Citation Nr: 21063774 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 15-29 474 DATE: October 15, 2021 ORDER A compensable rating right hand fifth finger is denied. Service connection for hypothyroidism is denied. Service connection for varicose veins is denied. REMANDED Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for arthritis is remanded. Entitlement to service connection for lumbar disability is remanded. Entitlement to service connection for bilateral lower extremity disability including peripheral neuropathy and radiculopathy is remanded. FINDINGS OF FACT 1. The Veteran's right hand fifth finger was manifested by limited range of motion, with no evidence of pain, that resulted in slight disability. 2. The Veteran's hypothyroidism was not shown in service or for many years thereafter, and has not been found to be etiologically related to service 3. The Veteran's varicose veins was not shown in service or for many years thereafter, and has not been found to be etiologically related to service CONCLUSIONS OF LAW 1. The criteria for a compensable rating for right hand fifth finger have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, 4.73, Diagnostic Code 5230. 2. The criteria for service connection for hypothyroidism are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303. 3. The criteria for service connection for varicose veins are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1981 to February 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of February and October 2014 issued by the Agency of Original Jurisdiction (AOJ). In August 2019, the Veteran testified at a Board hearing via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. This matter was previously before the Board in November 2019 for additional evidentiary development. Initial Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 1. Entitlement to a compensable rating right hand fifth finger. By rating decision of October 2014, service connection was granted for the Veteran's right hand fifth finger disability and assigned an initial 0 percent rating effective April 16, 2014. The Veteran disagrees with the noncompensable rating. The Veteran's right hand fifth finger 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. In compliance with the Board's November 2019 remand, the Veteran was afforded a recent examination. The record shows a June 2021 VA contract examination where the examiner confirmed the diagnosis of right hand residuals, fifth metacarpal fracture. However, the examiner indicated the service-connected diagnosis "has resolved". The Veteran had "all normal" findings on range of motion testing with no evidence of pain on or functional loss on movement. He retained normal muscle strength testing 5/5 for right hand grip. There was no evidence of ankylosis of the thumb or fingers. There was also no evidence of degenerative or traumatic arthritis documented in multiple joints of the same hand, including thumb and fingers. See Hand and Finger Conditions DBQ dated June 2021. Here, 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. Furthermore, there has been no evidence unfavorable or favorable ankylosis of the ring finger, thus Diagnostic Code 5227 is not for application. 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 hand little finger. Additionally, as the evidence of record does not reflect that the service-connected disability is manifested by degenerative joint disease in 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. In 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 retained normal muscle strength and demonstrated no 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 June 2021 examiner indicated no objective evidence of pain on range of motion testing with no evidence of swelling, deformity, atrophy, loss of strength, weakened movement, incoordination, fatigability, limited motion, impaired movement, or functional loss in the left little finger. 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. 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 finger 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). 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 service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 2. Entitlement to service connection for hypothyroidism. 3. Entitlement to service connection for varicose veins. In February 2013, the Veteran filed his claims for service connection which were denied in a February 2014 rating decision. The Veteran has not advanced any specific contention regarding his hypothyroidism and varicose veins other than his general application for service connection. While the record shows a current diagnosis of the claimed disabilities, the Board concludes that service connection is not warranted. In this regard, the Board notes that no VA examinations or medical opinions have been obtained in relation to the claims on appeal. In determining whether the duty to assist requires that a VA medical examination be provided, or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The third factor, in particular, is a low threshold. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds no reasonable possibility that a VA examination would aid in substantiating the service connection claims for hypothyroidism and varicose veins. The Veteran's service treatment records do not show any complaints, treatment, or diagnosis for hypothyroidism or varicose veins during his active service. Likewise, post-service medical records do not show any complaints, treatment, or a diagnosis or document any ongoing treatment for hypothyroidism or varicose veins. In fact, the earliest medical notation of hypothyroidism was in March 2013, which is approximately 29 years after service, and the Veteran's private treatment records show a diagnosis for varicose veins in February 2010, which is approximately 26 years after discharge from service. In the absence of required elements above, the Board observes that VA has no duty to provide an examination or obtain an opinion in this case. See 38 U.S.C. § 5103A(a). Furthermore, the Board notes that the prolonged period without a diagnosis is probative evidence against the claim. Critically, there is no medical opinion of record even suggesting that the currently diagnosed hypothyroidism and varicose veins are related to the Veteran's service. The Veteran has not submitted any evidence to the contrary. The Board also acknowledges the Veteran's contention that his hypothyroidism and varicose veins are related to his service, such as "big veins through running in combat boots". See Hearing Transcript at 14. While the Veteran is competent to report symptoms observable to a layperson, such as pain, to the extent that he seeks to establish a nexus between a current disability and service, the Board finds lay witnesses are not competent to opine on such medical questions of etiology as this requires medical expertise. For this purpose, the Board finds the Veteran's statements not competent medical evidence. Therefore, the Board assigns more weight to the objective medical evidence of record. After weighing all the evidence of record, the Board the preponderance of the evidence weighs against finding that the Veteran's hypothyroidism and varicose veins began during service or is otherwise related to an in-service injury, event, or disease. The benefit-of-the-doubt doctrine is not for application, and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 4. Entitlement to service connection for fibromyalgia. 5. Entitlement to service connection for arthritis. 6. Entitlement to service connection for lumbar disability. 7. Entitlement to service connection for bilateral lower extremity disability including peripheral neuropathy and radiculopathy. In compliance with the Board's November 2019 remand, the Veteran was afforded VA examinations in June 2021. However, the examiner's opinions provided do not sufficiently address the Veteran's contentions regarding the onset and duration of his symptoms. Although the examiner confirmed diagnoses of degenerative disc disease, lower extremity radiculopathy, disc bulges and stenosis associated with the lumbar spine disability, the examiner found no nexus was established for the back conditions. The examiner's rationale provided was that "[t]here are no records indicating complaints, diagnoses, or treatment while active duty for these conditions. Although there is a reported assault, it cannot be state with any degree of likelihood that it resulted in the current conditions." Further, the examiner found "no diagnosis related to the claimed arthritis." As for fibromyalgia, although a diagnosis was confirmed, a negative opinion was provided indicating that "the cause of fibromyalgia is unknown. STRs do not show a diagnosis of fibromyalgia while active duty." The June 2021 VA contract opinion is inadequate as it does not take into account the Veteran's lay reports of symptoms and history including continuous symptoms of chronic pain since the in-service assault. To that end, the Board notes that a medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not consider the Veteran's reports of symptoms and history. Dalton v. Peake, 21 Vet. App. 23 (2007). Moreover, as the Veteran is now service-connected for posttraumatic stress disorder (PTSD) related to his in-service mugging and assault, the residuals from the incident including physical manifestations of chronic pain, back pain, joint pain, and sciatic pain as related to his psychological disorder should also be developed. A similar contention of secondary service connection theory of entitlement was raised at his hearing in August 2019. See Hearing Transcript at 15. Accordingly, remand is necessary to obtain addendum medical opinions that addresses opinion that sufficiently addresses the Veteran's contentions, reported history and chronicity of symptomatology. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from a qualified medical professional to determine the nature and etiology of the Veteran's claimed back, fibromyalgia, arthritis, and lower extremity disability. The electronic claims file should be made accessible to the examiner along with any other information the medical professional deems pertinent. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. Based on the review of the record, the examiner should provide an opinion on the following: a) Identify the diagnosis associated with claimed back, fibromyalgia, arthritis, and lower extremity disability. b) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's diagnosed disability began during active service or is causally related to service, including in-service assault? c) Is at least as likely as not (a 50 percent or greater probability) that the Veteran's diagnosed disability manifested within one year of his service discharge and, if so, describe the manifestations. In rendering the opinion, the examiner is asked to consider medical records and lay evidence of record. A complete rationale for all opinions is requested. 2. Obtain an addendum opinion from a qualified medical professional to determine the nature and etiology of the Veteran's claimed back, fibromyalgia, arthritis, and lower extremity disability. The Veteran's electronic claims file should be made accessible to the examiner along with any other information the medical professional deems pertinent. After reviewing the claims file, the examiner is to provide an opinion addressing the following: Based on the review of the record, the examiner should provide an addendum opinion on the following: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's physical manifestations of chronic back pain, joint pain, and sciatic pain (diagnosed lumbar spine disability, fibromyalgia, lower extremity radiculopathy) were caused by his service-connected PTSD? b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's physical manifestations of chronic back pain, joint pain, and sciatic pain (diagnosed lumbar spine disability, fibromyalgia, lower extremity radiculopathy) were aggravated by his service-connected PTSD? The examiner should consider medical evidence of record (including statements from VA Staff Psychologist dated August 2013 and PTSD DBQ dated June 2019). A complete rationale for all findings and conclusions is requested. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A., 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.