had the same loss of range of motion in all directions, pain with weight bearing and palpation. The Veteran likely did report flares in pain. With flares, the Veteran did not have further loss of range of motion or further loss of coordination however would have reduction in stamina, fatigue, even though the wrist is fused [sic]. VA treatment records do not support additional decline in the left wrist following this 5/2014 (and 10/2015) time period to the next wrist DBQ 2/2020 [sic]. There are no ongoing physical therapy seen regarding this left wrist [sic]. However, the 2/2020 Wrist DBQ reveals the same loss of all range of motion and notes 'extremely unfavorable ankyloses.' This is not supported by VA treatment records however [sic]. The preventative care note 7/2014 did not report an unfavorable ankyloses nor did the 10/2015 Wrist DBQ examination. There would have been a report and further X-rays if there was a change in alignment of the wrist and hardware since 2015. This 'extremely unfavorable ankyloses' is not supported by the records. In this 2/2020 Wrist DBQ report, it is noted that the Veteran's pain has resolved. The Veteran reports, however, he has difficulty in opening bottles and grabbing objects. The Veteran reports no flare ups. Due to the fusion, there is no further loss of motion with repetition over time. Perhaps increased fatigue, stamina (even though fused) [sic]. There is not a significant change in the left wrist condition from the 2015 Wrist DBQ that is documented in this 2020 DBQ. VA treatment records do not support additional decline in the left wrist following this 2/2020 Wrist DBQ. There are no ongoing physical therapy notes or other seen regarding this left wrist. The 3/19/2021 Wrist DBQ (which would reflect the Veteran's left wrist condition up to 3/18/21) reports again the fused nature of the Veteran's left wrist with total loss of range of motion in every plane. However, the Veteran does have pain in wrist noted with attempts to move in any plane. The Veteran does not report flare-ups of left wrist, but the examiner 3/2021 notes the Veteran does have some functional impairment with repeated use over time of the left wrist. The Veteran states his left wrist condition interferes with most physical activities. However, the examiner notes 'no' to section 3C regarding procured evidence of functional loss with repeated use over time. It is likely, however, based upon the chronology of records reviewed, the Veteran continues to have increased fatigue, stamina (even though fused) of the left wrist with repeated use over time. The Veteran would not have any further loss of motion. This examiner reports in the 3/2021 Wrist DBQ an 'extremely unfavorable' ankyloses of the left wrist. This is not supported by VA treatment records however [sic]. The preventative care note 7/2014 did not report an unfavorable ankyloses nor did the 10/2015 Wrist DBQ examination soon after fusion surgery. There would have been a report and further X-rays if there was a change in alignment of the wrist and hardware since 2015. This "extremely unfavorable ankyloses" is not supported by the records. There is not a significant change in the left wrist condition from the 2020 Wrist DBQ that is documented in this 2021 DBQ. VA treatment records do not support additional decline in the left wrist following this 2/2020 Wrist DBQ. There are no ongoing physical therapy notes or other seen regarding this left wrist. Therefore, the records support a favorable ankyloses. The Veteran's severity and nature of his left wrist condition has been consistent since 5/2014 based upon the available records and to include the Veteran's report. See January 2023 VA Wrist Conditions examination report. The Veteran's current rating for the period of time in question is above the "minimum compensable rating for the joint." 38 C.F.R. § 4.59. Further, there is no evidence of the Veteran "wincing, etc." at any of the VA examinations of record, nor was there any localized tenderness or pain on palpation of the joint or associated soft tissue. See February 2020 and March 2021 VA Wrist Conditions examination report. Moreover, there was no evidence of pain on either active or passive motion or on either weight-bearing or non-weight bearing movement, nor was there objective evidence of crepitation. See October 2015, February 2020, and March 2021 VA Wrist Conditions examination reports. Regarding functional loss, 38 C.F.R. § 4.40 defines it as the "inability…to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance." The regulation cites "absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology. The Veteran underwent a "proximal row carpectomy" in 2010 and a "total [left] wrist fusion" in January 2014. See