Citation Nr: 1752014	
Decision Date: 11/14/17    Archive Date: 11/22/17

DOCKET NO.  11-31 538	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Entitlement to service connection for a right index finger disability, to include degenerative arthritis in the distal interphalangeal joint (DIP joint).

2.  Entitlement to service connection for a right great toe disability, to include degenerative arthritis and to include as secondary to degenerative arthritis of the lumbar sacral spine.

3.  Entitlement to service connection for bilateral plantar calcaneal spurs, to include as secondary to degenerative arthritis of the lumbar sacral spine.

4.  Entitlement to total disability based on individual unemployability (TDIU) prior to June 21, 2012.


REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

M. Shouman, Associate Counsel


INTRODUCTION

The Veteran honorably served on active duty in the United States Army from September 1972 to September 1979. 

These matters are before the Board of Veterans' Appeals (Board) on appeal from May 2009 and December 2009 rating decisions of a U.S. Department of Veterans Affairs (VA) Regional Office (RO).  The May 2009 rating decision denied service connection for bilateral plantar calcaneal spurs, denied service connection for an index and little finger injury, and denied service connection for a toe injury.  The December 2009 rating decision denied TDIU.

In an October 2011 rating decision, the RO granted service connection for residuals of a fracture in the right fourth finger.  This award constitutes a full grant of the service connection benefit sought, and that issue is no longer before the Board.  
See Grantham v. Brown, 114 F.3d 1156, 1158-59 (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date).

In a July 2014 rating decision, the RO granted TDIU effective June 21, 2012.  The award constitutes a full grant of the TDIU benefit sought for the period from June 21, 2012, and the issue with respect to that period is no longer before the Board.  See Grantham, 114 F.3d at 1158-59.

The Board considered the claims in November 2016, on which occasion they were remanded for additional development.  With respect to the claim for service connection for a right index finger disability, to include degenerative arthritis in the DIP joint, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand orders, and no further action is necessary.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (per curiam); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, 287 F.3d 1377 (2002).  Specifically, in furtherance of the Board's remand instructions, the AOJ scheduled a VA examination to determine whether there is a nexus between the Veteran's right index finger disability and service.  The claim was then readjudicated in July 2017.

The issues of entitlement to service connection for a right great toe disability, to include degenerative arthritis and to include as secondary to degenerative arthritis of the lumbar sacral spine; entitlement to service connection for bilateral plantar calcaneal spurs, to include as secondary to degenerative arthritis of the lumbar sacral spine; and entitlement to TDIU prior to June 21, 2012 are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1.  The competent and probative evidence shows that the Veteran has degenerative arthritis in the right index finger's DIP joint.

2.  The weight of the competent and probative is against a finding that the Veteran's degenerative arthritis in the right index finger's DIP joint is related to his active service.


CONCLUSION OF LAW

The criteria for service connection for a right index finger disability, to include degenerative arthritis in the DIP joint, have not been met.  38 U.S.C. §§ 1101, 1110, 1112-13, 1131, 1137 (2012); 38 C.F.R. § 3.303, 3.307, 3.309 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran contends that he is entitled to service connection for a right index finger disability, to include degenerative arthritis.  After reviewing the pertinent evidence of record, the Board finds that the weight of the competent and probative is against a finding that the Veteran's degenerative arthritis in the right index finger's DIP joint is related to his active service.  The reasons and bases for this decision will be explained below.

The Board has considered the appellant's appealed issue and decided on the matter based on the pertinent evidence.  Neither the appellant nor his representative has raised any issues with respect to VA's duties, nor have any other issues been reasonably raised by the record with respect to VA's duties.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).  Given the above, the Board will proceed to the merits of this appeal.

I.  Service Connection for a Right Index Finger Disability

A.  Legal Principles

Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C.S. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  To establish entitlement to service-connected compensation benefits, a Veteran must show "'(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'-the so-called 'nexus' requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

The Board must consider all the evidence of record and make appropriate competence, credibility, and weight determinations.  See Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary of VA shall give the benefit of the doubt to the claimant.  38 U.S.C.S. § 5107(b); 38 C.F.R. § 3.102.

The Veteran is competent to report symptoms and experiences observable by his senses.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a).  

B.  Analysis

The Board finds that the evidence shows that the Veteran does not meet the requirements for service connection for residuals related to his right index finger.

The evidence shows that the Veteran has degenerative arthritis in the right index finger.  In December 2016, a VA examiner reported diagnosed degenerative arthritis in the right index finger's DIP joint. Thus, the competent evidence shows a current disability in the right index finger.  Therefore, the first element of Shedden, a current disability, has been satisfied.

Arthritis is considered a chronic disease under 38 C.F.R. § 3.309(a).  With chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  Including the chronicity and continuity of symptomatology avenues to service connection is implicitly constrained by 38 C.F.R. § 3.309(a) in all chronic disease cases.  See Walker v. Shinseki, 708 F.3d 1331, 1336-38 (2013).

With respect to arthritis, the presumptive period under which the theories of chronicity and continuity of symptomatology would apply is one year after separation from service.  38 C.F.R. § 3.307(a)(3).  There was no manifestation of arthritis within this timeframe and accordingly presumptive service connection does not apply; the earliest recorded indication of a disability related to the right index finger comes from a statement received by a buddy in February 2009, stating that the Veteran has a "bad right hand" that he can no longer grip with.  Similarly, an award of service connection solely based on continuity, as permitted under Walker, is not supported in this case.  708 F.3d at 1338-40.

The remaining question for consideration is whether any current degenerative arthritis in the right index finger is related to his service, to include his in-service treatment for swelling of the right index finger.  The Board finds, for several reasons, that the weight of the probative competent evidence is against finding a causal relationship between his current degenerative arthritis in the right index finger's DIP joint and his service.

First, the Veteran's service treatment records show two instances pertaining to treatment or complaints in the right fingers.  In October 1973, the Veteran was treated for swelling of the right index finger.  In August 1979, the Veteran was seen for an injury to his right index finger's metacarpophalangeal joint.  In both cases, there was no evidence of injury to the nail, where the DIP joint is located.  For the October 1973 injury, there was no fracture shown and the second digit appeared normal.  The August 1979 injury affected his MCP joint, not his DIP joint.  Thus, while an undated in-service examination reflects a broken finger, service treatment records do not reflect injury to the DIP joint in the right index finger.  Although the Veteran has reported that skin off the tip of his finger had to be removed to repair a right index finger fracture, the service treatment records do not reflect so.  

Second, the competent medical evidence fails to relate the currently diagnosis arthritis to the Veteran's active service.  In this regard, the December 2016 VA examination reflects a negative opinion on the relationship between the Veteran's service and his arthritic disability.  The December 2016 VA examiner considered the Veteran's history and claims file and also recognized the Veteran's reports of his in-service finger injuries and his post-service tradesman work.  Nevertheless, the VA examiner concluded that it is less likely than not that the Veteran's arthritic finger disability is related to military service.

In support of his opinion, the VA examiner noted the lack of in-service records supporting an injury to the fingertips affecting the DIP joint as described by the Veteran.  The examiner acknowledged the October 1973 and August 1979 in-service injuries but noted they are not injuries to the DIP joint in the right index finger.  Moreover, the VA examiner notes that the Veteran's work as a tradesman post-service posed a much higher risk for developing degenerative arthritis in the fingers.  To support that assertion, the examiner cites to clinical resources stating that factory, construction, and tradesman work are high risk factors for developing degenerative arthritis.

Given the foregoing, the Board finds that the preponderance of the evidence is against a finding of nexus to service.  As such, an award of service connection is not warranted in this case.


ORDER

Service connection for a right index finger disability, to include degenerative arthritis in the DIP joint, is denied.


REMAND

The Board finds that additional development is necessary before it can adjudicate the issues of entitlement to service connection for a right great toe disability, to include degenerative arthritis and to include as secondary to degenerative arthritis of the lumbar sacral spine; entitlement to service connection for bilateral plantar calcaneal spurs, to include as secondary to degenerative arthritis of the lumbar sacral spine; and entitlement to TDIU prior to June 21, 2012.  Moreover, the AOJ failed to substantially comply with the Board's December 2016 remand directives.  See Stegall, 11 Vet. App. at 271 (where the remand orders of the Board are not complied with, . . . ensure compliance); see also Dyment, 13 Vet. App. at 146-47 (although under Stegall VA is required to comply with remand orders, substantial compliance, not absolute compliance, is required).

With respect to the issues of entitlement to service connection for a right great toe disability and bilateral plantar calcaneal spurs, the December 2016 Board remand instructed the AOJ to schedule a VA examination to determine if there is a nexus between each of those disabilities and service.  The remand instructions specified that a podiatrist consider the service treatment records showing treatment of the right great toe and foot injuries that occurred in May 1974 and October 1977.  Subsequently, an examination was scheduled in December 2016, and an accompanying note by a podiatrist in June 2017 concurred with the December 2016 VA examiner's opinions.  The December 2016 VA examiner opined that it is less likely than not that either of those disabilities was incurred in or due to his active military service.  However, the examiner's explanation did not consider the Veteran's in-service right great toe injury in August 1979, and with respect to bilateral plantar calcaneal spurs erroneously stated that service treatment records were "basically devoid of any complaints of foot pain other than his pain in his toes."  In light of this, the Board finds that the December 2016 VA examination is not adequate for adjudication purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 310-12 (2007) (noting that the Board had erred in failing to ensure a VA examination was adequate).  

Moreover, at the Veteran's preinduction examination in August 1972, he reported unspecified "[f]oot trouble."  Accordingly, the Board finds that an addendum is necessary to address whether the Veteran's right great toe disability clearly and unmistakably pre-existed his active duty, and to consequently provide an opinion on the etiology his right great toe disability.

Furthermore, in a January 2009 statement, the Veteran described how his service-connected back disability affected his feet.  Accordingly, an addendum is necessary to address whether the Veteran's right great toe disability is proximately due to or the result of (caused) or permanently worsened beyond its natural progression (aggravated) by his service-connected back disability.  Allen v. Brown, 7 Vet. App. at 448-49; 38 C.F.R. § 3.310.

With respect to the issue of entitlement to TDIU prior to June 21, 2012, as the Board is remanding the issues of entitlement to service connection for a right great toe disability and entitlement to service connection for bilateral plantar calcaneal spurs, the TDIU matter must be remanded because the claims are intertwined.

Additionally, on remand, any other outstanding, pertinent VA treatment records should be obtained.

Accordingly, the case is REMANDED for the following actions:

1.  Obtain and associate with the claims file any outstanding, pertinent VA treatment records.  Additionally, notify the appellant that he may submit any relevant VA and private treatment records in his possession to VA.

2.  After all development has been completed and returned from step 1 above, request the VA examiner who conducted the December 2016 VA examination or the June 2017 podiatrist to review the claims file.  If neither is unavailable, then another appropriate clinician should be requested to review the claims file.  The clinician is asked to review the claims file to become familiar with the pertinent medical history.  If the clinician finds it necessary to conduct a new examination, then schedule such an examination for the Veteran.  After reviewing the claims file (and conducting an additional examination, if necessary), the clinician is to address the following:

a.  Did any diagnosed right great toe disability shown or treated at any time during the claim period (from November 2008 to the present) clearly and unmistakably pre-exist the Veteran's period of active duty service (beginning in September 1972)?

If so, is there clear and unmistakable evidence that such pre-existing right great toe disability did not undergo an increase in the underlying pathology; i.e., was not aggravated by the Veteran's periods of active duty service? If there was an increase in the severity of such disability during active duty service, was that increase clearly and unmistakably due to the natural progression of the disability?

 b.  Is any right great toe disability shown or treated at any time during the claim period (from November 2008 to the present) at least as likely as not (50 percent or greater probability) related to active service, to include in-service treatment of the right great toe? If not, does the record at least as likely as not (50 percent or greater probability) show that any right great toe disability manifested within one year of the Veteran's separation from service in September 1979?

 c.  Is any right great toe disability shown or treated at any time during the claim period (from November 2008 to the present) at least as likely as not (50 percent or greater probability) caused by Veteran's service-connected degenerative arthritis of the lumbar sacral spine?

 d.  Has any right great toe disability shown or treated at any time during the claim period (from November 2008 to the present) at least as likely as not (50 percent or greater probability) been aggravated by the Veteran's service-connected degenerative arthritis of the lumbar sacral?  If aggravation is found, provide baseline levels of the right great toe disability prior to aggravation.

 e.  Provide responses to questions 2(a) to 2(d) again, but this time with respect to the Veteran's bilateral plantar calcaneal spurs.

Consider all lay and medical evidence, to include service treatment records showing treatment of the right great toe and foot injuries, as well as VA examinations conducted in March 2009 and December 2016.  Consider also the Veteran's January 2009 statement explaining how his back disability has impacted his feet.

Provide a comprehensive rationale for any opinions/conclusions.  If the requested opinion cannot be provided without resort to speculation, court cases require the examiner to explain why the opinion cannot be offered, and to state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge.

3.  After all development has been completed and returned from all steps above, if any benefit sought remains denied, then issue a supplemental statement of the case with consideration to all pertinent evidence, and return the case to the Board, if otherwise in order.

The appellant has the right to submit additional evidence and arguments on matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369, 372-73 (1999) (per curiam).


Remanded claims must be afforded expeditious treatment.  The law requires that all claims remanded by the Board or by the U.S. Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.S. §§ 5109B, 7112.




______________________________________________
Paul Sorisio
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs