Citation Nr: 20004277 Decision Date: 01/17/20 Archive Date: 01/17/20 DOCKET NO. 16-58 062 DATE: January 17, 2020 ORDER Entitlement to a compensable rating for right hand fifth metacarpal disability is denied. New and material evidence has been presented, and the claim of entitlement to service connection for low back disability is reopened. New and material evidence has been presented, and the claim of entitlement to service connection for left knee disability is reopened. Service connection for low back disability is granted. Service connection for left knee disability is granted. Service connection for sleep disorder to include insomnia, depression and anxiety disorder is granted. REMANDED Entitlement to service connection on a secondary basis for erectile dysfunction is remanded. Entitlement to special monthly compensation for loss of use of a creative organ due to erectile dysfunction is remanded. FINDINGS OF FACT 1. The Veteran’s right hand fifth metacarpal disability was manifested by pain, limited range of motion, with no evidence of arthritis, that resulted in slight disability. 2. An unappealed June 2011 rating decision denied service connection for low back disability and left knee disability. 3. Evidence submitted subsequent to the June 2011 rating decision raises a reasonable possibility of substantiating the claims of entitlement to service connection for low back disability and a left knee disability. 4. Resolving all doubt in the Veteran’s favor, the most probative evidence of record demonstrates that the Veteran’s low back disability is related to his active service. 5. Resolving all doubt in the Veteran’s favor, the most probative evidence of record demonstrates that the Veteran’s left knee disability is related to his active service. 6. Resolving all doubt in the Veteran’s favor, the most probative evidence of record demonstrates that the Veteran’s sleep disorder to include insomnia, depression and anxiety disorder are related to or aggravated by his service-connected tinnitus. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for right hand fifth metacarpal disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, 4.73, Diagnostic Code 5230. 2. The June 2011 rating decision which denied service connection for low back disability and left knee disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 3. New and material evidence has been received to reopen the claims of entitlement to service connection for low back disability and left knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. The criteria for service connection for low back disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for left knee disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for sleep disorder to include insomnia, depression and anxiety disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from December 1986 to December 1996. This matter is on appeal to the Board of Veterans’ Appeals (Board) from rating decisions issued in September 2014, June 2015 and November 2017 by a regional office of the Department of Veterans Affairs (VA). In September 2019, the Veteran testified at a Board hearing via videoconference before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is associated with the record. As the record reflects mental disorder diagnoses, the Board finds it appropriate to recharacterize the Veteran’s claim as entitlement to service connection for sleep disorder to include insomnia, depression and anxiety disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Increased Rating 1. Entitlement to a compensable rating for right hand fifth metacarpal disability is denied. By rating decision of June 2011, service connection was granted for the Veteran’s right hand fifth metacarpal disability (diagnosed as 40-degree angulation of the right metacarpal of the little finger, status post right hand fracture) and assigned an initial noncompensable rating under Diagnostic Code 5230. The Veteran filed a claim for increased evaluation in November 2013 which was denied by a rating decision of September 2014. The Veteran disagrees and contends that his noncompensable rating does not accurately reflect the current level of severity for his service-connected right hand fifth metacarpal disability. The Veteran’s right fifth metacarpal disability has been rated under Diagnostic Code 5230 for limitation of motion of the little finger. The Veteran is right hand dominant and the right upper extremity is the major extremity. See 38 C.F.R. § 4.69. The rating criteria evaluating ankylosis or limitation of motion of single or multiple digits of the hand, assigns a 0 percent rating for any limitation of motion or unfavorable or favorable ankylosis of the little finger, major or minor hand. 38 C.F.R. § 4.71a, Diagnostic Code 5230. The record shows an August 2014 VA examination where the examiner indicated limitation of function but no additional limitation on movement. The examiner noted that the Veteran “would likely experience limitation of unction due to pain during flare-ups or when joint is used repeatedly over a period of time.” Muscle strength testing was 5/5 for right hand grip. There was no evidence of ankylosis of the thumb or fingers. X-rays taken of the right hand was normal with no evidence of arthritis. See Hand and Finger Conditions Disability Benefits Questionnaire (DBQ) dated August 2014. In this case, the Board notes that a noncompensable rating is the maximum, and only, evaluation permissible under Diagnostic Code 5230 for any limitation of motion of the right little finger. Thus, based on this diagnostic code, a higher rating is not available. Further, there has been no evidence unfavorable or favorable ankylosis of the ring finger, thus Diagnostic Code 5227 is not for application. Likewise, with regard to the other diagnostic codes relating to finger disabilities, Diagnostic Codes 5224, 5225, and 5226 which applies to ankylosis of the thumb, index finger, or long finger; and Diagnostic Codes 5228 and 5229 which evaluates limitation of motion of the thumb, index or long finger, are therefore not applicable to the Veteran’s service-connected right little finger. Additionally, as the evidence of record does not reflect that the service-connected disability is manifested by degenerative joint disease of a major joint or a group of minor joints, an increased rating is not available under Diagnostic Code 5010. See 38 C.F.R. § 4.71a, Diagnostic Code 5010. With regard to considering functional loss due to pain, the Board notes that the rating schedule explicitly provides a noncompensable rating for impairment of the little finger - even if ankylosed. The Court has held that if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. Johnston v. Brown, 10 Vet. App. 80 (1997) (explaining that remand was not required even though the Board did not consider functional loss due to pain because the appellant was already receiving the maximum disability rating for limitation of motion available under the diagnostic code at issue). Thus, additional compensation is not warranted under 38 C.F.R. §§ 4.40 or 4.45 or under the provisions of DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board has also considered whether a compensable rating is warranted under an alternative diagnostic code that pertains to muscle injuries for decreased overall hand strength. However, the criteria for a compensable rating under this diagnostic code are not met. The Veteran’s right hand symptoms approximate no more than “slight” impairment of hand muscles for Muscle Group VIII, which is noncompensable. Under Diagnostic Code 5308 (extension of the wrist, fingers, and thumb), a 10 percent rating would be warranted for “moderate” muscle impairment of the dominant side. (pertaining to Muscle Group VIII). A 20 percent rating would be warranted for “moderately severe” impairment, and a maximum rating of 30 percent would be warranted for “severe” impairment of extension. As noted above, the August 2014 examiner indicated no evidence of swelling, deformity, atrophy, loss of strength, weakened movement, incoordination, fatigability, limited motion, impaired movement, or functional loss in the right little finger. Furthermore, X-ray taken of the right hand was normal. Such findings fail to demonstrate limitation of function of the right hand joint so as to warrant a higher rating for a disability more nearly approximating a “moderate” muscle group injury. Even considering the Veteran’s report of decreased overall grip strength and “decreased tolerance for weight bearing activities of lifting, pushing or pulling activities” as listed by the August 2014 examiner, the Veteran’s right hand overall weakness was not more nearly approximated the criteria for a higher rating for muscle impairment of the joint/hand. Indeed, this is consistent with the September 2019 private opinion which reflects the Veteran’s report of “weakness of grip and an aching that occurs with weather changes.” The physician also indicated that the Veteran has “difficulty holding on to any object for any length of time” and that his “non-dominant left-hand has a stronger grip than the veteran’s right hand.” See Independent Medical Opinion of D.B.M., M.D. dated September 2019, received December 2019. Furthermore, the Veteran complaints of experiencing pain and weakness associated with his right hand little finger disability is contemplated in the assigned Diagnostic Code 5230. Therefore, the preponderance of the evidence is against a separate compensable rating under an alternative diagnostic code relating to muscle injuries. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to a compensable rating for his service-connected right hand fifth metacarpal disability. The benefit-of-the-doubt doctrine is not for application, and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). New and Material Evidence New evidence means evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. This is a low threshold that is meant to enable, rather than preclude, reopening. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The focus is not on whether the evidence remedies the principle reason for the previous denial, but whether the evidence, taken together, would at least trigger the duty to assist by providing a medical opinion. Id. at 117. 2. New and material evidence has been presented, and the claim of entitlement to service connection for low back disability is reopened. 3. New and material evidence has been presented, and the claim of entitlement to service connection for left knee disability is reopened. The Veteran originally filed a claim for entitlement to service connection for low back and left knee disability which was denied by a June 2011 rating decision due to a lack of nexus, i.e., that there was insufficient evidence relating a current condition to active service. The June 2011 rating decision was not appealed, and new and material evidence was not entered within a year. The decision thereby became final. The Veteran’s claim to reopen was received in November 2013. Since the June 2011 decision, new evidence has been received to include additional VA and private treatment records, including independent medical opinions received December 2019. Further, the credibility of such report is to be presumed for purposes of new and material evidence. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Because this information, in connection with evidence previously assembled, raises the possibility of substantiating the Veteran’s claim, it constitutes new and material evidence sufficient to reopen the claim. Accordingly, the claims for service connection for low back disability and left knee disability are reopened. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection requires competent evidence of (1) a current disability; (2) in service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence showing that (1) a current disability exists and (2) the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). 4. Entitlement to service connection for low back disability is granted. As indicated above, the Board found new and material evidence had been presented to reopen the claim of service connection for low back disability. To that end, given the competent medical evidence of record and additional lay statements, the Board finds that service connection for low back disability is warranted. In so concluding, the Board finds highly probative the September 2019 independent medical opinion of D.B.M., M.D., an orthopaedic surgeon, opined that the Veteran’s present thoracolumbar condition, diagnosed as “Chronic Low Back Syndrome,” is the direct result of his two major injuries that occurred while on active duty. See Independent Medical Opinion of D.B.M., M.D. dated September 2019, received December 2019. Notably, the private physician specifically addressed the conflicting findings of the May 2011 VA examiner and refuted each rationale of the VA medical opinion. Further, the private physician cited to a review of the claims file including the Veteran’s service treatment records and post-service medical treatment records and indicated that his opinion was based on medical evaluations, clinical interview of the Veteran, and the medical literature. Id. Taking all reports into account, the Board concludes that the evidence of record is at least in equipoise, meaning that the evidence for and against the Veteran’s claim is essentially equal. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the grant of service connection for low back disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 5. Entitlement to service connection for left knee disability is granted. Similarly, the claim of service connection for left knee disability has been reopened and based on the additional medical and lay evidence of record, the Board finds that service connection for left knee disability is warranted. The Board assigns significant probative weight to the September 2019 independent medical opinion of D.B.M., M.D finding it is at least as likely as not that the veteran’s present left knee condition is the direct result of his motor vehicle accident injuries that occurred while on active duty. See Independent Medical Opinion of D.B.M., M.D. dated September 2019, received December 2019. Further, the private opinion reflects consideration s of the Veteran’s claims file including the May 2011 VA medical opinion which found that the veteran’s bilateral knee chronic strain was less likely as not caused by or a result of service. However, the September 2019 private physician provides thorough reasoning for his conclusion and addresses the conflicting findings of the VA medical opinion. As noted, the private opinion was based on medical evaluations, clinical interview of the Veteran, and the medical literature. Id. Based on the foregoing and resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for left knee disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 6. Entitlement to service connection for sleep disorder to include insomnia, depression and anxiety disorder is granted. Given the competent medical evidence of record and lay statements, the Board finds that service connection for sleep disorder to include insomnia, depression and anxiety disorder is granted is warranted. In so concluding, the Board finds highly probative the December 2019 independent medical opinion from B.V., Ph.D., a licensed clinical psychologist, who after clinical evaluation