Citation Nr: 21066988 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-25 887 DATE: November 3, 2021 ORDER 1. Entitlement to a rating in excess of 10 percent for a postoperative right wrist disability is denied. REMANDED 2. Entitlement to service connection for a temporomandibular joint (TMJ) disability is remanded. 3. Entitlement to service connection for a left knee disability is remanded. 4, Entitlement to a compensable rating for right hip limitation of flexion is remanded. 5. Entitlement to a compensable rating for right hip limitation of abduction is remanded. 6. Entitlement to a rating in excess of 20 percent for residuals of a right femur fracture is remanded. 7. Entitlement to a rating in excess of 10 percent for residuals of a right fibula fracture is remanded. 8. Entitlement to a rating in excess of 10 percent for multiple disfiguring scars is remanded. 9. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT The 10 percent rating assigned for the Veteran's right wrist disability is maximum schedular rating provided for limitation of wrist motion; the wrist is not ankylosed; and factors warranting referral for extraschedular consideration are not shown and have not been identified. CONCLUSION OF LAW A rating in excess of 10 percent for a postoperative right wrist disability is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Codes 5010, 5214, 5215. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who had active service from July 1993 to July 1996. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2013 Department of Veterans Affairs (VA) rating decision that denied service connection for left knee exostosis and TMJ, denied increased ratings for right wrist, right knee, and right femur disabilities, and granted service connection for limitation of right hip flexion and abduction, rated 0 percent, each, effective June 9, 2011. In May 2017, the Veteran requested a Board hearing. In April 2020, he withdrew the hearing request. See 38 C.F.R. § 20.704. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding degree of disability is to be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran's right wrist disability is evaluated under Codes 5010 (for traumatic arthritis) and 5215 (for limitation of wrist motion). Code 5010 provides that arthritis due to trauma is to be rated as degenerative arthritis (Code 5003), which in turn provides that the disability should be rated based on limitation of motion of the affected joint under the appropriate Code for the joint, and alternatively rated 10 percent (not to be combined with ratings for limitation of motion for specific joints) where there is painful motion, but the limitation of motion is not compensable under the Code for the specific joint. Wrist disabilities are rated under Codes 5214 and 5215. Upper extremity ratings may depend on whether the disabled extremity is the major or minor extremity. The Veteran is left-handed. Therefore, his right wrist is his minor extremity. Under Under Code 5215 for limitation of wrist motion, a 10 percent rating, the maximum rating provided), is assigned for dorsiflexion less than 15 degrees or palmar flexion limited in line with the forearm. Under Code 5214 (for ankylosis of the wrist) ratings for the minor wrist range from 20 to 40 percent depending on the nature and degree of ankylosis (with extremely unfavorable ankylosis to be rated as loss of use of the hand). 38 C.F.R. § 4.71a. The Veteran asserts that he is entitled to a rating in excess of 10 percent for his right wrist disability. In particular, the Board's attention has been called to his report in August 2011, that at times his right wrist pain is so great that he is unable to pick up or move his right arm. A September 2011 VA examiner found that the Veteran did not have ankylosis of the right wrist. The Veteran's medical records do not note findings that show or suggest his right wrist is ankylosed. He has not reported manifestations that would suggest the wrist is ankylosed, or has impairment equivalent to ankylosis. As the Veteran's right wrist disability is already assigned the maximum (10 percent) rating afforded based on limitation of range of motion, the analysis proceeds to whether there is ankylosis (or impairment equivalent to ankylosis) of the wrist (so as to warrant a higher rating under Code 5214). However, there is no evidence showing ankylosis, and the Veteran has not alleged his right wrist is ankylosed. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). However, where, as here, a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). Regarding the Veteran's specific assertion that at times hs is unable to pick up or move his right arm due to pain from his right wrist disability, the Board observes that such assertion in 2011 does not identify any specific period when his right wrist disability resulted in such limitations (as to warrant consideration of a possible staged period on an extra-schedular higher rating). His medical records in the claims file show that he retained normal range of motion of all joints in December 2012, February 2013, May 2013, February 2014, November 2014, May 2015, and December 2015. Furthermore, the Veteran has not submitted any medical (opinion or treatise) evidence (as that is a medical question) supporting that his right service-connected wrist disability is of such nature as to have impacted on movement of his right arm, to include lifting the arm. The rating criteria for evaluation of the wrist (Codes 5214-15) contemplate motion of the hand, and do not contemplate any limitations on the arm. The wrist and the shoulder are addressed in separate muscle groups in the rating schedule diagnostic codes. For example, muscle groups I to VI (Codes 5301-06) pertain to shoulder girdle and arm muscle (including muscle strength, with functions impacted including movements of the upper extremity, including lifting, such as elevation and abduction of shoulder and flexion and extension of the elbow while muscle groups VII, VIII, and IX (Codes 5307-09) pertain to movement of the wrist and hand. There is no competent (medical) evidence in the file that indicates or suggests that the Veteran's service connected wrist disability encompasses muscle impairment that would bear on ability to lift his right arm. The Board has no reason to question that the Veteran's right wrist disability causes functional limitations. Such limitations are contemplated by the criteria for the 10 percent rating that is assigned. The record does not show any right wrist symptoms or impairment that are not adequately addressed by the schedular rating criteria. The disability picture presented is not exceptional, nor is it asserted to be, so as to suggest referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321 may be warranted. Accordingly, the preponderance of the evidence is against the claim. Therefore, the appeal in the matter must be denied. REASONS FOR REMAND Regarding the claim of service connection for a TMJ disability, the Veteran asserts that such disability was incurred in service. Hiss service treatment records (STRs) show that he was involved in a motor vehicle accident (MVA) in March 1995 and sustained multiple