Citation Nr: 1807475	
Decision Date: 02/06/18    Archive Date: 02/14/18

DOCKET NO.  13-28 327	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1. Evaluation in excess of 10 percent for status post right middle finger laceration with residual scar and degenerative joint disease of the 2nd and 3rd MCP joints.

2. Entitlement to service connection for a left shoulder and rotator cuff injury.


REPRESENTATION

Appellant represented by:	Colorado Division of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

Appellant and Spouse


ATTORNEY FOR THE BOARD

M. A. Macek, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1976 to May 1995 in the United States Army.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2012 and May 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.

In October 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a Board video conference hearing. A transcript of the hearing has been associated with the claims file.


FINDINGS OF FACT

1. The Veteran's right middle finger manifested with pain, with a 2.5 cm gap between the fingertip and the proximal transverse crease of the palm, without the presence of ankylosis or peripheral neuropathy, and at a functional level that would not be equally served by amputation.

2. The Veteran's current degenerative arthritis of the left shoulder, did not manifest to a compensable degree within the one-year presumptive period following service discharge, and is not otherwise etiologically related to such service; furthermore, the Veteran's left rotator cuff injury is not etiologically related to service.



CONCLUSIONS OF LAW

1. The criteria for a rating higher than 10 percent for limitation of motion of the right middle finger have not been met. 38 U.S.C. §§ 1155 , 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.321 , 4.1, 4.2, 4.7, 4.41, 4.45, 4.56, 4.71a, 4.73, 4.124, Diagnostic Codes 5229-8517 (2017).

2. The criteria for service connection for a left shoulder and rotator cuff injury have not been met. 38 U.S.C. §§ 1101, 1110, 1137 (West 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2017).

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2 (2017); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2017). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2017). 

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 upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.

Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding, see 38 C.F.R. § 4.14 (2017), do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. However, those provisions should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45 (2017).

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2017). However, the evaluation of painful motion as limited motion only applies when the limitation of motion is non-compensable under the applicable diagnostic code. Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

Right middle finger laceration with residual scar and degenerative joint disease of the 2nd and 3rd MCP joints
In May 1994, a washing machine fell on the Veteran's right middle finger, causing a laceration, but without any evidence of fracture or dislocation.  

The Veteran is assigned a 10 percent evaluation since May 26, 2011 for his right middle finger disability. 38 C.F.R. § 4.71a, Diagnostic Code 5229. The Veteran was initially assigned a noncompensable evaluation as part of a May 2012 rating decision. In August 2017, VA increased the Veteran's evaluation for his right middle finger disability to 10 percent, effective May 26, 2011.

Under Diagnostic Code 5229, a noncompensable rating is assigned where there is a gap of less than one inch (2.5 centimeters) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible. Id. A 10 percent rating is warranted where there is a gap of one inch (2.5 centimeters) or more, or when extension is limited by more than 30 degrees. Id. A 10 percent rating is the highest available evaluation under the schedule for limitation of motion of the long finger.

A 10 percent rating is also warranted where there is unfavorable or favorable ankylosis of the long finger. 38 C.F.R. § 4.71a , DC 5226. "Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint." Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). A 10 percent rating is the highest available evaluation under the schedule for long finger ankylosis.

Under Diagnostic Code 8517, moderate incomplete paralysis of the musculocutaneous nerve warrants a 10 percent evaluation; severe incomplete paralysis of the musculocutaneous nerve warrants a 20 percent evaluation and complete paralysis manifested by weakness, but not loss, of flexion of the elbow and supination of the forearm and warrants a 30 percent rating. See 38 C.F.R. § 4.124a , DC 8517 (2017).

The Veteran contends that he should be afforded a higher evaluation for his right middle finger disability. He testified that he started receiving injections in his right hand due to tendonitis, carpal tunnel, trigger finger, and degenerative arthritis in all 10 fingers. See October 2017 Transcript. He reported feeling pain in his middle finger and he has difficulty grasping, writing, squeezing, and shaking hands. Additionally, his hand would lose sensation, go numb, and present with tingling and throbbing pains, with the symptoms being exacerbated by cold weather. He is prescribed Lidocaine and Capsaicin topical cream to manage pain in his right middle finger.

In September 2017, the Veteran was afforded a VA examination for his hand and fingers. The examiner confirmed a diagnosis of degenerative arthritis of the right hand. The medical history included injury to the right hand due to a chain laceration which resulted in residual symptoms of pain and swelling in his right middle finger. Range of motion was considered abnormal in the right hand. The right long finger had the following measurements: max extension in the MCP to 0 degrees, max flexion in the MCP to 90 degrees; max extension of the PIP to 0 degrees, max flexion in the PIP to 100 degrees; max extension in the DIP to 0 degrees, Max flexion in the DIP to 50 degrees. A gap of 2.5 cm was measured between the right long finger and the proximal transverse crease of the hand on maximal finger flexion. Functional loss was noted as impairment in gripping and using tools. The examiner endorsed that the remaining effective function of the right hand was not so diminished as to be equally served with amputation. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no evidence of ankylosis in the right hand. A scar was observed in the right long finger area; however, it is considered stable measuring 1 cm by 0.1 cm. The Veteran was noted to use a brace on his right hand constantly for carpal tunnel syndrome.

In August 2017, the Veteran was afforded a VA examination for peripheral nerve conditions. Medical history revealed a diagnosis of carpal tunnel syndrome. Examination of the peripheral nerved revealed mild upper extremity peripheral neuropathy. The examiner opined that there were additional conditions which are unrelated to the service connected diagnosis (right middle finger laceration with residual scar and degenerative joint disease of the 2nd and 3rd MCP joints). His rationale noted that "[t]he Veteran's carpal tunnel syndrome is not due to his right hand laceration and scarring. The nerve condition has developed over time. If the laceration had been the source of the nerve's condition, the symptoms would have been evident shortly after the accident." See July 2017 VA examination.

The Board finds that a rating in excess of 10 percent for the Veteran's right middle finger disability is not warranted. The Veteran's right middle finger disability is at the maximum compensable rating for his right middle finger when considering Diagnostic codes 5226 and 5229 for ankylosis and range of motion. There is no presence of ankylosis in the Veteran's right hand and he has a gap of 2.5 cm measured between the right long finger and the proximal transverse crease of the hand on maximal finger flexion. The Board has considered pain on motion as per Deluca and C.F.R. 4.59; however, the Veteran currently receives the minimum compensable rating for his right middle finger disability; as such, a consideration of a higher evaluation based on pain in not warranted. Additionally, there is no diagnosis of peripheral neuropathy in the Veteran's right middle finger; therefore, Diagnostic Code 8517 is not indicated.

In sum, the Veteran's range of motion, a 2.5 cm gap measured between the right long finger and the proximal transverse crease of the hand on maximal finger flexion, and pain on motion warrant a 10 percent evaluation for the right middle finger disability. There is no indication of moderate paralysis or ankylosis that would warrant a higher evaluation. As such, a rating in excess of 10 percent for a right middle finger disability is not warranted.

II. Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  See 38 C.F.R. § 3.303 (2017); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.
Presumptive Service Connection for Chronic Diseases
Service connection for certain musculoskeletal diseases, including arthritis, may be established on a presumptive basis by showing that the disease manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. § 3.307 (a)(3) (2017). If the chronic disease manifested in service or within the presumptive period, then service connection will be established for subsequent manifestations of the same chronic disease at any date after service, no matter how remote, without having to show a causal relationship or medical nexus, unless the later manifestations are clearly due to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that § 3.303(b) only applies to the chronic diseases listed in § 3.309(a)). When the condition noted during service is not shown to be chronic, or its chronicity may be legitimately questioned, then a continuity of symptoms after service must be shown to establish service connection under this provision. Id. at 1338-39 (observing that a continuity of symptoms after service is a relaxed evidentiary showing that itself "establishes the link, or nexus" to service and also confirms the existence of the chronic disease while in service or during a presumptive period). To establish service connection based on a continuity of symptoms under § 3.303(b), the evidence must show: (1) a condition "noted" during service; (2) post-service continuity of the same symptoms; and (3) a nexus between the present disability and the post-service symptoms. Fountain v. McDonald, 27 Vet. App. 258, 263-64 (2015).

The Veteran contends that his current left shoulder disability is related to his active military service. He testified that he worked as a mechanic as part of his military occupational series. See October 2017 Transcript. He worked as a mechanic in the military for 19 years and then privately at a Ford dealership for an additional 16 years. The Veteran testified that he injured his left shoulder on 2 occasions in service. First, he fell from his bicycle and "tore up his shoulder on the left side." He also reported being involved in an unloading accident involving a jeep which resulted in his left arm being placed in a sling and receiving injections. The Veteran testified that he mentioned his shoulder during his separation examination; however, the examiner stated that it was probably just tendonitis according to the Veteran. The Veteran reported that he had surgery to repair his right rotator cuff in his shoulder following an accident where he tripped over his son's foot. During post-surgical physical therapy, the Veteran tore his right bicep tendon and so a second surgery to his right shoulder was performed.

The Veteran's spouse, who was married to the Veteran while he was on active duty, testified that her husband often complained of shoulder pain while in-service. See October 2017 Transcript. She would treat his pain by giving him heating pads and over-the-counter creams.

With respect to element (1), a current disability, the Veteran has a current left shoulder disability. The Veteran was afforded a VA examination for his left shoulder in September 2017. The examiner confirmed a diagnosis of degenerative arthritis of the left shoulder with an onset in 2017.

With respect to element (2), in-service incurrence or aggravation of a disease or injury, the evidence of record does not indicate that the Veteran's degenerative arthritis manifested to a compensable degree within the presumptive period following separation. Affording the Veteran the benefit of doubt, the Board finds that there in an indication that a left shoulder injury may have occurred in-service.

The September 2017 VA examiner noted that there was a history of left shoulder injuries during service as a result of a reported tank accident and a second incident involving the unloading a vehicle where the Veteran's. The Veteran reported that his arm was placed in a sling and he received injections. He did not seek treatment for his left shoulder until 1997, but mentioned that it was sore upon discharge.

