Citation Nr: 1804160	
Decision Date: 01/23/18    Archive Date: 01/31/18

DOCKET NO.  17-59 591	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1. Entitlement to an initial compensable rating for a right 5th metacarpal (MC) fracture.

2. Entitlement to service connection for a left shoulder/collarbone disability.


REPRESENTATION

Veteran represented by:	Missouri Veterans Commission


ATTORNEY FOR THE BOARD

T. Davis, Associate Counsel




INTRODUCTION

The Veteran had active service from October 1960 to September 1968. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri that, in pertinent part, granted entitlement to service connection for a 5th metacarpal (MC) fracture, right hand and assigned a noncompensable rating. The rating decision also denied service connection for a left shoulder/collar bone disability.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1. Since the effective date of service connection, the Veteran's right fifth finger disability has been manifested by pain, and objective evidence of arthritis in one minor joint, but no limitation of motion.

2. The evidence of record is against a finding that the Veteran's current left shoulder disability manifested during service, or is otherwise related to his service.


CONCLUSIONS OF LAW

1. The criteria for an initial compensable rating for the right fifth finger disability have not been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 4.3, 4.40, 4.45(f), 4.59, 4.71a, Diagnostic Code 5230-5003 (2017).

2. The criteria for entitlement to service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Applicable Laws and Analyses

A. Initial Compensable Rating for Right Fifth Finger

Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2016). 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.

Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1999). In Fenderson v. West, 12 Vet. App. 119 (1999), however, it was held that the rule does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found.  Fenderson, 12 Vet. App. at 126.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the Veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40.

Rating a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint. 38 C.F.R. § 4.45 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995).

When rating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45.

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 maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59.

The Veteran's right fifth finger disability is rated as noncompensable for the period, pursuant to Diagnostic Code 5230-5003.  Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating.  38 C.F.R. § 4.27.  The Veteran seeks a higher rating.

DC 5003 provides ratings for degenerative arthritis. Degenerative arthritis (osteoarthritis or hypertrophic) established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensably disabling under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. 

In the absence of limitation of motion, a 10 percent rating is warranted where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent rating is warranted where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. In Notes (1) and (2) in DC 5003, it is indicated these 20 and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, DC 5003.

Under 38 C.F.R. § 4.45(f) for the purpose of rating a disability based on arthritis, the only major joints are the shoulder, elbow, wrist, hip, knee and ankle. Additional groups of multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities are considered groups of minor joints, ratable on parity with major joints. 38 C.F.R. § 4.45(f); see also Spicer v. Shinseki, 752 F.3d 1367, 1371 (Fed. Cir. 2014) (when DC 5003 is read in view of § 4.45(f), it is clear that DC 5003 requires limitation of motion in two or more interphalangeal joints to warrant a 10 percent rating).

The Veteran underwent a VA examination in May 2016. The Veteran reported that he experienced right hand pain with gripping. The examiner reviewed the claims file, including the Veteran's medical history and his lay assertions, before examining the Veteran.  Upon examination, there was no limitation of range of motion in the right hand; rather pain with no functional loss was noted. Examination after repetitive use of the right hand resulted in no pain, weakness, fatigability or incoordination significantly limiting functional ability.  The examiner did note pain at the medial aspect of the fifth metacarpal head at the flexor tendon sheath an interphalangeal web of 4th and 5th metacarpal head. However, there was no swelling, inflammation, asymmetry, palp mass or nodule. He also provided that the flexor tendons were freely movable, and there was no locking or popping with flexion and extension of the fingers.  Examination results also revealed right hand muscle strength at a 5/5 upon grip and no muscle atrophy was noted.  Degenerative changes were found in the right hand, but in only one minor joint. There was also no ankylosis or amputation.  The examiner checked the box indicating that there were no additional disabilities in the right hand, beyond the noted pain and no other pertinent physical findings, complications, conditions, signs or symptoms related to any conditions were noted.

The Board finds that an initial compensable rating for the right finger disability is not warranted under Diagnostic Code 5003 since the effective date of service connection. Indeed, the Veteran's disability does not manifest in limitation of motion, and although there is x-ray evidence of arthritis, it is in only one minor joint.  Indeed, arthritis of the right fifth finger has been objectively shown on imaging during the VA examination in May 2016, but only one minor joint was involved.  A 10 percent rating is not warranted for a disability without limitation of motion unless there are degenerative changes involving two or more major joints or two or more minor joint groups.

Alternatively, Diagnostic Code 5230 is also applicable to the Veteran's 5th finger; however, under Diagnostic Code 5230, a sole and maximum evaluation of zero percent is assigned for any limitation of motion of the (major or minor) small finger.  38 C.F.R. § 4.71a.  The Board recognizes that the Veteran's right fifth finger is painful.  While as a general matter when painful motion is present the minimum compensable rating for the joint should be assigned, in this case there is no level of disability that warrants a compensable rating under DC 5230.  Sowers v. McDonald, 27 Vet. App. 472, 479-81 (2016). Therefore, a compensable rating for painful motion cannot be assigned in this case. See id; 38 C.F.R. § 4.59.

