Service connection for a right upper extremity/shoulder disability is granted

Service connection for a right upper extremity/shoulder disability is granted

Dr. Craig Bash has done thousands of case evaluations at the VA Hospital/regional office/BVA and court levels. 

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Citation Nr: 19122732
Decision Date: 03/26/19	Archive Date: 03/26/19

DOCKET NO. 10-14 011A
DATE:	March 26, 2019

ORDER

New and material evidence has been presented, and the claim of entitlement to service connection for right upper extremity disorder is reopened.

Service connection for a right upper extremity/shoulder disability is granted.

Entitlement to service connection for upper respiratory condition, to include allergic rhinitis is granted. 

Prior to August 2, 2012, a rating of 10 percent for left humerus painful motion is granted.

From August 2, 2012, a rating in excess of 20 percent for left humerus limitation of extension is denied.

From July 26, 2018, a separate 20 percent rating for left humerus limitation of flexion is granted.

Prior to August 2, 2012, a rating of 10 percent for left radius painful motion is granted.

From August 2, 2012, a rating in excess of 10 percent for a left radius fracture is denied.

A rating in excess of 10 percent for a right wrist disability is denied.

REMANDED

Entitlement to service connection for residuals from a traumatic brain injury (TBI) is remanded.

Entitlement to service connection for a headache disorder is remanded.

Entitlement to service connection for obstructive sleep apnea is remanded.

Entitlement to a total disability rating based on individual unemployability as a result of service connected disabilities (TDIU) is remanded.

FINDINGS OF FACT

1. A July 2009 rating decision denied the Veteran’s service connection claim for a right upper extremity disorder.

2. The evidence received since the July 2009 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the service connection claim for a right upper extremity disorder, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim.

3. Resolving all doubt in favor of the Veteran, his right upper extremity/shoulder disability is the result of his service connected left humerus fracture, left radius fracture and left shoulder disability.

4. The Veteran’s respiratory disorder originated in service.

5. Prior to August 2, 2012, the Veteran’s left humerus fracture was shown to result in painful motion.

6. From August 2, 2012, to July 26, 2018, the Veteran’s left humerus fracture did not result in ankylosis; flexion functionally limited to 100 degrees or less; extension functionally limited to 100 degrees or more; an elbow flail joint; impairment of the ulna; impairment of the radius, or impairment of the supination and pronation.

7. Beginning July 26, 2018, the Veteran’s left humerus fracture resulted in flexion functionally limited to 90 degrees.

8. Prior to August 2, 2012, the Veteran’s left radius fracture was shown to result in painful motion.

9. From August 2, 2012, the Veteran’s left radius fracture does not result in ankylosis.

10. The Veteran’s right wrist disability does not result in ankylosis.

CONCLUSIONS OF LAW

1. The July 2009 rating decision which denied entitlement to service connection for a right upper extremity disorder is final.  38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103.

2. New and material evidence has been submitted, and the Veteran’s service connection claim for a right upper extremity disorder is reopened.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.

3. The criteria for service connection for a right upper extremity/shoulder disability have been met.  38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310.

4. The criteria for service connection for an upper respiratory disorder have been met.  38 U.S.C. § 1110; 38 C.F.R. § 3.303.

5. Prior to August 2, 2012, the criteria for a 10 percent for left humerus painful motion have been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5206.

6. From August 2, 2012, the criteria for a rating in excess of 20 percent for left humerus limitation of extension have not been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5207.

7. From July 26, 2018, the criteria for a 10 percent for left humerus limitation of flexion have been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5206.

8. Prior to August 2, 2012, the criteria for a 10 percent for left radius painful motion have been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5215.

9. The criteria for a rating in excess of 10 percent for a left radius fracture have not been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5215.

10. The criteria for a rating in excess of 10 percent for a right wrist disability have not been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5215.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from November 1984 to September 1992.  In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in December 2018.  A transcript of that hearing is of record.

A February 15, 2019 Board decision by another VLJ addressed the matters of service connection for right shoulder and arm disability, an upper respiratory disorder (including sinusitis), and traumatic brain injury.  Inasmuch as those issues were the subject of the testimony before the undersigned, that February 2019 Board decision is being vacated in a separate action.  All favorable findings contained in the February 2019 Board decision are carried over into the current action.

Reopening Claim

New evidence is defined as 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).

When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed.  Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992).  Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010), the U.S. Court of Appeals for Veterans Claims (Court) clarified that the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening.  Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim.  Id.

The Veteran’s service connection claim for a right upper extremity disorder was denied by a July 2009 rating decision.  The Veteran did not appeal the July 2009 rating decision, nor did he submit any new and material evidence within a year of the July 2009 rating decision.  See 38 C.F.R. §3.156(b).  The July 2009 rating decision thereby became final.

In February 2013, the Veteran filed a request to reopen his previously denied service connection claim for a right upper extremity disorder. 

New evidence is defined as 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).

When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).  Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010), the U.S. Court of Appeals for Veterans Claims (Court) clarified that the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening.  Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim.  Id. 

At the time of the July 2009 rating decision, the evidence of record included STRs, VA treatment records, and private treatment records.

Evidence received since the July 2009 rating decision includes additional VA treatment records, private medical records, and the Veteran’s testimony at the December 2018 Board hearing.  This evidence is presumed credible for the limited purposes of reopening the claim, and when that is done, the new information is considered to be material and is therefore sufficient to reopen the previously-denied claim.  38 C.F.R. § 3.156(a); Shade, 24 Vet. App. 110.  Accordingly, the claim is reopened.

Service Connection

The Veteran is service-connected for a left humerus fracture, left radius fracture and left shoulder disability.  He asserts that his right shoulder disability is secondary to these disabilities.

In July 2014, Dr. Jerry W. Bush reviewed the Veteran’s claims filed and opined that his right shoulder disability was as likely as not caused by his left humerus fracture, left radius fracture and left shoulder disability.

In September 2016, Dr. Sean G. Burgest reviewed the Veteran’s claims file and interviewed the Veteran.  Dr. Burgest opined that the Veteran’s right shoulder disability was caused by the Veteran’s left shoulder disability.

An October 2017 VA examiner opined that the Veteran’s right shoulder disorder was less likely than not due to his left shoulder disability.

As such, the Board finds that at most the medical evidence of record shows that the evidence for and against the Veteran’s claim is in relative equipoise.  In such circumstances, the regulations dictate that reasonable doubt is to be resolved in the Veteran’s favor.  Accordingly, the Veteran’s claim for service connection for a right arm/shoulder disability is granted.

Turning to the upper respiratory disorder, the Veteran has a current diagnosis of allergic rhinitis; he consequently has at least one confirmed upper respiratory disorder.  The Veteran’s STRs document complaints, treatment and/or diagnosis for allergic rhinitis.  

During his August 1984 Report of Medical Examination: Enlistment exam, the Veteran’s sinuses were noted to be normal.  The Veteran denied having sinusitis, shortness of breath or other breathing problems.  In March 1990, the Veteran was diagnosed with allergic rhinitis.  During his September 1992 Report of Medical History: ETS examination, the Veteran’s sinuses were noted to be normal.  The Veteran denied having sinusitis, shortness of breath, or other breathing problems.  Additionally, during his May 2002 Navy Reserve Enlistment examination, the Veteran noted that he did not have sinusitis or other breathing problems.  

In February 2013, the Veteran was seen at the Central Texas HCS.  The Veteran stated that his private PCP told him that he had allergic rhinitis.  He desired medication.  In January2016, the Veteran submitted a private medical opinion.  The examiner stated that the Veteran had long-standing rhinitis as noted in his 1990 Master problem list.  The examiner stated that the Veteran likely had sinusitis in service as he was given antibiotics.  

In February 2016, the Veteran was afforded a VA examination to determine the nature and etiology of his condition.  The examiner diagnosed the Veteran with allergic rhinitis.  The examiner stated that the Veteran’s allergic rhinitis/sinusitis began in 1988 during his military service in Germany.  The Veteran reportedly developed hives due to allergic rhinitis and breathing problems.    

In July2016, the Veteran submitted a Sinusitis/Rhinitis and Other Conditions of the Nose, Throat, Larynx and Pharynx DBQ.  The examiner confirmed the Veteran’s chronic sinusitis and allergic rhinitis diagnoses.  The Veteran stated while in Germany, he began having recurring nasal congestion and drainage, with itchy, watery eyes.  At the same time, he would have frequent hives on his upper body.  He was treated with antihistamines and periodic antibiotics, but over the years, the symptoms have increased in severity and frequency.  In September 2016, the Veteran submitted a Sinusitis/Rhinitis and Other Conditions of the Nose, Throat, Larynx and Pharynx DBQ.  The examiner confirmed the Veteran’s sinusitis.  The examiner also diagnosed the Veteran with chronic occupational exposure to chemical irritants (diesel, asbestos fibers in motor pool and barracks, MOGAS, antifreeze, gun powder, smoke, daily diesel exhaust exposure, burning charcoal and pot belly stoves).  The examiner opined that the Veteran’s chronic sinusitis and rhinitis were more likely than not (greater than 50 percent probability) service connected.  The examiner stated that the Veteran reported a 14-year career working in Logistics/Supply.  Due to the Veteran’s routine job duties in his Logistics/Supply MOS, the Veteran worked with known chemical irritants including diesel fuel, JP8, and daily diesel exhaust inhalation.  The Veteran’s typical duties involved working in spaces with poor ventilation and repeated inhalation of diesel fuel and exhaust fumes, CARC paint, burn pits, and oil field fires.  The examiner further stated that the Veteran subsequently noted acute onset nasal sinus, frontal sinus, and bilateral irritation of the conjunctiva.  His symptoms progressed to include his current sinusitis, allergic rhinitis, and sinus-associated pressure.

In November 2016, the agency of original jurisdiction (AOJ) obtained a VA opinion to determine the nature and etiology of the Veteran’s upper respiratory condition.  The examiner opined that the condition claimed was less likely than not (less than 50percent probability) incurred in or caused by the claimed in-service injury, event, or illness.  The examiner further opined that the Veteran’s allergic rhinitis is at least is as likely as not caused by a post service process.  The VA examiner disagreed with the diagnosis of chronic sinusitis.  The examiner stated that the Veteran’s history was not consistent with that of chronic sinusitis as outlined in Harrison’s Principles of Internal Medicine.  There were no CT and/or nasal endoscopy confirmation, as required by current diagnostic criteria as outlined in UpToDate (a review of the most current medical literature).  Chronic sinusitis was not listed in Central Texas HCS Chronic Problem List.  The examiner further stated that there was no nexus between the Veteran’s in-service allergic rhinitis and his current allergic rhinitis.  The Veteran’s March 1990 STR documents “allergic rhinitis.”  There is no medical record evidence to indicate that this did not resolve without residual.  There was no pathophysiologic relationship and no medical record evidence to indicate otherwise.  In his September 1992 Report of Medical history: Separation examination, the Veteran checked “NO” to having “Sinusitis” and “Hay fever” indicating no allergic rhinitis at the time of separation.  There was no immediate post-service medical record evidence to indicate diagnosis of or treatment for allergic rhinitis.  Allergic rhinitis was first diagnosed post service per Central Texas HCS Primary Care Note in February 2013.

