Citation Nr: 18150605 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 11-12 262 DATE: November 15, 2018 ORDER Service connection for a left pinky disability is denied. Entitlement to a 10 percent rating, but no higher, for residuals of a right index finger fracture is granted. REMANDED Entitlement to service connection for a right wrist disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to a total disability rating based on individual unemployability, due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran does not have a current left pinky finger disability. 2. The Veteran's residuals of a right index finger fracture are manifested by painful motion analogous in functional impairment to extension limited by more than 30 degrees or a gap of one inch or more between the fingertip and the proximal transverse crease of the palm. CONCLUSIONS OF LAW 1. The criteria for service connection for a left pinky finger disability have not been met. 38 U.S.C. §§ 1110 (2012); 38 C.F.R. §§ 3.303, 3.304, (2018). 2. The criteria for a rating of 10 percent, but no higher, for residuals of a right index finger fracture have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.71a, Diagnostic Code 5229 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1982 to April 1992. In July 2014, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. In October 2013, the Veteran testified at a Travel Board hearing. The hearing transcript is of record. The Veterans Law Judge who conducted the October 2013 hearing is no longer employed by the Board, and while the Veteran was offered a hearing before another Veterans Law Judge in August 2018, he declined the opportunity. 1. Entitlement to service connection for a left pinky finger disability Service treatment records are negative for any evidence of a left hand or finger disability during active duty or at discharge. However, as discussed below, the Veteran served on the football, soccer and basketball team during active duty in the U.S. Airforce. As such, his claimed sports injury in service is conceded. Notwithstanding the concession that the Veteran likely injured his left pinky finger playing sports in service, the post-service medical evidence of record fails to show that the Veteran has a currently diagnosed left pinky finger disability. Specifically, on VA examination in June 2011, the examiner noted that on examination of the hands, there were no anatomical defects. There was full apposition of both hands, full MIP, PIP and DIP flexion of all fingers, except the right ring finger. Furthermore, X-rays of the left hand showed no specific pathology. More recently, May 2018 X-rays of the left hand showed no evidence of fracture or other significant bone or soft tissue abnormality. A May 2018 VA examiner noted the clinical examination of the left pinky finger revealed only subjective joint pain on palpation, and it appeared the Veteran was giving suboptimal effort during range of motion measurements. The examiner concluded that the Veteran’s claimed left pinky finger disability did not have an objective physiological origin. See May 2018 VA examination report. The examiner did not diagnose a specific left pinky finger disability. There is no other evidence of record, VA or private, of a diagnosed left pinky finger disability during the current appeal period. Whether service connection is claimed on direct, presumptive, or any other basis, a necessary element for establishing such a claim is the existence of a current disability. See Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, while the Veteran has reported suffering from pain in the left pinky finger, there is no confirmation in the medical evidence that the Veteran has had a current diagnosis of a chronic left pinky finger disability since the filing of his claim. VA does not generally grant service connection for symptoms alone, without an identified basis for those symptoms. VA needs to identify a disability, not symptoms of a disability. Accordingly, service connection cannot be granted for symptoms of a disability, such as pain. In light of the absence of any competent evidence of a left pinky finger disability during the pendency of this appeal, this claim must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to an initial compensable rating for residuals of a right index finger fracture In a September 2011 rating decision, the RO granted service connection for residuals, right index finger fracture (previously referred to as bilateral hand injury with broken fingers). A noncompensable (0%) rating was assigned, effective February 24, 2010. The Veteran’s claim for increased rating was received in October 2012. The veteran's right index finger disability is currently rated as noncompensably disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5229. The Veteran has reported being right and left hand dominant. The provisions of 38 C.F.R. § 4.71a expressly provide for the application of different rating criteria depending upon whether a Veteran's minor (non-dominant) or major (dominant) side is being evaluated. 38 C.F.R. § 4.69 (2018). However, Diagnostic Code 5229 provides the same rating for the right and left hand. Diagnostic Code 5229 provides a maximum 10 percent rating for limitation of motion of the index or long finger with a gap of one inch (2.5 centimeters) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or with extension limited by more than 30 degrees. A noncompensable rating is warranted for a gap of less than one inch or for extension limited by no more than 30 degrees. On VA examination in June 2011, the Veteran had a 0.5 cm finger to midpalm gap on the right ring finger. The right ring finger lacked 20 degrees of middle phalanx and distal interphalangeal joint flexion. Strength and dexterity were normal. On VA examination in June 2012, the examiner stated that the Veteran was ambidextrous. It was noted that the Veteran had limitation or painful motion with the right index finger. There was no gap between the thumb pad and index finger. There was a gap less than one inch of the index finger and the proximal transverse crease of the palm or evidence of painful motion in attempting to touch the palm. There was no additional