Citation Nr: 21026535 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-15 503A DATE: May 3, 2021 ORDER An effective date earlier than June 4, 2012 for the award of service connection for dysthymic disorder is denied. Service connection for a right wrist disability is denied. Service connection for bilateral hearing loss is denied. A disability rating greater than 10 percent for a left wrist sprain is denied. REMANDED An initial disability rating greater than 70 percent for dysthymic disorder is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. On June 4, 2012, VA received the Veteran's original claim for service connection for dysthymic disorder. 2. At no time during the current appeal period has the Veteran been diagnosed with a right wrist disability. 3. The preponderance of the evidence of record is against finding that the Veteran had had a current hearing loss disability in either ear for VA purposes at any time during, or approximate to, the pendency of the claim. 4. The Veteran's left wrist disability has been manifested by decreased range of motion with pain on motion; however, it has not been manifested by ankylosis of the wrist. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than June 4, 2012 for the award of service connection for dysthymic disorder have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.102, 3.400. 2. The criteria for service connection for a right wrist disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 4. The criteria for a disability rating greater than 10 percent for a left wrist sprain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5214, 5215. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Marine Corps from October 1975 to October 1979 and from January 1982 to April 1983. In a September 2018 decision, the Board denied an earlier effective date for the grant of a 10 percent rating for the service-connected left wrist sprain, reopened and remanded the claim for service connection for a back disability, and remanded the remaining claims for further development. The record reflects substantial compliance with the remand requests. Dyment v. West, 13 Vet. App. 141 (1999). In a July 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for degenerative arthritis of the lumbar spine and assigned an evaluation of 20 percent effective June 4, 2012. As the Veteran has not expressed disagreement with either the effective date or disability rating, those issues are not before the Board. The Board notes that a June 2004 rating decision denied the claims for service connection for a right wrist disability and bilateral hearing loss. The Veteran was notified of the decision and his appellate rights, but he did not initiate an appeal. Thus, that decision became final, and new and material evidence is generally required to reopen the claims. However, additional service treatment records relevant to the claims were added to the claims file in June 2019. If VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim notwithstanding the regulations pertaining to new and material evidence. 38 C.F.R. § 3.156(c)(1). Thus, the submission of new and material evidence is not required, and the claims will be reconsidered de novo as claims for service connection, as readjudicated by the AOJ in an August 2020 supplemental statement of the case. The Board has accordingly recharacterized these issues. Effective DateDysthymic Disorder Generally, the effective date for an award of service connection is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date of an evaluation and award of compensation on an original claim for compensation will be the day following separation from active duty service or the date entitlement arose if the claim is received within 1 year after separation from service; otherwise, date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a)-(b)(1); 38 C.F.R. § 3.400(b)(2). A claim is a written communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by the Department of Veterans Affairs submitted on an application form prescribed by the Secretary. 38 C.F.R. § 3.1(p). On June 4, 2012, VA received the Veteran's original claim for service connection for a psychiatric disorder. In an August 2013 rating decision, the AOJ granted service connection for dysthymic disorder and assigned an effective date of June 4, 2012, based on the date of receipt of the claim, which was received more than one year after the Veteran's separation from active service. While the Board is sympathetic to the Veteran's situation, the legal authority governing effective dates is clear and specific, and the Board is bound by that authority. The Veteran has been assigned an effective date based on of the date of receipt of his claim for service connection. The record does not show, and the Veteran does not assert, that he filed an earlier claim for the disability. Thus, the Board finds that June 4, 2012 is the proper effective date for the award of service connection for