In October2017, the RO obtained another addendum opinion from the November 2016 examiner.  The examiner stated that the Veteran had not been diagnosed with sinusitis.  The Veteran’s history, as given in the DBQ, is not consistent with that of chronic sinusitis as outlined in Harrison’s Principles of Internal Medicine.  There had been no recent nasal endoscopy or imaging confirmation as required by current diagnostic criteria outlined in UpToDate (a review of the most current medical literature).  The Veteran was not being treated for chronic sinusitis as documented in Central Texas HCS. Therefore, the condition claimed is less likely than not (less than 50percent probability) proximately due to or the result of the Veteran’s service connected condition.  In July2018, the Veteran submitted a Sinusitis/Rhinitis and other conditions of the Nose, Throat, Larynx, and Pharynx DBQ.  The Veteran stated that his condition began in 1987.  He stated that the symptoms have continued.  The examiner diagnosed the Veteran with allergic rhinitis and chronic sinusitis.  The examiner stated that the development and worsening of the sinusitis and rhinitis condition appeared to be a result of urticaria.  

The Board finds that the evidence is in relative equipoise as to whether the Veteran’s respiratory issues are related to his military service.  The Board finds that the Veteran’s reports as to his respiratory problems during service and since service are credible. The Board notes that the VA examiners have opined that the Veteran’s current diagnosis is not etiologically related to his service.  However, the Board notes that the September 2016 private examiner opined that the Veteran’s chronic sinusitis and rhinitis are more likely than not (greater than 50 percent probability) service connected.  The Board has reviewed the opinions that are for and against the claim, and finds that they are equal in probative value.  Consequently, the evidence is in equipoise, and service connection for the upper respiratory disability is granted.  See 38C.F.R.§ 3.102.  

Increased Ratings

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. 

Left Humerus Fracture

The Veteran filed an increased rating claim for his left humerus fracture, which was denied by a July 2009 rating decision.  A December 2017 rating decision granted an increased rating of 20 percent effective August 2, 2012.  He disagrees with the assigned ratings and asserts he is entitled to higher ratings.

With respect to disabilities of the elbow and forearm, 38 C.F.R. § 4.71a, Diagnostic Codes 5205 through 5213 set forth relevant provisions.  Upper extremity ratings depend on whether the disabled extremity is the major or minor extremity.  The Veteran is right handed.  Therefore, his left forearm is his minor extremity.

Diagnostic Code 5205 evaluates ankylosis of the elbow, Diagnostic Code 5254 evaluates elbow flail joint, Diagnostic Codes 5210, 5211, and 5212 evaluates impairments of the ulna and radius, and Diagnostic Code 5213 evaluates impairment of supination and pronation.  The medical record does not document any of these conditions.  Therefore, these Diagnostic Codes are not applicable and will not be discussed further.

Diagnostic Code 5206 evaluates limitation of flexion.  A 10 percent rating is assigned for flexion limited to 100 degrees.  A 20 percent rating is assigned with flexion limited to 70 degrees.  A 30 percent rating is assigned for flexion limited to 55 degrees.  A 40 percent rating is assigned for flexion limited to 45 degrees.

Diagnostic Code 5207 evaluates limitation of extension.  A 10 percent rating is assigned for extension limited to 60 degrees.  A 20 percent rating is assigned with extension limited to 90 degrees.  A 30 percent rating is assigned for extension limited to 100 degrees.  A 40 percent rating is assigned for extension limited to 110 degrees.

Diagnostic Code 5208 evaluates limitation of flexion and extension.  A 20 percent rating is assigned for flexion limited to 100 degrees and extension limited to 45 degrees.

Elbow flexion and extension are measured from 0 degrees to 145 degrees.  38 C.F.R. § 4.71a, Plate I.

In May 2009, the Veteran was afforded a VA examination.  He reported having pain.  The examiner indicated that the Veteran retained normal motion.

In January 2011, the Veteran was afforded a VA examination.  He reported constant pain.  On examination, he refused to perform left elbow range of motion.