loss of motion following repetitive motion, and the Veteran denied flare-ups. Functional loss noted was less movement than normal. The Veteran reported that pain in the index finger affected his employment. VA exam in August 2015 noted that when the Veteran tried to close his fist, he experienced a sharp shooting pain through his hand and that he was not able to close it all the way. He reported being left hand dominant. He reported flare-ups in that after prolonged use, he would experience some swelling and more pain that usually lasted for months at a time. On range of motion, there was no gap between the pad of the thumb and the fingers. There was no gap between the finger and proximal transverse crease of the hand on maximal finger flexion that resulted in functional loss in that he was not able to close the hand all the way and there was pain on range of motion. There was no evidence of localized tenderness to palpation of the joint. There was no change following repetitive testing and there was no additional functional loss shown. Muscle strength was 5/5. There was no atrophy. The Veteran reported that his right index finger disability affected his employment because he was not able to grasp objects. VA exam in May 2018 noted that the Veteran had intermittent sharp pain to the right index finger as well as stiffness. He reported being right hand dominant. Range of motion did not reveal a gap between the pad of the thumb and the fingers. There was no gap between the finger and proximal transverse crease on maximal finger flexion. There was pain on exam. There was slight tenderness to palpation of the right second finger. There was no change following repetitive testing, repeated use over time, or during flare-ups. X-rays were negative. The functional impact is that he had a hard time grabbing and carrying objects. At the June 2011, June 2012, August 2015 and May 2018 VA examinations, the Veteran did not exhibit limitation of motion of the right index finger that resulted in a gap of one inch (2.5 cm.) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible. There was also no evidence during any of those examinations of extension limited to more than 30 degrees in the right index finger. Thus, neither the June 2011, June 2012, August 2015 or May 2018 VA examination supports entitlement to a compensable rating based on limitation of motion under Diagnostic Code 5229. However, the Board nevertheless finds that a 10 percent disability rating is warranted under Diagnostic Code 5229 for painful, limited motion. It is the intention of the Schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Additionally, a compensable rating under 38 C.F.R. § 4.59 may be assigned when there is evidence of painful motion even without actual limitation of motion or loss of motion that is noncompensable. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran has consistently reported that his right index finger impairs his ability to work, in that he experiences pain, is not able to grip objects properly and is not able to close his hand all the way. In addition, at his August 2015 examination, the Veteran exhibited pain on range of motion of his right index finger, and the pain was noted to cause functional loss. Given the Veteran's credible reports of functional impairment due to pain, as well as the August 2015 clinical findings, the Board concludes that the Veteran's painful motion of the right index finger is analogous to extension limited by more than 30 degrees, as the use of his finger is impacted by pain. Accordingly, considering the intent of the Schedule as set forth at 38 C.F.R. § 4.59, and extending the benefit of the doubt to the Veteran, a rating of 10 percent is warranted for the Veteran's service-connected right index finger disability. See 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5229. As the increase to 10 percent for the Veteran's right index finger disability is the maximum rating for limitation of motion, further DeLuca analysis is not required. Johnston v. Brown, 10 Vet. App. 80 (1997). REASONS FOR REMAND The Veteran contends that he injured his right wrist, left ankle, right ankle, and low back (lumbar spine) playing sports during active duty in the U.S. Airforce and that he has continued to have pain in the bilateral ankles, right wrist and low back since that time. He has also reported injuring his low back in a motor vehicle accident in 1991. As the record reflects that the Veteran served on the Airforce football, soccer and basketball teams for several years during active duty, the Board finds that his reports of ankle, wrist and back injuries during service are credible and a low back, right wrist and bilateral ankle injury in service is conceded. 1. Entitlement to service connection for a right wrist disability is remanded. Service treatment records show the Veteran injured his right hand in 1992, but no right wrist disability was diagnosed during active duty or at discharge. However, as noted above, a right wrist sports injury in service is conceded. The Veteran has a currently diagnosed right wrist disability, specifically, degenerative changes secondary to gout. See January 2016 wrist X-rays. A May 2018 VA examiner opined, in essence, that as there is no evidence of a right wrist disability in service or for years thereafter, the currently diagnosed degenerative changes in the right wrist are less likely than not related to military service. The Board notes that service connection is possible for disabilities first identified after service. 38 C.F.R. § 3.303 (d) (2018). The absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The May 2018 examiner did not provide an adequate opinion as to whether the right wrist disability identified after service was related to a disease or injury in service. As such, the Board finds that a remand for another medical opinion as to the etiology of any current right wrist disability is necessary. Barr v. Nicholson, 21 Vet. App. 303 (2007). See also 38 C.F.R. § 4.2 (2018). 