TEMPOROMANDIBULAR JOINT (TMJ) DISORDER

Summary

The veteran, who served in the United States Air Force from July 1987 to July 2001 and again from April 2002 to July 2010, appeals three rating decisions. The veteran sought compensation under 38 U.S.C. § 1151 for a temporomandibular joint (TMJ) disability, alleging it resulted from six Lidocaine injections during a private dental procedure. The veteran also appealed the denial of an increased rating for a left wrist disability, currently rated at 10 percent, and the denial of increased initial ratings for bilateral radiculopathy of the right and left lower extremities (femoral nerves). The Board denied the § 1151 claim, finding no evidence that VA medical providers recommended the private dental procedure or that VA care proximately caused the alleged disability, and noting that private care under contract is generally excluded from § 1151 benefits. The Board also denied the increased rating for the left wrist, concluding the veteran was already receiving the maximum schedular rating under the applicable diagnostic code and did not demonstrate ankylosis or its functional equivalent. The Board remanded the claims for increased initial ratings for RLE and LLE femoral radiculopathy, citing conflicting and inadequate medical evidence from VA examinations and a duty-to-assist error by the AOJ in failing to reschedule examinations after the veteran expressed concerns about the provider's location and alleged negligence.

Rationale

No evidence VA recommended private dental procedure; No evidence VA care proximately caused disability; Private care under contract excluded from § 1151 benefits

Full Decision Text

Citation Nr: A26040525
Decision Date: 04/30/26	Archive Date: 04/30/26

DOCKET NO. 251022-602896
DATE: April 30, 2026

ORDER

The issue of entitlement to compensation under 38 U.S.C. § 1151 for bilateral TMJ (temporomandibular joint) deformed face (TMJ disability) is denied.

The issue of entitlement to a rating greater than 10 percent for service-connected left wrist de Quervain's tendinitis (left wrist disability) is denied.

REMANDED

The issue of entitlement to an initial rating greater than 10 percent for service-connected radiculopathy, right lower extremity, femoral (RLE femoral radiculopathy), is remanded.

The issue of entitlement to an initial rating greater than 10 percent for service-connected radiculopathy, left lower extremity, femoral (LLE femoral radiculopathy), is remanded.

FINDINGS OF FACT

1. The evidence of record weighs persuasively against finding that the Veteran has an additional TMJ disability that is the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or an event not reasonably foreseeable.

2. The Veteran's left wrist disability does not manifest as symptoms analogous to ankylosis.

CONCLUSIONS OF LAW

1. The criteria for compensation under the provisions of 38 U.S.C. § 1151 for a TMJ disability are not met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361.

2. The criteria for entitlement to a rating greater than 10 percent for a left wrist disability are not met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 4.1-4.7, 4.10, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5024-5215.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Air Force from July 1987 to July 2001 and from April 2002 to July 2010.

This appeal is being processed under the modernized review system, commonly referred to as the "AMA," as established by the Veterans Appeals Improvement and Modernization Act of 2017. 115 Pub. L. No. 55, 131 Stat. 1105.

These matters come before the Board of Veterans' Appeals (Board) on appeal of January 2025, February 2025, and March 2025 rating decisions issued by a Department of Veterans Affairs (VA) regional office (RO), an agency of original jurisdiction (AOJ).

As pertinent here, the January 2025 rating decision denied a rating in excess of 10 percent for the left wrist disability and awarded service connection for RLE and LLE femoral radiculopathy and assigned initial 10 percent ratings, effective July 31, 2023. The February 2025 rating decision denied ratings in excess of 10 percent for RLE and LLE femoral radiculopathy. The March 2025 rating decision denied compensation under 38 U.S.C. § 1151 for the TMJ disability. 

In July 2025, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the February and March 2025 rating decisions. In October 2025, the AOJ issued an HLR decision, which considered the evidence of record at the time of the prior February and March 2025 rating decisions, and denied increased RLE and LLE femoral radiculopathy ratings and compensation under 38 U.S.C. § 1151 for the TMJ disability. 

VA received the Veteran's VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) in October 2025. The Veteran identified the January, February, and March 2025 rating decisions for appeal and elected the Direct Review docket. Therefore, with respect to the left wrist disability increased rating claim, the Board may only consider the evidence of record at the time of the January 2025 rating decision on appeal. 38 C.F.R. § 20.301. With respect to the RLE and LLE femoral radiculopathy increased initial rating claims, the Board may only consider the evidence of record at the time of the February 2025 rating decision on appeal. Id. With respect to the TMJ disability § 1151 claim, the
 Review Request: Board Appeal (Notice of Disagreement) in October 2025. The Veteran identified the January, February, and March 2025 rating decisions for appeal and elected the Direct Review docket. Therefore, with respect to the left wrist disability increased rating claim, the Board may only consider the evidence of record at the time of the January 2025 rating decision on appeal. 38 C.F.R. § 20.301. With respect to the RLE and LLE femoral radiculopathy increased initial rating claims, the Board may only consider the evidence of record at the time of the February 2025 rating decision on appeal. Id. With respect to the TMJ disability § 1151 claim, the Board may only consider the evidence of record at the time of the March 2025 rating decision on appeal. Id. If evidence was submitted during the period after the AOJ issued the respective rating decision, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim(s), considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the RLE and LLE femoral radiculopathy increased initial rating claims, any evidence the Board could not consider will be considered by the AOJ in the readjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

38 U.S.C. § 1151

Compensation for certain additional disability or a qualifying death of a veteran may be awarded in the same manner as if such additional disability or death were service connected. See 38 U.S.C. § 1151; 38 C.F.R. § 3.361. To qualify for such compensation, the additional disability must not be the result of the Veteran's willful misconduct. 38 U.S.C. § 1151(a). Further, the Veteran's additional disability or death must be caused by hospital care, medical or surgical treatment, or examination furnished to the veteran under any law administered by the Secretary, either by a VA employee or in a VA facility and the proximate cause of the additional disability or death must be due to either carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the care, treatment, or examination; or an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1)(A), (B).

In determining whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination upon which the claim is based, to the veteran's condition after such hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(b). The term "disability" under 38 U.S.C. § 1151 carries the same meaning as that under 38 U.S.C. § 1110. See Stevenson v. McDonough, 35 Vet. App. 432, 439 (2022). Applying the plain meaning of the term "additional," as used in 38 U.S.C. § 1151, it means more or added functional impairment of earning capacity. Id. at 440. Compensation for the additional disability may be awarded when it existed at the time a claim is filed but may have resolved before the claim is adjudicated. Id. at 441.

To establish the cause of the additional disability or death, showing actual causation is required. 38 C.F.R. § 3.361(c)(1). The evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability or death. Merely showing that the veteran has an additional disability or died after they received care, treatment, or examination does not establish causation. In that regard, hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F. R. § 3.361(c)(2). Further, an additional disability or death caused by a veteran's failure to follow properly given medical instructions may not
 must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability or death. Merely showing that the veteran has an additional disability or died after they received care, treatment, or examination does not establish causation. In that regard, hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F. R. § 3.361(c)(2). Further, an additional disability or death caused by a veteran's failure to follow properly given medical instructions may not qualify as having been caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3).

Proximate cause of an additional disability or death is the action or event that directly caused the additional disability or death, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). Specifically, to establish carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination for purposes of proximate causation, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability or death and that VA failed to exercise the degree of care that would be expected of a reasonable health care provider or that VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. 38 C.F.R. § 3.361(d)(1)(i), (ii).

Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d)(2). In that regard, the event need not be completely unforeseeable or unimaginable. Nevertheless, it must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures set forth under 38 C.F.R. § 17.32.

1. Entitlement to compensation under 38 USC § 1151 for a TMJ disability.

The Veteran contends that after a community care dental provider gave six injections, she developed swollen facial features, limited jaw mobility, limited opening of mouth, headaches, vision distortion, and balance issues. See September 2023 VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits. 

Upon review of the record, the Board finds that, for the reasons below, the Veteran is not entitled to compensation under 38 U.S.C. § 1151 for a TMJ disability.

Here, the medical evidence of record shows that treatment was authorized for a replacement crown with a community care dental provider, Corner Stone Dental, and that a temporary crown was placed in September 2023. See September 2023 Non-VA Treatment Record and August 2023 VA Treatment Record. The September 2023 procedure report shows that two carps (carpules) of Articaine and three and three quarters carpules of Septocaine were administered. See September 2023 Non-VA Treatment Record. 

Four days later, the Veteran appeared for an emergency visit with Corner Stone Dental and reported that her cheek was swollen since the procedure, that she could not open her mouth and it hurt to open, and that morning, she started to get a massive headache, and it felt like her eye was swollen. The dental provider noted that the left cheek area and jaw were sore, that there was no redness or pus/drainage, and that the Veteran had full range of motion (ROM). Treatment options discussed with the Veteran were use of an aqualizer to cushion the bite during sleep, jaw massages, and cold compresses for 15 minutes at a time. The dental provider noted to give it time to heal and prescribed a 14-day supply of Clonazepam 0.5mg tablets. See September 2023 Non-VA Treatment Record.

