Citation Nr: 0000609 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 96-04 830 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Evaluation of residuals of fractures of the left radius and ulna, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Neil T. Werner, Associate Counsel INTRODUCTION The veteran served on active duty from April 1964 to February 1965. By a February 1995 decision, the RO granted compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 (West 1991) for the residuals of fractures of the left radius and ulna. Specifically, a 100 percent rating was assigned effective from June 11, 1993, and a zero percent rating was assigned effective from September 1, 1993. By an April 1995 decision, the RO granted a higher (10 percent) evaluation for the veteran's § 1151 disability, effective from September 1, 1993. The Board remanded the veteran's appeal in October 1998 for further evidentiary development. The Board notes that its October 1998 remand referred to the claim on appeal as entitlement to an increased rating. However, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) recently held, in the case of Fenderson v. West, 12 Vet. App. 119 (1999), that an appeal from an original award does not raise the question of entitlement to an increased rating, but instead is an appeal of an initial rating. Consequently, the Board has re- characterized this issue on appeal as an evaluation of an original award. FINDING OF FACT The veteran experiences left wrist pain and tenderness; he experiences limitation of motion of the left wrist as follows: dorsiflexion to 12 degrees, palmar flexion to 52 degrees, radial deviation to 15 degrees, and ulnar deviation to 25 degrees. CONCLUSION OF LAW A rating greater than 10 percent for residuals of fractures of the left radius and ulna is not warranted. 38 U.S.C.A. §§ 1155 (West 1991); 38 C.F.R. §§ 4.71a (Diagnostic Code 5215) (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran and his representative allege that the veteran's § 1151 left wrist disability is manifested by chronic pain and loss of motion which have become worse over time, thereby entitling the veteran to a higher rating. The veteran and his representative also request that the veteran be afforded the benefit of the doubt. Initially, the Board observes that disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). Each disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (1999). Furthermore, in cases where the original rating assigned has been appealed, consideration must be given to whether the veteran deserves a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). When the record reflects that the veteran has multiple problems because of the disability in question, it should be noted that evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided, but it is nevertheless possible for a veteran to have "separate and distinct manifestations" from the same disease or injury, permitting separate disability ratings. Esteban v. Brown, 6 Vet. App. 259, 261 (1994). The critical element is that none of the symptomatology for any of the conditions is duplicative or overlapping with the symptomatology of the other conditions. Id. Historically, the veteran's § 1151 disability has been characterized by the RO as residuals of fractures of the left radius and ulna and was found to be noncompensably disabling under Diagnostic Code 5215 (limitation of motion of the wrist). See RO decision entered in February 1995. Subsequently, the RO awarded the veteran a 10 percent disability rating under this Diagnostic Code. See RO decisions entered in April and August 1995. In this regard, the Board notes that, given potentially applicable rating criteria, the veteran will only be entitled to a rating higher than 10 percent for limited motion if he has ankylosis. (The highest rating assignable for limited motion, short of ankylosis, is 10 percent. 38 C.F.R. § 4.71a, Diagnostic Codes 5214, 5215 (1999).) In this regard, the Board notes that ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992). Diagnostic Code 5214 provides that ankylosis of the minor wrist, if unfavorable in any degree of palmar flexion or with ulnar or radial deviation, warrants a 40 percent disability rating. Ankylosis in any other position, except favorable, warrants a 30 percent disability rating. Favorable ankylosis, in a position between 20 and 30 degrees of dorsiflexion, warrants a 20 percent disability rating. Diagnostic Code 5214. The Board also notes that extremely unfavorable ankylosis is rated as loss of use of the hand under 38 C.F.R. § 4.71a, Diagnostic Code 5125 (1999) (loss of use of the minor hand is rated as 60 percent disabling under Diagnostic Code 5125). The Board notes that the veteran's claims file shows that his left hand is his minor hand. Based upon findings at VA examinations conducted in the last several years, as well as indications in the various treatment records, as will be explained below, the veteran does not have ankylosis of the left wrist. Additionally, there is no indication that he has no better function than could be accomplished by an amputation with a suitable prosthesis. 38 C.F.R. § 4.63 (1999). As will be explained below, the veteran has no difficulty with functions such as grasping, pushing or pulling-an indication that his function far exceeds that which a prosthesis could provide. Therefore, he does not meet the requirements to be awarded a greater disability rating under Diagnostic Code 5214 or Diagnostic Code 5125. VA treatment records, dated from June 1993 to September 1999, show that the veteran underwent external fixation and closed reduction on June 13, 1993, following an incident in which his left radius and ulna were fractured. They also show that the veteran's wrist had several pins inserted to assist with fixation, which pins were subsequently removed. Post- operative records indicate that the surgical site developed an infection and the veteran required additional treatment. See VA treatment records dated in June 1993. The records also show his complaints and treatment for left wrist swelling, as well as pain with motion. See VA treatment records dated in June 1993, July 1993, August 1993, September 1993, October 1993, November 1993, December 1993, January 1994, August 1995, February 1996, October 1997, November 1997 (reported that an old x-ray revealed "traumatic osteoarthritis" and new x-rays revealed post-traumatic arthritis), January 1998, and August 1999. In addition, the records include observations by VA medical personnel that his left wrist had edema, decreased strength, and reduced range of motion. Id. It was also observed that his left hand had reduced coordination due to his wrist injury. Id. Moreover, the records show the veteran attended physical therapy. Id. While the aforementioned records show that the left wrist had, on occasion, reduced range of motion due to pain and/or swelling, they do not show that his left wrist was ever ankylosed. The foregoing records also included numerous left wrist x-rays. See x-rays dated in June 1993, July 1993, August 1993, November 1993, January 1994, November 1997, and January 1999. The post-operative x-rays were uniform in revealing well healed fractures (i.e., no evidence of ulna or radius false joint, non-union, or malunion.). At a March 1995 VA examination, the veteran complained of reduced range of motion, difficulty during changes in weather, a need to periodically wear a wrist brace, and wrist pain focused near the base of the thumb. However, there was no difficulty grasping, pushing, or pulling. He also had no difficulty touching. It was also reported that the veteran was right handed. On examination, there were two scars on the wrist (one at the level of the proximal phalangeal joint and the other 4 cm. above the wrist on the radial side. The wrist scar represented fixation points.) The extremities showed no clubbing, cyanosis, or edema. Grasping was intact. Range of motion studies revealed palmar flexion to 59 degrees (in comparison with 61 degrees on the right), dorsiflexion/extension of 31 degrees (in comparison with 60 degrees on the right), ulnar deviation of 20 degrees (in comparison with 32 degrees on the right), and radial deviation of 2 degrees (in comparison with 18 degrees on the right). The examiner opined that a comparison of left wrist x-rays taken at this examination with those taken in May 1994 revealed healed fractures of the distal radius and ulnar styloid in satisfactory position, no evidence of recent fracture or dislocation, and no evidence of osteolytic or osteoblastic disease. The impression, when compared with previous study, was unchanged healed fractures of the distal radius and ulna styloid. Following the Board's October 1998 remand, the veteran appeared for a VA examination in December 1998. At this examination, the veteran's history as outlined above was reported. He complained of left wrist pain and decreased range of motion. He also reported that he had increased adverse symptomatology with cold and rainy weather. Moreover, rest relieved the pain. The veteran also reported left hand weakness, stiffness, swelling, fatigue, and lack of endurance. However, his left wrist was not warm to touch or red and he did not experience instability, giving way, or locking. On examination, there was no swelling or tenderness. Range of motion studies revealed reduced motion as follows: left forearm supination to 30 degrees, left forearm pronation to 80 degrees, left wrist dorsiflexion to 12 degrees, left wrist palmar flexion to 52 degrees, left wrist radial deviation to 15 degrees, and left wrist ulnar deviation to 25 degrees. In addition, the surgical scars (a 1-1/2 inch scar on the left dorsum of the forearm and a 1-1/4 inch scar on the left dorsum of the hand), were neither symptomatic nor tender. The examiner opined that there was no ankylosis of the wrist. He characterized the severity of the veteran's disability as mild to moderate, and reported that arthritis was not present. In January 1999, the examiner who conducted the December 1998 examination reported that the claims file had been reviewed, that the post-operative scars were non-tender and not painful, and that left wrist x-rays revealed healed fractures of the distal left radius and ulna with no essential change compared with the previous study in November 1997. Additionally, the examiner opined that the veteran's left wrist disability was not manifested by radius and ulna non- union with the plate force change, false joint, or non-union or malunion of either the ulna or radius. Furthermore, he opined that there was no fixed ankylosis of the left wrist; however, the range of motion of the wrist was decreased as noted. In summary, the range of motion studies at the veteran's most recent VA examinations specifically showed that the left wrist, while painful, was nonetheless mobile. Similar findings are found in VA treatment records. Therefore, notwithstanding the veteran's claims to the contrary, in the absence of medical evidence of ankylosis, a higher rating on account of limitation of motion or on account of functional losses due to any pain and swelling is not warranted. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). (While a lay witness can testify as to the visible symptoms or manifestations of a disease or disability, his opinion as to a medical diagnosis is not probative because lay persons (i.e., persons without medical expertise) are not competent to offer medical opinions. Caldwell v. Derwinski, 1 Vet. App. 466 (1991); Moray v. Brown, 5 Vet. App. 211 (1993); Grottveit v. Brown, 5 Vet. App. 91 (1993).) Consequently, given the veteran's wrist motion, a higher evaluation is not warranted. Diagnostic Codes 5214, 5125. The Board notes that the veteran contends that his service- connected disability includes post-operative scarring and/or a failure of the bones in his wrist to meet properly. However, the December 1998 VA examiner specifically opined that the veteran's post-operative scarring was not tender, painful, or symptomatic. Moreover, there is no indication in the record that any scarring is poorly nourished, ulcerated, tender or painful. 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804, 7805 (1999). (As stated above, while a lay witness can testify as to the visible symptoms or manifestations of a disease or disability, his opinion as to a medical diagnosis is not probative. Caldwell, supra; Moray, supra; Grottveit, supra.) Similarly, there is no indication in the record that the veteran's service-connected disability is manifested by nonunion of the radius or ulna with flail false joint, malunion or nonunion of the ulna, or malunion or nonunion of the radius. 38 C.F.R. § 4.71a, Diagnostic Codes 5210, 5211, 5212 (1999); also see January 1999 VA examination report with associated x-rays. Likewise, given the above-noted range of motion studies, there is no indication in the record that the veteran's service-connected disability is manifested by adverse symptomatology that would warrant a higher evaluation under Diagnostic Code 5213. 38 C.F.R. § 4.71a, Diagnostic Codes 5213 (1999). (A separate rating is not assignable for impairment of pronation or supination because limitation of motion is already accounted for by the rating criteria under Diagnostic Code 5215. 38 C.F.R. § 4.14 (1999).) Therefore, because the record does not show the veteran's service- connected disability is otherwise symptomatic beyond that contemplated by the symptoms considered in the rating under Diagnostic Codes 5215, further consideration of the claim for a higher rating is not warranted. See Esteban v. Brown, 6 Vet. App. 259 (1994). Moreover, the Board notes that the veteran's representative, in a September 1999 presentation, argued that x-rays revealed post-traumatic arthritis and that this finding should somehow entitle the veteran to a higher evaluation. In this regard, the Board notes that arthritis is evaluated on the basis of limitation of motion which, as already noted, is accounted for by the limitation of motion rating under Diagnostic Code 5215. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (1999). Therefore, a separate evaluation due to arthritis would also violate the rule against pyramiding. 38 C.F.R. § 4.14 (1999). In conclusion, a higher schedular rating is not warranted because, for the reasons already enunciated, the preponderance of the evidence is against the claim. This is true throughout the period of time during which his claim has been pending. Fenderson, supra. Based on the record, including specific claims that left wrist disability interferes with employment, the Board has given consideration to the potential application of various provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the veteran. As discussed above, the medical evidence explicitly reveals that a 10 percent evaluation is in order for limitation of motion. The Board also finds that the evidence does not establish that the veteran's disability presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards noted above. See 38 C.F.R. § 3.321 (1999). The evidence of record does not demonstrate that wrist problems have resulted in frequent periods of hospitalization or in marked interference with employment. Id. It is undisputed that his left wrist disability has an adverse effect on employment, but it bears emphasis that the schedular rating criteria are designed to take such factors into account. The schedule is intended to compensate for average impairments in earning capacity resulting from disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (1999). Therefore, given the lack of evidence showing unusual disability not contemplated by the rating schedule, the Board concludes that a remand to the RO for referral of this issue to the VA Central Office for consideration of an extraschedular evaluation is not warranted. ORDER An evaluation greater than 10 percent for residuals of fractures of the left radius and ulna is denied. MARK F. HALSEY Member, Board of Veterans' Appeals