2. Entitlement to service connection for a lumbar spine disability is remanded. Service treatment records show the Veteran was treated for a lumbar strain several times during active duty, including in August 1983, October 1987 and June 1991. No low back disability was diagnosed at discharge. However, as noted above, the Veteran played several sports during active duty in the Airforce, and his claimed sports injuries in service are conceded. The Veteran has been currently diagnosed with lumbar spine degenerative arthritis. A May 2018 VA examiner opined that the 1991 lumbar strain the Veteran suffered was an acute injury that was treated with appropriate medical care and there were no follow-up visits noted for this injury. As such, he concluded that the 1991 in-service lumbar strain did not contribute to the development of the degenerative changes seen 26 years later, and opined that it is less likely than not that the currently diagnosed lumbar spine disability is related to military service. The Board notes that the examiner did not consider the other instances of treatment for the lumbar spine in service, including in 1983 and 1987. As such, the negative opinion is based on an inaccurate factual premise. Furthermore, as noted above, service connection is possible for disabilities first identified after service. 38 C.F.R. § 3.303 (d) (2018). The absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The May 2018 examiner failed to provide an adequate opinion as to whether the lumbar spine disability identified after service was related to a disease or injury in service or to the Veteran's reports of continuous symptoms since service. In fact, the examiner did not adequately address the Veteran's lay statements of continuity. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Therefore, the Board finds the May 2018 VA examiner’s opinion inadequate for evaluation purposes, and as such, a remand for a new examination and medical opinion as to the etiology of any current lumbar spine disability is necessary. 3. Entitlement to service connection for a left ankle disability is remanded. Service treatment records do not show a left ankle disability in service or at discharge. However, as noted above, the Veteran played several sports during active duty in the Airforce, and his claimed left ankle injury in service is conceded. The Veteran has been currently diagnosed with degenerative joint disease of the left ankle. A May 2018 VA examiner opined, in essence, that as there is no evidence of a left ankle disability in service or for years thereafter, the currently diagnosed degenerative changes in the left ankle are less likely than not related to military service. The Board notes that service connection is possible for disabilities first identified after service. 38 C.F.R. § 3.303 (d) (2018). The absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The May 2018 examiner did not provide an adequate opinion as to whether the left ankle disability identified after service was related to a disease or injury in service. As such, the Board finds that a remand for another medical opinion as to the etiology of any current left ankle disability is necessary. Barr v. Nicholson, 21 Vet. App. 303 (2007). See also 38 C.F.R. § 4.2 (2018). 4. Entitlement to service connection for a right ankle disability is remanded. Service treatment records show the Veteran was treated for a right ankle sprain during active duty in September 1988. No right ankle disability was diagnosed at discharge. However, as noted above, the Veteran played several sports during active duty in the Airforce, and his claimed right ankle injury in service is conceded. The Veteran has been currently diagnosed with degenerative joint disease of the right ankle. A May 2018 VA examiner opined that the September 1988 right ankle sprain the Veteran suffered was an acute injury that was treated with conservative management and a limited profile, and there is no documentation of any further treatment or care for the right ankle in service. He also noted that a September 1988 right ankle X-ray was negative for fracture. As such, he concluded that the September 1988 in-service right ankle sprain did not contribute to the development of the degenerative arthritis seen 28 years later, and opined that it is less likely than not that the currently diagnosed right ankle disability is related to military service. As noted above, service connection is possible for disabilities first identified after service. 38 C.F.R. § 3.303 (d) (2018). The absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The May 2018 examiner failed to provide an adequate opinion as to whether the right ankle disability identified after service was related to a disease or injury in service or to the Veteran's reports of continuous symptoms since service. In fact, the examiner did not adequately address the Veteran's lay statements of continuity. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Therefore, the Board finds the May 2018 VA examiner’s opinion inadequate for evaluation purposes, and as such, a remand for a new examination and medical opinion as to the etiology of any current right ankle disability is necessary. 5. Entitlement to a total disability rating based on individual unemployability, due to service-connected disabilities (TDIU) is remanded. The Veteran is currently service-connected for unspecified depressive disorder (50% disabling), degenerative arthritis of the cervical spine (30% disabling), radiculopathy of the right and left upper extremities (each 20% disabling), and residuals of right index finger fracture (now 10% disabling with the current increased rating being granted in this decision). He has had a combined disability rating of 80 percent since January 9, 2017, and thus meets the schedular criteria for TDIU as of that date. The Veteran reported on VA examination of the ankles and lumbar spine in 2012 that his disabilities affected his ability to work. He also reported on VA examination of the right index finger in 2015 and 2018 that his disability affected his ability to work. VA mental exam in November 2015 noted that the Veteran was employed part-time as a security guard, but he had been unable to go to work for the previous two years due to his health. There is no medical opinion of record addressing the combined effect of all the Veteran's service-connected disabilities on his ability to work. The United States Court of Appeals for Veterans Claims has held that in the case of a claim for TDIU, the duty to assist requires that VA obtain an examination which includes an opinion on what effect the appellant's service-connected disabilities have on his ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). In addition, 38 C.F.R. § 4.16 holds that the Board must consider the impact of all of the Veteran's service-connected conditions on his ability to obtain and maintain gainful employment. The Court has also held that VA has an obligation to obtain retrospective medical opinions in instances where there is competent evidence suggesting that a higher rating may be appropriate during a relevant period but insufficient clinical evidence to determine whether such an increase is, in fact, warranted. See Chotta v. Peake, 22 Vet. App. 80 (2008); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the relevant time period). In light of the evidence noted above, the Board finds it necessary to remand the issue of entitlement to a TDIU in order for a VA examiner to provide a medical opinion as to whether the Veteran is unemployable due to the combined effect of his service-connected disabilities. The Board also notes that because a decision on the remanded service connection issues could significantly impact a decision on the TDIU issue, the issue is inextricably intertwined. In addition, the Board's grant of an increased rating for the right index finger disability herein could also impact a decision on the issue of TDIU. Thus, a remand of the claim for entitlement to TDIU is required. Finally, the Board notes that it does not have a sufficient amount of information regarding the Veteran’s employment history to make a determination regarding entitlement to TDIU. Although requested to do so more than once by the RO, the Veteran has not submitted a VA Form 21-8940 providing an education and employment history, which would greatly assist the Board in making a determination on the issue of TDIU. The matters are REMANDED for the following action: 1. Updated treatment records should be obtained and added to the claims folder/e-folder. 2. Send the Veteran a letter advising him of the information and evidence needed to award a TDIU. This letter should also request that he complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, in order to provide the information needed to substantiate the claim of TDIU. 3. Following completion of the above, afford the Veteran an appropriate VA examination to determine the nature and etiology of any currently diagnosed right wrist disability. The claims folder should be made available to the examiner for review in connection with the examination and the examiner should acknowledge such review in the examination report. Any indicated studies should be performed. For any currently diagnosed right wrist disability, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disability originated while the Veteran was serving on active duty or is otherwise related to a disease or injury in service, including his conceded in-service sports injuries. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinions. The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. 4. Afford the Veteran an appropriate VA examination to determine the nature and etiology of any currently diagnosed lumbar spine disability. The claims folder should be made available to the examiner for review in connection with the examination and the examiner should acknowledge such review in the examination report. Any indicated studies should be performed. For any currently diagnosed lumbar spine disability, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disability originated while the Veteran was serving on active duty or is otherwise related to a disease or injury in service, including his conceded in-service sports injuries. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinions. The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. 5. Afford the Veteran an appropriate VA examination to determine the nature and etiology of any currently diagnosed right and left ankle disabilities. The claims folder should be made available to the examiner for review in connection with the examination and the examiner should acknowledge such review in the examination report. Any indicated studies should be performed. For any currently diagnosed right and left ankle disabilities, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disability originated while the Veteran was serving on active duty or is otherwise related to a disease or injury in service, including his conceded in-service sports injuries. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinions. The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. 6. Then, provide the Veteran's claims file to an appropriate clinician to provide an opinion regarding the impact of the Veteran's service-connected disabilities on his ability to work. An in-person examination is only required if deemed necessary by the examiner. The claims folder should be made available to the examiner for review in connection with the examination and the examiner should acknowledge such review in the examination report. Any indicated studies should be performed. Based on a review of the claims file, the examiner must provide a functional assessment of the Veteran's service-connected disabilities and his ability to work consistent with his education and occupational experience, and without consideration of his age or non-service-connected disabilities. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. If, and only if, a new examination is required by the examiner, the examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. (Continued on the next page)   7. After completing the above, and any other development deemed necessary, readjudicate the Veteran's remaining claims for service connection and entitlement to TDIU, based on the entirety of the evidence. If any benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided with a SSOC. An appropriate period of time should be allowed for response. The case should then be returned to the Board, if otherwise in order. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD F. Yankey, Counsel