Citation Nr: 0005012 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 99-02 209 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an increased rating for a right wrist disorder, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Richard Giannecchini, Associate Counsel INTRODUCTION The veteran had active military service from December 1954 to September 1958. A perfected appeal to the Board of Veterans' Appeals (Board) of a particular decision entered by a Department of Veterans Affairs (VA) regional office (RO) consists of a Notice of Disagreement (NOD) in writing received within one year of the decision being appealed and, after a Statement of the Case (SOC) has been furnished, a substantive appeal (VA Form 9) received within 60 days of the issuance of the Statement of the Case or within the remainder of the one-year period following notification of the decision being appealed. The present appeal arises from a July 1998 rating action, in which the RO denied the veteran an increased rating for a right wrist disorder. The disorder was evaluated as 10 percent disabling, with an effective date from August 1992. The veteran filed an NOD in November 1998, and the RO issued an SOC in December 1998. The veteran filed a substantive appeal in January 1999. A supplemental statement of the case (SSOC) was issued in February 1999. In September 1999, the veteran testified before the undersigned member of the Board during a Video Conference Hearing. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. On VA examination in January 1999, the veteran's right wrist exhibited dorsiflexion and plantar flexion to 10 degrees with full pronation and supination; the right hand was ulnar deviated with respect to the wrist and forearm; and an X-ray study revealed surgical removal of the proximal row of the carpal bones, plus degenerative changes at the distal radius articular surface, with the right navicular bone collapsed and fragmented. 3. During his September 1999 Video Conference Hearing, the veteran testified that his right wrist became painful when he attempted to use it, and he further reported that he could no longer work as a pipefitter because of his inability to handle tools. 4. The evidence of record raises a reasonable doubt as to whether the veteran's right wrist disorder, with degenerative changes, results in additional functional loss and pain, not compensated for under the specific provisions of the Rating Schedule pertaining to that joint. CONCLUSION OF LAW Resolving reasonable doubt in favor of the veteran, the criteria for an evaluation of 20 percent for a right wrist disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5213, 5215 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Basis A review of the veteran's claims file reflects that he was service connected for a right wrist fracture in a November 1992 rating decision. The disability was determined to be noncompensable, with an effective date from August 1992. In February 1993, the veteran was medically examined for VA purposes. The examiner noted that the veteran had a history of right navicular fracture in 1955, which resulted in a cast being placed on his wrist for three weeks. Following removal of the cast, the veteran had suffered from increased pain in his right hand intermittently until he was discharged from service. Since that time, the veteran had reported suffering from increasing pain and swelling over the right navicular area. An X-ray during this period had revealed a nonhealed fracture with sclerosing of the proximal fragment. The veteran reported current complaints of pain and weakness on use of his right hand and wrist, with an inability to hold objects. On clinical evaluation, the veteran's right hand grip strength was measured as 120 mmHg, while his left hand grip strength was measured as 280 mmHg. The right wrist extended zero degrees, flexed 5 degrees, abducted 20 degrees, and adducted zero degrees. There was positive swelling noted over the navicular area, and the area was slightly tender to palpation. The examiner's diagnosis was nonunion fracture of the right navicular with sclerosis of the proximal fragment. Thereafter, in an August 1993 rating decision, the veteran's right wrist disability was increased to 10 percent. In May 1998, the veteran requested that his right wrist disability be reevaluated. He noted that he had undergone right wrist surgery, and that this had resulted in a loss of strength and flexibility in the wrist joint. In June 1998, the RO received medical records, dated from December 1997 to May 1998, from the VA Medical Center (VAMC) in Dayton. In particular, an operation report from February 1998 noted that the veteran suffered from arthritis of the wrist, which caused him pain and decreased function. He was noted to have undergone a proximal row carpectomy, along with a carpal tunnel release. A radiographic study of the right wrist, dated in April 1998, revealed an old healed fracture with deformity involving the distal epiphysis of the radius, no right carponavicular bone, soft tissue dystrophic calcifications projecting where the carponavicular bone would normally lie, and osteoarthritic changes involving the greater and lesser multangular bones. An occupational therapy treatment report, also dated in April 1998, noted that the veteran had 20 pounds of grip strength in his right wrist (normal -- 89.7), and 90 pounds of grip strength in his left wrist (normal -- 76.8). Range of motion of the right wrist was 0-27 degrees