WRIST IMPAIRMENT OF

Summary

The veteran, who served in the U.S. Army from August 2004 to February 2006, including service in Iraq, appeals the denial of an increased disability rating for his left carpal scaphoid fracture with degenerative arthritis. The veteran sought a rating higher than the 10 percent currently assigned, citing worsened symptoms, daily flare-ups, sharp pain, limited range of motion, and increased weakness. The Board reviewed the veteran's service treatment records (STRs), VA examinations from February 2024 and July 2024, and the veteran's testimony. The February 2024 VA examination noted the veteran's active range of motion for dorsiflexion at 55 degrees and palmar flexion at 65 degrees, and the veteran reported daily flare-ups. However, the Board found that the veteran was already receiving the maximum schedular rating of 10 percent for his left wrist under Diagnostic Code 5215 for painful motion. The Board also noted that the evidence did not support a finding of actual or functional ankylosis, which would warrant a higher rating under Diagnostic Code 5214. Consequently, the Board denied the appeal for an increased rating, finding the veteran was already receiving the highest available schedular rating for this condition. The case was remanded for further development regarding service connection for right shoulder bursitis, right foot condition, and left foot condition, as the existing VA opinions were found inadequate and did not fully address the veteran's claimed in-service events or the continuity of treatment.

Rationale

Veteran already receiving maximum schedular rating of 10% under DC 5215; Evidence does not support higher rating for functional loss due to pain; Evidence does not support actual or functional ankylosis under DC 5214

Full Decision Text

Citation Nr: 25001405
Decision Date: 01/30/25	Archive Date: 01/30/25

DOCKET NO. 18-27 801
DATE: January 30, 2025

ORDER

Entitlement to a disability rating in excess of 10 percent for left carpal scaphoid fracture with degenerative arthritis is denied.  

REMANDED

Service connection for right shoulder bursitis is remanded.  

Service connection for right foot condition is remanded.  

Service connection for left foot condition is remanded.  

FINDING OF FACT

Throughout the appeal period, the Veteran's left carpal scaphoid fracture with degenerative arthritis, is manifested by pain and limited motion; the evidence is persuasively against finding that the Veteran has favorable or unfavorable ankylosis of the left wrist, or functional ankylosis of the left wrist.    

CONCLUSION OF LAW

The criteria for a rating in excess of 10 percent for left carpal scaphoid fracture with degenerative arthritis have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.49, 4.71a, Diagnostic Code 5215.  

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from August 2004 to February 2006, to include service in Iraq.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  

In July 2022, the Veteran testified at a hearing before the undersigned Acting Veterans Law Judge.  

These matters were previously before the Board in August 2022 and February 2023.  

In May 2022, the Board remanded the matters for substantial compliance with the Board's previous remand directives, to include obtaining new VA examinations.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  Examinations were completed on remand, and the matters have been returned to the Board.  

1.  Entitlement to a disability rating in excess of 10 percent for left carpal scaphoid fracture with degenerative arthritis is denied.  

The Veteran seeks a rating in excess of 10 percent for his left carpal scaphoid fracture with degenerative arthritis, and the Veteran reported that his symptoms had worsened.  See July 2022 hearing transcript.  

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two ratings shall be applied, the higher rating 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.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  

The Veteran's entire history is to be considered when assigning disability ratings.  38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

The rating of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14.  That does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code.  Esteban v. Brown, 6 Vet. App. 259 (1994).

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,
 for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code.  Esteban v. Brown, 6 Vet. App. 259 (1994).

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; 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 provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record.  Burton v. Shinseki, 25 Vet. App. 1 (2011).  38 C.F.R. § 4.59 is not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements.  See Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016).

The issue of whether there is ankylosis is relevant to rating the left carpal scaphoid fracture with degenerative arthritis disability. Recently, in Chavis v. McDonough, 34 Vet. App. 1 (2021), the Court held that in the absence of a medical diagnosis of ankylosis, a claimant may still receive benefits associated with ankylosis based on the functional equivalent of ankylosis (i.e., the claimant's symptoms sufficiently resemble ankylosis despite the absence of a formal diagnosis).  In short, if a claimant's functional loss "is the functional equivalent of ankylosis," a higher rating may be warranted on that basis.  Id. at 11.  

Here, the VA medical record references the fact that the Veteran's dominant hand, or the major side, is his right, and his minor side is his left.  See February 2024 VA examination.  

The Veteran's left carpal scaphoid fracture with degenerative arthritis disability has been rated as 10 percent disabling under Diagnostic Code 5215 for painful motion that causes functional loss, effective February 2, 2006.  38 C.F.R. § 4.59.  In June 2017, the Veteran filed a claim seeking an increased rating for his left wrist disability.  

Under the former VA regulations, 38 C.F.R. § 4.71a, Diagnostic Code 5215 provides for a maximum rating of 10 percent when dorsiflexion of a wrist limited to less than 15 degrees or palmar flexion is limited in line with the forearm.  

Normal range of palmar flexion for the wrist is 80 degrees, and normal range of dorsiflexion is 70 degrees.  Palmar flexion in line with the forearm equates to 0 degrees of palmar flexion or dorsiflexion.  38 C.F.R. § 4.71a, Plate I.

Based on the evidence of record, the Board finds that a rating in excess of 10 percent for the Veteran's left wrist disability is not warranted during the appeal period.  

In the February 2024 VA examination, the Veteran reported that his left wrist condition has worsened since its onset and reported self-medicating with Tylenol for his pain.  The Veteran reported having daily flare-ups, with symptoms of sharp pain, limited range of motion and increased weakness with lifting.  The Veteran's active range
70 degrees.  Palmar flexion in line with the forearm equates to 0 degrees of palmar flexion or dorsiflexion.  38 C.F.R. § 4.71a, Plate I.

Based on the evidence of record, the Board finds that a rating in excess of 10 percent for the Veteran's left wrist disability is not warranted during the appeal period.  

In the February 2024 VA examination, the Veteran reported that his left wrist condition has worsened since its onset and reported self-medicating with Tylenol for his pain.  The Veteran reported having daily flare-ups, with symptoms of sharp pain, limited range of motion and increased weakness with lifting.  The Veteran's active range of motion showed the Veteran's dorsiflexion at 55 degrees and palmar flexion at 65 degrees.  

The Veteran is currently in receipt of the maximum schedular rating for his left carpal scaphoid fracture with degenerative arthritis disability.  As such, a higher rating cannot be awarded on the basis of functional impairment due to manifestations such as flare-ups and pain with repeated use. See, e.g., Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (indicating that consideration of functional loss due to pain under 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca v. Brown, 8 Vet. App. 202 (1995) is not required if the claimant is already in receipt of the maximum schedular rating for limitation of motion under the pertinent diagnostic code).

The Board notes that higher ratings are available for ankylosis of the wrist. See 38 C.F.R. § 4.71a, Diagnostic Code 5214.  However, the February 2024 VA examination did not show that the Veteran had ankylosis of the left wrist.  Also, the evidence is persuasively against finding functional ankylosis.  As such a higher rating under DC 5214 is not warranted.  

In light of the foregoing, the Board finds that the Veteran is already in receipt of the highest available schedular rating (i.e., 10 percent) under Diagnostic Code 5215 for the entire appeal period.  The weight of the evidence is persuasively against finding actual or functional ankylosis of the left wrist, thus Diagnostic Code 5214 does not apply.  See Chavis v. McDonough, 34 Vet. App. 1 (2021) (finding the Board must consider whether a higher or separate evaluation may be warranted based on functional loss equivalent to ankylosis).  Also, the weight of the evidence is persuasively against finding that a separate rating is warranted for any claimed neurological manifestations of the left wrist disability.  Thus, the appeal is denied.  

In sum, the Veteran has been assigned the maximum rating available and consideration of his functional limitation does not result in a higher rating.  

