Citation Nr: 21069256 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-35 924 DATE: November 18, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to an initial compensable rating for right little finger metacarpal fracture is denied. REMANDED Entitlement to an effective date prior to November 17, 2015 for the award of service connection for right little finger metacarpal fracture is remanded. Entitlement to an effective date prior to November 17, 2015 for the award of service connection for lumbosacral strain is remanded. Entitlement to an initial rating in excess of 10 percent for lumbosacral strain is remanded. Entitlement to service connection for a left lower extremity neurological disorder is remanded. Entitlement to service connection for a right lower extremity neurological disorder is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a left upper extremity neurological disorder is remanded. Entitlement to service connection for a right upper extremity neurological disorder is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The Veteran's tinnitus had its onset in service. 2. The Veteran's right little finger metacarpal fracture has not been manifested by ankylosis or functional impairment akin to amputation at any point during the appeal period. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to an initial compensable rating for right little finger metacarpal fracture are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5230. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from November 1987 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a September 2019 statement, the Veteran withdrew his pending Board hearing request. 38 C.F.R. § 20.704(e). 1. Entitlement to service connection for tinnitus is granted. Service connection may be granted for a disability resulting from a disease or injury 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 evidence of (1) a current disability; (2) an 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 (Fed. Cir. 2004). Certain chronic disabilities, including tinnitus, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The option of establishing service connection through a demonstration of continuity of symptomatology is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran relates his tinnitus to his exposure to in-service acoustic trauma. Here, there is a current diagnosis of tinnitus. The Veteran has competently reported tinnitus in his lay statements and to a VA examiner. In this regard, tinnitus is a disorder that is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). As such, the first element of service connection is met. Regarding the second and third elements, in-service incurrence of the injury and nexus, the Veteran's service treatment records (STRs) are silent for tinnitus complaints. However, the Board finds that his reports of noise exposure are consistent with the circumstances of his service and his military occupational specialty as a combat engineer, which has a high probability for hazardous noise exposure. 38 U.S.C. § 1154(a). Also, the Veteran competently and credibly reported that he has continued to experience recurrent ringing in his ears during and since service, coincident with his duties. See February 2016 VA Form 21-4138 and July 2017 VA Form 9. Thus, the Board finds his assertions that tinnitus was first incurred in service and has been present continuously since service credible. As such, the second and third elements of service connection are established. The Board notes that the March 2016 VA audiologist rendered a negative nexus opinion based solely on the fact that the Veteran once denied tinnitus in a June 2013 private treatment record, despite his competent and credible reports of in-service noise exposure and continual symptoms ever since. Thus, this opinion is afforded no probative value, and service connection is established. 2. Entitlement to an initial compensable rating for right little finger metacarpal fracture is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court of Appeals for Veterans Claims (Court) later clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020). However, the rating criteria for DC 5230 was not affected by the February 7, 2021 amendments. The Veteran's for right little finger metacarpal fracture is rated as noncompensable pursuant to DC 5230, which provides a single noncompensable rating for any limitation of motion of the ring or little finger. 38 C.F.R. § 4.71a, DC 5230. Here, as the Veteran is in receipt of the maximum rating available for limitation of motion of the little finger, even considering his reports of pain and functional loss, the regulatory provisions pertaining to functional loss are not applicable. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202. Accordingly, entitlement to a compensable rating is not available under DC 5230. The Board has considered whether higher or separate ratings are warranted under alternate diagnostic codes. However, there is no indication of ankylosis, even when considering the impact of flare-ups, or a level of impairment akin to amputation of the little finger, nor does the Veteran assert otherwise. See March 2016 VA examination report. As such, ratings under DCs 5156 and 5227 are precluded. Therefore, a compensable rating is not warranted, and the benefit sought on appeal is denied. REASONS FOR REMAND 3. Entitlement to an effective date prior to November 17, 2015 for the award of service connection for right little finger metacarpal fracture is remanded. 4. Entitlement to an effective date prior to November 17, 2015 for the award of service connection for lumbosacral strain is remanded. In June 2016, the Veteran filed a timely Notice of Disagreement (NOD) with respect to the June 2016 rating decision that assigned an effective date of November 17, 2015 for the award of service connection for lumbosacral strain and right little finger metacarpal fracture. To date, a Statement of the Case (SOC) has not been issued regarding the effective date for service connection. Thus, remand is required for issuance of a SOC. Manlincon v. West, 12 Vet. App. 238 (1999). 5. Entitlement to an initial rating in excess of 10 percent for lumbosacral strain is remanded. The Veteran was afforded a VA examination in connection with his back disability in March 2016, which does not comply with Correia v. McDonald, 28 Vet. App. 158 (2016) (the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint). Moreover, the examiner did not provide an opinion estimating the resulting additional functional loss in degrees of range of motion during a flare-up, as required by Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Accordingly, a new VA examination consistent with the requirements set forth by Correia, as well as Sharp, is necessary on remand. 6. Entitlement to service connection for a left lower extremity neurological disorder is remanded. 7. Entitlement to service connection for a right lower extremity neurological disorder is remanded. The Veteran's bilateral lower extremity neurological disorder was examined at a June 2017 VA examination, during which the examiner found no evidence of radiculopathy or a peripheral nerve condition and did not diagnose him with a lower extremity disorder. However, the record reflects the Veteran's reports of bilateral lower extremity pain and radicular symptoms associated with his back disability. The Board notes that pain that results in functional impairment may be considered a disability for VA purposes. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Thus, on remand, a new examination is needed to determine whether the Veteran has a current lower extremity neurological disorder and whether such pain results in functional impairment. 8. Entitlement to service connection for a neck disability is remanded. 9. Entitlement to service connection for a left upper extremity neurological disorder is remanded. 10. Entitlement to service connection for a right upper extremity neurological disorder is remanded. Remand is warranted as the June 2017 VA examiner's opinion is inadequate. In this regard, the examiner did not provide an opinion on direct service connection or consider the Veteran's lay statements regarding such symptoms he experienced during active duty. Therefore, an addendum opinion is warranted on remand. 11. Entitlement to service connection for a right knee disability is remanded. 12. Entitlement to service connection for sleep apnea is remanded. The Veteran has not yet been afforded a VA examination for his right knee disability and sleep apnea, which he also claims as secondary to service-connected posttraumatic stress disorder (PTSD), and the duty to obtain one is triggered based on the record. See December 2017 VA Form 21-526EZ; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Any outstanding treatment records should also be secured. The matters are REMANDED for the following action: 1. Issue a SOC addressing entitlement to an effective date prior to November 17, 2015 for the award of service connection for lumbosacral strain and right little finger metacarpal fracture, including appellate rights. 2. Obtain any outstanding VA treatment records. 3. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 4. Schedule the Veteran for a VA examination to determine the current nature and severity of his back disability. The claims file should be made available to and reviewed by the examiner. All findings should be reported in detail. (a) The examiner should conduct range of motion studies. The joints involved should be tested for pain (1) on active motion, (2) on passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. (b) In assessing functional loss, please provide an opinion describing functional impairment of the Veteran's back due to flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). (c) Provide an opinion as to whether the Veteran has the functional equivalent of ankylosis of the spine, to include during flare-ups. See February 2016 VA Form 21-4138. If so, please indicate the date of onset, and determine whether it is more analogous to favorable or unfavorable ankylosis and whether it affects the entire thoracolumbar spine or the entire spine. 5. Then schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral lower extremity neurological disorder. The entire claims file should be made available to and reviewed by the examiner. All indicated tests should be conducted and all findings reported in detail. (a) The examiner should diagnose all current lower extremity neurological disorders. If no such disorder is identified, the examiner must indicate whether the Veteran's bilateral lower extremity pain causes any functional impairment. (b) For any bilateral extremity neurological disorder diagnosed or any functional impairment identified, the examiner should opine as to whether it is at least as likely as not (approximate balance of evidence) that such disorder/functional impairment: (1) had its onset in or is otherwise related to service, to include as a result of the documented reports of left and right leg pain and numbness associated with back pain and nerve root compression therein (see March, May, August, and October 1990 and February and April 1991 STRs); (2) is proximately due to service-connected back disability; or (3) has been aggravated (worsened beyond natural progression) by service-connected back disability. In answering questions (b)(2) and (b)(3), please note there is no temporal requirement that the primary condition (back disability) be service-connected, or even diagnosed, at the time the secondary condition (lower extremity disorder) is incurred. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without resorting to speculation, please provide a basis for that conclusion. 6. Then obtain an addendum opinion from an examiner other than the June 2017 VA examiner addressing the etiology of the Veteran's neck disability and bilateral upper extremity neurological disorder. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. Following a review of the claims file, the examiner should opine as to whether it is at least as likely as not (approximate balance of evidence) that diagnosed cervical degenerative joint disease (DJD) and bilateral carpal tunnel syndrome (see June 2017 VA examination report): (a) had their onset in or are otherwise related to service, to include as a result of the documented right hand pain therein (see January 1988 STR); (b) are proximately due to service-connected back disability; or (c) have been aggravated (worsened beyond natural progression) by service-connected back disability. Please render separate opinions on each diagnosed condition. In providing an opinion, the examiner must discuss Veteran's report of experiencing neck and bilateral upper extremity pain during service (see February 2016 VA Form 21-4138). In answering questions (b) and (c), please note there is no temporal requirement that the primary condition (back disability) be service-connected, or even diagnosed, at the time the secondary condition (cervical DJD/carpal tunnel syndrome) is incurred. If cervical DJD is attributed to service, please also opine as to whether it is at least as likely as not (approximate balance of evidence) that bilateral carpal tunnel syndrome: (a) is proximately due to cervical DJD; or (b) has been aggravated (worsened beyond natural progression) by cervical DJD. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without resorting to speculation, please provide a basis for that conclusion. 7. Then schedule the Veteran for a VA examination to determine the nature and etiology of his right knee disability. The entire claims file should be made available to the examiner. All indicated tests should be conducted and all findings reported in detail. Following a review of the claims file, the examiner should opine as to whether it is as least as likely as not (approximate balance of evidence) that any currently diagnosed right knee disability had its onset in or is otherwise related to service. In providing an opinion, the examiner must discuss and assume as true the Veteran's report regarding in-service right knee injury and pain (see February 2016 VA Form 21-4138 and June 2016 NOD) and determine, based on the same, whether a nexus between the Veteran's right knee disability and service is "medically plausible." Please note that the lack of contemporaneous medical records is not dispositive and may not be used as a basis for a negative opinion. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without speculation, please provide a basis for that conclusion. 8. Then schedule the Veteran for a VA examination to determine the nature and etiology of his sleep apnea. The entire claims file should be made available to the examiner. All indicated tests should be conducted and all findings reported in detail. Following a review of the claims file, the examiner should opine as to whether it is at least as likely as not (approximate balance of evidence) that sleep apnea: (a) had its onset in or is otherwise related to service; (b) is proximately due to service-connected PTSD; or (c) has been aggravated (worsened beyond natural progression) by service-connected PTSD. In providing an opinion, the examiner must discuss the Veteran's statement attributing sleep apnea to military training (see June 2016 NOD). In answering questions (b) and (c), please note there is no temporal requirement that the primary condition (PTSD) be service-connected, or even diagnosed, at the time the secondary condition (sleep apnea) is incurred. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without resorting to speculation, please provide a basis for that conclusion. Marissa Caylor Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.S. Mahoney 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.