Citation Nr: 18148707 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 10-30 603 DATE: November 8, 2018 ORDER Service connection for a right shoulder disability is denied. Initial compensable rating for chronic extensor tendon tear at distal interphalangeal joint with arthritis, right little finger, is denied. REMANDED Service connection for a right knee disability is remanded. Service connection for a right ankle disability is remanded. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran has a right shoulder disability causally related to active service. 2. The Veteran is in receipt of the highest rating available for ankylosis or limitation of motion of the right little finger. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to a compensable rating for chronic extensor tendon tear at distal interphalangeal joint with arthritis, right little finger, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.10, 4.21, 4.71a, Codes 5003, 5227, 5230. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2003 to June 2008. Service connection The Veteran asserts that he injured his right shoulder during service when he fell during a training exercise. 09/03/2015 Hearing Testimony at 2-3. He testified that it still hurts when he rotates his shoulder and he experiences pain on motion. Id. at 3-4. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of shoulder strain, and evidence shows that an injury likely occurred, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of shoulder strain began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran filed a claim of service connection for a right shoulder disability in September 2008, thus shortly after separation from active service. Service treatment records do not reflect any complaints of or treatment for a right shoulder disability. On a May 2008 Report of Medical History, the Veteran denied ‘painful shoulder, elbow, or wrist.’ 03/25/2015 STR-Medical at 11. In October 2008, the Veteran underwent a VA examination. He reported that when he was in Iraq he was lifting boxes over his head when he felt a sharp pain in his shoulder; he did not seek medical treatment. He stated that it really did not hurt but he felt grinding and popping. 10/08/2008 VA Examination at 31. The examination was essentially normal and an x-ray examination was normal. Id. at 38. The medical evidence reflects that the Veteran was not diagnosed with a right shoulder strain until he underwent a VA examination in December 2015, thus several years after his separation from service. While the Veteran is competent to report having incurred a right shoulder injury and the symptomatology associated with his shoulder, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of an in-service injury. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body/interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the December 2015 VA examiner opined that the Veteran’s right shoulder disability is not at least as likely as not related to an in-service injury, event, or disease, including the claimed in-service injury. The examiner reasoned that the October 2008 evaluation showed no objective or radiographic abnormalities so a nexus could not be established linking the injury to the incident. The examiner’s 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). In sum, the weight of the evidence is against a finding that a right shoulder disability is due to service. The Veteran may believe that his current right shoulder issues relate to service but he lacks the medical background to opine on the complex question of etiology in this case. Moreover, he has not been consistent in his description of in-service injury. At first he attributed a right shoulder problem to a fall and then later he described injuring it lifting boxes. In any event, even accepting the lay testimony the most probative evidence on the question of nexus is the 2015 examination. Accordingly, the claim must be denied. Increased rating Service connection is in effect for residuals, injury to little finger, right hand, rated as noncompensable under 38 C.F.R. § 4.71a, Diagnostic Code 5230. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. If the limitation of motion is noncompensable, 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 diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Ankylosis of the ring or little finger, whether unfavorable or favorable, is evaluated as zero percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5227. Limitation of motion of the ring or little finger is also evaluated as zero percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5230. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. These provisions are not for consideration; however, where the veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The Veteran underwent VA examination of his right hand in October 2008, May 2013, and January 2018. The October 2008 VA examination showed normal grasp with good strength and dexterity. He had normal active and passive motion. His grip was normal. The thumb could approximate all fingers and median transverse fold bilaterally without difficulty but with complaints of right little finger pain. An x-ray examination showed no post traumatic or arthritic infestations. The May 2013 VA examination reflects no gap between the pad of the thumb and the fingers; and, no gap between the finger and proximal transverse crease of the hand on maximal finger flexion. There was less movement than normal. The examiner indicated that a 2011 x-ray examination showed mild degenerative joint disease. The Veteran testified that he has pain and cannot close his pinkie against his hand. 09/03/2015 Hearing Testimony at 13. The January 2018 VA examination shows normal range of motion with no gap between the pad of the thumb and the fingers; and, no gap between the finger and proximal transverse crease of the hand on maximal finger flexion. Pain, weakness, fatigability or incoordination do not significantly limit functional ability with repeated use over a period of time. His hand grip was normal without muscle atrophy. There was no ankylosis. The examiner observed that his 4th and 5th right finger remain in a 10 degree extension at the DIP and PIP joints but can passively be moved to a 0 degree extension. An x-ray showed an old fracture deformity of the fifth metacarpal with no evidence of acute osseous abnormality. The Veteran is in receipt of the highest evaluation available for his disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5227, 5230. Therefore, there is no need for additional discussion of these rating criteria. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Board has also considered entitlement to an increased rating under other potentially applicable criteria, but there are none that are appropriate to the Veteran’s disability. The only finger for which service connection has been established is the right little finger. Therefore, other rating criteria that allow for increased ratings based on ankylosis of limitation of motion of multiple digits cannot be utilized. See 38 C.F.R. § 4.71a, Diagnostic Codes 5216-5226; 5228-5229. Entitlement to a 10 percent rating under the criteria for degenerative arthritis is not warranted as arthritis has not been shown. While acknowledging the 2011 diagnosis of mild degenerative joint disease, but this would only constitute service connection for a single minor joint rather than an entire minor joint group. Thus, a 10 percent rating cannot be assigned for degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The Board concludes that the zero percent rating assigned for the Veteran’s service connected right little finger is the highest rating available, and entitlement to a higher rating is not possible. REASONS FOR REMAND The right ankle disability claim was remanded in November 2015 to clarify a diagnosis and to obtain an etiological opinion regarding direct service connection as he asserted that he had a disability due to walking around a burn pit in Iraq and stepping on a large rock. 09/03/2015 Hearing Testimony at 7. The January 2016 VA examiner discussed a secondary relationship to his service-connected left ankle disability but did not discuss a direct relationship to service. Thus, remand is necessary. The right knee disability claim was remanded to clarify a diagnosis and to obtain an etiological opinion regarding secondary service connection as he asserted that his right knee problems are due to his right ankle problems. Id. at 7. Thus, such issue is inextricably intertwined with the right ankle issue being remanded. The matters are REMANDED for the following action: 1. Request that the January 2016 VA examiner (or another VA examiner if the January 2016 VA examiner is unavailable) review the claims folder and provide an opinion as to the following: a) Please state whether any right ankle disability is at least as likely as not (50 percent or greater probability) due to service or any incident therein, specifically to include stepping on a large rock near a burn pit in Iraq. b) Please state whether any right knee disability is at least as likely as not (50 percent or greater probability) caused by a right ankle disability. c) Please state whether any right knee disability has at least as likely as not (50 percent or greater probability) been aggravated (e.g., permanently worsened beyond the normal progression of that disease) by a right ankle disability? If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. Please provide reasons for these opinions. All pertinent evidence, including both lay and medical, should be considered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. An examination should be scheduled if deemed necessary by the examiner. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel