Citation Nr: 1800877 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 16-05 727 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to a rating in excess of 30 percent for a residuals of right hand injury. 2. Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected disability of the right hand. 3. Entitlement to service connection for a shoulder disability, to include as secondary to a service-connected disability of the right hand. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1958 to April 1961. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACTS 1. Throughout the period on appeal, the residuals of a right hand injury have manifested as painful and limited motion of the right thumb, index, middle, and little fingers; pain with flare-ups; and muscle weakness. 2. A cervical spine disability was not shown to be the result of or aggravated by a service-connected right hand disability. 3. The Veteran does not have a shoulder disability; should such a disability be inferred, however, a shoulder disability was not shown to be the result of or aggravated by a service-connected right hand disability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for residuals of right hand injury have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5223 (2017). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for a separate 10 percent disability rating, but no higher, for nerve damage to the right hand digits have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, DC 8515 (2017). 3. The criteria for service connection for a cervical spine disability, as secondary to a right hand disability, have not been met. 38 U.S.C. §§ 1101, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). 4. The criteria for service connection for a shoulder disability, as secondary to a right hand disability, have not been met. 38 U.S.C. §§ 1101, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background In December 2012, the Veteran submitted a statement that his right hand disability had increased in severity and sought service connection for a neck and shoulder condition, as secondary to his service-connected right hand disability. In December 2012, a VAMC record indicated the Veteran had a neck X-ray which showed degenerative disc disease with narrowing of his spinal column. In February 2013, a VA examination showed the Veteran to have residuals of injury to the right hand, to include loss of use, pain, poor circulation, and muscle weakness in the right arm. The Veteran reported severe pain in the index finger and a milder pain in the thumb. He stated he had limited motion to the index finger and reported it was hard to grasp items and perform activities such as brushing teeth or holding onto a coffee cup. He presented with a decreased grip strength and loss of sensation to his thumb pad. He reported that pain in his hand was worse as the day progressed and that weather makes it hurt worse. He reported flare-ups that impacted the function of his right hand with weather changes and prolonged activity. Upon examination, the Veteran's right thumb, index finger, and little finger showed limited motion or evidence of painful motion. There was no gap between the thumb pad and the fingers. There was a gap between fingertips and the proximal, transverse crease of the palm of 1 inch or more of the index finger, with painful motion beginning at that point. There was no limitation of extension or evidence of painful motion for the index finger or long finger. The Veteran was able to perform repetitive use testing with 3 repetitions without additional limitation of motion or a gap between the thumb pad and the fingers post-test. There was a gap between fingertips and the proximal, transverse crease of the palm of 1 inch or more of the index finger post-test, but no limitation of extension of the index finger or long finger post-test. Functional loss or functional impairment was not found, but less movement than normal, pain on movement, and deformity were found in the thumb, index finger, and little finger. Weakened movement and excess fatigability were found in the thumb and index finger. Swelling was found in the index finger. Tenderness or pain to palpation for joints or soft tissue of the right hand, including the thumb and fingers was found. His right hand muscle strength was 4 out of 5. No ankylosis of the right thumb or fingers was found and the Veteran did not report use of any assistive device. Degenerative arthritis was found in multiple joints of the right hand. The functional impact was noted to be difficulty with grasping, dexterity, and with lifting and carrying due to pain and limited movement. A concurrent examination of the nerves of the Veteran's right hand indicated the Veteran had mild, incomplete paralysis of the median nerve of the right hand related to his in-service injury. He had decreased sensation in the right hand/fingers, with pinch and grip strength at 4 out of 5. His thoracic nerve and upper radicular group nerves were found to be normal. No functional impairment was found due to his nerve conditions, but he was noted to have decreased sensation and grip strength which caused a hard time with fine touch and grasping objects. In August 2013, a VA medical center (VAMC) record indicated that the Veteran had left shoulder and acute neck pain. He was found to have decreased range of motion in his neck with pain on left arm raise. In August 2014, a VA VAMC record indicated that the Veteran had left shoulder and acute neck pain. He reported chronic neck pain for the past 6 months which the Veteran stated was getting worse, but had decreased over the prior couple of months. He also reported bilateral upper extremity muscle aches after moving something or manual lifting with flares. He stated that his left shoulder was worse. He reported seeing an outside orthopedist and planning a rotator cuff repair. He was found to have decreased range of motion in his neck with pain on left arm raise. In March 2015, a VAMC record indicated the Veteran's neck was supple and had range of motion in normal limits. In June 2015, a VAMC record indicated that the Veteran had chronic neck pain for the past 6 months which the Veteran stated was getting worse, but had decreased over the prior couple of months. He reported it hurt greater on the left which radiated into his shoulder and left arm. He also reported bilateral upper extremity muscle aches after moving something or manual lifting with flares. He stated that his left shoulder was worse. He reported seeing an outside orthopedist and planning a rotator cuff repair. He was found to have decreased range of motion in his neck with pain on left arm raise. In August 2015, a VA examination found the Veteran to have residuals of injury to right hand injury, to include loss of use, pain, poor circulation, and muscle weakness in the right arm. The Veteran reported that he used to play guitar, but no longer was able to use his hand for that. Veteran advised he used hot wax treatments at least twice every day. The Veteran reported flare-ups of his right hand which were caused by weather and overuse and increased his symptoms and caused swelling and pain. The Veteran described his function loss or impairment as having difficulty with all fine motor tasks and grasping, handling loads, and tools. Upon examination, his right hand range of motion was abnormal or outside the range of normal with his index finger having extension to MCP to 0 degrees, PIP to 15 degrees, and DIP to 5 degrees and flexion to MCP to 50 degrees, PIP to 45 degrees, and DIP to 30 degrees; his long finger had extension to MCP to 0 degrees, PIP to 0 degrees, and DIP to 15 degrees and flexion to MCP to 55 degrees, PIP to 100 degrees, and DIP to 15 degrees; his ring finger had extension to MCP to 0 degrees, PIP to 0 degrees, and DIP to 10 degrees and flexion to MCP to 55 degrees, PIP to 70 degrees, and DIP to 55 degrees; his little finger had extension to MCP to 0 degrees, PIP to 0 degrees, and DIP to 30 degrees and flexion to MCP to 60 degrees, PIP to 20 degrees, and DIP to 45 degrees. His thumb had maximum extension to MCP 10 degrees, IP to 0 degrees, maximum flexion to MCP 30 degrees and to IP 45 degrees. There was no gap between the thumb and the fingers or between the finger and the proximal transverse crease of the hand on maximal finger flexion. Pain on use of the hand and objective evidence of localized tenderness of pain on palpitation of the joint or soft tissue was not found. The Veteran was able to perform repetitive use testing with at least 3 repetitions and additional functional loss or range of motion after those repetitions was not found. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time, but the examiner noted that the Veteran was not being examined after repeated use over time and that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The examination was not being conducted during a flare-up and the examiner noted that examination was medically consistent with the Veteran's statements describing functional loss during flare-ups. As such, pain, weakness, fatigability or incoordination were found to significantly limit the Veteran's functional ability with flare-ups, and the examiner noted that additional loss of range of motion could not be ascertained since the primary disability was related to pain and loss of repetitive use rather than loss of range of motion. The Veteran's muscle strength was 4 out of 5, with the decrease being attributed to his right hand disability. No ankylosis of the right hand/fingers was found. The Veteran reported occasional use of a brace. Degenerative arthritis was noted in multiple joints of the right hand. In May 2016, a VAMC physical therapy consult note indicated the Veteran had increased pain to his cervical region and bilateral shoulders. He reported no specific injury noted with his neck and shoulders. He reported his neck and shoulders hurt for years and years. Upon examination, it was noted that the Veteran presented to the clinic with a long history of cervical and bilateral shoulder pain. He reported multiple trials of therapy services in the past as well as chiropractic services but no overall improvement noted. He demonstrated increased muscle tension with his cervical region and upper trapezius muscles. Decreased range of motion and strength was also noted with his bilateral shoulders. If gains were not noted, the therapist recommend imaging be completed to rule out rotator cuff tears. Increased Rating Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Board notes that where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran's right hand disability has been assigned a 30 percent rating as of the grant of service connection in March 2006 pursuant to DC 5223. 38 C.F.R. §4.71a, DC 5223. DC 5223 addresses favorable ankylosis of two digits of one hand. When the index and middle fingers are involved, a 20 percent disability rating is assigned. A 30 percent evaluation is assigned when there is favorable ankylosis of the thumb and any other finger. 38 C.F.R. § 4.71a. After a review of all of the evidence of record, lay and medical, the Board finds that the weight of the evidence is against a disability rating in excess of 30 percent for the right hand disability for the entire increased rating period on appeal. 38 C.F.R. § 4.71a. Namely, ankylosis has not been demonstrated in the right hand or fingers. However, the current 30 percent disability rating under DC 5223 contemplates the overall symptomology experienced by the Veteran, and adequately compensates the Veteran for the painful motion and limited function of the thumb, index, middle, little fingers, and the right hand as a whole, including following repetitive use, as well as his flare-ups and weakened hand grip strength. However, in light of the February 2013 VA examiner's finding that the median nerve of the right hand was likely injured during active service and that this nerve injury was the source of the Veteran's right hand decreased sensation, the Board finds that a separate 10 percent disability rating is warranted under DC 8515, which contemplates mild, incomplete paralysis of the median nerve. 38 C.F.R. § 4.124a. The Board finds that a separate rating in excess of 10 percent for the neurological symptoms is not warranted, as the February 2013 examination did not indicate that the damage to the median nerve was moderate, severe, or constituted complete paralysis. In awarding a separate rating for right hand nerve damage, the Board notes that the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14; Fanning v. Brown, 4 Vet. App. 225 (1993). However, in this case, the grant of the separate rating for right hand nerve damage under DC 8515 does not constitute pyramiding, as the manifestation of the nerve damage is loss of sensation, while the 30 percent disability rating under DC 5223 compensates the Veteran for his painful and limited motion of his fingers, as well as overall limited function of the hand. Thus, the symptoms for which these ratings are assigned are distinct and do not overlap. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). The Board has considered whether any other diagnostic code would allow for a disability rating in excess of 30 percent for the right thumb, index, middle, and little finger disability. However, favorable ankylosis of three, four, or five digits of the right hand is not demonstrated by the evidence (DCs 5220 - 5222), nor is there unfavorable ankylosis of any of the fingers (DCs 5216 - 5219). 38 C.F.R. § 4.71a. Indeed, as noted above, ankylosis has not been demonstrated in any of the Veteran's fingers. The current 30 percent disability rating is based on the Veteran's pain and functional limitations of the right hand as described by both the Veteran and his examining physicians. For these reasons, the Board finds that, for the entire rating period on appeal, the weight of the evidence is against a rating in excess of 30 percent for right hand disability; however, a separate 10 percent disability rating is granted for damage to the nerves of the right hand. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017). In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). The first requirement for any service connection claim is evidence of a disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). In this matter, in regards to the Veteran's shoulder disability, the preponderance of the evidence weighs against a finding of a current disability. There is no evidence of record which establishes the Veteran is suffering from any diagnosed shoulder disability. Though the Veteran did report that he had a rotator cuff tear, there is no medical evidence of record which supports this assertion. The Board has considered the connection between what a health care professional might have said to the Veteran. However, the layman's account of what was purportedly said, filtered through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute medical evidence. Robinette v. Brown, 8 Vet. App. 69, 77 (1995). The Veteran's February 2013 VA nerve examination did not find any disabilities or disorders related to his shoulders. Additionally, the May 2016 VAMC record weighs against a finding that the Veteran had a rotator cuff tear, as that record indicated that a rotator cuff tear would be ruled out if continued therapy did not alleviate the Veteran's pain. The claim for service connection for a shoulder disability, therefore, must be denied because the first essential criterion for the grant of service connection, competent evidence of the disability for which service connection is sought, is not met. However, should a shoulder disability be inferred from the Veteran's report of a rotator cuff tear, service connection as secondary to the Veteran's right hand disability for that claimed disability or his neck disability is not warranted. Secondary service connection for the Veteran's shoulder or neck disorders would necessitate the disabilities being caused or aggravated by the Veteran's right hand disability. The evidence of record does not support a finding of a link between the Veteran's shoulder and neck complaints and his right hand disability. None of the Veteran's medical records of evidence in this matter have related the Veteran's shoulder or neck complaints to his right hand injury. Additionally, the Veteran has not presented or identified any medical evidence or opinion that supports the claim for service connection. The Board has considered the Veteran's statements and does not dispute the reports of his shoulder and neck pain. Although the Veteran is competent to describe observable symptoms of pain, he is not competent to opine as to the etiology of the shoulder or neck pain, as he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, his lay opinion that his shoulder and neck pain was caused by his right hand disability does not constitute competent medical evidence and lacks probative value. In sum, the claims file does not contain competent and credible evidence that the Veteran's shoulder pain or neck disorder are related to or aggravated by his service connected right hand disability. Accordingly, as the preponderance of the evidence is against the claim for service connection for a shoulder or neck disability as secondary to the Veteran's service-connected right hand disability, the benefit-of-the-doubt rule is not for application, and the claims must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to a rating in excess of 30 percent for a right hand disability is denied. A separate 10 percent disability rating for damage to the nerves of the right hand digits is granted. Entitlement to service connection for a cervical spine disability as secondary to a service-connected right hand disability is denied. Entitlement to service connection for a shoulder disability as secondary to a service-connected right hand disability is denied. ____________________________________________ MATTHEW D. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs