Citation Nr: 21006346 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-09 854 DATE: February 3, 2021 ORDER A compensable disability rating for healed fracture of the distal phalanx of the left thumb with osteoarthritis (“left thumb disability”) is denied. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to a disability rating in excess of 20 percent for degenerative disc disease of the lumbar spine (“back disability”) is remanded. FINDING OF FACT Throughout the increased rating period, the left thumb disability has manifested reports of pain, stiffness, and decreased grip strength; a gap between the pad of the thumb and the fingers, at most, of 0.3 centimeters, with the thumb attempting to oppose the fingers, even taking pain and additional limitation after repetitive use or during flare-ups into account; no ankylosis of any of the left-hand fingers; and arthritis demonstrated by x-ray study in only one minor joint. CONCLUSION OF LAW The criteria for a compensable disability rating for the left thumb disability have not been met for any part of the increased rating period on appeal. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5003-5228. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the Appellant in this case, had active service from July 1974 to August 1976. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from a December 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Board remanded this case for further development. For the reasons discussed below, further development is required with regard to the claims of entitlement to service connection for hearing loss and to an increased rating for the back disability. The Board also remanded the issue of entitlement to service connection for sciatica of the left leg in January 2019; in a September 2020 rating decision, the RO granted service connection for bilateral lower extremity radiculopathy, constituting a full grant of the benefits sought on appeal with regard to the sciatica claim. 1. A compensable disability rating for the left thumb disability is denied. The Veteran is in receipt of a noncompensable disability rating for his left thumb disability throughout the increased rating period on appeal. The Board notes that, while the current Rating Decision Codesheet reflects an effective date of February 26, 2013 for the grant of service connection for the left thumb disability, service connection was actually granted in a September 1976 rating decision with an effective date of August 26, 1976. Therefore, the Board has characterized the claim as one of entitlement to an increased rating rather than an initial rating claim. The Veteran contends that he is entitled to a compensable disability rating for his left thumb disability based on restriction of movement of the thumb and forefinger of the left hand as well as osteoarthritis in the left hand. See January 2014 notice of disagreement (NOD). For the reasons discussed below, the Board finds that the weight of the evidence is against the assignment of a compensable disability rating for the left thumb disability throughout the increased rating period on appeal. Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is in receipt of a noncompensable disability rating under the provisions of DCs 5003-5228, 38 C.F.R. § 4.71a. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. See 38 C.F.R. § 4.27. The hyphenated diagnostic codes in this case indicate that degenerative arthritis, under DC 5003, was the service-connected left thumb disability, while the residual condition is limitation of motion of the thumb, which is evaluated under 38 C.F.R. § 4.71a, DC 5228. Under DC 5228, a noncompensable, or zero percent, disability rating is assigned when there is a gap of less than one inch (2.5 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 10 percent disability rating is assigned when there is 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. The highest, 20 percent, disability rating under DC 5228 is assigned when the evidence demonstrates a gap of more than two inches (5.1 cm) between the thumb pad and the fingers. 38 C.F.R. § 4.71a. Reviewing the evidence most relevant to the period on appeal, the Veteran was afforded a VA hand and fingers examination in May 2013. The examiner diagnosed a healed fracture of the distal left phalanx of the left hand (2013) and osteoarthritis of the first carpometacarpal (CMC) joint of the bilateral hands (2013). It was noted that, during active service, the Veteran had a non-displaced fracture through the base of the distal phalanx of the left thumb. He was noted to be left-hand dominant. He reported flare-ups, stating that the first metacarpal of the left thumb became stiff such that he had some difficulty opening jars, etc. He had limitation of motion and/or evidence of painful motion of both thumbs. There was no gap between the thumb pad and the fingers. There was no gap between any fingertips and the proximal transverse crease of the palm or evidence of painful motion in attempting to touch the palm with the fingertips. There was no limitation of extension or evidence of painful motion of the index or long fingers. The examiner indicated that there was no additional limitation of motion, gap between the thumb pad and fingers, gap between any fingertips and the proximal transverse crease of the palm, or limitation of extension of the index or longer fingers after repetitive use testing. The examiner indicated that there was no functional loss or impairment of any of the fingers or thumb, including after repetitive use testing. Hand grip was 5/5 in the left hand. There was no ankylosis of any fingers. The examiner indicated that x-ray studies showed arthritis in both hands, noting that there was no degenerative change of the distal phalanx of the left thumb (the location of the service-connected left thumb disability) and that there was an equal degree of degenerative joint disease of the first metacarpal on both sides. In a March 2015 addendum report, a VA examiner reviewed the previous May 2013 examination report and stated that, with respect to the requested Mitchell criteria, he was unable to provide the requested opinion without resorting to mere speculation because there was insufficient medical evidence upon which for him to base that opinion. Based on the clinical presentation, the examination findings, and the Veteran’s reports, the examiner could not, without speculation, opine as to what additional loss of motion in degrees that the left thumb disability would cause during repeated use over time or flare-ups. The Veteran was afforded another VA hand and fingers examination in October 2019. The examiner diagnosed degenerative arthritis and residuals of status post fracture distal phalanx. Since his last examination, the Veteran stated he continued to have daily episodes of mild achy pain in the left thumb. Occasionally, the pain caused reduced ability to grip with the left hand. He had no further trauma, fracture, dislocation, or surgery. This report noted that he was right hand dominant. The Board notes that the ratings under the applicable diagnostic codes do not differ between the major and minor extremities. The Veteran reported weekly flare-ups. Functional loss included a weak grip. Range of motion of the left hand, including all fingers, was normal. There was no gap between the pad of the thumb and the fingers, and no gap between the finger and proximal transverse crease of the hand on maximal finger flexion. No pain was noted on examination, and there was no evidence of pain with use of the hand. After repetitive use testing, pain caused additional functional loss in that flexion of the thumb was reduced at the metacarpophalangeal joint (MCP) from 100 to 90 degrees and at the interphalangeal joint (IP) from 90 to 80 degrees, and there was now a gap between the pad of the thumb and the fingers, measuring 0.1 centimeters. There was still no gap between the fingers and proximal transverse crease of the hand on maximal finger flexion. The examiner further stated that pain and lack of endurance would significantly limit functional ability with repeated use over a period of time, resulting in thumb flexion limited to 80 degrees at the MCP and 70 degrees at the IP, and a gap between the pad of the thumb and the fingers measuring 0.2 centimeters. Finally, during flare-ups, the examiner indicated that pain, fatigue, weakness, lack of endurance, and incoordination would significantly limit functional ability, resulting in flexion of the thumb limited to 75 degrees at the MCP and 65 degrees at the IP, and a gap between the pad of the thumb and the fingers measuring 0.3 centimeters. Additional contributing factors to disability included less movement than normal due to ankylosis, adhesions, etc., and weakened movement due to muscle or peripheral nerve injury, etc. There was no ankylosis. Arthritis was shown on x-ray, but not in multiple joints of the same hand. There was no pain with non-weight-bearing or with passive ROM. There was pain with weight-bearing resulting in weakness and reduced endurance. The examiner stated that the thumb condition would not affect the Veteran’s ability to perform any type of occupational task. After a review of all of the evidence of record, lay and medical, the Board finds that the weight of the evidence is against a compensable disability rating for the left thumb disability for the entire increased rating period on appeal. 38 C.F.R. § 4.71a. Namely, throughout the appeal period, the gap between the pad of the thumb and the fingers, at most, measured 0.3 centimeters, even taking pain and additional limitation after repetitive use or during flare-ups into account. This is far below the minimum gap of 2.5 centimeters required for a compensable disability rating under DC 5228. Even taking into account the Veteran’s pain, discomfort, stiffness, decreased grip strength, and including pain and additional limitation of function following repetitive use or during flare-ups, the criteria for a compensable disability rating are not met. The Board has considered whether any other diagnostic codes would allow for a compensable disability rating for the left thumb disability. However, ankylosis, whether favorable or unfavorable, of any digits of the left hand is not demonstrated by the evidence (DCs 5216 - 5227). 38 C.F.R. § 4.71a. Moreover, despite the Veteran’s contention of restriction of movement of the left index finger, both the 2013 and 2019 VA examination reports reveal no limitation of motion of the index finger, and there was no gap between the fingertip and proximal transverse crease of the palm at either examination; thus, DC 5229 does not allow for a compensable disability rating. Further, DC 5230 does not apply as the evidence does not demonstrate limitation of motion of the ring or little finger. DC 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200, etc.). When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. 38 C.F.R. § 4.71a. In this case, although there is osteoarthritis of the first CMC joint, the 2019 VA examiner specifically noted that x-ray studies did not show arthritis in multiple joints of the same hand. The Board also notes that the 2013 VA examiner indicated that the arthritis of the CMC joint was in a different location than the service-connected left thumb disability (the distal phalanx), and that the arthritis was present in both hands, suggesting that the arthritis was not related to the service-connected left thumb disability. However, even assuming that the arthritis is related to the service-connected disability, DC 5003 does not allow for a compensable disability rating for the left thumb disability, as only one minor joint is involved. In denying a compensable disability rating for the left thumb disability, the Board has considered the Veteran’s statements that his finger disability is worse, as well as his reports of pain and functional limitations. While he is competent to provide evidence regarding matters that can be perceived by the senses, he is not shown to be competent to render medical opinions regarding whether his symptoms meet the next higher rating criteria