of flexion and 0-25 degrees of extension. Also in June 1998, the veteran underwent VA medical examination. He complained of pain in his right wrist and considerable loss of strength in his right hand, with both worsening since his surgery in February 1998. On clinical evaluation, there was swelling over the mediocarpal joints in the right hand, obscuring the joints. Abduction and adduction were noted as being 5-10 degrees, with 10 degrees of flexion and no extension. The examiner's diagnosis was residuals of a fracture and surgical intervention of the right wrist, which had considerably worsened the veteran's condition. In a July 1998 rating decision, the RO granted the veteran a temporary increased evaluation of 100 percent for his right wrist disorder under 38 C.F.R. § 4.30, as a result of the his right wrist surgery. The award was effective from February 1998 to April 1998, based upon surgical or other treatment requiring convalescence. The veteran's disability rating was thereafter returned to the schedular 10 percent. In October 1998, the veteran submitted an NOD, in which he noted that he had no mobility in his right wrist. He also asserted that, during his previous VA examination, the examiner had been hurried and not thorough. Furthermore, the veteran indicated that, during the examination, the examiner had bent the veteran's wrist and paid no attention to the fact that the veteran could not bend the wrist on his own. In January 1999, the veteran submitted to the RO a VA Form 9 (Appeal to the Board of the Veterans' Appeals), dated that same month. He reported that, since his right wrist surgery, his right hand and wrist had continued to be painful, and there had been no improvement in the flexibility of his wrist. The veteran noted that he could no longer work as a pipefitter because his grip had become so bad, and, as a result, he could no longer hold onto tools. In addition to his VA Form 9, the veteran also submitted statements from [redacted] and [redacted], dated in December 1998 and January 1999, respectively. Mr. [redacted] reported that the veteran had been a member of the Plumbers & Pipefitters Local 577 for twelve years, and that the veteran had spoken to him on several occasions about concerns with respect to his right wrist disability. Mr. [redacted] reported that he had known the veteran for the past 30 years and that the veteran had complained of problems with his right wrist since Mr. [redacted] had known him. That same month, January 1999, the veteran was medically examined for VA purposes. He reported continued pain, stiffness, and weakness in his right wrist and hand. On clinical evaluation, there was a well-healed dorsal midline incision and a well-healed volar carpal tunnel release incision. The right wrist range of motion was reported as dorsiflexion and plantar flexion to 10 degrees, with full pronation and supination. Inspection of the right wrist revealed that the hand was ulnar deviated with respect to the wrist and forearm. An associated radiographic study of the right wrist revealed surgical removal of the proximal row of the carpal bones, with significant deformity and degenerative changes at the distal radius articular surface. In addition, the right navicular bone was collapsed and fragmented. The examiner's diagnosis was status-post right wrist proximal row carpectomy for nonunion of a prior carpal navicular fracture with moderate degenerative joint disease. Thereafter, in September 1999, the veteran, assisted by his representative, testified before the undersigned Member of the Board, during a Video Conference Hearing. He reported that, several months after his February 1998 wrist surgery, he had lost strength in his wrist. He acknowledged that, later, some of that strength did return. The veteran testified that his right wrist hurt only when he attempted to use it, and that he noticed severe pain if the wrist was used it in certain ways. In addition, he stated that he could no longer work as a pipefitter because of his inability to handle tools. The veteran also reported that he had started to use his left hand more than his right because of problems with pain. II. Analysis The veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a). See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). That is, the Board finds that he has submitted a claim which is plausible. This finding is based in part on the veteran's assertion that his service-connected right wrist disorder is more severe than previously evaluated. See Jackson v. West, 12 Vet.App. 422, 428 (1999), citing Proscelle v. Derwinski, 2 Vet.App. 629 (1992). The Board is also satisfied that all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained, and that no further assistance is required to comply with the duty to assist him as mandated by 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of a schedule of ratings which is based upon average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and 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 required for that rating. 38 C.F.R. §§ 3.102, 4.3, 4.7 (1999). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet.App. 55, 58 (1994); 38 C.F.R. §§ 4.1, 4.2 (1999). The veteran's right wrist disability (his major upper extremity) has assigned to it a 10 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5215, for limitation of motion of the wrist. Under DC 5215, that is the highest rating available. A 10 percent rating is warranted where there is dorsiflexion of less than 15 degrees, or palmar flexion limited in line with the forearm. Full range of motion of the wrist is measured from 0 degrees to 70 degrees for dorsiflexion (extension), 0 degrees to 80 degrees for palmar flexion, 0 degrees to 45 degrees for ulnar deviation, and 0 degrees to 20 degrees for radial deviation. See 38 C.F.R. § 4.71, Plate I. Additional diagnostic codes are also available to assess disabilities of the wrist. Under DC 5213, "Supination and pronation, impairment of," a 20 percent rating is warranted where there is limitation of pronation beyond the last quarter of the arc, and the hand does not approach full pronation; or where the hand is fixed beyond the middle of the arc or moderate pronation. A 30 percent rating is warranted where there is limitation of pronation with motion lost beyond the middle of the arc; or where the hand is fixed in full pronation. Furthermore, where the hand is fixed in supination or hyperpronation, a 40 percent rating is warranted. Under DC 5214, ankylosis of the wrist (major extremity) warrants a 30 percent evaluation when there is favorable ankylosis in 20 degrees to 30 degrees dorsiflexion. A 40 percent evaluation will be assigned where there is ankylosis in any position other than favorable. A 50 percent disability will be assigned when ankylosis is in an unfavorable position, in any degree of palmar flexion, or with ulnar or radial deviation. In reviewing the evidence we note that, during the most recent VA examination, the veteran reported that he continued to suffer from pain, stiffness, and weakness in his right wrist and hand. On clinical evaluation, the right wrist exhibited dorsiflexion and plantar flexion to 10 degrees, with full pronation and supination. Inspection of the right wrist revealed that the right hand was ulnar deviated with respect to the wrist and forearm. An associated radiographic study of the right wrist revealed surgical removal of the proximal row of the carpal bones. Furthermore, there were significant deformity and degenerative changes at the distal radius articular surface. The right navicular bone was collapsed and fragmented. The examiner's diagnosis was status-post right wrist proximal row carpectomy for nonunion of the prior carpal navicular fracture, with moderate degenerative joint disease. Thus, the Board concludes based upon the evidentiary record before us, and following the most recent VA examination, that, under a strict interpretation of DC 5213 or DC 5214, a rating greater than 10 percent is not appropriate, given that the evidence does not reflect that the veteran's right wrist exhibits ankylosis, or impairment in pronation or supination. However, our analysis as to the veteran's right wrist disorder does not end there. As noted above, the veteran contends that his right wrist disorder affects his ability to function in his daily life. We are aware that the veteran's right wrist evidences significant degenerative changes, swells, and reportedly becomes stiff, painful, and weak when the veteran attempts to use his right hand. In this regard, the Board has considered the applicability of the precedential judicial decision in DeLuca v. Brown, 8 Vet.App. 202, 207 (1995), wherein the Court held that a particular diagnostic code which rates on the basis of range of motion must be applied in conjunction with 38 C.F.R. §§ 4.40, 4.45, and the effects of pain and other symptoms on use, and the effects of periodic flare-ups, must be taken into account in rating the disability. We note that while no specific report of a "flare-up" has been documented, many of the veteran's complaints regarding his right wrist, including his testimony under oath before the undersigned, reflect reports of what we believe can best be characterized as flare-ups, to include increased pain and functional loss when the right wrist is used, affecting, in particular, the veteran's grip strength. Therefore, when we consider the veteran's consistent, credible complaints, combined with the objective evidence, both clinically and on X-rays, of abnormality in the right wrist, including degenerative changes, there is sufficient evidence for us to invoke the doctrine of reasonable doubt. When, after considering all the evidence, a reasonable doubt arises regarding a determinative issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Having reviewed the record, the Board concludes that the particular facts of this case warrant the application of the reasonable doubt doctrine. Granting the veteran the benefit of the doubt, the Board finds that, given an increase in functional loss and pain in the right wrist when flare-ups do occur, and taking into consideration sections 4.40 and 4.45 of the regulations, the veteran's right wrist disability is more appropriately rated as 20 percent disabling. For rating purposes, we consider this award as analogous to a grant of 20 percent under DC 5213. We note that, in increasing the evaluation of the veteran's right wrist disorder to 20 percent, we specifically find that no higher disability rating is allowable, given that, for a 30 percent rating under either DC 5213 or DC 5214, the veteran would need to show significant impairment with respect to pronation or ankylosis of the right wrist. Accordingly, an evaluation in excess of 20 percent is not warranted. ORDER A 20 percent evaluation for a right wrist disorder, is granted, subject to the laws and regulations governing the payment of monetary benefits. ANDREW J. MULLEN Member, Board of Veterans' Appeals