Citation Nr: 20022436 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 19-00 174 DATE: March 31, 2020 ORDER Entitlement to an evaluation in excess of 10 percent disabling for service-connected healed fracture, right ulna styloid is denied. Entitlement to service connection for a traumatic brain injury (TBI), to include any related residuals. is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s service-connected healed fracture, right ulna styloid has been productive of limited of motion, with no evidence of ankylosis. 2. The preponderance of the evidence is against finding that the Veteran’s traumatic brain injury (TBI), to include any related residuals, began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to an evaluation in excess of 10 percent disabling for service-connected healed fracture, right ulna styloid have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5215 (2018). 2. The criteria for establishing entitlement to service connection for a traumatic brain injury (TBI), to include any related residuals have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from February 1990 to June 1993. Duty to Assist and to Notify VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2018). Copies of compliant VCAA notices were located in the claim’s file. VA’s duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Thus, upon careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Increased Ratings, Generally Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2018). The Board determines the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155 (2014); 38 C.F.R. §§ 4.1, 4.10 (2018). Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. The Court has held that staged ratings are appropriate for initial rating and increased rating claims when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an evaluation in excess of 10 percent disabling for service-connected healed fracture, right ulna styloid The Veteran contends that the current severity of his right wrist condition warrants a higher evaluation. As discussed in more detail below, the preponderance of the evidence is against his claim. Review of the record indicates that the Veteran’s service-connected healed fracture, right ulna styloid has been evaluated as 10 percent disabling pursuant to Diagnostic Code 5215-5010. 38 C.F.R. § 4.71a. Diagnostic Code 5010 provides for rating traumatic arthritis as degenerative arthritis under DC 5003. Diagnostic Code 5003 directs VA to rate the disability on the basis of limitation of motion pursuant to an appropriate diagnostic code for the specific joint involved. Id. Under Diagnostic Code 5215, a 10 percent rating is the maximum rating for limitation of motion of the wrist. Higher ratings are warranted for ankylosis of the wrist under Diagnostic Code 5214; however, as discussed below, a review of the evidence does not indicate that the Veteran’s right wrist disability picture approximates ankylosis. Id. Normal range of motion in the wrist is 70 degrees of dorsiflexion (extension), 80 degrees of palmar flexion, 80 degrees of forearm pronation, 85 degrees of forearm supination, 45 degrees of wrist ulnar deviation, and 20 degrees of radial deviation. Id., Plate I. In October 2018, the Veteran’s right wrist disability was reevaluated. A prior diagnosis of right styloid fracture was confirmed. During the clinical interview, the Veteran reported chronic and worsening pain in his right wrist. Other symptoms include reduced muscle strength, despite use of a wrist splint. The Veteran was right-hand dominant. Flare-ups of pain were reported with general use or attempts to perform activities with the right hand. A functional impact was described as limited motion and ability to grip, to include with wearing a splint. To adapt to limited use of the right hand, the Veteran endorsed use of his left hand to zip his pants and perform personal hygiene. Range of motion testing revealed palmar flexion limited to 10 degrees, dorsiflexion limited to 20 degrees, ulnar deviation limited to 5 degrees, and radial deviation limited to 10 degrees. While pain was noted on examination with all ranges of motion, it does not contribute to functional loss. Localized tenderness or pain to palpation was observed over the ulnar styloid. The examiner acknowledged an inability to assess the presence of crepitus due to the Veteran’s limited range of motion. Pain was noted with weight-bearing. Repetitive use testing did not result in additional functional loss or loss of range of motion. The examiner was unable to comment on whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over time or with flare-up without speculation. Additional factors contributing to the Veteran’s disability include less movement than normal. Muscle strength testing revealed reduced flexion and extension. There is no evidence of muscle atrophy or ankylosis. Constant use of a wrist brace was reported, although he denied use within the workplace. Diagnostic testing revealed degenerative arthritis in the right wrist. On review of the record, the Board finds that a higher evaluation is not warranted. As noted above, a 10 percent rating is the maximum rating for limitation of motion of the right wrist under Diagnostic Code 5215. A higher rating requires evidence of ankylosis; however, none has been shown throughout the appeal period. In fact, the medical evidence and lay assertions fail to show that the Veteran’s disability picture more closely approximates ankylosis. Therefore, a higher evaluation by analogy to ankylosis is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5214. In reaching this determination, the Board has fully considered the evidence of record, to include the effects of repeated use over time and flare-ups in light of the Court’s holdings in Correia and Sharp. In October 2018, the VA examiner reported an inability to comment on whether pain, weakness, fatigability or incoordination would significantly limit functional ability with repeated use over a period of time, to include during flare-ups. While functional loss was noted due to limited range of motion and pain, no additional loss of function or range of motion was observed with repetitive testing. While the Board is sympathetic to the Veteran’s complaints of pain and limited motion, his symptomology has been consistent with the assigned evaluation of 10 percent disabling throughout the appeal period. Therefore, a higher rating is not warranted for the right wrist disability. 