In August 2012, the Veteran was afforded a VA examination.  On examination, he demonstrated flexion to 115 degrees and extension to 90 degrees, both with pain.  Repetitive use testing resulted in no additional limitation of motion.  The examiner indicated that the Veteran’s left humerus fracture resulted in less movement than normal, weakened movement, excess fatigability, and pain on movement.

In July 2018, Dr. Anurag Mishra examined the Veteran.  On examination, he demonstrated flexion to 100 degrees and extension to 15 degrees.  Dr. Mishra reported that the Veteran had functional loss that resulted in additional limitation of flexion to 90 degrees and extension to 65 degrees.

The Veteran has not asserted a worsening of his left humerus fracture.

Prior to August 2, 2012, the Veteran’s reported left humerus pain.  Painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  Thus, the Veteran is entitled to the minimal compensation for his left humerus fracture, which is 10 percent.  However, the medical record does not demonstrate findings consistent with a higher 20 percent rating prior to August 2, 2012.

From August 2, 2012, to July 26, 2018, the medical record does not demonstrate the Veteran had flexion or extension consistent with a 20 percent rating.  Thus, the medical record does not demonstrate findings consistent with a higher 20 percent rating from August 2, 2012, to July 26, 2018.

Beginning July 26, 2018, the Veteran’s left humerus fracture resulted in functional loss of flexion functionally limited to 90 degrees.  Thus, the Veteran is entitled to a 20 percent rating for his left humerus fracture.  However, the medical record does not demonstrate findings consistent with a higher 30 percent rating for either limitation of flexion or limitation of extension from July 26, 2018.

Accordingly, the criteria for a schedular rating of 10 percent for left humerus painful motion prior to August 2, 2012, and the criteria for a rating of 20 percent for left humerus limitation of flexion beginning July 26, 2018, have been met, and the Veteran’s claim is granted to this extent.



Left Radius Fracture

The Veteran filed an increased rating claim for his left radius fracture, which was denied by a July 2009 rating decision.  A December 2017 rating decision granted an increased rating of 10 percent effective August 2, 2012.  He disagrees with the assigned ratings and asserts he is entitled to higher ratings.

With respect to disabilities of the wrists, 38 C.F.R. § 4.71a, Diagnostic Codes 5214 through 5215 set forth relevant provisions.  Upper extremity ratings depend on whether the disabled extremity is the major or minor extremity.  The Veteran is right handed.  Therefore, his left wrist is his minor extremity.

Diagnostic Code 5214 evaluates ankylosis of the wrist.  September 2012, February 2016, and October 2016 VA examiners indicated that the Veteran did not have left wrist ankylosis.  Dr. Anurag Mishra indicated that the Veteran did not have left wrist ankylosis.  While Dr. Bash indicated that the Veteran had partial ankylosis of the left wrist, to qualify for the minimum rating, favorable ankylosis must be shown.  Moreover, the Veteran has not alleged symptomatology that would suggest the presence of favorable or unfavorable ankylosis. 

Diagnostic Code 5215 evaluates wrist limitation of motion.  A 10 percent rating is assigned for dorsiflexion less than 15 degrees or palmar flexion limited in line with the forearm.  The Veteran is already in receipt of the maximum rating under this Diagnostic Code.

Wrist dorsiflexion is measured from 0 degrees to 70 degrees and wrist palmar flexion is measured from 0 degrees to 80 degrees.  38 C.F.R. § 4.71a, Plate I.

In May 2009, the Veteran was afforded a VA examination.  He reported having pain.  On examination, he demonstrated left wrist flexion to 90 degrees.

As such, prior to August 2, 2012, the Veteran’s reported left radius pain.  Painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  Thus, the Veteran is entitled to the minimal compensation for his left radius fracture, which is 10 percent.  However, the medical record does not demonstrate findings consistent with a higher 20 percent rating prior to August 2, 2012.

From August 2, 2012, the Veteran is in receipt of the maximum rating allowed based range of motion. The only rating available is a 20 percent rating for ankylosis of the wrist.  However, there is no medical evidence showing ankylosis and the Veteran has not argued to the contrary.  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).

