Citation Nr: A24042425 Decision Date: 07/31/24 Archive Date: 07/31/24 DOCKET NO. 230616-355168 DATE: July 31, 2024 ORDER Entitlement to a rating in excess of 10 percent for the service-connected left wrist disability is denied. REMANDED Entitlement to service connection for neurological manifestations of the left upper extremity, to include as secondary to the service-connected left wrist disability, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The Veteran is in receipt of the maximum schedular ratings under the appropriate diagnostic codes for his left wrist disability, and there is no evidence of ankylosis in his left wrist. CONCLUSION OF LAW The criteria for an increased rating in excess of 10 percent for the service-connected left wrist disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40. 4.45, 4.59, 4.71(a), Diagnostic Codes 5003 and 5215. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from March 1968 to January 1972. This matter comes before the Board of Veterans Appeals (Board) on appeal of a June 2023 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which is the agency of original jurisdiction (AOJ). Service connection for the Veteran's left wrist disability was first established in February 1978, and was given an initial rating of 10 percent from August 24, 1977. See February 1978 Rating Decision. The Veteran's 10 percent rating was confirmed in a February 1980 Rating Decision. See February 1980 Rating Decision. The February 1980 decision became final, and the Veteran subsequently submitted a VA Form 21-438 Statement in Support of the Claim in October 2007, November 2008, and May 2009 and a VA Form 21-8940 Application for Increased Compensation Based on Unemployability in April 2008. See October 2007, November 2008, and May 2009 VA Form 21-438 and April 2008 VA Form 21-8940. In a September 2009 rating decision, the AOJ denied the Veteran's claim for an increased rating for his left wrist disability and denied the Veteran's claim for entitlement to individual unemployability. See September 2009 Rating Decision. The AOJ again denied the Veteran's claim for an increased rating for his left wrist disability in January 2010. See January 2010 Rating Decision. In response, the Veteran submitted a Notice of Disagreement in June 2010, but did not submit a VA Form 9. See June 2010 Notice of Disagreement. Subsequently, the January 2010 decision became final. In July 2018, the Veteran submitted a VA Form 21-526EZ Application for Disability Compensation and Related Compensation Benefits. See July 2018 VA Form 21-526EZ. Following that development, the AOJ again denied an increased rating for the Veteran's left wrist disability in September 2018. See September 2018 Rating Decision. The September 2018 Rating Decision became final. Then, the Veteran submitted multiple VA Form 21-526EZs in December 2022, January 2023, March 2023. See December 2022, January 2023, and March 2023 VA Form 21-526EZ. The AOJ again denied the Veteran's claim for an increased rating for his left wrist disability in March 2023. See March 2023 Rating Decision. The AOJ also denied the Veteran's claim in April 2023. See April 2023 Rating Decision. The Veteran submitted another VA Form 21-526EZ in April 2023 and May 2023. See April 2023 and May 2023 VA Form 21-526EZ. Finally, the AOJ again denied the Veteran's claim for an increased rating for his left wrist disability in June 2023, characterizing the Veteran's disability as "residual of a scaphoid fracture, with arthritis." See June 2023 Rating Decision. The Veteran timely submitted his VA Form 10182 Decision Review Request: Notice of Disagreement in June 2023 and now appeals the June 2023 rating decision. In the June 2023 VA Form 10182, the Veteran elected the direct review docket. See June 2023 VA Form 10182. Therefore, the Board may only consider the evidence of record at the time of the decision on appeal. 38 C.F.R. § 20.301. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Further, because the Board is remanding the claims of entitlement to service connection for neurological manifestations of the left upper extremity and entitlement to TDIU due to service-connected disabilities, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). Increased Rating The Veteran seeks a rating higher than his currently assigned 10 percent rating for the left wrist, which is currently rated pursuant to Diagnostic Code (DC) 5003-5215. The Veteran maintains that his disability is more severe than what is contemplated under the assigned rating. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to factors such as disability causing less movement than normal, more movement than normal, weakened movement, excess fatigability, and incoordination. The Court of Appeals for Veterans Claims (Court) has held that Diagnostic Codes predicted on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca, supra, at 206. The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pain, in and of itself, that does not result in additional functional loss does not warrant a higher rating; the Court held that pain alone does not constitute functional loss but is just one fact to be considered when evaluating functional impairment. Limitation of motion of the wrist is governed by Diagnostic Code 5215. A 10 percent rating is warranted for limitation of palmar flexion in line with the forearm for both the major and minor joints. Limitation of dorsiflexion to less than 15 degrees is also rated at 10 percent for the major and minor joints. 