38 C.F.R. § 4.71, Diagnostic Code 5215. Service connection, generally Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. § 1110, 1131 (2014); 38 C.F.R. §§ 3.303 (a), 3.304 (2018). Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical ‘nexus’ requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (a) (2018). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2014); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. Id. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue. 2. Entitlement to service connection for a traumatic brain injury (TBI), to include any related residuals. The Veteran contends that he suffers from a TBI, to include related residuals, due to a head injury sustained in a Humvee accident during active service. As discussed more thoroughly below, the preponderance of the evidence is against his claim. In analyzing the Veterans’ claim, the threshold inquiry before the Board whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. On review of the record, the Board concludes that while the Veteran has a current diagnosis of TBI, and the medical evidence shows that he was involved in a Humvee accident during active service, the preponderance of the evidence weighs against finding that the Veteran’s current diagnosis of TBI began during service or is otherwise related to an in-service injury, event, or disease. Service treatment records indicate that no cognitive abnormalities were observed at enlistment in December 1989. A report of medical history made no reference to complaints of headaches, a head injury, dizziness or fainting spells. The Veteran stated that he was in good health. Thereafter, complaints of cold symptoms with headaches were reported in November 1990, April 1991 and August 1991. No trauma to the head was reported. In May 1991, an acute medical care note referenced right hand trauma. In December 1992, a medical record referenced cast removal. In February 1993, the Veteran indicated that he suffered an injury to the right wrist and knee in a Humvee accident. No complaints of a head injury, headaches, or loss of consciousness was indicated. At separation in March 1993, a physical examination found no evidence of a cognitive abnormality. A report of medical history made no reference to a head injury, headaches, dizziness or fainting spells. Post-service treatment records show that the Veteran suffered a head injury following a fall in September 2009. Specifically, a general medicine note indicated that he fell down the stairs and lost consciousness for a brief period. Thereafter, the Veteran was treated for right-sided headache and jaw pain with difficulty chewing. Ibuprofen was used to treat pain and provided some relief. A neurological examination revealed non-focal deficits. In April 2013, an TBI screening note indicated that the Veteran denied any blunt force trauma to the head. In July 2016, a primary therapist record indicated that the Veteran separated from active service in September 2001. A TBI screening yielded positive findings in April 2018. On examination, the Veteran reported involvement in a Humvee accident during active service in 1992. Current participation in CPT programming/TBI rehabilitation was indicated. During a psychological assessment, in August 2016, the Veteran denied any major problems with memory. A psychological assessment at admission was silent for complaints of problems with attention, memory, concentration, orientation, alertness or difficulty organizing thoughts. The Veteran denied history of TBI, brain disease, seizure, stroke, or central nervous system infection. In October 2016, the Veteran was referred to the TBI clinic for initial evaluation. During active service, the Veteran reportedly sustained a head injury in Humvee accident in 1992. The Veteran currently ambulates well, however he complains of chronic problems with short-term memory, such as forgetting to pay bills, forgetting his wallet, and repeating the same tasks multiple times. Other symptoms include chronic headaches, with sharp, radiating pain from the forehead to the temples. Worsening symptoms were reported with watching TV and with proximity to loud noises. His symptoms were well-controlled with use of Tylenol and temporal massage. The Veteran also reported intermittent vision problems, to include sensitivity to light, and difficulty hearing with bilateral tinnitus. Periodic bouts with vertigo were also reported. The Veteran was afforded a VA examination in October 2018. A current diagnosis of TBI was indicated. During the clinical interview, the Veteran reported that he was involved in a motor vehicle accident during active service. He states that he was traveling from a field exercise when his vehicle broke down. Another vehicle traveled from a nearby base to retrieve him and the other