The Board notes that the Veteran's service treatment records are silent for any complaint or treatment of degenerative arthritis of the left shoulder disability during service or within one year of the Veteran's separation. The record indicates that in March 1988, the Veteran presented for treatment of his left arm after falling off a bicycle. The examiner noted full range of motion of the left shoulder without pain. Additionally, an x-ray of the left shoulder revealed no fracture, joint stability, and was found to be within normal limits. The Board notes that service treatment records were absent for any accident involving the Veteran's reported unloading accident. Additionally, the Veteran's separation examination, which revealed numerous positive endorsements for conditions suffered during active service, did not indicate any left shoulder disability. Furthermore, the February 1995 separation examination was silent for any arthritis condition.

Based on the Veteran's testimony, his spouse's testimony, and his presentation for treatment following bicycle accident, the Board finds that there is evidence of an in-service injury.  38 U.S.C. § 5107 (b) (West 2012). The Board notes that the Veteran's degenerative arthritis was determined to have its onset in 2017. Additionally, the degenerative arthritis did not manifest to a compensable degree within the presumptive period following separation. However, affording the Veteran the benefit of doubt, there is an indication that the Veteran injured his left shoulder and suffered lingering pain during active service. As such, the Board finds that element (2), in-service incurrence or aggravation of a disease or injury, has been met.

With respect to element (3), a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability, the competent, credible, and probative evidence of record weighs against a finding that the Veteran's current degenerative arthritis of the left shoulder is etiologically related to service and that his left rotator cuff was caused by or aggravated by his left shoulder degenerative arthritis.

While the Veteran was involved in a bicycle accident during active military service, there is no reference to any left shoulder pathology following the incident.  The in-service medical examinations and treatment records after the Veteran's bicycle accident revealed no left shoulder symptoms or diagnoses, which was confirmed via radiographical tests. Similarly, no reference was made to any left shoulder disability upon service discharge nor was any left shoulder condition found.  This evidence strongly suggests that there was no residual left shoulder disability upon service discharge.  

VA treatment records reveal that in 2009, the Veteran underwent left rotator cuff repair. Later that year, the Veteran tripped over his son's foot and required additional surgery to repair his injured left shoulder.

In August and September 2017, the Veteran was afforded VA examinations for his left shoulder. The August 2017 examiner opined that it is less likely than not that the Veteran's left shoulder disability was incurred in or caused by an in-service event or injury. The examiner noted that there were no service treatment records involving a left shoulder problem or symptoms. The February 1995 separation examination was marked "no" for "painful or trick shoulder." The examiner also noted two significant injuries to the Veteran's shoulder surgeries more than 15 years after separation. The examiner concluded that the Veteran's left shoulder disability was more likely caused from post service injuries and surgeries than by an in-service event. Additionally, the August 2017 VA examiner stated that "the Veteran's left shoulder condition is a new and separate condition that is not causally related to his condition of arthritis that occurred during his military service. The Veteran's left rotator cuff injury and resulting surgery occurred years after his service. He had been working as a mechanic which can put stress on shoulder joints. The Veteran's left shoulder condition is less likely than not due to the accident during service."

Significantly, during the VA examination in September 2017, while there was extensive discussion of a left shoulder condition, the onset of degenerative arthritis of the left shoulder was endorsed as 2017.  VA post separation treatment records do not list a left shoulder condition as a current problem until years after the presumptive period.  These findings suggest that a left shoulder condition was not present.  They also tend to reduce the credibility of the Veteran's statements regarding any continuity of symptomatology.  See AZ v. Shinseki, 731 F.3d 1303, 1315-16 (Fed. Cir. 2013) (silence within records is pertinent evidence when records would typically document event in dispute); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (silence in medical records may be relevant evidence that symptoms were not present if the record would normally have recorded such symptoms). 

Finally, the medical opinion evidence is against the claim as the VA examiners in concluded that the Veteran's left shoulder disability is not related to the reported in-service incidents bicycle accident and did not manifest to a compensable degree until after the presumptive period post-separation. The examiners opined that the Veteran's left shoulder disability was likely exacerbated by post-separation injuries and by the Veteran's occupation. There remains no medical evidence that positively associates the Veteran's degenerative arthritis of the left shoulder to his service or that the Veteran's reported degenerative arthritis was aggravated by such service. Conversely, the medical opinions of record indicate that the Veteran's current left shoulder condition (rotator cuff tear) is "a new condition" that was caused by post-separation injuries. While the Veteran may believe that his current left shoulder disability is related to incidents in service, he is not shown to have the expertise to offer an opinion on such a medically complex topic. Jandreau v. Nicholson, 492 F.3d 1372, 1377   (Fed. Cir. 2007). 


ORDER

A disability rating higher than 10 percent for limitation of motion of the right middle finger is denied.

Entitlement to service connection for left shoulder and rotator cuff injury is denied.



____________________________________________
M. TENNER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs