Citation Nr: 21068895 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 15-12 207A DATE: November 15, 2021 ORDER Entitlement to an effective date prior to September 27, 2018 for the re-establishment of a 10 percent disability rating for service-connected left wrist disability with degenerative changes is denied. Entitlement to a disability rating in excess of 10 percent for service-connected left wrist degenerative changes is denied. New and material evidence having been received, the claim for entitlement to service connection for a right shoulder disability is reopened. Entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed. REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for migraine headaches is remanded. FINDINGS OF FACT 1. A February 2010 rating decision granted service connection for left wrist degenerative changes, assigning a 10 percent disability rating, effective February 3, 2009, the effective date of service connection. 2. A timely notice of disagreement (NOD) to the February 2010 rating decision assignment of effective date of February 3, 2009 for service connection for left wrist degenerative changes was not received within one year of notice of the February 2010 rating decision. 3. In response to a July 2012 claim for increase, an October 2013 rating decision proposed a reduction of the Veteran's left wrist disability rating, and an October 2014 rating decision effectuated that reduction, reducing the disability rating from 10 percent to 0 percent, effective January 1, 2015. The Veteran appealed the reduction and the rating. 4. The evidence on which the reduction was based was full and showed improvement in the condition. 5. A June 2019 rating decision restored the disability rating for the service-connected left wrist degenerative changes from 0 percent to 10 percent, effective September 27, 2018, the date entitlement arose. 6. The Veteran is right hand dominant; therefore, his left wrist is part of his minor upper extremity. 7. Beginning September 27, 2018, the probative evidence of record does not demonstrate that the Veteran's left wrist is ankylosed. 8. In an April 2012 decision, the Agency of Original Jurisdiction (AOJ) denied the Veteran's claim for service connection for a right shoulder disability. The Veteran did not file a timely appeal. 9. The evidence pertaining to the Veteran's right shoulder disability submitted after the April 2012 AOJ denial is not cumulative or redundant of evidence of record at the time of the prior denial, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 10. The Veteran initiated his claim for a TDIU in July 2012. In a July 2021 Board decision, and August 2021 implementing rating decision, the Veteran was granted a total, 100 percent rating for his service-connected PTSD, as well as special monthly compensation, effective July 16, 2012. CONCLUSIONS OF LAW 1. The reduction of the 10 percent disability rating for service-connected left wrist disability with degenerative changes was proper; the criteria for entitlement to an effective date prior to September 27, 2018 for the re-establishment of the 10 percent rating have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.344, 3.400. 2. The criteria for entitlement to a disability rating in excess of 10 percent from September 27, 2018 for service-connected left wrist degenerative changes have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.69, 4.71a, Diagnostic Codes (DCs) 5215, 5214. 3. The April 2012 denial of the claim for service connection for a right shoulder disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104; 20.302, 20.1103. 4. As additional evidence received since the April 2012 denial is new and material, the criteria for reopening the claims for service connection for a right shoulder disability have been met. 38 U.S.C. §§ 1111, 5100, 5102, 5103, 5103A, 5107, 5108; 38 C.F.R. §§ 3.156, 3.159. 5. The claim for TDIU is rendered moot by the total rating granted for the Veteran's service-connected PTSD, effective July 16, 2012. The claim is dismissed. 38 U.S.C. § 7105; Bradley v. Peake, 22 Vet. App. 280 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from January 1978 to January 1998. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions in October 2013 (TDIU), October 2014 (Left Wrist), March 2015 (migraines), and April 2016 (Right Shoulder) of a Regional Office (RO) of the Department of Veterans Affairs (VA). Rating Reduction/Earlier Effective Date 1. Entitlement to an effective date prior to September 27, 2018 for the re-establishment of a 10 percent disability rating for service-connected left wrist disability with degenerative changes is denied. An award of direct service connection will be effective on the day following separation from active military service or the date on which entitlement arose if the claim is received within one year of separation from service. Otherwise, except as specifically provided, the effective date of an evaluation and award for pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The Veteran generally contends that the RO should have assigned an effective date earlier than September 27, 2018 for the restoration of a 10 percent disability rating for his service-connected left wrist disability. See August 2015 NOD. By way of history, a February 2010 rating decision granted service connection for a left wrist disability, assigning a 10 percent disability rating effective February 3, 2009, the date the claim for service