REASONS FOR REMAND

1. Service connection for right shoulder bursitis is remanded.  

2. Service connection for right foot condition is remanded.  

3. Service connection for left foot condition is remanded.  

The Veteran contends that his right shoulder, right foot, and left foot conditions are related to service.  Specifically, during the July 2022 Board hearing, the Veteran testified that while on active duty, he had to stay out all night and he lost the sensation in the tips of his feet.  Additionally, he testified that when wearing his rucksack during basic training, he hurt his right shoulder.  

STRs provide that in April 2003, the Veteran complained of cold and numb feet.  As he received treatment, it was noted that his feet were cold to the touch.  Additionally, STRs from June 2002 show that the Veteran reported arthritis, rheumatism, or bursitis.  

The Veteran was afforded a VA examination in February 2024.  The examiner opined that the Veteran's right shoulder bursitis and bilateral feet condition was at least as likely as not related to the Veteran's service.  The examiner's rationale was that the Veteran's medical records lack continuation of care for the Veteran's right shoulder bursitis.  Whereas the Veteran's bilateral feet condition was not related to service because an opinion was not warranted as the examiner did not find a diagnosis during the foot examination.   

In the July 2024 VA Addendum Opinion, the examiner opined that the Veteran's right shoulder and bilateral feet conditions have no direct evidence connecting the disabilities to the Veteran's service.  The examiner noted there was a lack of continuation of care.  The examiner noted that the Veteran claimed onset in 2002, however the Veteran's charts show complaints for the right shoulder burs
 at least as likely as not related to the Veteran's service.  The examiner's rationale was that the Veteran's medical records lack continuation of care for the Veteran's right shoulder bursitis.  Whereas the Veteran's bilateral feet condition was not related to service because an opinion was not warranted as the examiner did not find a diagnosis during the foot examination.   

In the July 2024 VA Addendum Opinion, the examiner opined that the Veteran's right shoulder and bilateral feet conditions have no direct evidence connecting the disabilities to the Veteran's service.  The examiner noted there was a lack of continuation of care.  The examiner noted that the Veteran claimed onset in 2002, however the Veteran's charts show complaints for the right shoulder bursitis in 2015 and the bilateral feet conditions in 2017.  In addition, the examiner determined that a diagnosis of a bilateral vascular foot condition was not warranted, but the examiner noted that the Veteran received treatment in 2017 for his bilateral neuropathy foot condition.  Here, the examiner fails to address the Veteran's STRs showing the Veteran did seek treatment for his bilateral foot condition and noted having issues with bursitis.  

The Board finds the February 2024 and July 2024 VA opinions to be inadequate for adjudication purposes.  In proffering an opinion regarding service connection the examiner did not opine as to the facts specific to this case.  

In addition, the Board notes that the Veteran's records suggest that the Veteran's conditions may have started prior to the Veteran's active duty service.  Thus, an opinion is warranted on whether the Veteran's conditions have been aggravated by the Veteran's service.   

As remand is necessary, the Board notes that the most recent VA treatment records associated with the Veteran's file are dated in July 2024.? As such, on remand, it is necessary to obtain any updated medical records on remand.? See Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020); Bell v. Derwinski, 2?Vet. App.?611, 613 (1992).? 

The matters are REMANDED for the following action:

1. Obtain all outstanding treatment records, to include updated VA outpatient treatment records.  

2. Afford the Veteran a VA medical opinion to determine the nature, onset and etiology of the Veteran's right shoulder bursitis and bilateral foot conditions present during the pendency of the claim during the Veteran's lifetime, and any relationship to service or service-connected disability.  

The examiner is asked to address the following: 

Please opine as to the likelihood that the Veteran's right shoulder bursitis condition and bilateral foot conditions had its onset in or is otherwise etiologically related to an in-service event, injury, or disease. 

Please opine as to the likelihood that the Veteran's right shoulder bursitis condition and bilateral foot conditions is caused, at least in part, by the Veteran's service-connected disabilities. 

Please opine as to the likelihood that the Veteran's right shoulder bursitis condition and bilateral foot conditions have been aggravated by the Veteran's service. 

The examiner must acknowledge and discuss the June 2002 and April 2003 STRs.  

A detailed explanation (rationale) is requested for all opinions provided.  

 

 

N. Rippel

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Nettles, 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.