Citation Nr: 18160583
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 11-04 673
DATE:	December 27, 2018
ORDER
A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis is granted.
An initial disability rating in excess of 10 percent for right wrist tenosynovitis is denied.
FINDINGS OF FACT
1. The Veteran is service connected for right wrist tenosynovitis and depression. She has a combined rating of 60 percent. Therefore, the Veteran does not meet the schedular criteria for TDIU. See 38 C.F.R. §§ 4.16(a), 4.25; Rice v. Shinseki, 22 Vet. App. 447 (2009).
2. The Veteran works as a stay at home mother and attained a bachelor’s degree in education through online courses. 
3. The Veteran experiences significant pain, constant throbbing, and weakness in her wrist. See September 2010 and February 2016 statements. Washing dishes, vacuuming, sweeping, scrubbing, and mopping are all difficult due to her wrist pain. See December 2016 VA examination.
4. January 2010 treatment records for the Veteran’s depression note a lack of motivation. A February 2010 VA examination noted a history of breakdowns at work when she felt emotionally overwhelmed. The examiner also noted the Veteran struggles to focus on simple tasks, has problems thinking clearly, and isolates herself in her room at times. September 2011 treatment records note the Veteran’s memory seemed vague and her husband had to clarify the previous day’s events for her. A December 2015 VA examination noted difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting.
5. In a May 2017 letter, the Veteran wrote that her depression, which includes panic attacks, makes it difficult for her to interact with other people and her wrist disability prevents her from typing for any extended period of time. She was only able to complete a four-year degree because her husband would help type her papers, and because she did not have to leave the house. Her husband has also had to forego promotions at work in order to have more time to stay at home and help the Veteran with her duties as a stay at home mother. 
6. Because the Veteran’s wrist disability and depression prevent her from most physical work, pursuing work outside the home, or sedentary work at home, the Board finds that she has been rendered unable to obtain and maintain substantially gainful employment as a result of her service-connected disabilities. 
7. Although the Veteran’s right wrist disability is manifested by pain, there is no evidence of ankylosis or limitation of motion in the right wrist. 
CONCLUSIONS OF LAW
1. The criteria for an award of TDIU have been met on an extraschedular basis. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.3, 4.15, 4.16, 4.18, 4.19; see also Thun v. Peake, 22 Vet. App. 111 (2008) and Anderson v. Shinseki, 22 Vet. App. 423 (2009) (implicitly overruling the holding in Bowling v. Principi, 15 Vet. App. 1 (2001), prohibiting the Board from granting an extraschedular TDIU in the first instance); see also Wages v. McDonald, 27 Vet. App. 233, 239) (Kasold, J., concurring) (citing Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992), disagreeing with Bowling and determining that the Board may award extraschedular TDIU in the first instance).
2. The criteria for an initial disability rating in excess of 10 percent for right wrist tenosynovitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.71a, Diagnostic Code (DC) 5214, 5215.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from August 2004 to October 2009. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).  In October 2015, September 2016, and September 2017, the Board remanded these claims for further development. 
For the reasons outlined above, an extraschedular TDIU is granted.
A disability rating in excess of 10 percent for right wrist tenosynovitis is denied.
The Veteran’s right wrist disability is rated as 10 percent disabling under DC 5215-5024.  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. 38 C.F.R. § 4.27. In this case, DC 5024 is used to identify tenosynovitis, which is rated on limitation of motion of the affected part. The assignment of DC 5215 shows that the Veteran’s service-connected right wrist tenosynovitis is rated as analogous to limitation of motion of the wrist.
Under DC 5215, a 10 percent rating is warranted for limitation of motion of the wrist of either the major or minor extremity when dorsiflexion is less than 15 degrees or when palmar flexion is limited in line with forearm. 38 C.F.R. § 4.71a, DC 5215.
Under DC 5214, a 30 percent evaluation is warranted for favorable ankylosis in 20 to 30 degrees dorsiflexion; a 40 percent rating is warranted for any other position, except favorable ankylosis; a 50 percent rating is warranted for unfavorable ankylosis in any degree of palmar flexion, or with ulnar or radial deviation. 38 C.F.R. § 4.71a, DC 5214. 
Normal ranges of motion of the wrist are dorsiflexion from 0 degrees to 70 degrees, and palmar flexion from 0 degrees to 80 degrees. 38 C.F.R. § 4.71, Plate I.
December 2009 treatment records note the Veteran was experiencing a flare up and rated her pain as six out of 10. She had full range of motion. She wore a brace.
In January 2010, the Veteran reported that, before going to occupational therapy, she experienced daily flare ups of sharp and stabbing pain which she rated as nine out of 10 and which lasted at least 15 minutes. After occupational therapy, she reported flare ups eight times a month. She denied any incapacitating episodes. She had normal range of motion and denied instability, lack of endurance, effusions, dislocations or subluxations, and inflammation.
A January 2010 VA examination showed normal range of motion.
In February 2011, the Veteran reported that steroidal shots, medicine, and braces have not improved her pain. See February 2011 VA Form 9, substantive appeal. 
In July 2013, the Veteran reported her pain as two out of 10. She rated her pain as four out of 10 in July 2014. 
During the December 2015 VA examination, the Veteran reported having trouble holding a cup of tea and that she occasionally woke up with pain on movement. On examination, her range of motion was normal and remained normal after three repetitions. The examiner noted that pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use. The examiner also noted no functional impairment and that she used a wrist brace. 
A January 2016 MRI revealed tearing at the scapholunate ligament without carpal malalignment and tearing at the TFC complex.
In February 2016, the Veteran reported difficulty getting out of bed because it was too painful to put weight on her wrists. 
In May 2016, the Veteran reported that neither physical therapy nor a brace alleviated her pain; she felt her symptoms had progressively worsened. In June 2016, she was considering surgery.
In May 2017, the Veteran reported her wrist locks up and causes pain. 
The Veteran is currently receiving a 10 percent rating based on painful motion. To warrant a higher rating, the evidence would need to show that she has ankylosis of the wrist that further impacts her range of motion, as she currently has the highest possible rating under DC 5215. See DC 5214, 5215. After reviewing the Veteran’s treatment records and previous examinations, there is no evidence to show that she currently has ankylosis of her right wrist. 
While the Veteran has painful motion, range of motion testing during previous examinations have shown that her right wrist is normal. The last three examinations have found normal range of motion. Objective findings have shown painful motion, justifying her current rating at 10 percent. But at no time during the period on appeal has the Veteran’s right wrist had the functional equivalent of ankylosis. Indeed, even upon consideration of pain, the Veteran has continued to retain movement on her right wrist, with normal range of motion noted even during flare ups. 
(Continued on the next page)
 
Therefore, the preponderance of the evidence is against the claim for an increased rating. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence is against evaluations other than, or in excess of, those described above, that doctrine is not applicable here. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001).
 
T. MATTA
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. D’Allaird, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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