connection was received. The Veteran did not submit a timely notice of disagreement following the February 2010 rating decision as to the February 3, 2009 effective date, and no new and material evidence was received during the one-year appeal period following the February 2010 rating decision; therefore, the February 2010 rating decision assignment of effective date for service connection became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. In July 2012, the Veteran brought a claim for an increased rating. On March 18, 2013, the Veteran underwent a VA examination in which the examiner noted that the Veteran's left wrist exhibited normal range of motion. The RO initiated the reduction action through an October 2013 proposal to reduce. In an October 2014 rating decision, the RO effectuated the reduction of the service-connected left wrist disability from 10 percent to 0 percent, effective January 1, 2015. The Veteran appealed the reduction and the rating. The reduction of a rating has certain procedural requirements that must be followed by the RO if the lower evaluation results in a reduction or discontinuance of compensation payments being made. 38 C.F.R. § 3.105 (e). Those procedures were followed in this case, with the October 2013 proposal and notice, and the October 2014 reduction action. Reducing a rating also brings concurrent substantive requirements that must be followed. When a disability rating has been in effect less than five years, a rating reduction is warranted where reexamination of the disability discloses improvement of that disability. 38 C.F.R. § 3.344 (c). In making this determination, VA is required to comply with several regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; see Brown v. Brown, 5 Vet. App. 413, 420 (1993). The Board notes that for ratings in effect for five years or more, there are other specific requirements that must be met before VA can reduce a disability rating. 38 C.F.R. § 3.344 (a), (b); see 38 C.F.R. § 3.343. The regulations impose a clear requirement that rating reductions be based upon review of the entire history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating reduction case it not only must be determined whether an improvement in disability occurred but whether it actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342, 350 (2000). Moreover, though a rating reduction must have been supported by the evidence on file at the time of the reduction, pertinent post-reduction evidence favorable to restoring the rating also must be considered. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). The reduction was based in large part on the March 2013 VA examination, at which time the Veteran's complaints concerned the right wrist, rather than the left. He believed that the left would eventually be as bad as the right; however, it was not there now. The range of motion testing for the left wrist was normal, without pain, or additional functional loss, to include on repetitive testing. Concurrent VA treatment records confirmed similar findings. During the appeal of the reduction, the Veteran underwent another wrist examination on September 27, 2018. At that time, limitation of motion of the left wrist was severe enough to warrant a compensable rating. The RO restored the 10 percent disability rating for the left wrist disability, effective to the earliest date legally possible, i.e., the date entitlement arose, September 27, 2018, which was the date of that VA examination. The evidence between the 2015 reduction to zero and the 2018 restoration of the 10 percent rating does not include any range of motion findings for the wrist. There is no examination during that period, and the treatment records note only occasional pain in the wrist, without other findings sufficient to warrant a rating during that period. For these reasons, the Board finds that the criteria for an effective date prior to September 27, 2018 for the restoration of a 10 percent disability rating for the service-connected left wrist disability have not been met as a matter of law, and the appeal must be denied as a matter of law. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). See also Fenderson v. West, 12 Vet. App. 119, 126 (1999) (applying this concept to initial ratings). Here, the Board finds that the ratings have been consistent through the period at issue. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 1. Entitlement to a disability rating in excess of 10 percent for service-connected left wrist degenerative changes is denied. The Veteran's left wrist disability is currently rated under Diagnostic Code 5215. Pursuant to Diagnostic Code 5215, a 10 percent rating is warranted when palmar flexion is limited to a position in line with the forearm, or when dorsiflexion is less than 15 degrees. This 10 percent rating is applicable for either the major or minor limb. A 10 percent rating is the only, and therefore the maximum, rating available under this code, which the Veteran is already in receipt of. Also pertinent to this claim is Diagnostic Code 5214, which provides for higher evaluations for ankylosis of the wrist. Under this code, a 40 percent rating is warranted when there is unfavorable ankylosis, in any degree of palmar flexion, or with ulnar or radial deviation of the minor wrist. A 30 percent rating is warranted when there is ankylosis of the minor wrist in any other position, except favorable. Finally, a 20 percent rating is warranted when there is favorable ankylosis in 20 degrees to 30 degrees dorsiflexion in the minor wrist. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury or surgical procedure." See Colayong v. West, 12 Vet. App. 524, 528 (1999); Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). Normal range of motion is dorsiflexion (extension) to 70 degrees, palmar flexion to 80 degrees, ulnar deviation to 45 degrees, and radial deviation to 20 degrees. 38 C.F.R. § 4.71, Plate I. For rating purposes, a distinction is made between major (dominant) and minor musculoskeletal groups. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69. Here, as the medical evidence shows that the Veteran is right hand dominant, for rating purposes, his left wrist is part of his minor upper extremity. The Board finds VA examinations to be the most probative evidence of record related to the Veteran's left wrist disability. The VA examiners have the medical expertise to review the medical records, perform range of motion measurements, and diagnose the Veteran. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran had a VA examination for his wrists in September 2018. While pain is noted on range of motion, no ankylosis of the left wrist is noted. Similarly, the VA treatment records do not indicate that the Veteran's left wrist is ankylosed, and the Veteran has not contended otherwise. Further, the Veteran's left wrist is not functionally limited to ankylosis: he does not contend he must keep them immobile, although he does regularly wear a wrist brace for support. As the Veteran is in receipt of the maximum schedular rating under Diagnostic Code 5215, a higher rating would only be available under Diagnostic Code 5214 which requires a diagnosis of ankylosis. As there is no evidence of ankylosis, the Veteran's claim for an increased rating for his service-connected left wrist disability under Diagnostic Codes 5214 or 5215 must be denied. Thus, the claim for an increased rating for the Veteran's left wrist disability is denied. There is no doubt to resolve in the Veteran's favor. New and Material Evidence Generally, in the legacy appeals system, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a prior final denial decision may be reopened and reconsidered if new and material evidence is received. 38 U.S.C. § 5108. "New" evidence means existing evidence not previously submitted to agency decision-makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The U.S. Court of Appeals for Veterans Claims (Court) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. The Court interpreted the language of 38 C.F.R. § 3.156 (a) as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110 (2010). Regardless of the determination reached by the RO, the Board must find new and material evidence to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). 2. New and material evidence having been received, the claim for entitlement to service connection for a right shoulder disability is reopened. The Veteran's service connection claim for a right shoulder condition was denied in an April 2012 rating decision, based on a finding that the condition neither occurred in nor was caused by service. The Veteran did not perfect an appeal of the April 2012 decision, and the decision became final. Evidence associated with the claims file since the April 2012 denial include a statement from the Veteran indicating that his right shoulder disability is related to his service-connected sinusitis condition. Specifically, the Veteran asserts that his current right shoulder disability is from an injury that occurred when he became unconscious and fell due to the high dosage of propranolol HCL that he was prescribed for treatment and management of his sinusitis. See August 2017 VA statement in support of claim. Also included in the claims file are VA treatment records from April 2014 that suggest that the Veteran's medication for his service-connected sinusitis did result in multiple episodes where he passed out and fell; further, the Veteran's VA treatment providers suggested tapering off and holding the medication to ensure that this was the cause of the Veteran's episodes. While a new theory of entitlement cannot be the basis to reopen a claim under 38 U.S.C. § 7104 (b), if the evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). Here, the Veteran has provided new information which may support his claim for secondary service connection. Accordingly, the Veteran's new theory of entitlement constitutes new and material evidence sufficient to reopen his claim. As such, since the evidence is new and material, the claim is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. Entitlement to at TDIU is dismissed. The Veteran raised his claim for TDIU in an application received July 16, 2012. It has been pending since that time. In the interim, the Board granted the Veteran's increased rating claim for PTSD, establishing a total, 100 percent rating, effective July 16, 2012. The receipt of a 100 percent schedular rating for service-connected disabilities does not necessarily render moot any pending claim for a TDIU. Bradley v. Peake, 22 Vet. App. 280 (2008). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court of Appeals for Veterans Claims has recognized that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation. In this case, however, as the Veteran's total rating is already based on a single service-connected disability (as opposed to the combined effects of all of his service-connected disabilities), entitlement to a TDIU is moot. Notably, special monthly compensation was already awarded concurrent with the total rating for PTSD. Therefore, no issue remains before the Board. The issues is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder disability is remanded. The Veteran contends that his right shoulder disability is from an injury that occurred when he became unconscious and fell due to the high dosage of propranolol HCL that he was prescribed for treatment and management of his service-connected sinusitis. See August 2017 VA statement in support of claim. Further, VA treatment records reference the adverse effects of the propranolol HCL medication, including multiple instances where the Veteran became unconscious and passed out. The Board cannot make a fully informed decision on the issue because the VA opinion of record only addresses a theory of direct service connection, i.e., whether the Veteran's current right shoulder disability was related to an injury incurred during his active military service. As the Board is not permitted to base decisions on its own unsubstantiated medical conclusions, the RO must obtain a medical opinion discussing the Veteran's currently diagnosed right shoulder disability and any potential relationship between the Veteran's service-connected sinusitis, to include his prescribed propranolol HCL for its treatment and any resultant adverse effects of such medication. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Therefore, remand is necessary to fully address appropriate theories of entitlement and the Veteran's contentions. 2. Entitlement to service connection for migraine headaches is remanded. The Veteran is service connected for posttraumatic stress disorder (PTSD). Throughout the evidence of record, the Veteran has contended that his migraines occur in correlation to periods of great stress or are exacerbated when his psychiatric symptoms are at their worst. See e.g., September 28, 2012 statement in support of claim (VA 21-4138); September 14, 2018 VA treatment note. Accordingly, the Board finds that a secondary service connection theory of entitlement has been raised by the Veteran. No medical professional has opined as to whether the Veteran's PTSD caused or aggravated his migraines. Accordingly, on remand, a new medical opinion to determine the likely etiology of the Veteran's migraine condition that addresses secondary service connection. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of the Veteran's right shoulder disability. All pertinent records should be made available to the examiner, including this remand. After the completion of the examination and any additional testing that may be appropriate, the examiner must answer the following: (a.) whether it is at least as likely as not (at least a 50 percent likelihood) that the Veteran's service-connected sinusitis, to specifically include the medications taken for treatment of such, proximately caused the Veteran's right shoulder disability. (b.) whether it is at least as likely as not (at least a 50 percent likelihood) the Veteran's service-connected sinusitis and headaches, to include the medications taken for treatment of such, aggravated beyond natural progression the Veteran's right shoulder disability. Note that aggravation in this context means any incremental increase in the non-service-connected disability (i.e., any additional impairment of earning capacity) caused by the service-connected disability. Attention is invited to the August 2017 VA statement in support of claim, describing falls and passing out due to the medication, as well as the VA treatment records showing neurology follow up notes, reducing his prescribed Propranolol, because of passing out and falling, in April 2014. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 2. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of the Veteran's migraine disability. All pertinent records should be made available to the examiner, including this remand. After the completion of the examination and any additional testing that may be appropriate, the examiner must answer the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's migraine condition is proximately due to his service-connected PTSD? (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's migraine condition has been aggravated (any increase in disability) by his service-connected PTSD? If aggravation is found, the examiner should attempt to identify the baseline level of disability prior to such aggravation. Attention is invited to the Veteran's lay statements and treatment records, that demonstrate his belief that they occur in correlation to periods of great stress or are exacerbated when his psychiatric symptoms are at their worst. See e.g., September 28, 2012 statement in support of claim (VA 21-4138); September 14, 2018 VA treatment note The examiners are asked to provide the underlying reasons for all opinions expressed and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiners' expert opinion, it is as medically sound to find in favor of the proposition as against it. Furthermore, aggravation in this context means any incremental increase in the non-service-connected disability (i.e., any additional impairment of earning capacity) caused by the service-connected disability. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. M. Lowman, Associate 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.