Citation Nr: 21072736 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 14-41 130 DATE: December 6, 2021 ORDER Entitlement to a compensable rating for a right little finger disability is denied. Entitlement to a compensable rating for sarcoidosis is denied. REMANDED Entitlement to service connection for athlete's foot is remanded. Entitlement to service connection for residuals of a vasectomy is remanded. FINDINGS OF FACT 1. The Veteran's right little finger disability is manifested by pain and limitation of motion, but not by ankylosis, functional ankylosis, or the functional equivalent of amputation of the finger. 2. The Veteran's sarcoidosis is not manifested by pulmonary involvement with persistent symptoms requiring low dose (maintenance) or intermittent corticosteroids, nor is it manifested by a forced expiratory volume in one second (FEV-1) of 71- to 80-percent predicted, a ratio of FEV-1 to forced vital capacity (FVC) (FEV-1/FVC) is 71 to 80 percent, or a diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO (SB)) of 66- to 80-percent predicted. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for a right little finger disability are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5230. 2. The criteria for a compensable rating for sarcoidosis are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.97, DC 6846. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from November 1978 to February 1979 and from October 1979 to October 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated October 2011, May 2013, and August 2014. In decisions dated February 2019 and October 2020, the Board remanded the matters for additional development, to include to provide the Veteran one additional opportunity to appear for VA examinations to assess the severity of his sarcoidosis and right little finger disability. The Board observes that in a June 2021 VA 21-0820 Report of General Information, the Veteran stated that he did not want to report for his VA examinations and that he wanted VA to evaluate his claims based upon the evidence of record only. The Board notes that the "duty to assist is not always a one-way street" and the Veteran is obliged to cooperate in the development of his pending claims. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, the Board will adjudicate the increased ratings claims based on the evidence of record. 38 C.F.R. § 3.655(b). In an August 2021 rating decision, the RO granted service connection for major depressive disorder and assigned a 10 percent rating, effective July 30, 2013. This is considered a full grant of the benefits on appeal for that claim; therefore, the matter is no longer before the Board for appellate consideration. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c) and 38 U.S.C. § 7107(b). Increased Ratings Claims Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the veteran. 38 C.F.R. § 4.3. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine on a case-by-case basis whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to a compensable rating for a right little finger disability The Veteran is currently in receipt of a noncompensable rating for his right little finger disability for the entire period on appeal. He asserts that a compensable rating is warranted. During the pendency of the instant appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the former criteria prior to February 7, 2021 and both the former and revised rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, the relevant rating criteria were as follows. Under DC 5003, degenerative arthritis established by radiographic imaging/X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. Limitation of motion must be objectively confirmed by clinical findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Where there is X-ray evidence of arthritis and limitation of motion, but not to a compensable degree under the diagnostic code, a 10 percent rating is for assignment for each major joint or group of minor joints affected. A rating in excess of 10 percent is not available absent X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. DC 5156 provides a 10 percent rating for amputation of the little finger without metacarpal resection, at the proximal interphalangeal joint or proximal thereto. A 20 percent rating is warranted for amputation of the little finger with metacarpal resection with more than one-half the bone lost. DC 5227 provides a noncompensable rating for favorable or unfavorable ankylosis of the ring or little finger. The Note under DC 5227 requires consideration as to whether amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand. DC 5230 provides a noncompensable rating for any limitation of motion of the ring or little finger. As of February 7, 2021, the changes to the DCs are as follows. Unless noted below, no changes were made to the relevant rating criteria. The rating criteria under DC 5003 did not change on February 7, 2021; however, the DC was changed to clarify that it only applied to degenerative arthritis, other than post-traumatic. Post-traumatic arthritis is separately rated under DC 5010. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DCs 5003, 5010). On review of the evidence, both lay and medical, the Board finds that the preponderance of the evidence weighs against the Veteran's claim for a compensable rating for his right little finger disability. The Board acknowledges that the Veteran experiences pain and limitation of motion in his right little finger. See VA examination reports dated October 2011 and December 2017. However, as DC 5230 only provides a noncompensable (0 percent) rating for any limitation of motion of the little finger, the Board finds an increased rating cannot be awarded based on 38 C.F.R. § 4.59 for any functional impairment due to pain, weakness, fatigability, or incoordination. See Sowers v. McDonald, 27 Vet. App. 472, 479-80 (2016) (holding that where the applicable diagnostic code does not provide for a compensable rating, § 4.59 does not apply, and may not be used to assign a compensable rating). Additionally, the Veteran does not meet the criteria for a 0 percent rating under DC 5227, as he does not have ankylosis, or even functional ankylosis, of his right little finger, to include any resulting limitation of motion of other digits or interference with overall function of the hand. See VA examination reports dated October 2011 and December 2017. The Board has also considered whether a compensable rating may be warranted under DC 5156, applicable to amputation of the little finger. In this case, the evidence does not show any right little finger disability manifesting as the functional equivalent of amputation. The Veteran's ability to use his right little finger, although limited by pain and limitation of motion, reflects more function than would be served by amputation. See October 2011 and December 2017 VA examination reports. Furthermore, the Board has considered whether a compensable rating may be warranted under DC 5003, applicable to degenerative arthritis. There are no radiological findings in the record confirming degenerative arthritis specifically located in the Veteran's right little finger. The Board acknowledges that in a December 2015 VA primary care note, the Veteran complained of joint pain in his knees, shoulders, and hands; and that his treatment provider assessed him with degenerative joint disease and ordered a bone scan. While a February 2016 bone scan was noted to reveal osteoarthritis, there is no indication as to where in the body the osteoarthritis is located. As noted previously, the Veteran declined to attend an additional VA examination for this claim, so the Board's review is limited to the evidence of record. Based on the foregoing, a compensable rating is not warranted under DC 5003. For these reasons, the Board finds that a compensable rating is not warranted for the Veteran's right little finger disability. The appeal is therefore denied. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. 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). 2. Entitlement to a compensable rating for sarcoidosis The Veteran is currently in receipt of a noncompensable rating for his sarcoidosis for the entire period on appeal. He asserts that a compensable rating is warranted. The Board observes that the rating decision code sheets of record reflect that the Veteran's sarcoidosis is rated under DCs 7713-6846. However, the Board notes that DC 7713, applicable to secondary adenitis, was removed from the rating schedule on October 23, 1995, and this predates the period on appeal. Therefore, the Board finds that DC 7713 is inapplicable to this claim. Under DC 6846, sarcoidosis with chronic hilar adenopathy or stable lung infiltrates without symptoms or physiologic impairment is rated 0 percent disabling. Sarcoidosis with pulmonary involvement with persistent symptoms requiring chronic low dose (maintenance) or intermittent corticosteroids is rated 30 percent disabling. Sarcoidosis with pulmonary involvement requiring systemic high dose (therapeutic) corticosteroids for control is rated 60 percent disabling. Sarcoidosis with cor pulmonale, or; cardiac involvement with congestive heart failure, or; progressive pulmonary disease with fever, night sweats, and weight loss despite treatment, is rated 100 percent disabling. DC 6846 also provides that active disease or residuals of sarcoidosis can be rated as chronic bronchitis under DC 6600, and extra-pulmonary involvement can be rated under the specific body system involved. 38 C.F.R. § 4.97, DC 6846. DC 6600 provides ratings for chronic bronchitis based on the results of pulmonary function tests (PFTs). FEV-1 of 71- to 80-percent predicted; or FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) of 66- to 80-percent predicted, is rated 10 percent disabling. FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56- to 70- percent or; DLCO (SB) of 56- to 65-percent predicted, is rated 30 percent disabling. FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit), is rated 60 percent disabling. FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC less than 40 percent, or; DLCO (SB) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy, is rated 100 percent disabling. 38 C.F.R. § 4.97, DC 6600. When evaluating based on PFTs, post-bronchodilator results should be applied to the rating criteria unless post-bronchodilator results were poorer than the pre-bronchodilator results, in which case the pre-bronchodilator results should be used. 38 C.F.R. § 4.96(d)(5). If the DLCO (SB) test is not of record, the lung disability should be evaluated based on alternative criteria, as long as the examiner states why the test would not be useful or valid in a particular case. 38 C.F.R. § 4.96(d)(2). When there is a disparity between the different PFTs so that the level of evaluation would differ depending on which test would be used, VA should use the test result that the examiner states most accurately reflects the level of disability. 38 C.F.R. § 4.96(d)(6). On review of the evidence, both lay and medical, the Board finds that the preponderance of the evidence is against the Veteran's claim for a compensable rating for sarcoidosis. There is no evidence indicating that the Veteran's sarcoidosis is manifested by pulmonary involvement with persistent symptoms requiring low dose (maintenance) or intermittent corticosteroids during the period on appeal. See VA examination reports dated September 2012 and December 2017; April 2017 VA immunization note. Indeed, multiple VA medical providers have determined that the Veteran's sarcoidosis is inactive, and the Veteran reported during VA examinations that his condition has been asymptomatic and has not required treatment. See VA examination reports dated September 2012 and December 2017; VA treatment records dated May 2015 to March 2018. As such, a compensable rating is not warranted under DC 6846. The Board has also considered whether a compensable rating may be warranted under DC 6600, applicable to chronic bronchitis. The only PFT results of record relevant to the period on appeal are from the September 2012 VA examination. PFTs were not completed during the December 2017 VA examination because the Veteran was unable to perform them due to a recent open cholecystectomy. While an October 2019 VA administrative note reflects that the Veteran agreed to attend a PFT, there is no evidence that this testing was completed. The September 2012 PFTs revealed a FEV-1 of 127-percent predicted (post-bronchodilator), a FEV-1/FVC of 115 percent (post-bronchodilator), and a DLCO of 147-percent predicted (pre-bronchodilator). However, the September 2012 VA examiner determined that these PFT results do not accurately reflect the Veteran's current pulmonary function. As such, the September 2012 PFT results cannot be considered in assigning a disability rating. As noted previously, the Veteran declined to attend an additional VA examination for this claim, so the Board's review is limited to the evidence of record. Accordingly, there are no adequate PFT results during the period on appeal that meet the criteria for a compensable rating under DC 6600. Additionally, there is no evidence that the Veteran's sarcoidosis has manifested with extra-pulmonary involvement, so as to warrant a compensable rating based on the specific body system involved. See VA examination reports dated September 2012 and December 2017. For these reasons, the Board finds that a compensable rating is not warranted for the Veteran's sarcoidosis. The appeal is therefore denied. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. 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). REASONS FOR REMAND 1. Entitlement to service connection for athlete's foot is remanded. 2. Entitlement to service connection for residuals of a vasectomy is remanded. The Veteran asserts he is entitled to service connection for athlete's foot and the residuals of a vasectomy. On review, the Board regrettably finds that another remand is necessary to ensure substantial compliance with its previous remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In its February 2019 Remand, the Board determined that the Veteran should be provided VA examinations to address the nature and likely etiology his claimed disabilities. The Veteran failed to appear for VA examinations scheduled in December 2019. In its October 2020 Remand, the Board determined that in-person examinations were not necessary to establish current disabilities for either claim and that denial as a matter of law based on the failure to appear was not appropriate in this case. 38 C.F.R. § 3.655; see Turk v. Peake, 21 Vet. App. 565, 569-70 (2008). The Board found that the requested etiology opinions were still necessary for it to make an informed decision on the claims, and that such opinions should be obtained on remand. Unfortunately, the RO did not obtain etiology opinions for the Veteran's service connection claims. As noted previously, in a June 2021 VA 21-0820 Report of General Information, the Veteran stated that he did not want to report for his VA examinations and that he wanted VA to evaluate his claims based upon the evidence of record only. It appears that this caused the RO to cancel the requested examinations regarding the Veteran's claimed athlete's foot and residuals of a vasectomy. See July 2021 "Exam Request" documents. As determined by the Board in its October 2020 Remand, an in-person examination is not necessary to decide these claims, and medical opinions should still be obtained despite the Veteran's refusal to participate in a VA examination. Thus, another remand is required to obtain etiology opinions addressing these claims. Accordingly, the matters are REMANDED for the following actions: 1. Obtain a medical opinion regarding the etiology of the Veteran's claimed athlete's foot. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. ** THE BOARD HAS DETERMINED THAT AN IN-PERSON EXAMINATION IS NOT NECESSARY IN THIS CASE. PLEASE PROVIDE A MEDICAL OPINION BASED ON A REVIEW OF THE RECORD, ONLY. After a thorough review of the claims file, the examiner is asked to provide opinion as to the following: a. Did the Veteran's athlete's foot clearly and unmistakably exist prior to the Veteran's entrance to service? b. If the Veteran's athlete's foot clearly and unmistakably existed prior to service, opine whether such disability was clearly and unmistakably NOT AGGRAVATED beyond its natural progression by the Veteran's service. c. If the Veteran's athlete's foot did not clearly and unmistakably exist prior to service, opine whether it at least as likely as not (50 percent probability or greater) had its onset during active service or is otherwise related to it. * In providing these opinions, consider the following evidence: ** December 1977 Report of Medical History (Veteran endorsed athlete's foot). ** September 1979 Report of Medical History (Veteran endorsed mild athlete's foot). A complete rationale must be provided for all opinions rendered. 2. Obtain a medical opinion regarding the etiology of the Veteran's claimed residuals of a vasectomy. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. ** THE BOARD HAS DETERMINED THAT AN IN-PERSON EXAMINATION IS NOT NECESSARY IN THIS CASE. PLEASE PROVIDE A MEDICAL OPINION BASED ON A REVIEW OF THE RECORD, ONLY. After a thorough review of the claims file, the examiner is asked to provide an opinion as to whether the Veteran's claimed residuals of a vasectomy (i.e. erectile dysfunction) at least as likely as not (50 percent probability or greater) had their onset during active service or are otherwise related to it. A complete rationale must be provided for all opinions rendered. 3. Then, after ensuring that the above-requested development has been substantially complied with, readjudicate the remanded claims. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, 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.