The record does not show ankylosis of the right fifth finger, as the VA examiner specifically found no ankylosis on examination. To the extent that the May 2016 VA examiner's notation that the Veteran cannot flex or extend his right fifth finger can be interpreted as evidence of ankylosis, a higher rating would still not be warranted as the maximum evaluation for ankylosis of the fifth finger is also noncompensable. 38 C.F.R. § 4.71a, Diagnostic 5227. 

Nor is a higher or additional evaluation warranted for amputation of the right fifth finger, limitation of other digits, or interference with overall function of the hand. 38 C.F.R. § 4.71a, Diagnostic 5227, Note.  In this regard, there is no evidence of noted interference with other digits by the right fifth finger nor has the Veteran reported such. 

Furthermore, regarding overall hand function, the Veteran reported that he "cannot drive long distance, hold tools or use his right hand in general. See November 2017 Form 9.  During his May 2016 VA examination, he also reported pain while gripping with right hand.  See May 2016 VA Examination.  The Board in no way calls into question that the Veteran's finger disability is painful.  Nonetheless, his examination results revealed no limited range or motion, and although pain was confirmed, under Sowers, painful motion of the finger does not warrant the assignment of a compensable rating under the provisions of 38 C.F.R. § 4.59.  There is only one minor joint involved.  There is no right fifth finger ankylosis, amputation, limitation of other digits, or objective interference with overall function of the hand noted.  Upon examination in May 2016, the Veteran was noted to have 5/5 grip strength of the hand and no muscle atrophy.  The examiner responded "no" when asked whether pain, weakness, fatigability or incoordination significantly limits the Veteran's functional ability with repeated use over a period of time.  38 C.F.R. § 4.71a, Diagnostic Code 5227, Note. As such, the requirements for an initial compensable rating are not met under any diagnostic code.

In sum, the Board finds that since the effective date of service connection for the right finger disability, a compensable rating is not warranted.

B. Service Connection for Left Shoulder/Collarbone Residuals

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Disabilities diagnosed after discharge may still be service-connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d).

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to the appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the appeal.

The Veteran contends that he has a left shoulder disability that had its onset in, or is otherwise related to his period of active duty service.  Specifically, he states that he injured his left shoulder in October 1962 while aboard a naval vessel. See October 2017 VA examination at 4 and November 2017 Form 9, at 2.

An October 2017 VA examiner provided a diagnosis of labral tear, including SLAP [superior labral tear from anterior to posterior] in both shoulders and acromioclavicular joint osteoarthritis in the left shoulder.  He found no evidence to support a diagnosis for a left collarbone disability.

The evidence reflects that the Veteran experienced a shoulder injury in service.  His service treatment records (STRs) show that in October 1962, while on active duty, the Veteran struck his left shoulder against an object while running on port side. His X-ray results were normal however; he was given a left shoulder sling. During follow up treatment 2 weeks post injury, some ecchymosis was noted, but no significant abnormality. Id.   

Based on the above, the first two elements of service connection are met; therefore this appeal turns on whether a relationship exists between the Veteran's current left shoulder disability and this in-service injury.

The Veteran was provided a shoulder VA examination in October 2017 to determine the etiology of his claimed shoulder/collarbone residuals. The examiner provided the opinion that it was less likely than not (less than 50% probability) that the Veteran's current left shoulder disability was incurred in or caused by his in-service shoulder contusion in 1962. The examiner reasoned that while the Veteran did have contusion to the left shoulder while on active duty in 1962, there is no evidence of any residuals problems over the duration of his service or in civilian records over the next 40 years. The examiner further provided that the Veteran had a new injury to his left shoulder in 2001 that was a completely new and separate condition, and that all current left shoulder findings are due to the post military injury in 2001.

The Board finds the October 2017 VA examiner's opinion highly probative as the examiner was informed of the relevant evidence, relied on accurate facts, and gave a fully articulated opinion that was supported by sound reasoning. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). 

The Board recognizes the Veteran himself has asserted experiencing left shoulder symptoms since service. See October 2017 VA examination.  However, the evidence of record demonstrates that his first post-service complaints of shoulder pain were not reported until 2001, 40 years post the in-service injury.  Significantly, the Veteran's service treatment records from 1963 to 1968 are silent for any shoulder pain or complaints, and the Veteran was assessed as having a "normal" clinical evaluation of the upper extremities on his September 1968 examination upon discharge.  He reported no shoulder problems at that time.

The Board adds that the Veteran has not been shown to have the background or expertise to provide a competent opinion linking his current left shoulder disability to his in-service injury.  In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship.  As such, the question of etiology in this case may not be competently addressed by the Veteran's own statements.  

In conclusion, based on the analysis above, the Board finds that the preponderance of evidence is against the Veteran's claim for service connection for a left shoulder disability.  As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply.  See 38 U.S.C.A. § 5107(b).


ORDER

An initial compensable rating for a right 5th MC fracture is denied.

Service connection for a left shoulder/collarbone disability is denied.



____________________________________________
V. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs