Citation Nr: 21069368 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-50 076 DATE: November 18, 2021 ORDER Entitlement to service connection for lumbosacral strain is granted. Entitlement to service connection for right knee patellofemoral pain syndrome is granted. Entitlement to an initial rating higher than 10 percent for ulnar collateral ligament of the thumb sprain is denied. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's back disability had its onset in service. 2. The evidence is at least evenly balanced as to whether the Veteran's right knee disability had its onset in service. 3. The Veteran's left thumb disability has not been manifested by limitation of motion with a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbosacral strain have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for right knee patellofemoral pain syndrome have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for an initial rating higher than 10 percent for ulnar collateral ligament of the thumb sprain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5228. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 2007 to September 2012. This case initially came to the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for ulnar collateral ligament of the thumb sprain, and assigned a noncompensable rating effective September 12, 2012. The RO also denied entitlement to service connection for back and right knee conditions. In June 2019, the Board remanded the matters for further evidentiary development to include VA examinations. While in remand status, in a June 2020 rating decision, the RO increased the rating for ulnar collateral ligament of the thumb sprain to 10 percent, effective September 12, 2012. Although a higher rating has been granted for ulnar collateral ligament of the thumb sprain, this issue remains in appellate status, as the maximum available benefit has not been assigned. AB v. Brown, 6 Vet. App. 35, 38 (1993). For the reasons indicated in the discussion below, the examinations ordered by the Board were conducted and are adequate to decide the claims; therefore, the agency of original jurisdiction has substantially complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in the active military, naval, air, or space service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Back In this case, the evidence of record demonstrates that the requirement for a current disability has been met. Specifically, a January 2020 VA examination report shows a diagnosis of lumbosacral strain. Thus, the first element of service connection has been met. The evidence of record indicates that an in-service disease requirement has been met. The Veteran's service treatment records (STRs) indicate treatment for back pain with a diagnosis of trapezius/back sprain in December 2008. At his March 2012 separation examination, the Veteran reported having back pain. At his January 2020 VA examination, he reported that his back condition started in service with injury during physical training with symptoms of throbbing pain and stiffness, and the condition has stayed the same. Here, the STRs along with the competent and credible lay statements from the Veteran demonstrates that he exhibited symptoms during service. This is sufficient to meet the second element of the service connection claim. The Veteran underwent a VA examination in July 2013. The examiner indicated that the Veteran's unilateral lower back pain represent referred pain from the hip. The examiner did not provide a nexus opinion. In his September 2017 substantive appeal (VA Form 9), the Veteran reported that the onset of his back condition was in service while working in machinery and engines rooms. He indicated that his duties included climbing ladders several times a day while carrying tools and equipment. He further indicated that for several hours a day he worked in confined spaces below the deck plate, hunching his back under steam and drainpipes. The Veteran asserted that the VA examiner linked his back pain to an immediate pain he was having in his hip, which has only happened one time in his life and has not happened since the exam. The Veteran indicated that he informed the VA examiner that this was not a chronic pain, however, he still linked it to the Veteran's back. The Veteran noted that the hip pain was only a result of the way he was sleeping and should not have been considered the cause of his back pain. In a January 2020 VA examination report, the examiner opined that the Veteran's lumbosacral strain was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the complaint of back pain documented on active duty in 2008 is more likely an acute event without long term sequela, since there is no sign of continuation of symptomology during and/or after separation from active service. The Board finds the January 2020 VA opinion that the Veteran's current lumbosacral strain not related to service is of minimal probative value. Here, the examiner failed to consider competent and credible evidence of the Veteran's report of the onset of his back symptoms in service, and the continuation of those symptoms in the years since service. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence). The STRs, competent and credible lay statements of back symptoms in-service, and the continuation of symptoms since service, are sufficient to establish that the Veteran's current back disability is related to service. For the reasons set forth above, the evidence is at least evenly balanced as to whether the Veteran's lumbosacral strain had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in the Veteran's favor, service connection is warranted for lumbosacral strain. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Right Knee In this case, the evidence of record demonstrates that the requirement for a current disability has been met. Specifically, a January 2020 VA examination report shows a diagnosis of right knee patellofemoral pain syndrome. Thus, the first element of service connection has been met. The evidence of record indicates that an in-service disease requirement has been met. The Veteran's STRs indicate shows that at his March 2012 separation examination, the Veteran reported having knee pain. In an April 2012 medical assessment, the Veteran reported that he suffered injury or illness to knees for which he did not seek medical care. At his January 2020 VA examination, he reported that his knee condition started in service with injury during physical training with symptoms of throbbing pain and stiffness, and the condition has stayed the same. Here, the STRs along with the competent and credible lay statements from the Veteran demonstrates that he exhibited symptoms during service. This is sufficient to meet the second element of the service connection claim. The Veteran underwent a VA examination in July 2013. The examiner indicated that the Veteran's medial right knee pain represent referred pain from the hip. The examiner did not provide a nexus opinion. In a January 2020 VA examination report, the examiner opined that the Veteran's right knee patellofemoral pain syndrome was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that there are no records showing progressive, longitudinal knee complaints or continuation of symptomology during and/or after separation from active service. The Board finds the January 2020 VA opinion that the Veteran's current right knee patellofemoral pain syndrome not related to service is of minimal probative value. Here, the examiner failed to consider competent and credible evidence of the Veteran's report of the onset of his right knee symptoms in service, and the continuation of those symptoms in the years since service. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence). The STRs, competent and credible lay statements of right knee symptoms in-service, and the continuation of symptoms since service, are sufficient to establish that the Veteran's current right knee disability is related to service. For the reasons set forth above, the evidence is at least evenly balanced as to whether the Veteran's right knee patellofemoral pain syndrome had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in the Veteran's favor, service connection is warranted for right knee patellofemoral pain syndrome. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Higher Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where the Veteran is appealing the initial assignment of a disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107 (b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Thumb The Veteran's ulnar collateral ligament of the thumb sprain disability is currently rated as 10 percent disabling for painful motion under 38 C.F.R. § 4.71a, Diagnostic Code 5228. Under Diagnostic Code 5228, a 10 percent disability evaluation is assigned for a gap of one to two inches (2.5 to 5.1 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 20 percent disability evaluation is assigned for a gap of more than two inches (5.1 cm) between the thumb and fingers, with the thumb attempting to oppose the fingers. 38 C.F.R. § 4.71a A July 2013 VA examination report shows the Veteran reported left thumb pain. He did not report flareups of the thumb. The Veteran's left thumb range of motion was normal. There was no gap between the pad of the thumb and the fingers. There was no pain with use of the left hand. There was no localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive use with no additional functional loss or range of motion. The Veteran's muscle strength was normal. There was no evidence of muscle atrophy or ankylosis. The examiner indicated that the left thumb disability impacted the Veteran's ability to perform occupational tasks, due to decreased left hand strength due to thumb pain. A January 2020 VA examination report shows the Veteran reported mild flareups of the left hand once a week lasting less than two hours, which are precipitated by lifting items, holding items, writing, and typing. He reported function loss as difficulty with range of motion. Left thumb range of motion of MCP/IP was extension to zero degrees and extension to 50 degrees. Pain was noted on examination and was indicated to cause functional loss. There was no gap between the pad of the thumb and the fingers. There was evidence of pain with use of the left hand. There was no localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive use with additional functional loss or range of motion. Left thumb range of motion of MCP/IP was extension to zero degrees and extension to 40 degrees. The examiner indicated that during a flareup, left thumb MCP/IP was extension to zero degrees and extension to 35 degrees, with no gap between the pad of the thumb and the fingers. The Veteran's muscle strength was normal. There was no evidence of muscle atrophy or ankylosis. The examiner indicated that the left thumb disability impacted the Veteran's ability to perform occupational tasks, as there is hand pain, stiffness, limited range of motion, difficulty with heavy lifting over 25 lbs. or repetitive motion over 30 minutes. Based on the consideration of the above-cited evidence, including the medical and lay statements of record, the Board finds that a disability rating higher than 10 percent is not warranted. While the January 2020 VA examiner noted that the Veteran's left thumb was outside of normal range, both the July 2013 and January 2020 VA examination reports show that at no point during the appeal period, the Veteran had any gap between his thumb pad and the fingers. There is no indication in the lay statements, including the description of flare-ups, that reflects there was a gap between the thumb pad and the fingers. Thus, the Veteran's left thumb symptoms do not more nearly approximate the criteria contemplated by a 20 percent rating under Diagnostic Code 5228 at any time during the appeal period. In addition, the VA examiners did not find, and the Veteran did not contend, that his thumb was ankylosed. As such, Diagnostic Code 5224 is not for application. For the foregoing reasons, the preponderance of the evidence is against the assignment of ratings higher than 10 percent for ulnar collateral ligament of the thumb disability. The benefit of the doubt doctrine is thus not for application in this regard. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. The Board has considered the Veteran's initial rating claim and decided entitlement based on the evidence. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Walker, 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.