passengers of his vehicle. At some point, they happened upon a motor vehicle accident in which multiple people were injured. The Veteran reports unclear memories, thereafter to include being taken to the hospital. He endorsed memories of wearing a cast following the incident. Post-service, the Veteran worked in numerous jobs, to include in carpentry. He endorsed back pain in connection with physical labor. The Veteran also reported problems with anger and memory, including the ability to recall information and slurred speech. Other symptoms included light sensitivity, vertigo, lightheadedness, and chronic headaches. No date of onset was noted as to his experience with vertigo. He acknowledged symptom relief with use of medications prescribed to treat his chronic back pain. On examination, the examiner found objective evidence of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. The Veteran’s judgment, visual/spatial orientation, and motor activity was deemed normal. His social interaction was deemed appropriate. Subjective symptoms include lightheadedness, dizziness, mild or occasional headaches, mild anxiety. The examiner indicated that the Veteran’s subjective symptoms do not interfere with work; instrumental activities of daily living; or work, family or other close relationships. No neurobehavioral effects were observed; the Veteran was capable of spoken and written communication, with related comprehension. His consciousness was also deemed normal. No neurological or residual symptoms were deemed related to the Veteran’s TBI. Previous diagnostic findings revealed that the Veteran underwent a computed tomography (CT) scan of the head following a fall with loss of consciousness in September 2009. No intracranial bleed or any significant abnormality was found. Magnetic resonance imaging, dated November 2016, showed a normal brain. A prior history of problems with balance and severe chronic left maxillary sinus was indicated. In October 2016, a speech therapy performance record referenced average to profound level of impairment. No functional impact was observed as due to the Veteran’s TBI or any related residuals. Following the clinical evaluation, the examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran suffers from a TBI or related residuals due to a Humvee accident in service. In support of the stated conclusion, the examiner noted that even if the Veteran sustained a mild traumatic brain injury due to a Humvee accident in service, it is less likely than not that he suffered from any residuals related to that injury. Notably, common symptoms associated with a mild traumatic brain injury were not reported in service. In fact, service treatment records listed complaints of only wrist, neck, shin, knee and ankle conditions following the Humvee accident in 1993. Further, the examiner acknowledged that the Veteran’s post-service treatment records show complaints of frontal/forehead and posterior headache pain. Those symptoms were deemed causally related to a sinus condition and the Veteran’s cervical degenerative disease. As to the Veteran’s report of memory problems, those symptoms were deemed more likely related to the Veteran’s mental health condition. In fact, review of psychiatric treatment and TBI clinic records show that his chronic memory problems were described as likely due to anxiety and depression. While the examiner acknowledged medical evidence indicating that the Veteran sustained TBI due to a post-service fall with loss of consciousness in September 2009, no residuals were deemed causally related to that injury. In making all determinations, the Board has fully considered the medical evidence and lay assertions of record. Generally, the Veteran is competent to report on his current symptoms and their onset. However, the ability to render a complex medical opinion regarding the nature and etiology of his current symptoms requires specialized skills and expertise necessary. Layno v. Brown, 6 Vet. App. 465, 470 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377. There is no evidence that the Veteran possesses the required skillset. Further, mere conclusory or generalized lay assertions that an in-service event or illness caused a current disability are insufficient to establish nexus in the absence of competent medical evidence. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). As previously noted, service treatment records are silent for any complaints of residual symptoms related to a TBI. Post-service treatment records are largely silent for complaints of headaches, memory problems, or vertigo until on or about September 2009. Medical records dated on or about 2016, show that the Veteran’s symptoms were related to anxiety and depression. On examination October 2018, the examiner acknowledged review of the Veteran’s medical history and complaints of symptoms. However, no etiological relationship was established between the reported symptoms, to include as due to TBI suffered in a Humvee accident therein. The Board notes that the examiner’s findings were supported by adequate rationale, relevant diagnostic findings and related treatment evidence. While the Board is sympathetic to the Veteran’s subjective belief that he suffers from a TBI and related residuals due to an in-service head injury, the medical evidence does not support his contentions. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b) (West 2014); 38 C.F.R. § 3.102 (2017). The Veteran’s claim of entitlement to service connection for TBI, must be denied. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Whitaker, 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.