Citation Nr: 1753883 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 05-03 181 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for temporomandibular joint dysfunction (TMJ). 2. Entitlement to service connection for hypopigmentation of the hands following wart removal. 3. Entitlement to an initial rating in excess of 10 percent for osteoarthritis of the hips. ATTORNEY FOR THE BOARD Laura A. Crawford, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1999 to July 2003. This matter comes before the Board of Veteran's Appeals (Board) on appeal from an August 2003 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. Jurisdiction has since transferred to the VA Regional Office (RO) in Pittsburg, Pennsylvania. In February 2008, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for additional development. FINDINGS OF FACT 1. Throughout the appellate period, the Veteran has not had a current diagnosis of TMJ. 2. The Veteran's hypopigmentation is likely related to his active service. 3. Throughout the appeal period, the Veteran's osteoarthritis of the hips has been established by X-ray findings with evidence of involvement of two or more major joints, but has not resulted in occasional incapacitating exacerbations. 4. Throughout the appeal period, the Veteran's osteoarthritis of the hips has not resulted in limited or painful motion. CONCLUSIONS OF LAW 1. The service connection criteria for TMJ have not been met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The service connection criteria for hypopigmentation of the hands following wart removal have been met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 3. The criteria for an evaluation in excess of 10 percent for osteoarthritis of the hips have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Codes 5003, 5250, 5252, 5253 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection The Veteran seeks service connection for TMJ and for hypopigmentation of the hands following wart removal based on his active service. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2014). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). A. TMJ In regards the to the Veteran's claim for TMJ, the preponderance of the evidence does not show the Veteran has a current diagnosis. In June 2004, the Veteran was seen by a US Embassy medical provider in Senegal. At the appointment, the Veteran stated he had multiple health issues including residuals from lumbar compression injury, temporomandibular joint pain, a residual left ankle injury, hearing loss, a paribro-temporal cyst on the right side of the scalp, and a wart on the right thumb which had received cryo-therapy several times between 2001-2003. The examiner found the Veteran to be in good overall health, and made no objective diagnoses. In September 2006, the Veteran was seen again by a US Embassy medical provider. The Veteran reported back pain, a left ankle injury, right ear ache, parieto-temporal cyst on the right side of the head, and a wart on the right thumb. The examiner observed low back pain tenderness and a slightly swollen ankle causing a light antalgic gait, parieto-temporal cysts on the right side, and found the wart on the right thumb to be soft and tender. The examiner diagnosed the Veteran with bilateral lumbar sciatica and an osteochondral left ankle injury. Further, the examiner directed the Veteran to watch the cyst for growth and continue treatment of his right hand wart. The record does not show any additional evidence of medical treatment during the appellate period. The VA must make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, including providing a medical opinion if requested, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A (a) (West 2014); Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008); 38 C.F.R. § 3.159 (2017). In its February 2008 remand, the Board directed the RO attempt to schedule a VA examination for the claim for TMJ. The RO was noted to have previously attempted to schedule an examination with the assistance of the American Embassy in Senegal. The record shows the Veteran was seen at the American Embassy, but they were unable to provide assistance in providing a VA examination. The duty to assist is a two-way-street. Wood v. Derwinski, 1 Vet. App 190, 193 (1991). Here, the Board finds that VA has met its obligation to assist in the procurement of medical evidence pertinent to the claim. The Veteran was advised by VA several times of the value in attending a VA examination, but failed to arrange for such. Although a VA examination has still not been performed, the duty to assist the Veteran in obtaining this examination has been fulfilled. Although a Veteran may be granted service connection for a disability that resolves prior to the adjudication of the claim, McClain v. Nicholson, 21 Vet. App. 319 (2007), the evidence of record shows that the Veteran has not had TMJ at any time during the appellate period. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. Because the evidence shows that the Veteran has not had TMJ during the pendency of the appeal, the Board concludes that the criteria for service connection have not been met. B. Hypopigmentation following wart removal In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for hypopigmentation. Initially, the Board observes that the Veteran has not been diagnosed with hypopigmentation during the appellate period. In June 2004, the US Embassy examiner noted a wart on his right thumb and indicated the Veteran reported a history of cryotherapy. Further, in September 2006, the US Embassy examiner noted the Veteran had a right finger wart which was being effectively treated with the prescribed "wart killer." Lay evidence is generally competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Hypopigmentation is a type of disability that a layperson is capable of identifying. Accordingly, the Veteran is competent to say that he has sustained the symptoms of hypopigmentation. Thus, the first element of service connection is met. With regard to an in-service event, the service treatment records indicate the Veteran received cryotherapy treatment on the warts on his hands in February 2002, November 2002, April 2003, and May 2003. However, hypopigmentation was not noted in the service treatment records. As hypopigmentation is capable of lay observation, the Board finds the second element of service connection has also been met. Turning to nexus, a layperson may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Laypersons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. Hypopigmentation is a type of disability that a layperson is capable of identifying. In view of the competent lay and medical evidence showing cryotherapy in service, the Board finds the Veteran's statements of having hypopigmentation since service are credible; and therefore concludes that current hypopigmentation is etiologically related to service. Therefore, another remand for an examination regarding the Veteran's skin disability is unnecessary due to the competent and credible lay and medical evidence. In this regard, the Veteran's lay observations are highly probative in deciding this appeal. After careful reexamination and affording all reasonable doubt in favor of the Veteran, the Board finds that the evidence of record is in relative equipoise. Therefore, service connection for hypopigmentation is warranted. II. Increased Rating Disability evaluations 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. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation 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 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). The Veteran's entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1 (2017). Where the veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the veteran is entitled to "staged" ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). In this case, the Veteran is currently assigned a 10 percent evaluation for osteoarthritis of the hips from July 30, 2003, the day following the Veteran's release from active duty, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic Code 5003 states that the severity of degenerative (hypertrophic or osteoarthritis) arthritis, established by x-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected, which, in this case, would be Diagnostic Codes 5250 (ankylosis of the hip), 5251(limitation of extension of the thigh), 5252 (limitation of flexion of the thigh), and 5253 (limitations of abduction of the thigh). When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an initial rating in excess of the assigned at any point during the appellate period. As noted above, the Board has attempted to schedule VA examinations for all of the issues on appeal. The Veteran has not attended any VA examinations. See 38 C.F.R. 3.655. Again, the duty to assist is a two-way-street. See Wood 1 Vet. App at 193. Here, the Board finds that VA has met its obligation to assist in the procurement of medical evidence pertinent to the claim. In June 2004 and September 2006 the Veteran was seen by the US Embassy's medical staff. At both examinations, the Veteran did not report any pain or limitations of motion as related to the osteoarthritis of the hips. The Veteran has not provided any additional evidence of treatment for osteoarthritis of the hips during the appellate period. In addition, when assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. § § 4.40, 4.45, 4.59. There is no evidence of Deluca factors that would support a higher evaluation. The Board has considered whether the Veteran is entitled to a higher or separate evaluation at any point during the appellate period, under any other diagnostic code. However, as the evidence of record does not demonstrate that the Veteran had ankyloses or limitation of extension, flexion, or abduction of thighs, he is not entitled to higher evaluations under Diagnostic Codes 5250, 5251, 5252, or 5253. There is simply no evidence of such manifestations, and the Veteran has never reported such manifestations in his lay statements. As noted above, there is no medical evidence available other than the June 2004 and September 2006 examinations, and the Veteran has never authorized the release of any treatment records that may be available. Based on the foregoing, the Board finds that the Veteran is entitled to an initial 10 percent evaluation for osteoarthritis of the hips. However, the preponderance of the evidence is against a higher evaluation at any point during the appellate period. ORDER Entitlement to service connection for TMJ is denied. Entitlement to service connection for hypopigmentation of the hands following wart removal is granted. Entitlement to an initial rating in excess of 10 percent is denied. ____________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs