Citation Nr: 21027422 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-50 894 DATE: May 5, 2021 ORDER 1. Entitlement to a rating in excess of 10 percent for a left wrist disability is denied. REMANDED 2. Entitlement to service connection for a left knee disability is remanded. 3. Entitlement to service connection for a left hip disability, to include as secondary to a left knee disability, is remanded. 4. Entitlement to service connection for bilateral hearing loss is remanded. 5. Entitlement to service connection for a skin disability is remanded. FINDING OF FACT The Veteran's left wrist disability is not shown to at any time under consideration have been manifested by symptoms/impairment consistent with (equivalent to) favorable or unfavorable ankylosis. CONCLUSION OF LAW Entitlement to a rating in excess of 10 percent for a left wrist disability is denied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 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 served on active duty from August 1994 to August 1998. These matters are before the Board of Veterans' Appeals (Board) on appeal of a September 2014 Department of Veterans Affairs (VA) rating decision. In December 2019, a videoconference hearing was held before the undersigned; a transcript is in the record. In February 2020, these matters were remanded for additional development. An August 2020 rating decision recognized left wrist degenerative arthritis as part of the disability, effective May 22, 2013, and continued the 10 percent rating. In March 2021 correspondence, the Veteran's representative raised a claim of entitlement to a temporary total convalescence rating. However, that matter has not been adjudicated by the agency or original jurisdiction, and the Board does not have jurisdiction to consider an appeal in the matter. 1. Entitlement to a rating in excess of 10 percent for a left wrist disability is denied. Disability evaluations are determined by the application of a schedule of rating, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. §§ 4.1. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA regulations allow for the assignment of an increased rating up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred during such period. 38 C.F.R. §§ 3.157, 3.400(o)(2). Where there is a question as to which of two ratings shall be assigned, the higher criteria will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. §§ 4.7. Reasonable doubt regarding the degree of disability is to be resolved in favor of the claimant. 38 C.F.R. §§ 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Prior to May 22, 2013, the Veteran's residuals of a left wrist fracture were assigned a 10 percent rating under Code 5215 (for limitation of motion where there is no ankylosis) and under Code 5010-5215 (for arthritis with limitation of motion) from that date. Under Code 5215, a (maximum) 10 percent rating is to be assigned for either wrist if palmar flexion is limited in line with the forearm or if dorsiflexion is less than 15 degrees. Under Code 5214, a 20 percent rating is warranted for favorable (in degrees to 30 degrees dorsiflexion) ankylosis of the minor wrist. Higher ratings may be assigned for ankylosis in an other than favorable position. Normal range of motion (ROM) of the wrist is palmar flexion to 80 degrees, dorsiflexion extension to 70 degrees, ulnar deviation to 45 degrees, and radial deviation to 20 degrees. 38 C.F.R. § 4.71, Plate I. During the pendency of the appeal, the rating criteria for evaluating degenerative arthritis under 38 C.F.R. § 4.71a were amended effective February 7, 2021. As the period under consideration with respect to this claim extends to May 22, 2013, the Veteran is entitled to a rating under either the prior or any revised (from their effective dates, if such are more favorable) criteria. See VAGOPREC 3-2000. The Board notes the rating criteria for evaluating the wrist remained the same. Prior to the regulatory change, under Code 5010, traumatic arthritis is rated as degenerative arthritis under Code 5003, which is rated based on limitation of motion under the appropriate Codes for the specific joints involved. 38 C.F.R. § 4.71a, Code 5010. When motion of a specific joint is painful, but the limitation of motion found is noncompensable under the appropriate Code, a 10 percent rating is warranted for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Code 5003. Note 1 following Code 5003 provides that a rating under that Code will not be combined with ratings based on actual limitation of motion. 38 C.F.R. § 4.71a. As of February 7, 2021, under the amended criteria for Code 5010, post-traumatic arthritis is rated as limitation of motion, dislocation, or other specified joint instability under the effected joint. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Under 38 C.F.R. § 4.40, consideration must be given to functional loss due to pain and weakness causing additional disability beyond that reflected by range of motion measurements. Under 38 C.F.R. § 4.45, consideration must be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are related considerations. Painful, unstable, or misaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Where a musculoskeletal disability is rated at the highest rating available based upon limitation of motion, as here with respect to the Veteran's wrist, further DeLuca analysis is foreclosed. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Veteran's claim for an increased rating for the left wrist disability was received May 22, 2013. The relevant period for consideration therefore begins one year prior, in May 2012. On March 2014 VA examination, the Veteran reported intermittent flare ups of left wrist pain if he overuses his left hand. Palmar flexion of the left wrist was to 75 degrees, dorsiflexion to 70 degrees, ulnar deviation to 45 degrees, and radial deviation to 20 degrees. He was noted to have full wrist strength. He denied flare ups and there was no ankylosis. A September 2016 VA treatment record notes complaints of left wrist pain and weak grip. On examination, full complete flexion, 4/5 pronation supination and grip secondary to wrist pain were found. The provider recommended a thumb spica splint and continued treatment with prescribed NSAIDS. A June 2017 VA treatment record notes continued complaints of left wrist pain and that a wrist splint helps a little. At the December 2019 hearing, the Veteran testified that he has flare-ups about 4 times per year when he cannot move his wrist. He testified that he is unable to use his wrist from 4 to up to 10 days when it was hurting really bad. On August 2020 VA examination (pursuant to the February 2020 Board remand), the Veteran reported pain with active range of motion, occasional popping and clicking of the wrist, and intermittent stiffness. He reported he takes naproxen for pain daily and uses Voltaren gel for wrist pain, and that when his wrist flares-up, he cannot do many things with his children or for his work due to the pain. He reported he cannot open doors or jars when his wrist is bothering him and cannot help his children in sports (throwing balls or carrying gear). On examination, initial ROM testing showed left wrist palmar flexion was to 45 degrees, dorsiflexion to 45 degrees, ulnar deviation to 30 degrees, and radial deviation to 10 degrees. Pain was noted on all movements. The examiner noted pain and weakness significantly limit functional ability with repeated use over a period of time, and opined that repeated use over time ROM showed palmar flexion of the left wrist was to 40 degrees, dorsiflexion to 40 degrees, ulnar deviation to 30 degrees, and radial deviation to 10 degrees. It was noted that the examination was being conducted during a flare-up; that pain during flare-ups limits functional ability, but that ROM would not be reduced as compared to the initial ROM findings. Muscle strength testing of wrist flexion and extension was 4/5. There was no ankylosis. It was noted that he regularly uses a left wrist brace for his arthritis. In March 2021 correspondence, the Veteran's representative argues dorsiflexion and palmar flexion are distinct and separately listed in the Diagnostic Criteria and the Veteran is entitled to separate 10 percent ratings for both limitation of dorsiflexion and limitation of palmar flexion. The representative alleges he warrants a convalescent rating based on his wrist being immobilized by a prescribed splint in the absence of surgery. Moreover, the representative alleged the August 2020 VA examiner did not assess the effects during a flare-up since he was using medications to alleviate the problem with the flare-up at the time of the examination. The representative argued the ameliorative effects of medication must be considered. At the outset, the Board finds there has been substantial compliance with its February 2020 remand directives pertaining to the matter of an increased rating for the left wrist disability (which is addressed on the merits). See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). On review of the record, the Board finds that a rating in excess of 10 percent for a left wrist disability is not warranted at any time under consideration. Consistent with the findings of the multiple VA examiners who examined the Veteran, VA treatment records do not at any time show that his left wrist was ankylosed. While he is competent to note wrist pain or that he has decreased range of wrist motion, the multiple VA examiners all noted he does not have ankylosis of the left wrist. Under Code 5214, a 20 percent rating is warranted for favorable (in degrees to 30 degrees dorsiflexion) ankylosis of the minor wrist. No examination during the evaluation period found limitation of such degree; the greatest degree of limitation of left wrist motion found on any examination was on the August 2020 VA examination when range of motion testing found right wrist palmer flexion from 0 to 40 degrees [normal 80] and dorsiflexion from 0 to 40 degrees [normal 70]. Pain was noted on motion (such as dorsiflexion) and resulted in some functional loss. In other words, the greatest degree of limitation of motion shown, even considering factors of pain and repetitive use, falls squarely within the parameters of the criteria for the 10 percent rating (for limited motion of the wrist under Code 5215) currently assigned. Significantly, the August 2020 examiner noted that the examination was being conducted during a reported flare-up, so the evidence does not show or suggest that there actually is greater impairment of function, to include ankylosis, warranting a rating increase based on impairment during flare-ups. The Board has considered the representative's argument that the Veteran is entitled to two separate 10 percent ratings for limitation of dorsiflexion and limitation of palmar flexion and finds it is not warranted. Because Code 5215 provides alternative ratings based on either limitation of dorsiflexion or limitation of palmar flexion, separate 10 percent ratings may not be assigned for both limitation of dorsiflexion and limitation of palmar flexion without violating the fundamental principle relating to pyramiding. 