Citation Nr: 21006454 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 18-00 373A DATE: February 4, 2021 ORDER Entitlement to service connection for erectile dysfunction is dismissed. Entitlement to service connection for posttraumatic stress disorder (PTSD) is dismissed. Entitlement to service connection for tinnitus is dismissed. Entitlement to a compensable rating for a right little finger disability is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a gastrointestinal disorder, claimed as irritable bowel syndrome (IBS), is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. FINDINGS OF FACT 1. A July 2020 regional office (hereinafter agency of original jurisdiction or AOJ) rating decision granted entitlement to service connection for erectile dysfunction, effective the date of the Veteran’s claim for benefits. 2. A July 2020 AOJ rating decision granted entitlement to service connection for PTSD, effective the date of the Veteran’s claim for benefits. 3. A July 2020 AOJ rating decision granted entitlement to service connection for tinnitus, effective the date of the Veteran’s claim for benefits. 4. The Veteran’s residuals of a right fifth metacarpal fracture are not manifested by symptoms approximating an amputation of that finger, or by involvement of other fingers or the whole hand so as to warrant a compensable or separate rating. CONCLUSIONS OF LAW 1. The issue of entitlement to service connection for erectile dysfunction is moot. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.101, 20.200, 20.202 2. The issue of entitlement to service connection for PTSD is moot. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.101, 20.200, 20.202. 3. The issue of entitlement to service connection for tinnitus is moot. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.101, 20.200, 20.202. 4. The criteria for entitlement to a compensable disability rating for a fracture of the fifth metacarpal of the right hand have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5227-5230. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from July 2003 to March 2004 and from June 2007 to September 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of September and December 2015 rating decisions issued by an AOJ of the Department of Veterans Affairs (VA). The Board issued an August 2019 decision denying entitlement to service connection for bilateral knee disorders, left ear hearing loss and a right shoulder disorder, as well as entitlement to a compensable rating for a right little finger disability. This Board decision also remanded the issues of entitlement to service connection for hypertension, GERD, IBS, PTSD, tinnitus, and erectile dysfunction to the AOJ for further development. After undertaking this development, the AOJ issued a July 2020 supplemental statement of the case denying the issues of entitlement to service connection for GERD, IBS and hypertension, and they have now been returned to the Board for review. The Veteran appealed the issues of entitlement to service connection for bilateral knee disorders as well as entitlement to a compensable rating for a right little finger disability to the Court of Appeals for Veterans’ Claims (Court). In a September 2020 order, the Court approved a Joint Motion for Remand (JMR), vacating the August 2019 decision and remanding these issues to the Board. 1. Entitlement to service connection for erectile dysfunction 2. Entitlement to service connection for PTSD 3. Entitlement to service connection for tinnitus As noted above, the Board remanded the issues of entitlement to service connection for erectile dysfunction, PTSD and tinnitus to the AOJ for further development. Subsequently, the AOJ issued a July 2020 rating decision granting entitlement to service connection for these disorders. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. As the July 2020 rating decision constitutes a full grant of the benefits sought, these issues have become moot, and the claims are dismissed. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 4. Entitlement to a compensable rating for a right little finger disability 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 are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. §1155; 38 C.F.R. §4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 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. See Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. §4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994); Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). The Veteran asserts entitlement to a compensable rating for his right little finger disability, the residuals of an inservice fracture of his right fifth metacarpal. The Veteran’s residuals of this fracture are currently evaluated as non-compensable under DC 5230. Under DC 5230, a maximum zero percent rating is assigned for any limitation of motion of the little finger (whether on the major [dominant] or minor [non-dominant] hand). 