Accordingly, the criteria for a schedular rating of 10 percent for left radius painful motion prior to August 2, 2012, have been met, and the Veteran’s claim is granted to this extent.

Right Wrist Disability

In November 2010, the Veteran filed a service-connection claim for his right wrist disability.  A December 2009 rating decision granted service connection for his right wrist disability and assigned a 10 percent rating effective November 17, 2010, the date his service connection claim was received by VA.   The Veteran asserts that he is entitled to a higher rating.

With respect to disabilities of the wrists, 38 C.F.R. § 4.71a, Diagnostic Codes 5214 through 5215 set forth relevant provisions.  Upper extremity ratings depend on whether the disabled extremity is the major or minor extremity.  The Veteran is right handed.  Therefore, his right wrist is his major extremity.

Diagnostic Code 5214 evaluates ankylosis of the wrist.  September 2012, February 2016, and October 2016 VA examiners indicated that the Veteran did not have right wrist ankylosis.  Dr. Anurag Mishra indicated that the Veteran did not have right wrist ankylosis.  While Dr. Bash indicated that the Veteran had partial ankylosis of the right wrist, to qualify for the minimum rating, favorable ankylosis must be shown.  Moreover, the Veteran has not alleged symptomatology that would suggest the presence of favorable or unfavorable ankylosis. 

Diagnostic Code 5215 evaluates wrist limitation of motion.  A 10 percent rating is assigned for dorsiflexion less than 15 degrees or palmar flexion limited in line with the forearm.  The Veteran is already in receipt of the maximum rating under this Diagnostic Code.

Wrist dorsiflexion is measured from 0 degrees to 70 degrees and wrist palmar flexion is measured from 0 degrees to 80 degrees.  38 C.F.R. § 4.71a, Plate I.

The Veteran is in receipt of the maximum rating allowed based range of motion. The only rating available is a 20 percent rating for ankylosis of the wrist.  However, there is no medical evidence showing ankylosis and the Veteran has not argued to the contrary.  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, 8 Vet. App. 202.  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).

Accordingly, the criteria for a schedular rating in excess of 10 percent for a right wrist disability have not been met, and as such, the claim is denied.

REASONS FOR REMAND

Regarding the Veteran’s claim of entitlement to service connection for a TBI, the record is unclear as to whether the Veteran has ever been diagnosed with any TBI.  

At his December 2018 Board hearing, the Veteran testified that he had experienced a TBI from a motor vehicle accident while stationed in Germany, which resulted in his service connected left humerus and radius disabilities.

July 2014 and August 2016 VA examiners found that the Veteran did not have a diagnosis of a TBI.

In July 2014, Dr. Jerry W. Bush reviewed the Veteran’s claims file and diagnosed the Veteran with a history of a TBI.

In June 2016, Dr. Craig N. Bash reviewed the Veteran’s claims file and opined that the Veteran had a diagnosis of TBI due to his active service.

The Veteran’s STRs show that he was involved in two motor vehicle accidents during his active service and one was while he was riding a motorcycle.

As such, the Veteran should be provided with an examination assessing whether he has any residual symptomatology from a TBI.  If the Veteran is found to have residuals from a TBI, an opinion should be provided regarding the relationship between any TBI residuals and his active service, to include any injuries sustained in the motor vehicle accident.

Regarding the Veteran’s service connection claim for a chronic headache disorder, at the December 2018 Board hearing, he testified that his headaches were due to service connected sinusitis and PTSD.

In July 2014, Dr. Bush diagnosed the Veteran with headaches secondary to a TBI.

In January 2016, Dr. Bash reported that symptoms of the Veteran’s TBI included chronic headaches.

In July 2017, Donald Webb, NP-C, reported that migraines were commonly associated with people who have a history of TBI and PTSD.  In January 2018, Mr. Webb opined that the Veteran’s migraines were more likely than not due to his PTSD.

In October 2017, a VA examiner opined that the Veteran’s migraine headaches were less likely than not due to his PTSD.

As such, an opinion on etiology for the Veteran’s service connection claim for a chronic headache disorder is needed.

Regarding the Veteran’s service connection claim for obstructive sleep apnea, the Veteran’s STRs show he had a normal entrance physical in August 1984 and a normal separation physical in September 1992.  In addition, he specifically denied having any frequent trouble sleeping at his separation physical.  His STRs do not show any complaints, treatment, or diagnosis for obstructive sleep apnea.  Furthermore, at December 2012 and May 2002 physicals during his reserve service, he continued to deny having any frequent trouble sleeping.

The Veteran’s medical records show that he was diagnosed with obstructive sleep apnea by an August 2011 sleep study.

In January 2016, Dr. Bash reviewed the Veteran’s claims file and opined that the Veteran’s obstructive sleep apnea was due to his now service connected sinusitis and active service.

A February 2016 VA examiner opined that the Veteran’s obstructive sleep apnea was less likely than not caused by the Veteran’s service connected PTSD.

In July 2018, Dr. Anurag Mishra opined that that the Veteran’s obstructive sleep apnea was much more likely than not due to his active service.

As such, a new VA examination is necessary to adjudicate the service connection claim for obstructive sleep apnea.

Regarding the Veteran’s claim for TDIU, in December 2018, the Veteran’s representative asserted that the Veteran’s service connected disabilities prevented him from maintaining substantially gainful employment.  Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a TDIU either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating.  As such, the RO should adjudicate the issue of entitlement to a TDIU.

The matters are REMANDED for the following action:

1. Schedule the Veteran for a VA examination.  The examiner should determine whether the Veteran has any residual symptomatology from a traumatic brain injury (TBI). If so, the examiner should answer the following question:  Is it at least as likely as not (50 percent or greater) that any current residuals from a TBI either began during or was otherwise caused by the Veteran’s active service.  Why or why not? 

In so doing, the examiner should discuss the Veteran’s motor vehicle accident in service and any resulting residuals.

2. Schedule the Veteran for a VA examination.  The examiner should determine whether the Veteran has any chronic headache disorder.  The examiner should offer the following opinions:   

a.	Is it at least as likely as not (50 percent or greater) that any chronic headache disorder was caused by his active service?  Why or why not?

b.	Is it at least as likely as not (50 percent or greater) that any chronic headache disorder was caused by a service connected disability?  Why or why not?

c.	Is it at least as likely as not (50 percent or greater) that any chronic headache disorder was aggravated (made worse) by a service connected disability? Why or why not?

The examiner should consider the opinions of Dr. Bash and Mr. Webb regarding the etiology of the Veteran’s headaches.

If aggravation is found, the examiner should identify a baseline level of severity of the Veteran’s chronic headache disorder by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the chronic headache disorder.  If such cannot be done, it should be explained why

3. Schedule the Veteran for a VA examination to assist in determining the nature and etiology of his OSA.  The examiner should offer the following opinions:   

a.	Is it at least as likely as not (50 percent or greater) that the Veteran’s OSA was caused by his active service?  Why or why not?

b.	Is it at least as likely as not (50 percent or greater) that the Veteran’s OSA was caused by a service connected disability?  Why or why not?

c.	Is it at least as likely as not (50 percent or greater) that the Veteran’s OSA was aggravated (made worse) by a service connected disability? Why or why not?

The examiner should consider the opinions of Drs. Bash and Mishra regarding the etiology of the Veteran’s obstructive sleep apnea.

If aggravation is found, the examiner should identify a baseline level of severity of the Veteran’s obstructive sleep apnea by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the obstructive sleep apnea.  If such cannot be done, it should be explained why.

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4. Adjudicate the issue of entitlement to a TDIU.

 

THOMAS H. O'SHAY

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	T. Berryman, Counsel