Citation Nr: 21064271 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 17-22 471 DATE: October 19, 2021 ORDER Entitlement to an initial 10 percent disability rating for left index finger fracture, but no higher, is granted. REMANDED Entitlement to service connection for bilateral shin splints is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for cardiomyopathy is remanded. Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. Prior to December 17, 2018, the Veteran's left index finger fracture caused painful motion. 2. As of December 17, 2018, the 10 percent rating for left index finger fracture is the maximum schedular rating allowed. CONCLUSION OF LAW The criteria for an initial 10 percent disability rating for a left index finger fracture, but no higher, have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5229 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty with the United States Air Force from March 2003 to May 2013. In July 2020, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) that is no longer employed by the Board. A transcript of the hearing is of record. The Veteran did not respond to June 2021 correspondence informing him of his right to a new VA hearing. The letter informed him that if he did not reply to the letter within 30 days, the Board would assume that he did not want another hearing. See 38 U.S.C. § 7107 (c); 38 C.F.R. §§ 19.3, 20.707. Accordingly, the Board will proceed with adjudication. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to an initial compensable disability rating for left index finger fracture prior to December 17, 2018, and in excess of 10 percent thereafter Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Prior to December 17, 2018 The Veteran's left index finger fracture is evaluated under Diagnostic Code 38 C.F.R. § 4.71a Diagnostic Code 5229. In accordance with Diagnostic Code 5229, a noncompensable disability evaluation for limitation of motion of the index or long finger with a gap of less than one inch (2.5 cm.) between the fingertip and the proximal transverse crease of the palm with the finger flexed or with extension limited by no more than 30 degrees. A maximum schedular 10 percent disability evaluation is assigned where there is limitation of motion of the index or long finger with a gap of one inch (2.5 cm.) between the fingertip and the proximal transverse crease of the palm with the finger flexed or with extension limited by more than 30 degrees. Prior to December 17, 2018, the Veteran's left index finger fracture was evaluated in VA examinations completed in June 2014 and August 2017. Each examination specifically stated that the Veteran had less than one inch gap between the fingertip and the proximal transverse crease of the palm, and did not have extension limitation greater than 30 degrees. However, at the June 2014 examination, the Veteran reported pain and stiffness. Upon examination, there was objective evidence of painful movement, with pain beginning at a gap of less than 1 inch. He was unable to perform repetitive motion due to pain. He also had weakened movement, incoordination, painful movement, swelling and deformity of the left index finger. At the August 2017 VA examination, he had normal range of motion in his left index finger, but there was pain noted upon examination. His PIP joint was swollen and elongated. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). The provisions of 38 C.F.R. § 4.59 establish that the Veteran is entitled to at least the minimum compensable evaluation for motion that is accompanied by pain. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Because the Veteran had painful movement of his left index finger at his June 2014 and August 2017 examinations, an initial 10 percent rating is granted under Diagnostic Code 5229. The Veteran underwent a VA hand and fingers examination in January 2019. He reported increased pain, swelling, and loss of range of motion. He stated he had difficulty gripping, twisting, and holding objects with his left hand. Upon examination, he had a 4 centimeter gap between his index finger and the proximal transverse crease of the hand on maximal finger flexion. He also had tenderness over the PIP joint. His left hand grip was 4/5, indicating active movement against some resistance. He did not have muscle atrophy and the examiner found that he did not have ankylosis. The Veteran is competent to report his symptoms and has presented credible statements in this regard. Layno v. Brown, 6 Vet. App. 465, 469 (1994). At his July 2020 hearing, he testified that his left index finger was swollen, and had been for seven years. He stated that he had loss of range of motion. His statement is consistent with the medical evidence of record. In a February 2019 rating decision, the AOJ increased the Veteran's rating for his left index finger disability to 10 percent, effective December 17, 2018. This effective date was selected because it was the date that VA received an intent to file form. The 10 percent rating was assigned under Diagnostic Code 5229 for painful, but noncompensable motion. Diagnostic Code 5229 provides for a maximum 10 percent rating for limitation of motion of the index or long finger with a gap of one inch (2.5 cm.) between the fingertip and the proximal transverse crease of the palm with the finger flexed or with extension limited by more than 30 degrees. 