under VA regulations. Such competent evidence concerning the nature and extent of the Veteran’s cervical spine disability has been provided by the medical personnel who have examined him during the current appeal. The medical findings (as provided in the examination reports and clinical records) directly address the criteria under which this disability is evaluated. The specific clinical measures of ranges of motion, including examiners’ findings and opinions regarding additional limitations of motion due to such factors, have been weighed and considered by the Board. Such specific measures and findings are of more probative value in determining specific ranges of motion than are general histories or general descriptions of symptoms of pain or limitations, such as this Veteran’s report of pain. Thus, the overall evidence does not show that pain or other factors have resulted in additional functional limitation or limitation of motion (gap of one to two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers, etc.) such as to enable a finding that the disability picture more nearly approximates a compensable disability rating for the any part of the increased rating period on appeal. For these reasons, the Board finds that the weight of the evidence is against a compensable disability rating for the service-connected left thumb disability throughout the increased rating period on appeal. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). [CONTINUED ON NEXT PAGE] REASONS FOR REMAND 1. Entitlement to service connection for a bilateral hearing loss disability is remanded. As noted above, in January 2019, the Board remanded the claim of entitlement to service connection for bilateral hearing loss for further development. Specifically, the Board found that the May 2013 VA examination report relied solely on the absence of in-service hearing loss as the basis for the negative nexus opinion contained therein. The Board directed that the Veteran be afforded a new VA audiological examination and that, if the examiner found normal hearing in service as the basis for a lack of relationship between current hearing loss and active service, the examiner must explain the clinical significance of the normal hearing in service and explain, from a medical standpoint, how such normal hearing test results bear on the question of etiology. Following the Board’s remand, the Veteran was afforded another VA audiological examination in October 2019. The examiner provided a negative nexus opinion, stating that the Veteran’s “…enlistment and separation audiograms both indicated very normal hearing sensitivity,” and that “…his separation exam provides documentation of very normal hearing sensitivity that was unchanged from his entrance hearing exam,” as the basis for the negative nexus opinion. The Board finds that the October 2019 examiner’s opinion does not substantially comply with the Board’s January 2019 remand directives, in that the examiner relied solely upon a lack of evidence of hearing loss in service to formulate the negative nexus opinion. Therefore, while the Board regrets the additional delay, an addendum opinion should be obtained from the October 2019 VA examiner, or, if that examiner is not available, the Veteran should be afforded the opportunity to attend a new VA audiological examination to obtain an opinion as to the etiology of the current hearing loss. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand). 2. Entitlement to a disability rating in excess of 20 percent for the back disability is remanded. In January 2019, the Board also remanded the claim of entitlement to an increased disability rating for the back disability to afford the Veteran a new VA back examination to assess the current severity of the back disability. The Veteran was afforded such an examination in October 2019 that substantially complies with the Board’s remand directives. However, during the examination, the Veteran reported that he had undergone a laminectomy in July 2019 at JCMC (Johnson City Medical Center), a private facility. The records from JCMC are not associated with the claims file and may be pertinent to the Veteran’s claim. Therefore, the Board finds that a remand is necessary to request and associate the records from JCMC with the claims file. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the October 2019 VA audiological examiner, or, if that examiner is not available, afford the Veteran the opportunity to attend a new VA audiological examination from an appropriate specialist to address the nature and etiology of his bilateral hearing loss. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a rationale for any opinion expressed should be provided. The claims file must be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. (a.) The examiner should offer the following opinion: Is it at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran’s hearing loss was incurred during or caused by active service? The examiner must not rely solely on the absence of hearing loss in service in formulating his/her opinion and should consider the Veteran’s report of hazardous noise exposure in service as a jet mechanic and report of continuity of symptomatology since active service. Note: The term “at least as likely as not” does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Provide the Veteran with the appropriate release form(s) necessary to request treatment records from Johnson City Medical Center, as well as any other private treatment facilities where he has received treatment for his back disability, particularly from 2019 forward. All attempts to procure the records should be documented in the file. If any records cannot be obtained, any negative responses should be associated with the claims file, and the Veteran and his representative should be notified of unsuccessful attempts to obtain the records, in order to allow the Veteran the opportunity to obtain and submit those records for review. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Sherrard, 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.