38 C.R.F. §§ 4.14, 4.71a. The critical element in permitting the assignment of more than one evaluation under different diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of another condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also VAOPGCPREC 23-97. As limitation of dorsiflexion and limitation of palmar flexion are alternative bases for a rating under Code 5215, allowing for two separate 10 percent ratings under Code 5215 would be duplicative (and prohibited under 38 C.F.R. § 4.14). The Board has considered whether a separate 10 percent rating is applicable under Code 5010 for left wrist arthritis is warranted (under either the criteria prior to February 7, 2021 and the revised criteria thereafter) and finds it is not. The record shows that the Veteran has been in receipt of a 10 percent rating for limitation of left wrist motion under Code 5215. As Codes 5215, 5003, 5010, and the amended criteria for Codes 5010 all pertain to limited range of wrist motion and the Veteran is already being compensated for painful limitation of motion under Code 5215, the Board finds that a separate rating under Code 5010 would violate the prohibition on pyramiding. 38 C.F.R. § 4.14. The Board acknowledges the representative's argument that the ameliorative effects of medication should be considered but finds that such do not warrant a rating increase. While the record notes the Veteran has taken mediation for wrist pain, VA may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56 (2012). Here, the rating criteria for the Veteran's left wrist disability in Codes 5215 and 5010 for do not mention or reasonably suggest the ameliorative effects of medications should be considered in determining entitlement to a higher rating. The preponderance of the evidence is against a rating in excess of 10 percent for the Veteran's left wrist disability. Accordingly, the appeal in the matter must be denied. REASONS FOR REMAND 2. 3. Entitlement to service connection for a left knee disability and left hip disability. The February 2020 Board remand ordered a VA examination to determine the nature and likely etiology of the Veteran's left knee disability. The examiner was to note the service treatment records (STRs) showing complaints of left knee pain and injury in service and to provide identify the alternate etiology considered to be more likely if the left knee disability was determined to be unrelated to service. On March 2020 VA examination, degenerative arthritis of the left knee was diagnosed. The Veteran reported he fell on a hike in service and hit his knee on a rock. He related he continued to have pain. The examiner opined the Veteran's left knee disability is less likely than not related to his service. The examiner noted that patellofemoral pain syndrome was diagnosed in 1995, and opined the condition was acute, noting the Veteran did not report a tricked or locked knee on service separation examination and there was no objective evidence of an ongoing left knee condition after 1995 until 2013. However, the examiner does not address/discuss the Veteran's sworn testimony that he has experienced left knee pain since an injury in service, and did not identify a more likely etiology for the Veteran's left knee disability. The March 2020 VA opinion is not responsive to the Board's remand directives, and corrective action is necessary. See Stegall v. West, 22 Vet. App. 268 (1998). Service connection for a left hip disability is claimed as secondary to a left knee disability. Therefore, the claim is inextricably intertwined with the service connection for a left knee disability issue being remanded, and consideration of that issue must be deferred pending resolution of the service connection for a left knee disability claim. 4. Entitlement to service connection for bilateral hearing loss. The February 2020 Board remand ordered a VA examination to determine whether the Veteran now has a hearing loss disability and, if so, its etiology. On March 2020 VA audiological examination, puretone testing found hearing within normal limits in both ears. While speech recognition testing found 72 percent in the right ear and 74 percent in the left, the examiner opined that use of speech discrimination scores was not appropriate for the Veteran. The examiner noted it could not be ascertained whether speech discrimination scores suggest higher level auditory dysfunction than cannot be tested with available equipment or whether this suggests some component of non-organic hearing loss. The opinion appears to suggest that an additional examination (by a provider with the requisite equipment and expertise) is required to clarify the diagnosis/reconcile the conflicting evidence regarding the etiology of the claimed bilateral hearing loss disability. In a March 2021 statement, the Veteran's representative stated that he has "hidden hearing loss" and submitted treatise evidence in support of the claim (excerpt of articles discussing "hidden hearing loss" where an individual is shown with difficulty hearing but otherwise has been able to achieve normal or near-normal hearing under standard tests and that more sensitive testing is required to detect the disability than the standard audiogram). There was no follow-up. The development completed has been less than fully responsive to the remand directives, and is inadequate for rating purposes, requiring corrective action. See Stegall, 11 Vet. App. at 271. 5. Entitlement to service connection for a skin disability. The February 2020 Board remanded ordered development for updated, outstanding VA treatment records and then a VA examination to determine the nature and likely etiology of any skin and neck scar disabilities. The provider was specifically asked to identify the alternate etiology considered to be more likely if a diagnosed skin disorder/facial or neck scar was determined to be unrelated to service, to include his complaints of, and treatment for, pseudofolliculitis barbae (PFB) therein. On March 2020 VA examination, PFB was diagnosed. It was noted the Veteran has been treated in the past 12 months with tropical cream on a constant/near constant basis. The examiner opined it is less likely than not related to service, noting (without providing a more detailed explanation) there was no objective evidence of chronicity of care. Such opinion is inadequate for rating purposes. Additionally, the examiner did not identify a more likely etiology for the diagnosed PFB or address the findings of hyperpigmented neck scarring due to old, well healed, remote PFB on March 2014 VA examination. The March 2020 VA opinion is not responsive to the Board's remand directives, and corrective action is necessary. See Stegall, 22 Vet. App. at 271. The matters are REMANDED for the following: 1. Arrange for the record to be returned to the March 2020 VA examiner for review and an addendum medical opinion regarding the likely etiology of the Veteran's left knee and left hip disabilities. [If that provider is unavailable or unable to give an opinion sought, forwarded to another appropriate clinician for review and the opinion sought.] The provider should note the Veteran's hearing testimony regarding continuity of symptoms. The consulting provider should: (a.) Identify (by diagnosis) each left hip and left knee disability found on examination (or shown in the record during the pendency of the instant claims, and identify the likely etiology for each left knee and left hip disability entity diagnosed. Specifically, is it at least as likely as not (a 50 percent or greater probability) that it began in (or is otherwise etiologically related directly to) the Veteran's military service and the documented complaints and evaluations therein? (b.) If a diagnosed left knee disability is determined to be unrelated to service, identify the etiology that is considered to be more likely, and explain why that is so (c.) If a diagnosed left hip disability entity is found to not be directly related to the Veteran's service, (and a left knee disability is found to be related to his service), opine further whether it is at least as likely as not that the hip disability was caused or aggravated by (increased in severity due to) the left knee disability. [The opinion must address aggravation.] (d.) If a left knee disability did not cause, but aggravated, a left hip disability, specify, to the extent possible, the degree of disability (symptoms/impairment) that has resulted from such aggravation. All opinions must include rationale. The examiner is advised that the Veteran (as a layperson) is competent to attest to factual matters of which he has first-hand knowledge, including symptoms observed, and that the absence of corroborating clinical records in service may NOT be the sole determinative factor. If there is a medical basis to doubt history provided by the Veteran, there should be a full explanation why that is so. 2. Arrange for the Veteran's record to be returned to the March 2020 VA examiner for review and an addendum medical opinion regarding the nature and likely etiology of any skin and neck scar disabilities. [If that provider is unavailable or unable to give an opinion sought, to another appropriate clinician for review and the opinion sought.] The Veteran's record must be reviewed by the examiner, to specifically include the March 2014 VA scars/disfigurement examination report. On review of the record, the examiner should: (a.) Identify (by diagnosis) each skin disorder/facial or neck scar found/shown by the record, describing it in detail. (b.) Identify the likely etiology for each such disability diagnosed. Specifically, is it at least as likely as not (a 50 percent or greater probability) that it is etiologically related to the Veteran's service/was incurred therein (to include his complaints and treatment for PFB therein)? (c.) If a facial scarring disability is determined to be unrelated to the PFB noted in service, identify the etiology that is considered to be more likely, and explain why that is so. All opinions must include rationale. 3. Arrange for an examination of the Veteran (with audiometric studies) by an appropriate clinician (one with the requisite expertise to assess the disability picture here shown) to determine whether he has a hearing loss disability in either or both ear(s), and if so the likely etiology of such disability. His claims file must be reviewed by the examiner, to include May 1998 service separation examination audiology and March 2021 correspondence and medical treatise cited therein. On examination of the Veteran and review of his record, the examiner should: (a) Indicate whether the Veteran has a hearing loss disability (as defined in 38 C.F.R. § 3.385) in either, or both, ear(s). [Explain in detail why speech discrimination scores for the Veteran are invalid -if such is found.] Also address the Veteran's lay assertions and studies cited in the March 2021 correspondence regarding "hidden hearing loss." (b) Identify the likely etiology of any hearing loss disability found. Specifically, is it at least as likely as not (a 50 percent or greater probability) that it is etiologically related to his service (to include as due to exposure to noise therein)? If not, identify the etiology for the hearing loss 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. If an opinion requested cannot be provided without resort to mere speculation, it must be so stated for the record. Such statement must include explanation why an opinion would require speculation (e.g., whether further information or testing is needed to make the determination, and if so, indicate what else is needed; or whether the opinion could not be rendered due to limitations in the knowledge of the medical community at large or of the particular examiner). GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Naumovich, 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.