dysthymic disorder. Accordingly, the Board concludes that an effective date earlier than June 4, 2012 for the award of service connection for dysthymic disorder is not warranted. In a case where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the remand portion of the September 2018 decision, the Board asked the AOJ to obtain any possibly outstanding service treatment records. Additional service treatment and personnel records were added to the claims file in June 2019. The record reflects that all available service records have been associated with the Veteran's claims file. To the extent that any service treatment records are unavailable, the Board notes that, where a veteran's service treatment records have been destroyed or lost, there is a duty to advise him to obtain other forms of evidence. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). In this case, in June 2019 correspondence, the AOJ advised the Veteran that some of his service treatment records could not be located and asked him to submit any in his possession. In July 2019 correspondence, he stated that he had no service treatment records. Thus, the Board concludes that VA's heightened duty to assist has been satisfied. The Board also has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. Id.; Pruitt v. Derwinski, 2 Vet. App. 83 (1992). The analysis herein has been undertaken with this heightened duty in mind. Right wrist disability The Veteran asserts that he injured his right wrist in service at the same time he injured his left wrist, when he fell out of a truck. Unfortunately, the Board finds insufficient evidence of a diagnosis of a right wrist disability related to service at any time during the current appeal period. Service treatment records do not show any complaints, findings, or diagnoses of a right wrist disability. Thus, even if the Veteran had sprained his right wrist at the same time he sprained his service-connected left wrist, the record indicates that the injury was acute and resolved prior to separation from service. Post service, there is no evidence of a current disability of the right wrist. VA treatment records do not show any complaints, findings, or diagnoses of a right wrist disorder. At an October 2019 VA examination, the Veteran stated that there is no pain in the right wrist. Examination revealed that range of motion was reduced but without any pain. The examiner observed that the reduced range of motion did not itself contribute to functional loss of the right wrist. The examiner stated that right wrist function was grossly intact. A requirement for service connection is a current disability. Current means near the time a claim is filed or at any time during its pendency. McClain v. Nicholson, 21 Vet. App. 319 (2007). Disability refers to the functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that pain can constitute a current disability, even without an underlying diagnosis, if it causes sufficient functional impairment). Significantly, at no time during the appeal period has the Veteran been diagnosed with a right wrist disability. Also, a VA examiner has indicated that the reduced range of motion did not contribute to functional loss of the wrist and that wrist function was intact. Thus, there is no evidence that the Veteran's right wrist symptoms result in a disability causing functional impairment of earning capacity. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). In the absence of evidence of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007) (finding that the requirement for a current disability is satisfied if the claimant has a disability at the time a claim was filed or at any time during the pendency of the appeal, even if the disability resolves prior to the Secretary's adjudication of the claim). Here, as there is no diagnosis of a right wrist disability related to service shown at any time during the current appeal, the preponderance of the evidence of record is against the claim for service connection for a right wrist disability. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. Accordingly, service connection for a right wrist disability is not warranted and must be denied. Bilateral hearing loss Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). Service treatment records do not show any complaints, findings, or diagnoses of hearing loss. They do not contain any findings showing that the Veteran had a hearing loss disability in either ear as defined by VA. 38 C.F.R. § 3.385. Post service, there is no evidence of a current bilateral hearing loss disability. At a February 2004 VA examination, audiometric testing revealed hearing threshold levels of 25, 25, 25, 25, and 25 decibels in the right ear and 20, 25, 20, 20, and 20 decibels in the left ear, at 500, 1000, 2000, 3000, and 4000 Hertz respectively. Maryland CNC speech recognition scores were 98 percent in the right ear and 98 percent in the left ear. The examiner indicated that the Veteran had normal hearing in both ears for VA purposes. VA treatment records do not contain any audiological findings showing hearing loss disability in either ear as defined by VA. 38 C.F.R. § 3.385. Of note, a July 2018 VA treatment record shows that the audiology department felt that the Veteran's hearing was intact. Thus, the evidence of record does not contain any findings showing that the Veteran has a hearing loss disability in either ear as defined by VA. 38 C.F.R. § 3.385. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich, 104 F. 3d 1328; Gilpin, 155 F.3d 1353. In the absence of evidence of a current disability, there can be no valid claim. Brammer, 3 Vet. App. 223; McClain, 21 Vet. App. 319. The Veteran is competent to give evidence about observable symptoms such as diminished hearing. Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to self-diagnose hearing loss to an extent recognized as a disability for VA purposes as that requires audiometric and speech recognition testing. Given the above, the Board finds that the preponderance of the evidence of record is against finding that the Veteran has had a current hearing loss disability in either ear for VA purposes at any time during or approximate to the pendency of the claim. Accordingly, service connection for bilateral hearing loss is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. Increased RatingLeft Wrist Sprain Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In this case, VA received the Veteran's claim for an increased rating for his left wrist sprain in June 2012. His left wrist (minor) disability has been rated 10 percent under Diagnostic Code 5215. 38 C.F.R. § 4.71a. That code provides for a maximum 10 percent rating for limitation of motion of the wrist when dorsiflexion is less than 15 degrees or when palmar flexion is limited in line with the forearm. Thus, a higher rating under this code is not warranted. Diagnostic Code 5214 provides for the evaluation of ankylosis of the wrist. 38 C.F.R. § 4.71a. Under that code, unfavorable ankylosis of the wrist in any degree of palmar flexion, or with ulnar or radial deviation warrants a 40 percent rating; unfavorable ankylosis of the wrist in any other position, except favorable, warrants a 30 percent rating; and favorable ankylosis of the wrist in 20 degrees to 30 degrees of dorsiflexion warrants a 20 percent rating. 38 C.F.R. § 4.71a. Dorsiflexion to 70 degrees, palmar flexion to 80 degrees, ulnar deviation to 45 degrees, and radial deviation to 20 degrees are considered normal ranges of motion of the wrist. Plate I, 38 C.F.R. § 4.71a. Effective February 7, 2021, VA revised the regulations pertaining to the evaluation of disabilities of the musculoskeletal system. 85 Fed. Reg. 76460 (Nov. 30, 2020). While changes were made to Diagnostic Code 5053 for wrist replacement, they were only for organization and clarity. Moreover, as the Veteran has not undergone wrist replacement, the revision has no effect in this case. At a February 2013 VA examination, the Veteran reported left wrist pain at the ends of range of motion and with repetitive twisting motions of the forearm or wrist. He noted flare-ups with repetitive twisting motions and on forcefully pushing objects. Range of motion testing revealed dorsiflexion to 65 degrees, palmar flexion to 75 degrees, ulnar deviation to 45 degrees, and radial deviation to 20 degrees. Repetitive use testing revealed dorsiflexion to 60 degrees, palmar flexion to 70 degrees, ulnar deviation to 45 degrees, and radial deviation to 20 degrees. The examiner indicated that there was functional loss due to less movement than normal and pain on movement. Muscle strength was 5/5. The examiner indicated that there was no ankylosis. X-rays revealed no evidence of fracture, dislocation, or bone production or destruction. The examiner provided a diagnosis of chronic left wrist strain. The examiner stated that the Veteran's disability would increase wrist pain at the workplace on repetitive pushing of heavy objects and repetitive twisting motions. At a December 2015 VA examination, the Veteran reported mild daily left wrist pain and occasional awakening at night briefly if the wrist is in a certain position. He reported occasional pain with shopping, housework, yardwork, and cooking. He denied numbness and tingling or dropping objects but noted a rare feeling of clumsiness holding silverware and a feeling of decreased grip strength. He noted occasional crepitus, rare stiffness, and almost no pain at rest. He denied limitation on driving. Range of motion testing revealed dorsiflexion to 50 degrees, palmar flexion to 45 degrees, ulnar deviation to 40 degrees, and radial deviation to 10 degrees. Repetitive use testing revealed no additional loss of function or range of motion. Muscle strength was 5/5. There was no atrophy. The examiner indicated that there was no ankylosis. The examiner indicated that the Veteran's disability does not impact his ability to perform