Citation Nr: 1514772 Decision Date: 04/06/15 Archive Date: 04/21/15 DOCKET NO. 09-10 088 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to an initial compensable rating for degenerative changes of the interphalangeal joint of the right ring finger. REPRESENTATION Veteran represented by: John E. Walus, Attorney ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION The Veteran served on active duty from March 1974 to February 1976. These matters are before the Board of Veterans' Appeals (Board) on appeal of an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Detroit, Michigan RO currently has jurisdiction. The Veteran has been diagnosed with multiple disabilities affecting his lower back and lumbar spine; thus, the claim has been recharacterized to comport with the evidence of record. See Brokowski v. Shinseki, 23 Vet. App. 79, 86 (2009), citing Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (when determining the scope of a claim, the Board must consider "the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that [VA] obtains in support of that claim."). In November 2012, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. A lumbar spine disability is attributable to the Veteran's active service. 2. Degenerative changes of the interphalangeal joint of the right ring finger are manifested by painful motion and loss of dexterity. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability are met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b), 5121A (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.309(a) (2014). 2. The criteria for an initial disability rating of 10 percent for degenerative changes of the interphalangeal joint of the right ring finger are met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5230 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103(a), 5103A (West 2014); 38 C.F.R. § 3.159 (2014). VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. With respect to the claim for service connection for a lumbar spine disability, the Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. The claim for a higher rating for a right ring finger disability arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Once service connection is granted, the claim is substantiated and additional notice is not required. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 491(2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. He has not identified any other outstanding records that are pertinent to the appeal. The Veteran's Social Security Administration disability determination, and the records considered in that determination, were obtained. A VA examination was conducted in July 2008. The examination report described the level of severity of the manifestations of the Veteran's right ring finger disability in terms that are adequate for rating the claim. An April 2013 VA clinical note reflects that the Veteran currently has a "trigger finger" abnormality affecting the right ring finger, which suggests a possible worsening of his service-connected right ring finger disability. Generally, a veteran must be afforded a new VA examination where there is evidence of an increase in severity of a service-connected disability. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991). In this case, however, a new examination is not needed, because the evidence of record is adequate to determine that the Veteran's right ring finger disability warrants a disability rating of 10 percent. The criteria for a rating in excess of 10 percent for a right ring finger disability require that the digit be partially amputated, or that the Veteran's symptoms are on par with amputation. There is no indication that the Veteran's right ring finger has been amputated or that his symptoms are on par with amputation. Thus, in this case, remand for additional examination would only result in further delay with no benefit to the Veteran. Sabonis v. Brown, 6 Vet. App. 426 (1994); VAOPGCPREC 5- 04, 69 Fed. Reg. 59,989 (2004). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. Service Connection I. Law and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Some chronic diseases, including arthritis, are presumed by law and regulation to have been incurred in service, if they become manifest to a degree of ten percent or more within a corresponding applicable presumptive period. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. § 3.309. Entitlement to service connection on the basis of a continuity of symptomatology after discharge under 38 C.F.R. § 3.303(b) is only available for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Arthritis is among these diseases. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay evidence is considered competent if derived from a source that has personal knowledge of facts or circumstances and conveys matters that can be described through physical observation. 38 C.F.R. § 3.159(a). Thus, a veteran is competent to report on his current and historic symptomatology in a claim for service connection. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Significantly, for purposes of this appeal, the United States Court of Appeals for the Federal Circuit has broadened the applicability of lay evidence by holding that such evidence can be sufficient, in certain instances, to prove nexus and that a "valid medical opinion" is not absolutely required to substantiate the nexus element. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). II. Facts and Analysis The Veteran asserts that his lumbar spine disability had its onset in a February 1975 in-service back injury, and that he has continued to experience back pain since then. The service treatment records document an injury to the back in February 1975, after lifting a heavy object. He was told to apply heat to the injury, and returned to duty. He reported back pain again in March 1975. A November 1975 separation examination showed no chronic back pain or spine abnormalities. In December 1975, the Veteran advised military medical personnel that his back had been hurting intermittently since the original injury in February 1975. An examination showed negative straight leg raising, no spasms or tenderness to palpation, full range of motion of the spine, and normal motor function in the lower extremities. A lumbar strain was diagnosed. The Veteran returned two days later with the same complaints. He indicated that he was not satisfied with the care he had received for his back injury, and requested a referral to the "P.A." The referral was issued; however, there is no indication that the Veteran sought any additional treatment for his back pain during service. In January 1976, the Veteran signed a statement indicating that his condition had not changed since his November 1975 separation examination. He was discharged the following month. Post-service evidence includes a September 2006 MRI diagnosing degenerative disc disease. An August 2007 X-ray study found evidence of degenerative joint disease of the lumbar spine. The Veteran has continued to seek treatment for back pain. A review of the treatment records reflects that he consistently places the onset of his back pain during service. The Veteran was afforded a VA spine examination in July 2008. The examiner reviewed the evidence, including the Veteran's assertions as to continuity of back pain since his in-service injury, and conducted a physical evaluation of the Veteran. She concluded that his current lumbar spine disability is not related to his in-service lumbar strain. She noted that a lumbar strain is a soft tissue injury, and that there was no evidence of direct trauma to the lumbar spine or evidence of disc herniation in the service treatment records. In the examiner's view, the Veteran's lumbar spine disability was attributable to Parkinson's disease. On review, the evidence establishes that the Veteran has a current lumbar spine disability and evidence of in-service incurrence of that injury. Thus, the first two elements of service connection are met. Hickson, 12 Vet. App. at 253. The question that remains is whether there is a nexus between the current disability and the in-service injury. Id. The July 2008 VA examiner found that the Veteran's current disability is not related to his in-service back injury, for two reasons. First, she noted that the in-service lumbar strain is a soft issue injury, and there is "no evidence" of a direct injury to the spine or a herniated disc. Notably, however, the Veteran never received an X-ray of his back during service. The descriptions of the Veteran's back pain in the service treatment records are cursory at best; in fact, the Veteran reported during service that he did not feel that his concerns about his back were being appropriately addressed. Although the November 1975 separation examination and January 1976 addendum do not discuss any chronic back injury or back pain, the probative value of this evidence is diminished in light of the two December 1975 service treatment records, in which the Veteran reiterated his symptoms of intermittent back pain since February 1975. The July 2008 examination report also fails to address the Veteran's competent and credible lay assertions of continuous back problems dating back to his in-service injury. Second, the examiner found that the Veteran's back pain is attributable to Parkinson's disease. However, the Veteran does not have Parkinson's disease, or any disease similar to it. By disregarding the favorable evidence and basing the opinion on inaccurate clinical findings, the examination report is inadequate for purposes of deciding the Veteran's claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran asserts that his back pain had its onset during service in February 1975, and that he has not injured his back since his separation from service in February 1976. He is competent to attest to a lack of such trauma since leaving active duty. 38 C.F.R. § 3.159(a)(2); Barr, 21 Vet. App. at 309. He is also competent to describe the onset and frequency of back pain, which is capable of lay observation. See Davidson, 581 F.3d at 1318. His assertions are credible in the absence of probative evidence to the contrary. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). They are particularly credible in instances such as this one where the Veteran has been consistent regarding his contentions of continued back pain since the initial injury in service. As a result, the Board finds such lay evidence to be sufficient, given the particular facts of this case, to establish a direct link between his current lumbar spine disability and active service. Indeed, the Veteran's account, in tandem with the other aforementioned evidence of record, meets the nexus criteria outlined in 38 C.F.R. § 3.303(d) as it indicates that the chronic back pain and related symptoms underlying his current degenerative joint disease of the cervical spine flows directly from the active-duty trauma to his back. The Board recognizes that such an etiological relationship has not been demonstrated through competent medical opinion evidence. However, the lack of probative medical opinion evidence is not fatal to a claim involving a disease expressly recognized as chronic under 38 C.F.R. § 3.309(a), which is manifested by symptoms that have persisted continuously since active service. 38 C.F.R. § 3.303(b); Walker, supra. The Veteran's uncontroverted assertions of ongoing back pain are sufficient to establish a continuity of symptomatology dating back to service, thereby obviating the need for an additional medical opinion in support of his claim. Id. As a preponderance of the probative evidence is in favor of the claim, the Board finds that service connection for a lumbar spine disability is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.3. Increased Rating Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 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. Further, 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Diagnostic Codes predicated on limitation of motion do not prohibit consideration of a higher rating for flare ups or for functional loss due to weakness, excess fatigability, incoordination, or pain on use. 38 C.F.R. § 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). A finding of functional loss due to pain must be supported by adequate pathology and evidenced by visible behavior, such as facial expression or wincing, of the Veteran undertaking the motion. 38 C.F.R. §§ 4.40, 4.59. In August 2008, service connection was granted for degenerative changes in the right ring finger. A noncompensable disability rating was assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5230. Under this Diagnostic Code, a noncompensable rating is assigned for any limitation of motion of the ring or little finger regardless if the affected hand is dominant or minor. This rating code does not provide for a compensable rating. 38 C.F.R. § 4.71a, Diagnostic Code 5230. A 20 percent disability evaluation is warranted for an amputation of the ring finger with metacarpal resection (more than one-half the bone lost). 38 C.F.R. § 4.71a. Under Diagnostic Code 5003, for osteoarthritis, a compensable rating is awarded when arthritis is established by X-ray findings involving 2 or more major joints or 2 or more minor joint groups, limitation of motion that is not otherwise compensable under appropriate diagnostic codes for the joint or joints involved, and objective evidence of limitation of motion with confirmed findings of swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The Veteran has consistently reported painful motion of the interphalangeal joint of the right ring finger. Degenerative changes were noted in this joint on VA examination in July 2008. A physical evaluation of the Veteran's right hand showed limited and painful motion, without ankylosis or amputation of any fingers. There was no additional limitation of motion upon repetitive-motion testing. An April 2013 VA clinical note indicated that the Veteran has a trigger finger deformity of this the right ring finger. Although limited motion is demonstrated, Diagnostic Code 5230 does not provide for a compensable disability evaluation. Moreover, arthritis does not affect a group of minor joints in the hand. Hence, a compensable evaluation under Diagnostic Code 5003 is not for application. The Board cannot ignore, however, the Veteran's subjective reports of ring finger pain that result in decreased dexterity. The reports of pain were objectively confirmed upon physical examination. 38 C.F.R. § 4.59, provides in pertinent part: With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Here, after consideration of 38 C.F.R. § 4.59 and the Veteran's lay reports of a painful ring finger, the Board finds that the painful condition results in functional loss. As such, the Board finds that he is entitled to the minimum compensable evaluation, 10 percent, for the disability. A rating in excess of 10 percent is available only for an amputation of the ring finger with metacarpal resection. 38 C.F.R. § 4.71a, Diagnostic Code 5155. There are no other applicable Diagnostic Codes which would allow for a rating in excess of 10 percent. However, the evidence does not establish that the manifestations of the Veteran's right ring finger disability approximate amputation of the digit. Thus, an initial disability rating in excess of 10 percent for the service-connected right ring finger disability is not warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321; Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board notes that the Veteran has been diagnosed with a "trigger finger" abnormality in the right ring finger. The pain and limitation of motion are contemplated by the schedular rating criteria. Even if these symptoms were not adequately considered by the schedular rating criteria, referral for consideration of an extraschedular rating is still not warranted, because there are no other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization. The record does not show, and the Veteran does not assert, that he has missed a large amount of work due to his right ring finger disability or that there are periods of hospitalization or other symptoms indicative of an exceptional or unusual disability picture. A request for a total disability rating based upon individual unemployability (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, since the Veteran has not asserted that he is unemployable due to his service-connected right ring finger disability, and there is no evidence of such, Rice is inapplicable. Consideration of a TDIU is not warranted. As shown above, and as required by Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991), the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran. An initial disability rating of 10 percent, but no higher, for the service-connected right ring finger disability, is warranted. ORDER Service connection for a lumbar spine disability is granted. An initial disability rating of 10 percent for degenerative changes of the interphalangeal joint of the right ring finger is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ M. N. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs