Citation Nr: 21004945 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 14-21 516 DATE: January 28, 2021 ORDER Entitlement to a compensable rating for residuals of a fracture of the right hand of 10 percent, but no higher, since September 8, 2010, is granted. REMANDED 1. Entitlement to service connection for cyst of the mouth is remanded. 2. Entitlement to service connection for a left ankle disability is remanded. 3. Entitlement to service connection for right lateral epicondylitis (also claimed as elbow and forearm with pain and tendonitis) is remanded. 4. Entitlement to service connection for right wrist sprain (also claimed as wrist with pain and tendonitis) is remanded. FINDING OF FACT The Veteran has degenerative arthritis of the right hand involving the index and long fingers. CONCLUSION OF LAW The criteria for a 10 percent evaluation, but no higher, for degenerative arthritis of the right index and long finger have been met. See 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.59, 4.71a, DC 5003. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1979 to July 2001. This matter comes to the Board of Veterans’ Appeals (Board) from a December 2012 rating decision. In August 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In May 2018, the Board remanded for further development the claims of a compensable rating for residuals of a fracture of the right hand and for service connection for cyst of the mouth and a left ankle disability. A November 2018 rating decision denied service connection for right lateral epicondylitis and right wrist sprain. Residuals of a fracture of the right hand Disability ratings are determined by applying the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. The rating criteria to evaluate a hand disability can be found in the General Rating Formula for the Musculoskeletal System. See 38 C.F.R. § 4.71a. Because the Veteran asserts that a compensable rating is warranted for symptoms related to his right index and long fingers, the Board will limit its discussion to the relevant diagnostic codes (DC). Under DCs 5219, 5223, 5225, and 5226, various disability ratings are warranted for ankylosis of multiple fingers or ankylosis of the index or long fingers. See 38 C.F.R. § 4.71a, DC 5219, 5223, 5225, 5226. Under DC 5229, a 10 percent rating is warranted for limitation of motion, index or long finger, where there is 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, or; with extension limited by more than 30 degrees. See 38 C.F.R. § 4.71a, DC 5229. A noncompensable rating is warranted where there is a gap of less than 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, and; with extension limited by no more than 30 degrees. See id. When the limitation of motion of the specific joint or joints involved is noncompensable under the above DCs, a rating of 10 percent under DC 5003 for degenerative arthritis is warranted for application for each such major joint or group of minor joints affected by limitation of motion. See 38 C.F.R. § 4.71a, DC 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. See id. When there is no evidence of limitation of motion, a 10 percent rating is warranted for x-ray evidence of involvement of two or more major joints or two or more minor joint groups. See id. A 20 percent rating is warranted for x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. See id. Multiple involvements of the interphalangeal, metacarpal, and carpal joints of the upper extremities are considered minor joints. See 38 C.F.R. § 4.45(f). An August 2001 private treatment record documented an x-ray of the right hand showing spurring at the second metacarpal head, and mild bony deformity of the midshaft of the second and possible third metacarpal bones, likely reflecting remote fracture density. An April 2011 private treatment record documented the Veteran’s reports of occasional swelling in the right hand. A May 2011 VA treatment record documented the Veteran’s report of right hand pain. A September 8, 2011, VA Form 21-4142 was interpreted to raise a claim of an increased evaluation for residuals of a fracture of the right hand. A September 2011 private treatment record documented the Veteran’s reports of right hand pain. An April 2012 VA examination showed no limitation of motion or painful motion for any fingers or thumbs. The examiner stated the Veteran was unable to perform repetitive use testing, but also stated there was no additional limitation of motion for any fingers. The examiner stated the Veteran had no functional loss or functional impairment of any fingers or thumbs. The Veteran reported pain on palpation in the right hand, and the examiner specifically noted the second metacarpophalangeal. The Veteran did not have ankylosis of the fingers or thumb. An x-ray of the right hand was negative. A July 2017 VA treatment record documented that the Veteran’s long finger was enlarged and tender, but not warm or erythematous. An x-ray of the right hand showed mild negative ulnar variance, and the attending nurse practitioner noted that the x-ray showed minimal changes associated with mild arthritis. An August 2017 VA treatment record documented the Veteran’s report of right index pain for many years. An April 2019 VA examination showed normal maximum extension in the right thumb and fingers, and maximum flexion of at least 50 degrees in the right thumb and fingers. There was 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 no ankylosis in the right hand, but there was swelling in the right long finger. The examiner stated the Veteran had lost zero to one week of work in the last month due to this disability. An x-ray of the right hand showed no degenerative joint disease or arthritis. In August 2020 correspondence, the Veteran asserts that a compensable rating is warranted because he has painful motion in the index and long fingers. As a preliminary matter, the Board notes that the Veteran’s service-connected disability is currently evaluated under DC 5010 for degenerative arthritis due to trauma, substantiated by x-ray findings. The Board finds that the Veteran’s residuals of a fracture of the right hand do not satisfy any of the ratings criteria identified in DCs 5219, 5223, 5225, 5226, and 5229, because the evidence of record, to include the April 2012 and April 2019 VA examinations, does not show ankylosis in the thumb or fingers, or a gap of less than one inch (2.5 cm) or more between the fingertip and the proximal traverse crease of the palm, with the finger flexed to the extent possible; and with extension limited by no more than 30 degrees. Given the limitation of motion in the right index and long fingers identified in the April 2020 VA examination, a noncompensable rating under DC 5229 would be warranted. See 38 C.F.R. § 4.31 (stating that a noncompensable rating shall be assigned when the requirements of a compensable rating are not met). However, because a compensable disability rating is not warranted under the above DCs, the Board must consider whether the Veteran is entitled to a compensable disability rating under DC 5003 for degenerative arthritis. The Board notes that the evidence of record is conflicting regarding the presence of arthritis in the Veteran’s right hand. The April 2019 x-ray showed no evidence of degenerative joint disease or arthritis, but other evidence, to include the August 2001 private treatment record and the July 2017 VA treatment record, mentioned arthritis in the right hand, identifying the index and long fingers. Giving the Veteran the benefit of the doubt and consistent with the current evaluation under DC 5010, the Board finds that the evidence of record shows arthritis in the index and long fingers. The Board notes that any disability under DC 5010 is rated under DC 5003. See 38 C.F.R. § 4.71a, DC 5010. Based on the evidence of record, the Board finds that a 10 percent rating is warranted under DC 5003. The Board finds the Veteran’s lay statements of painful range of motion in the index and long fingers consistent with the evidence of record showing swelling and complaints of pain. The Board notes that the evidence of record, to include the April 2012 and April 2019 VA examinations, is conflicting on whether the Veteran has limitation of motion in the right hand. However, a 10 percent rating under DC 5003 is warranted regardless of whether the Veteran has limitation of motion confirmed by other evidence, such as his credible lay statements, or alternatively in the absence of limitation of motion, by x-ray evidence of involvement of two or more minor joint groups. See 38 C.F.R. § 4.71a, DC 5003. The Board finds that the higher rating of 20 percent is not warranted because the Veteran did not have occasional incapacitating episodes. The evidence of record does not show any bedrest prescribed by a physician and the April 2019 VA examiner reported the Veteran lost zero to one week of work due to this disability. The Board further finds that this rating is effective September 8, 2010. An effective date for a claim of an increased rating can be awarded up to one year prior to the date of claim if the evidence documents a factually ascertainable increase in disability within this one-year period. See 38 C.F.R. § 3.400(o)(1)-(2). Giving the Veteran the benefit of the doubt, the evidence of record documented a factually ascertainable increase in disability within the one-year prior to the filing of the claim. REASONS FOR REMAND 1. Cyst of the mouth The Veteran asserts that service connection is warranted for cyst of the mouth due to dental work performed during service, to include root canals and wisdom teeth extractions. The Board finds that remand is required for the agency of jurisdiction (AOJ) to try to obtain private dental records. The Board notes that the May 2019 VA examiner opined that there is no diagnosis of cyst of the mouth. The Board further notes that records from the Veteran’s private dentist, Dr. G.P., were received. These records, however, listed only the dates of treatment sessions between 2002 and 2012 and not the content of those sessions. The content of those sessions may be relevant because the claims file, in an entry dated June 5, 2014, contains a referral from Dr. G.P. to Northwest Oral and Maxillofacial Surgery Associates requesting a consultation for the Veteran’s cyst where wisdom tooth 17 was extracted and indicating that surgery may be necessary to remove the cyst. On remand, the AOJ should send the Veteran a VA Form 21-4142 to obtain private dental records, to include Dr. G.P. and Northwest Oral and Maxillofacial Surgery Associates. 2. Left ankle disability The Veteran contends that service connection is warranted due to the rigors of service, to include an ankle injury while stationed on an LST, and that he has had ankle symptoms since service. The Board finds that remand is required to obtain a new examination for a left ankle disability. While the July 2020 VA examiner diagnosed the Veteran with left ankle strain following an in-person examination and x-ray, the Board notes that a November 2018 VA treatment record indicates there may be arthritic changes and bone spurs in the left ankle. Similarly, the Board notes that the Veteran testified to left ankle edema at the August 2017 hearing and an August 2018 VA treatment record indicated the Veteran was diagnosed with left ankle edema. While edema is generally a symptom of a disability, a symptom can be disability if it results in functional impairment. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (2018). The examiner stated that the Veteran’s left ankle disability resulted in functional impact, and the examiner should explain whether left ankle edema resulted in functional impact. Moreover, while the examiner opined that the Veteran’s left ankle disability is more likely an acute event without long term sequela, since there is no sign of continuation during service and/or after service, the examiner cannot rely on the absence of evidence without establishing a proper foundation for drawing negative inferences for the absence of evidence. See Horn v. Shinseki, 25 Vet. App. 231, 239 n.7 (2012). Here, the examiner provided no foundation. In fact, the examiner’s rationale did not consider an August 2001 private treatment record showing the Veteran reported left ankle pain during range of motion testing and an April 2011 private treatment record and an August 2018 VA treatment record indicating ankle edema. Finally, the examiner must provide an opinion on whether the Veteran’s left ankle disability is secondary to his service-connected left knee disability. The Board notes that the Veteran testified at the August 2017 hearing that his ankle edema was due to his left knee and an August 2018 VA treatment record indicated that the Veteran’s left ankle edema was likely related to wearing a left knee brace. 3. Right lateral epicondylitis and right wrist sprain The Veteran asserts that service connection is warranted for these two right arm disabilities due to the rigors of service, to include a hand fracture in 1986. In an August 2001 private treatment record, the Veteran reported a right forearm condition for the past six years, and the attending physician diagnosed right forearm condition based on an x-ray showing very mild bony deformity of the distal diaphysis of the ulna. In November 2018, the VA examiner provided the same rationale in opining that neither right arm disability was related to service. The examiner noted a right wrist laceration in 1985 and a right forearm injury in 1986. The examiner also noted that, while a September 2018 VA treatment record indicated the Veteran reported right elbow pain for “many months,” an April 2018 VA treatment documented right elbow injury with no known history of trauma. The examiner stated that the lack of follow up during service for right elbow injuries indicated that these injuries were resolved and that the pain in the right elbow many years later was due to working as a police deputy. The Board finds that remand is required to obtain a new examination for both right arm disabilities. By providing an identical rationale for both disabilities, the examiner appeared to evaluate these two disabilities in the same fashion. The Board notes that the examiner did not provide a proper foundation for drawing negative inferences for the absence of evidence. See Horn, 25 Vet. App. at 239 n.7. In fact, the examiner’s rationale did not consider all relevant evidence because the examiner did not consider the August 2001 private treatment record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (stating that a medical opinion is inadequate if it is not factually accurate). The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for any private dental providers, to include Dr. G.P. and Northwest Oral and Maxillofacial Surgery Associates. Make two requests for the authorized records from these providers, unless it is clear after the first request that a second request would be futile. If records are obtained from private dental providers, determine whether an addendum to the May 2019 opinion or a new examination is warranted. 2. Schedule the Veteran for a VA examination for a left ankle disability. Any necessary testing should be performed. The examiner should identify the nature of the Veteran’s left ankle disability, to include arthritis and left ankle edema. The examiner should consider the November 2018 VA treatment record indicating possible arthritic changes and bone spurs in the left ankle. The examiner must opine whether it is at least as likely as not that the Veteran’s left ankle disability is related to service. The examiner must review the claims file and provide a rationale to support the opinions. The examiner is advised that a negative nexus opinion may not be based solely on the absence of treatment during or after service and that the examiner must provide a proper foundation explaining why the absence of evidence is relevant in determining if the disability is related to service. The examiner should consider the August 2001 private treatment record showing left ankle pain during range of motion testing, the April 2011 private treatment record and August 2018 VA treatment record indicating left ankle edema, and the Veteran’s lay statements. The examiner must opine whether the Veteran’s left ankle disability is at least as likely as not proximately due to the Veteran’s service-connected left knee disability. The examiner must opine whether the Veteran’s left ankle disability is at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the Veteran’s service-connected left knee disability. If arthritis is diagnosed, the examiner must opine whether it is at least as likely as not that arthritis (1) manifested within one year after discharge from service or (2) was noted during service with continuity of the same symptomatology since service. 3. Schedule the Veteran for a VA examination for right lateral epicondylitis and right wrist sprain. The examiner must opine whether it is at least as likely as not that the Veteran’s right lateral epicondylitis is related to service. The examiner must also opine whether it is at least as likely as not that the Veteran’s right wrist sprain is related to service. The examiner must review the claims file and provide a rationale to support the opinions. The examiner is advised that a negative nexus opinion may not be based solely on the absence of treatment during or after service and that the examiner must provide a proper foundation explaining why the absence of evidence is relevant in determining if either disability is related to service. The examiner should consider the August 2001 private treatment record and the Veteran’s lay statements. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Craig Ormson, 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.