and review of the claims file opined that the Veteran’s symptoms of insomnia manifested in service and is related to active service. Additionally, they psychologist indicated other mental disorder diagnoses of depressive disorder and anxiety disorder which he found were due to service-connected tinnitus. See Mental Disorders DBQ and Independent Medical Opinion of B.V., Ph.D. dated December 2019. In support of the conclusion, the psychologist cited to knowledge of the Veteran’s medical history including service treatment records and post-service treatment records, ongoing symptomatology, lay statements, and medical literature. Id. Further, the Veteran is also competent to report the occurrence of his symptoms of insomnia and sleep disorder since they are within his realm of personal and firsthand knowledge. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Based on the foregoing and resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for insomnia disorder is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board recognizes that the record reflects other mental diagnoses of Depressive Disorder and Anxiety Disorder. However, VA is precluded from differentiating the symptoms of the Veteran’s sleep disorder and those of his other psychiatric symptoms in the absence of clinical evidence that clearly shows such a distinction. See Mittleider v. West, 11 Vet. Ap. 181, 182 (1998). Further, because all psychiatric disorders, with the exception of eating disorders, are evaluated under the General Rating Formula for Mental Disorders, a single evaluation will be assigned that encompasses all of the Veteran’s overlapping psychiatric symptoms. Thus, the Veteran would not be entitled to separate ratings for symptoms or impairment of Insomnia, Major Depressive Disorder, and Anxiety Disorder, as 38 C.F.R. § 4.14 provides that rating such manifestations of a disability under multiple diagnoses (i.e., pyramiding) is to be avoided. That is, a claimant may not be compensated twice for the same symptomatology as “such a result would over compensate the claimant for the actual impairment of his earning capacity.” Brady v. Brown, 4 Vet. App. 203, 206 (1993).   REASONS FOR REMAND 7. Entitlement to service connection on a secondary basis for erectile dysfunction is remanded. 8. Entitlement to special monthly compensation for loss of use of a creative organ due to erectile dysfunction is remanded. The Veteran’s claim for erectile dysfunction was denied by a rating decision of November 2017. At his September 2019 Board hearing, the Veteran raised a secondary theory of entitlement that his erectile dysfunction was caused or aggravated by medication prescribed by the VA, as well as secondary to his low back disability, which has now been awarded service connection above. See Hearing Transcript at 12. VA treatment records of July 2019 also reflect a current diagnosis of organic impotence hypogonadism. The Board observes that the Veteran has not been afforded a VA examination for his claimed erectile dysfunction and there is no etiological medical opinion of record taking into consideration the Veteran’s lay statements and reported history. In order to ensure that his claim is afforded full consideration, the Board concludes that an examination is necessary. Further, the issue special monthly compensation for loss of use of a creative organ due to erectile dysfunction is inextricably intertwined with the development ordered above and must be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Attempt to obtain and associate with the claims file all outstanding VA and non-VA treatment records. Contact the Veteran regarding any additional treatment and if necessary, obtain authorization to obtain additional evidence pertinent to the claim(s) on appeal that is not currently of record. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. 2. Schedule the Veteran for an appropriate VA examination with an appropriate medical professional to determine the nature and etiology of his claimed erectile dysfunction. The Veteran’s electronic claims file must be made accessible to the examiner in conjunction with the examination along with any other information the medical professional deems pertinent. Following review of the record, including treatment records, and examination of the Veteran, the examiner should provide an opinion as to the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s erectile dysfunction is caused by service-connected disabilities, to include medication prescribed for treatment of his service-connected disabilities? Is it at least as likely as not (50 percent or greater probability) that the Veteran’s erectile dysfunction is aggravated by service-connected disabilities, to include medication prescribed for treatment of his service-connected disabilities? The provided opinion must reflect consideration of the medical and lay evidence of record setting forth a complete rationale for all findings and conclusions. 3. After completing the above action and any other development deemed necessary, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. An, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.