Approximately a week later, during a routine VA rheumatology appointment at a St. Louis, Missouri, VA medical center (VAMC), the Veteran reported the recent dental procedure, that she needed six Lidocaine shots during the process, and that the following day, she started having left jaw swelling and pain. She reported that a few days later, her dental provider advised her to take a muscle
 use of an aqualizer to cushion the bite during sleep, jaw massages, and cold compresses for 15 minutes at a time. The dental provider noted to give it time to heal and prescribed a 14-day supply of Clonazepam 0.5mg tablets. See September 2023 Non-VA Treatment Record.

Approximately a week later, during a routine VA rheumatology appointment at a St. Louis, Missouri, VA medical center (VAMC), the Veteran reported the recent dental procedure, that she needed six Lidocaine shots during the process, and that the following day, she started having left jaw swelling and pain. She reported that a few days later, her dental provider advised her to take a muscle relaxant for five days which did not help at all. She continued to have left jaw swelling associated with voice change, and reported hoarseness, sore throat, generalized fatigue, muscle pain, and dizziness. Physical examination findings included fatigue, reported dizziness with any movement of the head, hoarse voice, left side facial swelling with mild elevated temperature, painful mouth opening, lower left jaw/gum swollen and tender to touch, thyroid gland very tender, and tender neck anteriorly and posteriorly. See September 2023 VA Treatment Records.

The VA rheumatology clinician noted that the Veteran was very hesitant, anxious, and tearful, and wished to go home to Illinois, but that the persistent swelling and elevated temperature raised concern for infection and that it was not safe for her to drive that far. After a prolonged discussion, the Veteran agreed to at least be evaluated in the VAMC ED (Emergency Department), if not admitted. The rheumatology clinician stepped out to get a wheelchair, but the Veteran did not want to use a wheelchair and was frustrated at the suggestion. The rheumatology clinician turned around and saw that the Veteran was dizzy and leaning forward about to collapse to the ground. The rheumatology clinician held the Veteran's neck and head and assisted her to the ground. She did not hit her head but lost consciousness briefly. The rheumatology clinician raised the Veteran's legs and called rapid response, and vital signs were noted to be otherwise stable including a blood glucose. The Veteran regained consciousness for a while and started obeying commands but there was a recurrence of lapse of consciousness again which again lasted a few seconds. See id.

In the VAMC ED, the Veteran was noted to have delayed/slurred speech and all limb flaccidity. The Veteran reported chronic headaches but that the slurred speech and flaccid paralysis were new. The VAMC ED staff physician noted that the examination was notable for exquisite tenderness of gingiva at the margin of the tooth to light palpation and mild facial swelling with warmth and noted that there was significant concern for a dental abscess with lymphatic spread. The VAMC ED staff physician's impression was dysarthria and bilateral flaccid paralysis of the upper and lower extremities. The VAMC ED staff physician further noted some concern for CVA (cerebrovascular accident) and the need to rule out an ischemic CVA given the new onset of symptoms. The Veteran was transferred to a private hospital, SLU, for a stroke workup and a transfer form notes that these services were not provided at that VAMC. See September 2023 VA Treatment Records.

Treatment records from SLU show that the Veteran reported the recent dental procedure, that she still had some jaw swelling and mild difficulty eating which affected her speech and energy level but apart from that, she felt entirely back to baseline without concerning symptoms. Physical examination revealed mild swelling along the bottom left jaw but no obvious erythema/swelling. The Veteran was admitted and a speech therapist saw her the next day, at which time she denied concerns with swallow function, and she was without any noted deficits after an assessment of speech and language during a brief conversational sample. See September 2023 Non-VA Treatment Records.

While at SLU, the Veteran reported lymph node swelling and mouth infection for three days, sore throat, and dizziness. She also reported that her VA rheumatology physician recommended that she be admitted to received IV antibiotic treatment for her mouth infection. She was very upset with the care she received at SLU and cried during the interview, stating that no one asked her about the fall, that she hit her head and was never asked about it, and that her infection symptoms and her mouth were never examined. The records also contain a "Post Fall Note" documenting an unwitnessed fall while admitted to SLU where the Veteran was found crawling on the ground by a nurse, who assisted the Veteran back to bed. A physician was notified, assessed the Veteran, and no physical injury was noted. See September 2023 Non-VA Treatment Records.

A few days after discharge from SLU, the Veteran called
ology physician recommended that she be admitted to received IV antibiotic treatment for her mouth infection. She was very upset with the care she received at SLU and cried during the interview, stating that no one asked her about the fall, that she hit her head and was never asked about it, and that her infection symptoms and her mouth were never examined. The records also contain a "Post Fall Note" documenting an unwitnessed fall while admitted to SLU where the Veteran was found crawling on the ground by a nurse, who assisted the Veteran back to bed. A physician was notified, assessed the Veteran, and no physical injury was noted. See September 2023 Non-VA Treatment Records.