38 C.F.R. § 4.71a. Thus, the Veteran is in receipt of the maximum disability rating under DC 5230. Since the Veteran is in receipt of the maximum disability rating available under DC 5230, the Board will consider other potentially applicable DCs in the Rating Schedule. Under DC 5227, a maximum non-compensable rating is assigned for unfavorable or favorable ankylosis of the ring or little finger regardless of whether the finger is on the major (dominant) or minor (non-dominant) hand. 38 C.F.R. § 4.71a, DC 5227. In this regard, while it is the intention of the rating schedule to recognize actually painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, there is no compensable rating available under either DC 5227 or 5230. 38 C.F.R. § 4.71a. See Sowers v. McDonald, 27 Vet. App. 472 (2016). Although the Board recognizes that the Veteran currently is in receipt of the maximum zero percent disability rating, the Note to DC 5227 states that an amputation evaluation should also be considered, particularly where ankylosis is present. 38 C.F.R. § 4.71a. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury or surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992). Here, it was noted that the Veteran does not manifest ankylosis of the right little finger at September 2015 and December 2017 VA examinations. Although the Veteran reported pain and intermittent swelling of his right little finger when holding pliers or during periods of overuse, imaging of his right hand was normal and there is no evidence indicating that his right little finger is so disabled, by ankylosis or other symptoms, including pain, such that its functional impairment more nearly approximates amputation. Thus, the Board concludes that an increased rating is not warranted via the amputation codes because the nature of the Veteran’s service-connected right little finger disability is not analogous to amputation. The Board recognizes the Veteran’s lay statements regarding problems with pain and swelling of the fifth metacarpal during flares or with overuse, as well as VA examination notations of abnormal range of motion of the little finger. However, limitation of motion, no matter how severe, does not entitle the Veteran to a higher disability rating. As stated above, even if rated under an alternative DC, he is already in receipt of the maximum schedular disability rating available for limitation of motion of the right little finger. As previously mentioned, his little finger must result in ankylosis equivalent to an amputation to warrant a compensable disability rating. Thus, even when considering the Veteran’s complaints of pain and limitation of motion, the requirements for a compensable disability rating for the right 5th metacarpal are not met. Accordingly, the Board finds that the current noncompensable evaluation adequately compensates the Veteran for the pain and functional impairment caused by his service-connected residuals of right 5th finger fracture. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. Furthermore, in Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the Court determined that if a claimant is already receiving the maximum disability rating, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. Moreover, although 38 C.F.R. § 4.59 and Burton v. Shinseki, 25 Vet. App. 1 (2011) provide that actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint, there is no compensable minimum rating available under DC 5227 or 5230. The Court has held that the provisions of 38 C.F.R. § 4.59 are not an independent provision that may be applied without an underlying DC. See Sowers v. McDonald, 27 Vet. App. 472 (2016). Because DC 5227 and 5230 provide for a maximum noncompensable rating, a compensable rating is not available under either DC due to the provisions of 38 C.F.R. § 4.59. Collectively, the above medical and lay evidence of record establishes no ankylosis for the Veteran’s little finger, even with consideration of pain and other factors of functional loss. See 38 C.F.R. § 4.71a. The Note to DC 5227 also states that an additional evaluation is warranted for any resulting limitation of motion of other digits or interference with the overall function of the hand due to the service-connected little finger. Here, although the Veteran notes pain when picking things up or using pliers, there is no evidence that the fifth finger disability has interfered with the overall function of the hand, such that a separate evaluation is warranted under the Note to DC 5227. 38 C.F.R. § 4.71a. Imaging and test results of the Veteran’s hand have been consistently normal while his muscle strength testing has consistently been five out of five. Finally, the Veteran contends that the callus created by his healed right fifth metacarpal fracture has caused tendonitis. The Board observes that the Veteran confirmed he has not seen a medical professional for his hand and treats it with over the counter medication as necessary. The December 2017 VA examiner noted that callus formation over a fracture is a normal finding as part of the healing process and that the Veteran’s testing results were inconsistent with tendonitis issues. The examiner observed that the Veteran’s range of motion was normal and matched that of his left hand, concluding that any limitations were due to natural deconditioning and aging. The Board finds the December 2017 examiner’s explanation highly probative. While the Veteran is competent to report symptoms such as pain, swelling and difficulty gripping objects, he does not have the medical training or credentials to diagnose a condition such as tendonitis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board finds that a preponderance of the evidence is against the Veteran’s claim for a compensable rating for his service-connected right little finger disability. As such, the benefit of the doubt doctrine is not for application and the claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. The August 2019 Board remand instructed the AOJ to afford the Veteran a VA examination in order to determine the nature and etiology of his diagnosed hypertension, which occurred in December 2019. The AOJ was also instructed to obtain opinions on whether the Veteran’s hypertension was due to his active service, or, in the alternative, caused or aggravated by his service-connected PTSD. At the examination, the Veteran reported the condition began in 2007 when it was diagnosed during a routine physical examination but indicated he did not begin continuous treatment with lisinopril until after separation from service. The examiner opined that the Veteran’s hypertension was less likely than not due to his active service and was also less likely than not caused or aggravated by his service-connected psychiatric disorder. In support of these conclusions, the examiner noted the Veteran’s medical records indicated his hypertension was diagnosed approximately eight years after his active service and stated “a query of presently available medical records is also silent as to evidence to suggest that the Veteran’s current [hypertension] was proximately due to or was aggravated beyond its natural progression by the result of his [service connected] psychiatric disorder.” The Board finds these opinions inadequate, as they do not address the lay statements of the Veteran indicating he was diagnosed with hypertension in 2007. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (a medical examiner is not free to simply ignore a veteran’s lay statements recounting symptoms or events); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (a lay person is competent to report a contemporaneous medical diagnosis). Additionally, the Board finds the examiner’s conclusion regarding secondary service connection to be inadequate based on its lack of supporting rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (“most of the probative value of a medical opinion comes from its reasoning”). Therefore, remand for additional medical opinion is required. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to service connection for a gastrointestinal disorder, claimed as IBS, is remanded. The Veteran initially filed a claim for IBS, which the Board remanded in August 2019 in order to afford the Veteran a VA examination and obtain opinion as to whether his condition was due to his service or, in the alternative, caused or aggravated by his service-connected psychiatric disorder. During a subsequent December 2019 VA examination, the Veteran reported onset of stomach pains, diarrhea and cramping in 2008. He described ongoing diarrhea and cramping requiring frequent trips to the bathroom, with seven exacerbations in the past 12 months. The examiner stated there was no diagnosis of IBS since the Veteran’s records were silent for diagnosis of or treatment for IBS or its symptoms. The Board observes that treatment records indicate the Veteran complained of upper abdominal pain with nausea and vomiting inservice, as well as ongoing abdominal pain and constipation shortly after separation. December 2015 VA treatment records contain a notation of “chronic gastritis,” and the Veteran reported “diarrhea every day” as well as epigastric pain to VA clinicians in December 2017. As VA must apply a sympathetic reading to a lay person’s pleadings to determine which symptoms the claimant is attempting to service-connect, the Board will reclassify the Veteran’s claim as one for a gastrointestinal disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The December 2019 VA examiner opined that the Veteran’s claimed IBS was less likely than not related to his service as there was no evidence of treatment for IBS in his service records. The examiner also stated that the Veteran’s medical records were silent for evidence to suggest that his claimed IBS was caused or aggravated by his service-connected psychiatric disorder. Given the Board’s broadening of the Veteran’s claim to encompass any diagnosed gastrointestinal disorder during the period on appeal, remand is required for additional medical opinion as to whether any current gastrointestinal disorder is due to his active service. Entitlement to service connection for GERD is remanded. The August 2019 Board decision remanded the Veteran’s claim for GERD for a VA examination, which he was afforded in December 2019. The Veteran reported that his symptoms of heartburn, acid reflux and constipation began in 2007 and stated he continues to take pantoprazole for symptoms of pyrosis and reflux. The examiner opined that the Veteran’s diagnosed GERD was less likely than not related to his active service, as his service treatment records were silent with regard to a diagnosis of or treatment for GERD during service. The examiner also stated that the record was silent for evidence the Veteran’s GERD was aggravated by his service-connected psychiatric disorder. The Board finds these opinions inadequate. With regard to direct service connection, the examiner failed to address the Veteran’s statements that his symptoms began in 2007, as well as inservice treatment records noting complaints of gastrointestinal symptoms. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Additionally, the examiner failed to provide a supporting rationale for his opinion that the Veteran’s diagnosed GERD was less likely than not caused or aggravated by his service-connected psychiatric disorder. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Therefore, remand for additional medical opinion is required. 3. Entitlement to service connection for a right knee disorder is remanded. 4. Entitlement to service connection for a left knee disorder is remanded. An August 2019 Board decision denied the issues of entitlement to service connection for right and left knee disorders based on the lack of a current disability, relying largely on a February 2013 VA examination. The September 2020 JMR vacating the Board’s denial noted the Board failed to address several indications of functional knee impairment. These included VA treatment records noting “traumatic arthoplasty” of the right knee with progressively worsening symptoms after an inservice fall, diagnoses of chondromalacia patella and patellofemoral pain syndrome of the right knee, as well as right knee treatment including a steroid injection and a prescribed knee brace. Additionally, the JMR observed that the Board failed to address VA treatment records in which the Veteran complained of left knee pain due to favoring his right knee. The Board observes that as the February 2013 VA examiner did not provide an opinion as to whether the Veteran’s knee disorders are due to his active service, it is inadequate for the purposes of adjudicating entitlement to service connection. Therefore, remand for a nexus opinion is required. Additionally, as the Veteran’s last knee examination was over seven years ago, a new examination is warranted. Barr, 21 Vet. App. at 312; McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). The matters are REMANDED for the following action: 1. Forward the Veteran’s claims file to an appropriate clinician for an addendum opinion regarding the Veteran’s hypertension. The need for an additional examination is left to the discretion of the examiner. The examiner is requested to opine: a) Whether it is at least as likely as not (50 percent or greater probability) the Veteran’s hypertension began in or is otherwise due to his active service; and b) Whether it is at least as likely as not (50 percent or greater probability) the Veteran’s hypertension was caused or aggravated by his service-connected psychiatric disorder. A complete rationale must be provided for any opinion offered. The examiner is instructed to address the Veteran’s report of a 2007 diagnosis of hypertension during a physical examination as well as July 2006 service treatment records noting “elevated BP.” 2. Forward the Veteran’s claims file to an appropriate VA examiner for an opinion with regard to his gastrointestinal symptoms. The need for an additional examination is left to the discretion of the examiner. The examiner is asked to identify all current gastrointestinal disorders by diagnosis, including GERD and chronic gastritis. For each current diagnosis, the examiner is asked to opine: a) Whether it is at least as likely as not (50 percent or greater probability) that the disorder began in or is otherwise due to his active service; and b) Whether it is at least as likely as not (50 percent or greater probability) that the disorder was caused or aggravated by his service-connected acquired psychiatric disorder. A complete rationale must be provided for any opinion offered. The examiner is instructed to address the Veteran’s August 2008 inservice and December 2008 post-service complaints of abdominal pain and gastric symptoms, November 2015 VA treatment records noting “chronic gastritis,” December 2017 statement to a VA clinician that he has “diarrhea every day,” and his statement that his heartburn, diarrhea and acid reflux symptoms began in 2007. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right and/or left knee disorders. The examiner must note whether there is any current functional impairment of the Veteran’s knees and opine whether it is at least as likely as not (50 percent or greater probability) that such impairment began in or is otherwise due to his active service. A complete rationale must be provided for any opinion offered. The examiner is instructed to discuss the Veteran’s report of progressively worsening knee pain since an October 2003 inservice fall, medical records indicating November 2014 and January, February, and August 2015 VA treatment for right knee issues. The examiner is also asked to state whether there is any medical reason to accept or reject the Veteran’s May 2015 statement that his left knee impairment is a result of favoring his right knee. N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. C. Schumacher, 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.