38 C.F.R. § 4.71a. As there is no legal basis upon which to award a higher evaluation for the Veteran's residuals of a left index finger fracture, the Veteran's claim for such a benefit is without legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board has considered other Diagnostic Codes. The record shows that he does not have ankylosis. Even if he did have ankylosis, Diagnostic Code 5226, ankylosis of the index finger, has a maximum 10 percent rating. To have a higher rating, there would need to be more than one finger with ankylosis and this is not the case. The Diagnostic Codes for favorable or unfavorable ankylosis of multiple digits are not applicable. He has not had his left index finger amputated. Therefore Diagnostic Code 5154 does not apply. For these reasons, an initial 10 percent disability rating for the Veteran's left finger disability is granted, but a disability rating in excess of 10 percent is denied. REASONS FOR REMAND 1. Entitlement to service connection for bilateral shin splints The Veteran claims entitlement to service connection for bilateral shin splints. In a July 2020 hearing, he testified that his bilateral shin splints began during his period of active service and have continued to present. He also stated that during his active service he attended sick call and complained about pain in his feet and shins. The Veteran testified that he felt all the pain was related. VA examinations completed in January 2019 and October 2018 note a current diagnosis of shin splints. At his hearing, the Veteran testified that he had shin splints in service, but that they never went away, and that he was unable to run long distances. At present, the medical evidence does not contain a VA medical opinion discussing if the Veteran's current shin splints were incurred during his period of active service. The probative evidence of record also does not contain a VA medical opinion regarding whether the Veteran's current shin splints were caused or aggravated by his service-connected bilateral pes planus. A VA medical opinion regarding the etiology of the Veteran's current shin splints is necessary to comprehensively evaluate the claim for service connection on a direct and secondary basis. The Board emphasizes that it is not determining whether or not the Veteran's statements that his symptoms have continued since service are credible at this time, as the additional development set forth in the directives below could impact that determination. 2. Entitlement to service connection for a right shoulder disability The Veteran claims entitlement to service connection for a right shoulder disability. In a July 2020 hearing, he testified that his right shoulder disability began during his period of active service and has continued to present. A June 2014 VA Shoulder and Arm Conditions examination notes a diagnosis of bilateral shoulder sprains. A July 2010 post deployment health assessment notes complaints of shoulder pain. At present, the probative medical evidence does not contain a VA medical opinion discussing if the Veteran's current right shoulder disability was incurred during his period of active service. A VA medical opinion discussing the etiology of the Veteran's right shoulder disability is necessary to comprehensively evaluate the claim for service connection. The Board emphasizes that it is not determining whether or not the Veteran's statements that his symptoms have continued since service are credible at this time, as the additional development set forth in the directives below could impact that determination. 3. Entitlement to service connection for cardiomyopathy The Veteran claims entitlement to service connection for cardiomyopathy. At a July 2020 hearing, he testified that he was referred to a facility in Macon, Georgia where he was tested and diagnosed with cardiomyopathy. The Veteran further testified that he did not provide treatment records containing that diagnosis because he believed they contained in his service treatment records since he was referred to the Macon, Georgia facility during his period of active service. Presently, the Veteran's treatment records do not contain records from a Macon, Georgia health treatment facility. In addition, a June 2014 VA General Medical Compensation examination notes that the Veteran has a current heart condition. However, a June 2014 Heart Conditions examination states the Veteran does not currently have and has never been diagnosed with a heart condition. The Board finds that the probative medical evidence of record is contradictory and potentially incomplete. A remand is necessary to attempt to obtain any outstanding treatment records regarding the Veteran's claimed cardiomyopathy and to schedule him for a new VA Heart Conditions examination to resolve the contradicting diagnoses from the earlier examinations. 4. Entitlement to service connection for a right knee disability. The Veteran claims entitlement to service connection for a right knee disability. In a July 2020 hearing, he testified that his right knee pain was incurred during his period of active service and continues to present. The Veteran was diagnosed with bilateral knee strains in a September 2018 VA Knee and Lower Leg Conditions examination. Following examination, the examiner authored a medical opinion stating it was less likely than not that the Veteran's right knee disability was caused by his service-connected bilateral pes planus. However, the rationale stated is conclusory and does not consider the Veteran's lay statements that his knee condition incurred during active service and has continued without interruption. A medical opinion is inadequate if the examiner's rationale fails to account for pertinent evidence, to include competent lay statements describing symptoms of the disability at issue. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331,1335 (Fed. Cir. 2006) (noting that "lay evidence is one type of evidence that must be considered, if submitted, when a veteran's claim seeks disability benefits"). Additionally, the Board notes that the same rationale was provided in an October 2018 VA medical opinion that granted service connection for a left knee disability. Accordingly, the Board finds that the October 2018 medical opinion against service connection is inadequate for purposes of determining service connection. The probative medical evidence of record also does not contain a medical opinion regarding direct service connection. An additional VA medical opinion regarding the etiology and possible aggravation of the Veteran's current right knee disability is necessary to comprehensively evaluate the claim for service connection. The Board emphasizes that it is not determining whether or not the Veteran's statements that his symptoms have continued since service are credible at this time, as the additional development set forth in the directives below could impact that determination. Accordingly, the matters are REMANDED for the following action: 1. Attempt to obtain the missing treatment records from Macon, Georgia identified by the Veteran in his July 2020 testimony regarding his claimed cardiomyopathy. Contact the Veteran and ask him to provide a hospital record release form, any additional information possible regarding the name of the treatment facility in Macon, Georgia, and the dates of treatment. Any negative response should be documented. 2. Return the Veteran's claims file to the examiner who conducted the January 2019 Knee and Lower Leg Conditions examination so an opinion may be provided. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner must provide an opinion as to: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral shin splints began during active service, or are related to an incident of service. For the purposes of this remand only, and for the limited purpose of conducting the examination and providing a medical opinion, the examiner should assume that the Veteran's assertion that his shin splints did not go away is true. If there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's recollection is inconsistent with the principles of medical science and/or the evidence in this case. b. Whether the Veteran's bilateral shin splints are at least as likely as not proximately due to the service-connected bilateral pes planus. c. Whether the Veteran's bilateral shin splints are at least as likely as not aggravated beyond their natural progression by the service-connected bilateral pes planus. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Return the Veteran's claims file to the examiner who conducted the June 2014 Shoulder and Arm Conditions examination so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination is only required if deemed necessary by the examiner. The examiner must provide an opinion as to: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right shoulder disability began during active service, or is related to an incident of service. For the purposes of this remand only, and for the limited purpose of conducting the examination and providing a medical opinion, the examiner should assume that the Veteran's assertion that his right shoulder symptoms persisted since service is true. If there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's recollection is inconsistent with the principles of medical science and/or the evidence in this case. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Schedule the Veteran for an examination with an appropriate clinician for his claimed cardiomyopathy. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner must provide an opinion as to: a. Whether the Veteran has a current diagnosis of cardiomyopathy. b. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's cardiomyopathy began during active service or is related to an incident of service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 5. Return the Veteran's claims file to the examiner who conducted the September 2018 Knee and Lower Leg Conditions examination so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination is only required if deemed necessary by the examiner. The examiner must provide an opinion as to: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right knee disability began during active service, or are related to an incident of service. For the purposes of this remand only, and for the limited purpose of conducting the examination and providing a medical opinion, the examiner should assume that the Veteran's assertion that his right knee symptoms persisted since service is true. If there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's recollection is inconsistent with the principles of medical science and/or the evidence in this case. b. Whether the Veteran's right knee disability is at least as likely as not proximately due to the service-connected bilateral pes planus. c. Whether the Veteran's right knee disability is at least as likely as not aggravated beyond its natural progression by the service-connected bilateral pes planus. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion 6. After all completed development, the AOJ should then readjudicate the claims. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Riordan, 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.