any type of occupational task. At an October 2019 VA examination, the Veteran reported that his left wrist pain is usually a 4/10 and increases to a 9/10 during a flare-up which can last a whole day. He also reported difficulty lifting and driving. He noted reduced range of motion and decreased grip strength. Range of motion testing revealed dorsiflexion to 50 degrees, palmar flexion to 50 degrees, ulnar deviation to 25 degrees, and radial deviation to 20 degrees. Repetitive use testing was not performed as the Veteran felt that repetitive movement would result in increased pain today and for the next several days. The examiner indicated that pain, weakness, lack of endurance, and incoordination would significantly limit functional ability with repeated use over a period of time. The examiner indicated that range of motion with repeated use over a period of time could not be estimated, as repetitive motion elicited more pain. The examiner estimated range of motion during a flare-up as dorsiflexion to 30 degrees, palmar flexion to 20 degrees, ulnar deviation to 20 degrees, and radial deviation to 15 degrees. Muscle strength was 5/5 with no atrophy. The examiner indicated that there was no ankylosis. The examiner provided a diagnosis of chronic left wrist sprain. The examiner stated that prolonged movement of the wrist beyond tolerated range of motion, reaching, and lifting could be problematic. While VA medical records show complaints of left wrist pain, they do not contain complete range of motion or other pertinent findings. Initially, as there is no evidence of degenerative arthritis established by X ray findings, Diagnostic Code 5003 is not applicable. 38 C.F.R. § 4.71a. Given the evidence of record, even considering functional loss due to pain and other factors, the Veteran's left wrist sprain has not been manifested by favorable ankylosis of the wrist. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). While examinations have showed steadily decreasing range of motion of the left wrist, findings are not comparable to favorable ankylosis of the wrist. While the October 2019 examiner estimated that range of motion would be further reduced during a flare-up, even those estimated findings are not comparable to favorable ankylosis. Moreover, all examiners have specified that there was no ankylosis of the wrist. While the Veteran is competent to report on his pain and resultant limitation of motion, the objective evidence fails to show that he has the necessary limitation of range of motion comparable to favorable ankylosis to warrant a rating greater than 10 percent under Diagnostic Code 5214. Layno, 6 Vet. App. 465. Thus, a higher 20 percent rating is not warranted. Accordingly, the Board concludes that a disability rating greater than 10 percent for the service-connected left wrist sprain is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. REASONS FOR REMAND Rating greater than 70 percent for dysthymic disorder In the remand portion of the September 2018 decision, the Board requested that the AOJ obtain any outstanding private medical records and provide the Veteran with an examination to determine the current severity of his dysthymic disorder. An October 2019 examination note shows that the Veteran declined the examination. In an August 2020 supplemental statement of the case, the AOJ denied the claim for a rating greater than 70 percent for dysthymic disorder. In a November 2020 statement, the Veteran stated that he refused the examination because he was afraid that it would not be fair and impartial. He then stated that he is willing to attend an examination should one still be deemed necessary. The basis of the Board's prior request for an examination was the passage of time since the last VA examination in December 2015 and for an examiner to consider any private medical records obtained on remand. The Veteran has stated that there are no outstanding private medical records. However, due to the now additional passage of time since the last examination, and as the Veteran asserted that he is unable to work due in part to his dysthymic disorder after that last examination, in a December 2016 brief, the Board observes that an examination is still needed. Given the Veteran's willingness to report to an examination, he should be provided with one more opportunity to report to the needed examination. TDIU As the remand of the above claim could affect the claim for a TDIU, the Board finds that the claims are inextricably intertwined and that a decision on the TDIU claim at this time would be premature. Accordingly, these matters are REMANDED for the following action: Provide the Veteran with an examination to determine the severity of his dysthymic disorder. The entire claims file must be made available to, and be reviewed by, the examiner in conjunction with the examination. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. W. Kim, 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.