injuries (with multiple residuals, including multiple disfiguring scars already being service connected). On December 2011 VA examination, the examiner opined that the Veteran more likely than not had a TMJ disorder. The examiner noted that the objective factors of a TMJ disorder are signs of trauma seen as scars on and around his face. The examiner did not offer an opinion addressing whether the Veteran's TMJ disorder is related to the MVA he experienced during active service and his multiple disfiguring scars. A remand for an adequate opinion is required to enable proper adjudication of this claim. Regarding the claim of service-connection a left knee disability (including exostosis), on May 2013 VA examination in May 2013, the examiner found that the etiology of the Veteran's left knee benign exostosis was unknown, and opined that the Veteran's left knee sprain was more likely than not due to his active service as he was involved in a motor vehicle accident that affected his left side according to the STRs. The opinion was based on a May 1995 STR record that inaccurately notes the Veteran's injuries in the MVA in service were to his left side when earlier STRs (on which various grants of service connection were made) instead showed that the trauma was to the right side. Notably, the Veteran also reported that he was involved in combat, which is not otherwise shown in his record. When VA undertakes to provide an exam, it must provide an adequate one. While the AOJ apparently rejected the opinion of the May 2013 VA examiner, there nevertheless is a question presented regarding whether the Veteran's current left knee disability is related to trauma in service as his treatment records show that he has reported having bilateral knee pain since the MVA in service. An examination addressing this medical question is necessary for proper consideration of this claim, considering the theories of entitlement raised. Regarding the claims for increased ratings for right hip, right knee, scars, and PTSD disabilities, the Veteran was last afforded VA examinations to assess the disabilities in September 2011. After those examinations he has reported symptoms that suggest a change in manifestations and worsening in the severity of the disabilities. Therefore, contemporaneous examinations are necessary. The matters are REMANDED for the following: 1. With the Veteran's assistance (by identifying all VA and private providers and submitting authorizations for VA to obtain all records from the private providers identified), secure for the record complete updated to-the-present outstanding (any not already associated with the claims file) records of evaluations and treatment he has received for TMJ, left knee, right hip, right knee , scars, and mental health disabilities. 2. When the development sough above is completed, arrange for the Veteran to be examined by an appropriate clinician in order to determine the nature, and obtain an opinion regarding the likely etiology, of his claimed TMJ disability. Upon examination of the Veteran and review of his claims file the examiner should provide opinions that respond to the following: a. Identify the Veteran's TMJ disability by (a more specific dental diagnosis) and identify its likely etiology. Specifically, is it at least as likely as not that the TMJ disability is etiologically related to the Veteran's active service, to include the March 1995 MVA therein and the injuries underlying the multiple disfiguring scars (for which service connection has been established)? b. If the TMJ disability is determined to not have been incurred in service and not be related to the underlying injuries for his multiple service-connected disfiguring scars, identify the etiology for the disability that is considered to be more likely, and explain why that is so. All opinions must include rationale that cites to supporting factual data and medical principles. 3. Also arrange for the Veteran to be examined by an appropriate clinician (in orthopedics) to assess the severity of his right hip disabilities and right knee disability determine the nature and likely etiology of his left knee disability to include exostosis. The Veteran's claims file (to include this remand and any additional records received) must be reviewed by the examiner. Any tests or studies indicated should be conducted. The examiner should: a. Elicit from the Veteran a description of the symptoms of, and functional impairment from, his right hip disabilities and right knee disability, and comment whether the accounts are consistent with the clinical presentation of the disability (and if not, identify the nature and degree of functional impairment objectively found). Opine also whether the left knee exostosis is a disability/defect of itself, or a symptom of an underlying diagnosed disability. b. Conduct a physical examination, describing all clinical findings needed to rate the disabilities in detail. c. Identify each current left knee disorder by diagnosis. d. Identify the likely etiology for each left knee disorder diagnosed. Specifically, is it at least as likely as not that the diagnosed disability diagnosed (to include exostosis) was incurred in service, to include as due to/a residual of the March 1995 MVA? e. Is it at least as likely as not that a diagnosed left knee disability was caused or aggravated (increased in severity) by a service-connected disability, to include the right hip and right knee disabilities? f. If a left knee disability is determined to not be have been incurred in service and not caused or aggravated by a service-connected disability, identify the etiology for the disability that is considered to be more likely, and explain why that is so. All opinions must include rationale that cites to supporting factual data and medical principles. 4. Also arrange for a scars examination of the Veteran to assess the severity of his multiple disfiguring scars disability. The examiner should note the number of disfiguring scars that are service connected and whether the scars have visible or palpable tissue loss, result in gross distortion or asymmetry of features or sets of features, result in characteristics of disfigurement, and whether there is underlying soft tissue damage, if any scars are unstable or painful, or if any scars result in other disabling effects. 5. Also arrange for the Veteran to be examined a psychiatrist or psychologist to assess the severity of his PTSD. The examiner should describe all psychiatric symptoms found (or shown by the record) and discuss their impact on the Veteran's occupational, social, and daily activity functioning in detail, noting the presence (and frequency/severity) or absence of each symptom in the criteria for a 100 percent rating, and any symptoms of similar gravity found that are not listed in the schedular criteria. If the disability picture found on examination suggests the Veteran's PTSD manifests in total occupational and social impairment, opine (to the extent possible) when such was first shown (with citation to supporting clinical data, as appropriate). GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berryman, 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.