38 C.F.R. § 4.71(a); Diagnostic Code 5215. Degenerative arthritis is governed by Diagnostic Code 5003. Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. When, however, the limitation of motion of the specific joint involved is non-compensable under the appropriate diagnostic code, a rating of 10 percent is applicable to each major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71(a); Diagnostic Code 5003. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27. The Veteran is currently in receipt of the maximum schedular disability rating available under Diagnostic Code 5215. 38 C.F.R. § 4.71a. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. These provisions are not applicable where, as in this case, the maximum rating for limitation of motion has been awarded. Johnston v. Brown, 10 Vet. App. 80, 85 (1997); 38 C.F.R. § 4.59. The Veteran was afforded a VA wrist conditions examination in December 2022. The Veteran reported that he has sharp pain in his wrist that worsens when he tries to grip. The VA examiner noted the Veteran's dominant hand as the right hand. The Veteran reported flare-ups of the left wrist occurred when he tried to use his left hand, and that the flare-ups are severe and last hours. Upon examination, he showed palmar flexion to 60 degrees, dorsiflexion to 50 degrees, ulnar deviation to 45 degrees, and radial deviation to 20 degrees in his left wrist. The measurements showed limitation of motion of dorsiflexion and palmar flexion attributable to pain. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion after three repetitions. The examiner noted that pain causes functional loss. There was no evidence of ankylosis. See December 2022 VA Examination. The Veteran was also afforded a VA wrist conditions examination in May 2023. The Veteran reported that he has chronic left wrist pain and a weakened left-hand grip. The VA examiner noted the Veteran's dominant hand as the left hand. On examination, the Veteran showed palmar flexion to 15 degrees, dorsiflexion to 20 degrees, ulnar deviation to 15 degrees, and radial deviation to 15 degrees. The VA Examiner noted the Veteran's pain and reported that it caused functional loss. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion after three repetitions. There was no evidence of ankylosis. See May 2023 VA Examination. As to degenerative arthritis, left wrist x-rays were performed in May 2023 accompanying the May 2023 VA Examination. The results showed "moderate degenerative arthritis greatest at the radiocarpal joints." See May 2023 VA Examination. In the present case, an increased rating based on degenerative arthritis is not warranted because the Veteran is already rated at 10 percent for his radiocarpal joints affected by limitation of motion and he has involvement of only one joint in his wrist. Because the Veteran has limitation of motion and involvement of one joint, he is not eligible for the highest rating under 5003, which is 20 percent for "in the absence of limitation of motion, rate as below: involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations." See Diagnostic Code 5003. The Board has considered whether any other Diagnostic Codes pertaining to disabilities of the wrist would provide for a higher disability rating since, as noted, he is already in receipt of the highest rating pursuant to DC 5215. Ankylosis of the wrist is rated under Diagnostic Code 5214. Favorable ankylosis of the wrist in 20 degrees to 30 degrees is rated at 30 percent for the major wrist and 20 percent for the minor wrist. Ankylosis of the wrist in any other position except favorable is rated 40 percent disabling for the major wrist and 30 percent for the minor wrist. Unfavorable ankylosis of the wrist in any degree of palmar flexion or with ulnar or radial deviation is rated as 50 percent disabling for the major wrist and 40 percent disabling for the minor wrist. A note provides that extremely unfavorable ankylosis will be rated as loss of use of hands under Diagnostic Code 5125. 38 C.F.R. § 4.71(a), Diagnostic Code 5214. However, there is no evidence of ankylosis or that the Veteran's symptoms are of such severity, frequency, or duration to more nearly approximate functional ankylosis. See May 2023 VA Examination; see also Chavis v. McDonough, 34 Vet. App. 1 (2021) A review of the Veteran's post-service treatment records does not show any indication that the Veteran has ankylosis in his left wrist, or otherwise indicate findings consistent with a rating in excess of 10 percent for his left wrist. Accordingly, an increased rating in excess of 10 percent for the Veteran's left wrist disability is denied. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence is persuasively against the assignment of a higher rating, that doctrine is not for application. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for neurological manifestations of the left upper extremity The issue of entitlement to service connection for neurological manifestations of the left upper extremity has been raised by the record within the scope of the issue of entitlement to an increased disability compensation for the Veteran's left wrist disability. See Bailey v. Wilkie, 33 Vet. App. 188 (2021). The Court held in Bailey, supra, that in addition to considering entitlement to increased benefits, VA must consider entitlement to any additional benefits due to complications from the disability, and it is not necessary that the Veteran file a formal claim for service connection for such additional disability. Moreover, VA's duty to maximize benefits requires it to exhaust all schedular alternatives, to include secondary service connection, for rating a disability before the extraschedular analysis is triggered. Morgan v. Wilkie, 31 Vet. App. 162, 164 (2018). In this case, the Veteran's appeal for greater compensation for his service-connected left wrist disability has raised the question of potential entitlement to service connection for neurological manifestations of his left upper extremity, either through causation or aggravation. This theory of entitlement to further compensation is raised by the record. Specifically, the Veteran describes his inability to grip in the December 2022 VA Examination. See December 2022 VA Examination. The Veteran also states in the May 2023 VA Examination that he developed a weaker left-hand grip, and that he was unable to climb into the truck or up ladders due to his left wrist at his last job. See May 2023 VA Examination. Significant information necessary for a determination of potential compensation entitlement is not clearly available at this time, such as determining the extent of causation or aggravation of potential neurological manifestations attributable to the Veteran's service-connected left wrist disability. The evidentiary record does not provide enough information to determine compensation entitlements on the basis of neurological manifestations attributable the Veteran's left wrist disability. Functional impairment due to the medically indicated neurological manifestations is not necessarily contemplated in the rating schedule for the rating currently assigned for the left wrist disability. In light of that fact, and the Court's decisions in Bailey and Morgan, further development is warranted prior to final adjudication to determine whether the Veteran has neurological manifestations that were either caused or aggravated by his service-connected left wrist disability. 2. Entitlement to a TDIU In his appeal, the Veteran indicated that he cannot find work due to symptomatology associated with his service-connected left wrist disability. The Veteran reported that he was fired from his last job because he was "unable to climb on trucks and climb on ladders" in the December 2022 VA Examination, and again stated in the May 2023 VA Examination that he was "fired from his job as a truck driver because he couldn't climb into the truck or up the ladders with his left wrist." See December 2022 and May 2023 VA Examinations. Further, the Veteran submitted a letter from his former employer wherein his former employer confirmed that they "had to lay off [the Veteran] as he was unable to climb into our trucks or use ladders because of his left wrist." See December 2022 Correspondence. Therefore, the Board finds that the issue of entitlement to a TDIU arose as a part of the Veteran's claim for entitlement to an increased rating for his left wrist disability. Rice v. Shinseki, 22 Vet. App. 453 (2009). However, the issue of entitlement to a TDIU is inextricably intertwined with the claims of entitlement to service connection for neurological manifestations relating to the Veteran's left wrist disability. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are inextricably intertwined when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). As such, the Veteran's TDIU claim is remanded. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination and medical opinion from an appropriate clinician regarding whether the Veteran has neurological manifestations, or nerve damage, relating to his service-connected left wrist disability. The clinician is asked to provide a response to the following: (a.) Is it least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran has neurological manifestations relating to his left wrist disability or any other nerve disorder that is proximately due to or the result of his service-connected left wrist disability? The clinician is advised that the service-connected left wrist disability need not be the sole cause of the claimed disability; and (b.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran has neurological manifestations relating to his left wrist disability or any other nerve disorder that is aggravated (any increase in disability) by his service-connected left wrist disability? The Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. It must be noted that the lack of documented treatment in service or shortly thereafter cannot be the sole basis for a negative nexus finding. If the clinician rejects the Veteran's reports, she or he must provide a reason for doing so. A complete rational should be given for all opinions and conclusions expressed. If an opinion cannot be provided without resort to speculation, the clinician should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. T. Berry Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.G. Canary, 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.