November 2013 and January 2014 private records. Further, the Veteran had documented "disuse" atrophy below the elbow at both the October 2015 and February 2020 VA examinations. See October 2015 and February 2020 VA Wrist Conditions examination reports. The joints are addressed under 38 C.F.R. § 4.45, and the regulation mentions "factors" for consideration that include ankylosis, nonunion, weakness, fatigability, incoordination, and pain on movement. See 38 C.F.R. § 4.45. Due to the January 2014 surgical fusion, the Veteran has no range of motion with his left wrist. The remaining factors, nonunion (dislocation), weakness, fatiguability, incoordination, and pain on movement are not documented in the VA medical examinations. See October 2015, February 2020, and March 2021 VA Wrist Conditions examination reports. Extraschedular evaluation under 38 C.F.R. § 3.321(b), which is not raised by the Veteran or by the record, is not for application. To reasonably raise the issue of entitlement to an extraschedular consideration referral, the record must suggest, at a minimum, that the Veteran's service-connected disability is of an exceptional nature in some respect. Exceptionality is assessed by comparing the severity of symptoms of a claimant's service-connected disability with the relevant rating criteria to determine whether the Veteran's disability picture is contemplated in the criteria. See Long v. Wilkie, 33 Vet. App. 167 (2020). Extraschedular ratings are not an alternative path to compensation. They are only available where a disability is incapable of evaluation under the rating schedule. Whether the full scope of a disability is contemplated by applicable rating criteria in the diagnostic codes does not hinge on the mere comparison of documented symptoms and rating criteria: "The governing norm in these exceptional cases is a finding by the Director of Compensation Service or delegate that application of the regular schedular standards is impractical because the disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization." See 38 C.F.R. § 3.321(b)(1). In summary, the most probative evidence of record persuasively weighs against a finding that the Veteran meets the relevant diagnostic criteria under 38 C.F.R. § 4.71a, Diagnostic Code 5214, for entitlement to a disability rating greater than 30 percent at any point during the relevant appeal period. The objective medical evidence of record does not meet the required evaluation criteria for an increased rating, including for unfavorable ankylosis or ulnar or radial deviation. In reaching the above conclusions, the Board has not overlooked the Veteran's statements regarding the severity of his left wrist symptoms. In this regard, the Veteran is competent to report on factual matters of which he has firsthand knowledge, e.g., pain and stiffness. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran has provided lay evidence through VA treatment, non-VA treatment, and correspondence throughout the course of his appeal with respect to the presence of left wrist symptoms and their severity. However, the competent medical evidence offering detailed, specific, and specialized determinations pertinent to the rating criteria, namely unfavorable ankylosis and ulnar or radial deviation, is the most probative evidence regarding the evaluation criteria for the disability on appeal. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also 38 C.F.R. 3.159(a)(1). The evidence also contemplates the Veteran's descriptions of his symptoms in treatment, including any reports of pain and functional loss. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. Therefore, the objective medical findings provided by the Veteran's medical examinations have been accorded greater probative value and weight. See Wood v. Derwinski, 1 Vet. App. 190 (1991); see also See Smith v. Derwinski, 1 Vet. App. 235, 237-238 (1991). The Board finds that the current ratings represent the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in the Veteran's civil occupations. The Veteran's disability does not present such an exceptional or unusual picture as to render the Rating Schedule impractical, and the functional effects of the Veteran's left wrist symptoms are contemplated by the schedular criteria under his current ratings. Therefore, consideration for extraschedular evaluation is not for application. The Board has considered the doctrine of reasonable doubt but has determined that it is inapplicable, because the evidence of record persuasively weighs against higher ratings.? 38?U.S.C. §?5107 (b);?38?C.F.R. §§?4.3, 4.7, 4.71a. J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Small, Associate 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.