A few days after discharge from SLU, the Veteran called the VA rheumatology department and requested to speak to someone urgently. She reported that she thought she had Lidocaine toxicity and recounted the dental procedure and residual symptoms. She also reported that she fainted in the rheumatology clinic, was taken to the ED, and transferred by ambulance to SLU where they thought she might have had a stroke but did not listen to her about the Lidocaine. She asked how to get Lidocaine out of her system. The VA nurse reported that she tried to take some time and explain that Lidocaine given in mid-September was no longer in her body, that usually the medication is absorbed and filtered by the liver like any other drug in our body, and she tried to assure the Veteran that she should not still have ill effects from medication given over two weeks ago. The nurse went on to try to ask the Veteran about her experience at SLU, but the Veteran hung up on the nurse. See September 2023 VA Treatment Record.

An October 2023 VA optometry record shows that the Veteran reported residual symptoms from the September 2023 dental procedure of blurry vision in both eyes, balance issues, and facial drooping, that she had a recent episode of Lidocaine toxicity, was admitted to the ED the previous week, had a stroke workup completed, and the conclusion was that she had Lidocaine toxicity.

An October 2023 Corner Stone Dental treatment record shows that the Veteran presented for final cement of the crown and reported that she was still swollen, had left side discomfort, had a problem with her left eye since the anesthetic injections, and had balance issues. She stated that she was admitted to the hospital because they thought she was having a stroke but was diagnosed with Lidocaine toxicity. The dentist assured her that less than six carpules of anesthetic were used and should not have resulted in "toxicity." The treatment record shows that opening ROM was WNL (within normal limits) and that the Veteran was very tender buccal to a different tooth and was told she could be sore due to spreading of inflammation. The dentist suggested that the Veteran allow time for healing. See October 2023 Non-VA Treatment Record.

November 2023 VA treatment records show that the Veteran reported that she felt off balance since she was discharged from SLU, complained of daily headache, balance issues, intermittent nausea and dizziness, and short-term memory problems since the dental procedure. She also stated that she was mistreated, abused, neglected, and traumatized at SLU. A VA neurology staff physician noted that based on the sequence of events and her obvious dissatisfaction to the evaluation and treatment received at SLU, the contribution of emotional issues into her symptoms could not be ruled out. See November 2023 VA Treatment Records. 

In a January 2024 message to the VA rheumatology clinic, the Veteran stated that she had been neglected, abused, mistreated, and misdiagnosed since September 2023.

A January 2024 VA treatment record shows that the Veteran reported that she was not properly evaluated at SLU and was discharged without any antibiotics. She reported a chronic cough since September and noticed her voice was not back to normal. She had generalized pain in her face around her jaw and sinuses and noticed constant throat irritation. She also reported worsening shortness of breath and that her legs were more swollen than normal. She reported severe distress since September 2023, when she received unprofessional and neglectful care at SLU and reported that she was sexually assaulted and neglected based on her race during this visit. In addition to these traumatic experiences, she reported that she sustained a life-altering physical change due to her health concern which had hospitalized her. See January 2024 VA Treatment Record.

February 2024 VA treatment records show that the rheumatology clinician was not able to ascertain the cause of the Veteran's facial/jaw pain after a maxillofacial CT came back as WNL. The Veteran was advised to talk to her primary care physician to see if an ENT (ear, nose, and throat)/maxillofacial consult would help to understand the etiology. See February
3, when she received unprofessional and neglectful care at SLU and reported that she was sexually assaulted and neglected based on her race during this visit. In addition to these traumatic experiences, she reported that she sustained a life-altering physical change due to her health concern which had hospitalized her. See January 2024 VA Treatment Record.

February 2024 VA treatment records show that the rheumatology clinician was not able to ascertain the cause of the Veteran's facial/jaw pain after a maxillofacial CT came back as WNL. The Veteran was advised to talk to her primary care physician to see if an ENT (ear, nose, and throat)/maxillofacial consult would help to understand the etiology. See February 2024 VA Treatment Records.

A May 2024 VA treatment record shows that the Veteran continued to have hoarseness and mentioned feeling frustrated with SLU and the VAMC.

A May 2024 VA treatment record shows that an ENT consult was placed in connection with the Veterans allergic rhinitis and that she reported pain located on the left maxillary since September 2023.

A June 2024 otolaryngology consult shows that the Veteran presented with productive cough and rhinitis symptoms that began following a dental procedure. The Veteran recalled receiving local anesthesia multiple times with minimal effect following by facial swelling that lasted two months and associated dizziness, fatigue, and headaches. She complained of left jaw discomfort. The assessment notes rhinitis /postnasal drip/cough and exam with patent airway. There was visible postnasal drainage, but the overall secretion burden was noted to be not overwhelming. Non-allergic rhinitis was discussed given the history and association of symptoms with eating. See June 2024 VA Treatment Record.

June and September 2024 VA treatment records show complaints of left jaw pain and discomfort, and that hoarseness of voice was better.

There is no evidence, nor is it contended, that VA had any jurisdiction or supervision over Corner Stone Dental or SLU. Typically, benefits under 38 U.S.C. § 1151 cannot be awarded for additional disability resulting from procedures performed at a private facility, even if those procedures were performed under contract with VA. The Board acknowledges that a community care request for authorization was approved for dental treatment at Corner Stone Dental; however, such care is specifically excluded from consideration under 38 U.S.C. § 1151 for claims filed after October 1, 1997. See 38 C.F.R. § 3.361(f)(1).

Yet, under Ollis v. Shulkin, 857 F.3d 1338 (Fed. Cir. 2017), the Federal Circuit determined that benefits under 38 U.S.C. § 1151 may be available even when the event that causes the disability is not performed by a VA employee or in a VA facility. In Ollis, the Federal Circuit determined that a veteran may be entitled to benefits under 38 U.S.C. § 1151 if VA medical providers were negligent in recommending that a veteran undergo a particular procedure or see a particular doctor or if VA treatment proximately causes the later treatment during which an unforeseeable event occurs and causes disability. Id. at 1344-46.

In this case, the Board finds the evidence does not demonstrate that VA medical providers recommended that the Veteran undergo a replacement crown or that treatment for such be provided by Corner Stone Dental. Rather, the Veteran specifically requested treatment at Corner Stone Dental for the crown replacement. 

A VA examiner opined that when VA was advised of the Veteran's concern regarding swelling, it was taken seriously and the appropriate treatment was recommended. The examiner noted that the dental procedure and local anesthesia at issue were performed outside the VA. The examiner noted that the half-life of local anesthesia is around one half hour to two hours, and that reassurance of the Veteran's concerns of lidocaine toxicity was appropriate. The examiner found that it was less likely than not that the claimed condition was caused or aggravated beyond natural progression by VA treatment as a result of carelessness, negligence, lack of skill, or similar incidence of fault on the part of attending VA personnel, or an event related to VA care which was not reasonably foreseeable, and that it was less likely than not that additional disability related to the claimed condition resulted from an event that reasonably could have been prevented by a VA healthcare provider. Finally, the examiner opined that it was less likely than not that failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to progress. See February 2025 VA Medical Opinion Report.

The February 2025 VA opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22
 incidence of fault on the part of attending VA personnel, or an event related to VA care which was not reasonably foreseeable, and that it was less likely than not that additional disability related to the claimed condition resulted from an event that reasonably could have been prevented by a VA healthcare provider. Finally, the examiner opined that it was less likely than not that failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to progress. See February 2025 VA Medical Opinion Report.

The February 2025 VA opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Furthermore, there is no competent medical evidence to refute the February 2025 VA examiner's findings. Although, as a lay person, the Veteran is competent to report information within her own personal experience or knowledge, she has not been shown to possess the medical expertise or knowledge required to address the complex medical issues in question in the present case. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 n. 4 (Fed. Cir. 2007). Therefore, her statements do not constitute competent evidence that she experienced additional disability due to fault on the part of VA or due to an event not reasonably foreseeable.

As a final matter, the Board specifically acknowledges that the Veteran contends that a VBA (Veterans Benefit Administration) contractor wanted her to drive two hours away which was not feasible due to PTSD (post-traumatic stress disorder) and that VA wanted to send her two hours away with the same CTR accused of abuse/negligence. See October 2025 VA Form 10182 and July 2025 VA Form 20-0996. A review of the record, however, does not reveal that these contentions pertain to VA's referral for dental treatment to Corner Stone Dental, as specifically requested by the Veteran.

The Veteran has not indicated an alternative theory of entitlement to compensation under 38 U.S.C. § 1151 nor does the record reasonably raise an alternative contention to support compensation under 38 U.S.C. § 1151. As the evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021). The appeal is denied.

Increased Rating

Disability evaluations (ratings) are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. § Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.

When evaluating musculoskeletal disabilities, 38 C.F.R. § 4.40 recognizes that the primary concern is the inability to perform the normal working movements of the body with normal excursion, strength, speed coordination, or endurance. Thus, when evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors that may not be reflected upon range of motion (ROM) testing during flareups or with repeated use over time. In that regard, the VA must also consider factors such as: more or less movement than normal; weakened movement; excess fatigability; incoordination; and pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are related considerations as well. 38 C.F.R.
 requires consideration of functional loss caused by pain or other factors that may not be reflected upon range of motion (ROM) testing during flareups or with repeated use over time. In that regard, the VA must also consider factors such as: more or less movement than normal; weakened movement; excess fatigability; incoordination; and pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are related considerations as well. 38 C.F.R. § 4.45. Nevertheless, even when such factors are present, a separate or higher disability rating is not appropriate based on those factors alone. Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). Rather, the disability rating assigned is based on the extent to which motion is limited as a result of these factors.

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011).

In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint."

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.

In Jones v. Shinseki, the Court held that "the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." 26 Vet. App. 56, 63 (2012). If the rating criteria do not specifically contemplate the effects of medication, the ameliorative effects of medication must be addressed. See Ingram v. Collins, 38 Vet. App. 130 (2025).

"Staged" ratings may be assigned when the evidence shows distinct periods during the evaluation period when manifestations of the disability warranted varied ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009).

2. Entitlement to a rating in excess of 10 percent for a left wrist disability

The Veteran seeks a higher rating for her left wrist disability. In support of her claim, she reported injections/pain clinic, brace, PT (physical therapy), OT (occupational therapy), severe pain limitation ADL (activities of daily living) decrease. See October 2025 VA Form 10182.

At the outset, the Board notes that, because the increased left wrist disability rating claim was for a non-initial increased rating, the rating period on appeal includes a "one-year lookback," starting one year before a July 2023 intent to file in connection with her September 2023 claim for the increased left wrist disability rating was submitted, in this case, July 31, 2022. 38 C.F.R. § 3.400(o)(2).

For rating purposes, the wrist is considered a major joint. 38 C.F.R. § 4.45. The Veteran is right-hand dominant, and her left wrist is therefore the non-dominant, or minor, joint. See March 2024 VA Wrist Examination Report.

The Veteran is currently assigned a 10 percent disability rating under 38 C.F.R. § 4.71a, DC 5024-5215. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the rating assigned. 38 C.F.R. § 4.27. The additional DC, shown after the hyphen, represents the basis for the rating, while the primary DC indicates the underlying source of the disability. DC 5024-5215 indicates that tenosynovitis, tendinitis, tendinosis, or tendinopathy (DC 5024)
 minor, joint. See March 2024 VA Wrist Examination Report.

The Veteran is currently assigned a 10 percent disability rating under 38 C.F.R. § 4.71a, DC 5024-5215. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the rating assigned. 38 C.F.R. § 4.27. The additional DC, shown after the hyphen, represents the basis for the rating, while the primary DC indicates the underlying source of the disability. DC 5024-5215 indicates that tenosynovitis, tendinitis, tendinosis, or tendinopathy (DC 5024) is rated pursuant to the criteria for limitation of motion of the wrist (DC 5215).

DC 5024 provides for rating on limitation of motion of the affected parts as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5024. DC 5003 pertains to degenerative arthritis and provides for a 10 percent rating for each major joint or group of minor joints affected by limitation of motion when limitation of motion is noncompensable under the appropriate DC. 38 C.F.R. § 4.71a, DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. 

As the Veteran is already in receipt of a 10 percent rating based on painful motion throughout the period on appeal, an increased rating under DC 5003 (and, by extension, DC 5024) is not applicable.

Here, the Veteran is currently assigned a 10 percent rating under DC 5215 for the entirety of the rating period on review. Under DC 5215, a maximum 10 percent rating is warranted when palmar flexion of the wrist is limited in line with the forearm or when dorsiflexion of the wrist is less than 15 degrees on either the major arm or the minor arm. Thus, the Veteran has been in receipt of the highest schedular rating available under DC 5215 throughout the relevant period.

Also relevant to rating disabilities of the wrist is 38 C.F.R. § 4.71a, DC 5214, which provides ratings based on ankylosis of the wrist. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). An ankylosed joint is more commonly referred to as "frozen." See, e.g., Dorland's Illustrated Medical Dictionary 286 (32d ed. 2012).

As to the minor extremity, DC 5214 provides for a 20 percent rating for favorable ankylosis, defined as in 20 to 30 degrees of dorsiflexion. A 30 percent rating is warranted for unfavorable ankylosis in any other position, except favorable. A maximum 30 percent rating is warranted for unfavorable ankylosis in any degree of palmar flexion or with ulnar or radial deviation. 38 C.F.R. § 4.71a, DC 5214.

Turning to the evidence, the Veteran attended a VA examination in March 2024. She reported that pain worsened over time, she wore compression gloves throughout the day, her hands and fingers throbbed, her fingers were constantly swollen, the pain was uncontrollable and unrelenting, and she felt like she wanted to open up her wrist and pull it out. She denied flareups and described overall functional impairment as needing to use different equipment to help with getting a better grasp, that writing was difficult, and that she had to use something around pencils or pens to have a bigger grasp. See March 2024 VA Wrist Examination Report.

Range of motion (ROM) testing is shown as dorsiflexion to 30 degrees and palmar flexion to 50 degrees with pain noted on all ROM. The Veteran was able to complete repetitive use testing and had no additional loss of function or ROM after three repetitions. The examiner found that the procured evidence did not suggest that pain, fatigability, weakness, lack of endurance, and incoordination significantly limited functional ability with repeated use over time. There was evidence of pain on active and passive motion. There was no muscle atrophy or ankylosis. The examiner indicated that an additional factor contributing to the disability was less movement than normal, described as reduced ROM. Id.

The Veteran's medical treatment records have also been considered but do not include ROM measurements for the left wrist and
lexion to 30 degrees and palmar flexion to 50 degrees with pain noted on all ROM. The Veteran was able to complete repetitive use testing and had no additional loss of function or ROM after three repetitions. The examiner found that the procured evidence did not suggest that pain, fatigability, weakness, lack of endurance, and incoordination significantly limited functional ability with repeated use over time. There was evidence of pain on active and passive motion. There was no muscle atrophy or ankylosis. The examiner indicated that an additional factor contributing to the disability was less movement than normal, described as reduced ROM. Id.

The Veteran's medical treatment records have also been considered but do not include ROM measurements for the left wrist and do not reflect that the Veteran had ankylosis or its functional equivalent. In fact, those records are largely, if not entirely, silent for any complaints and/or treatment related to the Veteran's left wrist disability but rather show regular treatment for her right wrist. Thus, the medical treatment records do not support the assignment of a rating greater than 10 percent.

On review of the record, the Board finds that a rating greater than 10 percent for the left wrist disability is not warranted. As discussed above, DC 5215 does not provide for any rating greater than 10 percent. Therefore, a rating greater than 10 percent is not available under DC 5215. A higher rating under DC 5214 for ankylosis of the wrist is not warranted because the record does not show that the Veteran's left wrist has manifested in actual ankylosis or that the wrist could be considered "frozen," immobile, or otherwise comparable to ankylosis. 

In sum, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a rating greater than 10 percent for her left wrist disability. As the evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch, 21 F.4th at 781. The appeal is denied.

REASONS FOR REMAND

1. The issue of entitlement to an initial rating greater than 10 percent for RLE femoral radiculopathy is remanded.

2. The issue of entitlement to an initial rating greater than 10 percent for LLE femoral radiculopathy is remanded.

The Veteran attended a VA back examination in November 2023 and was diagnosed with bilateral lower extremity radiculopathy of the sciatic and femoral nerves. See November 2023 VA Back Examination Report. The same day, the Veteran attended a VA peripheral nerves examination with the same VA examiner and was diagnosed with bilateral lower extremity radiculopathy. See November 2023 VA Peripheral Nerves Examination Report. The Peripheral Nerves Examination Report shows involvement of the bilateral sciatic, but not femoral, nerves. See id. 

Subsequently, the Veteran attended a March 2024 VA back examination and was diagnosed with bilateral lower extremity radiculopathy of the sciatic, but not femoral, nerves. See March 2024 VA Back Examination Report.

The Board finds that the November 2023 VA peripheral nerves and March 2024 VA back examinations are inadequate for purposes of rating the Veteran's RLE and LLE femoral radiculopathy.

A March 2024 rating decision awarded service connection for bilateral radiculopathy, sciatic nerve, and assigned a 10 percent rating for sciatic radiculopathy in each leg. 

The January 2025 rating decision awarded service connection for bilateral radiculopathy, femoral nerve, assigned a 10 percent rating for femoral radiculopathy in each leg, and noted that further evaluation was pending an examination. The January 2025 rating decision also increased the bilateral sciatic radiculopathy ratings each to 20 percent, effective September 22, 2023. The Veteran did not subsequently challenge the sciatic radiculopathy ratings.

The February 2025 rating decision on appeal continued the 10 percent ratings for RLE and LLE femoral radiculopathy, stating that notifications were received from VA providers LHI and VES that the Veteran canceled the VA examination requests. Indeed, the record shows that the AOJ requested a new examination, stating that a review of the rating history showed that bilateral lower extremity femoral radiculopathy was a missed issue from the November 2023 examination, that the March 2024 VA examiner was unaware that service connection was awarded for bilateral lower extremity femoral radiculopathy, and that an examination was requested specifically for the bilateral femoral nerve condition only. See January 2025 Exam Request. Notifications received in February 
 2025 rating decision on appeal continued the 10 percent ratings for RLE and LLE femoral radiculopathy, stating that notifications were received from VA providers LHI and VES that the Veteran canceled the VA examination requests. Indeed, the record shows that the AOJ requested a new examination, stating that a review of the rating history showed that bilateral lower extremity femoral radiculopathy was a missed issue from the November 2023 examination, that the March 2024 VA examiner was unaware that service connection was awarded for bilateral lower extremity femoral radiculopathy, and that an examination was requested specifically for the bilateral femoral nerve condition only. See January 2025 Exam Request. Notifications received in February 2025 show that scheduling requests were canceled at the Veteran's request.

Under 38 C.F.R. § 3.655(a), when entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655(b) or (c) as appropriate. More specifically, as in this case, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, as is the case here, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b).

The Board notes that after the February 2025 rating decision on appeal was issued, the Veteran, in her October 2025 VA Form 10182, and her representative, in a March 2026 appellate brief, contend that it was inappropriate to assign her to attend an examination two hours away from her residence at a provider about whom she previously informed the AOJ of allegations of abuse and negligence. While the record shows that, prior to the scheduled February 2025 VA examinations, the Veteran requested to reschedule unrelated VA examinations (see, e.g., October 2023 VA Form 27-0820, Report of General Information), there is nothing in the record that shows that she requested to reschedule the February 2025 VA examination or reported the reason she missed the examination at the time of the February 2025 rating decision on appeal.

However, as noted above, the January 2025 VA rating decision informed the Veteran that further evaluations for her RLE and LLE femoral radiculopathy were pending examination. This is significant in this case, because of conflicting and inadequate medical evidence at the time of the February 2025 rating decision on appeal.

Specifically, the November 2023 VA Peripheral Nerves Examination Report indicates that the Veteran's bilateral femoral nerves were normal, but the VA back examination, conducted the same day by the same VA examiner, shows involvement of the bilateral femoral nerves. Further, the November 2023 VA Back Examination Report identifies bilateral femoral and sciatic nerves as part of the Veteran's bilateral lower extremity radiculopathy. However, the examiner did not distinguish between the femoral and sciatic nerves when describing the signs, symptoms, and severity of the bilateral lower extremity radiculopathy. Further, as the AOJ was aware, the March 2024 VA examiner was unaware that the Veteran's RLE and LLE femoral radiculopathy was now service connected and appeared not to evaluate the Veteran's RLE or LLE femoral radiculopathy. 

The Board emphasizes that the Veteran has a duty to assist and cooperate with VA in developing evidence. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60 (1993) (VA's duty to assist is not a one-way street; if a veteran wants help, she cannot passively wait for it in those circumstances where her own actions are essential in obtaining evidence). 

In this case, the Board finds that the medical evidence of record at the time of the February 2025 rating decision on appeal is conflicting and inadequate for rating purposes, and there is no indication that the AOJ attempted to contact the Veteran to reschedule the VA examinations, which the Board finds is a pre-decisional duty-to-assist error. Remand is therefore necessary to afford the Veteran the necessary VA examination to assess the current severity of her RLE and LLE femoral radiculopathy.

The Board specifically acknowledges the Veteran's contention that it was improper for VA to send her two hours from her home away to a facility about which she previously informed the AOJ of allegations of abuse and negligence. See March 2026 Appellate Brief and October 2025 VA Form 10182. On remand, the AOJ must reasonably work with the Veteran to
 and inadequate for rating purposes, and there is no indication that the AOJ attempted to contact the Veteran to reschedule the VA examinations, which the Board finds is a pre-decisional duty-to-assist error. Remand is therefore necessary to afford the Veteran the necessary VA examination to assess the current severity of her RLE and LLE femoral radiculopathy.

The Board specifically acknowledges the Veteran's contention that it was improper for VA to send her two hours from her home away to a facility about which she previously informed the AOJ of allegations of abuse and negligence. See March 2026 Appellate Brief and October 2025 VA Form 10182. On remand, the AOJ must reasonably work with the Veteran to schedule an updated VA examination, and the Veteran is advised that if she does not attend the examination without good cause or reasonably work with the AOJ to schedule an updated VA examination, the claims for increases may be denied. 

The matters are REMANDED for the following action:

Schedule the Veteran for the appropriate examination to assess the current severity of her RLE and LLE femoral radiculopathy. The examiner should specifically identify what symptoms are attributable to each nerve root involved. 

 

R. Casadei

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Battaile

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.