Citation Nr: 21007765 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 14-11 532 DATE: February 10, 2021 ORDER Entitlement to service connection for a left hand disability, to include metallic foreign body of the left hand, left hand middle finger bump with pain over the distal interphalangeal (DIP) joint, and/or rheumatoid arthritis, is denied. Entitlement to an initial disability rating in excess of 10 percent for iliotibial band syndrome of the left knee is denied. Entitlement to a separate, 10 percent rating for left knee instability is granted. FINDINGS OF FACT 1. The probative evidence does not establish that a left hand disability had onset in service or is causally related to service. 2. The Veteran’s iliotibial band syndrome of the left knee is manifested by limitation of flexion to no less than 130 degrees, pain, and slight instability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left-hand disability, to include metallic foreign body of the left hand, left hand middle finger bump with pain over the distal interphalangeal (DIP) joint, and/or rheumatoid arthritis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to an initial disability rating in excess of 10 percent for iliotibial band syndrome of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5003-5260. 3. The criteria for a 10 percent rating, and no higher, for left knee instability have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2006 to February 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2018, the Board remanded the case for further development. 1. Entitlement to service connection for a left hand disability Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). The Veteran contends that he has pain, numbness, and discoloration of the left hand as a result of repetitive use during service. He also contends that he has had left hand symptoms (pain) since service. The service treatment records show that in a September 2011 report of medical history prior to separation, the Veteran reported that he had arthritis in the hands, that it was hard to hold onto tools in cold weather, and that he had pain in the hands when it is cold. The clinician’s summary associated with the September 2011 report of medical history prior to separation indicated that the Veteran had a family history of rheumatoid arthritis, and the Veteran recently reported worsening of hand pain specifically in cold weather. The examiner recommended blood work and X-rays prior to separation; however, no subsequent blood work results or X-rays are associated with the service treatment records. In March 2013, the Veteran was afforded a VA general examination, which included the hands. At that time, the VA examiner indicated that there was a left hand middle finger bump with pain over the DIP joint. Imaging studies of the left hand revealed a metallic foreign body (BB pellet) along the palmar soft tissue of the left hand adjacent to the third metacarpal bone. Imaging studies of the left hand were performed, and the VA examiner indicated that there was no degenerative or traumatic arthritis. The VA examiner did not note whether rheumatoid arthritis was present or opine as to the etiology of any left hand disability. Pursuant to the Board’s remand, a VA examination was conducted in June 2018. The examiner stated that the Veteran’s claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reported that there was no evidence to support a claim of rheumatoid arthritis. X-rays of the left hand did not show any evidence of arthritic changes. The examiner stated that comprehensive review of the evidence of record failed to show complaint of hand symptoms on periodic exam in February 2011, nor was he able to find evidence of chronic complaints of this condition or treatment thereof over the years. The examiner stated that the Veteran’s symptoms were subjective only; the objective examination was normal. There was no objective evidence of a chronic condition and nexus has not been established. During service, the condition was acute only and there is no evidence of chronicity of care. A VA physician reviewed the file and provided an opinion in July 2020 that it was not as likely as not that the Veteran’s metallic foreign body of the left hand middle finger bump with pain over the DIP joint began during service or was related to active service. The examiner stated: There is no evidence of a left hand injury while in service. Separation exam is negative for related complaints. The only positive notation is for knee. At that exam, it was noted that the Veteran had cut his right middle finger as a six-year-old. Later notes show middle finger reattachment. It is unclear as to the severity of the laceration to the third finger as a child. The C & P exam noted left DIP tenderness with a “bump”, and palmar numbness of the third finger reported by the Veteran. The Veteran even reports no known hand injury at the exam in 2013. The x-ray showed a metallic “BB” adjacent to the palmar side of the third metacarpal. It is unclear if this is related to the laceration as a child or some other incident. Nonetheless, there is no evidence of a condition arising in service. An autoimmune workup November 2011 was negative and effectively ruled out rheumatoid arthritis. It is unclear when this third finger complaint arose, but it was clearly not present during service or at separation. Per the 2018 DBQ, the veteran subsequently developed cubital tunnel syndrome on the left affecting the fourth and fifth digits. This is completely separate from the third finger condition, regardless of the etiology of the pellet and the findings of the third finger. The bump at the third DIP is not noted in 2018. This implies resolution of that complaint. The ulnar palsy is due to compromise at the elbow, and is not considered a hand condition, per se. They are anatomically and physiologically different. Possible sources for complaints of the third finger, include the unspecified laceration, possible surgical repair and the retained metallic fragment. There is no documentation connecting these complaints to service. There is no evidence of aggravation of the injury as a child beyond its natural progression, while in service. In an August 2020 addendum, this VA physician stated: I noted no hand complaints at separation. That exam was dated 2/11/11. The Veteran noted “arthritis” of both hands 9/1/11. However, there is no arthritis diagnosed and no current hand condition other than that described above. The Veteran suffered a laceration requiring surgical repair, as a six-year-old. Later notes show middle finger reattachment. The BB is unexplained. It is an incidental finding that had not been identified previously, and either represented an old childhood injury or an event since service, as no events in service would account for a fragment/BB, and is also unlikely to have gone unreported. This does not account for the bilateral nature of his complaints of bilateral pain in the hands in the 2011 exam. Therefore, the only condition diagnosed would be subjective pain in the hands. Arthritis has not been diagnosed. From the available documentation, a specific cause/diagnosis cannot be rendered, but rheumatoid arthritis was ruled out. The 2018 exam was performed specifically from left fourth and fifth finger complaints, which were deemed to be due to ulnar nerve entrapment at the elbow, or cubital tunnel syndrome. As such, this does not represent hand injury per se, and is unrelated to any other hand condition. Therefore findings on the 2018 exam are essentially negative for active hand conditions. The 2013 DBQ did note a 3rd distal IP joint bump with tenderness. This was not identified on the 2018 exam and is presumed to have resolved. This is unrelated to the BB which was noted at the third metacarpal, and is unexplained by the Veteran or any other complaints or findings. Thus, the Veteran complained of bilateral hand pain in 2011, attributing it to nonexistent arthritis. The third distal IP joint issue is moot, as it appears to have resolved and was unrelated to service in the first place. The current findings are clearly ulnar nerve entrapment at the elbow and not related to any hand complaints. Based on the 2018 DBQ and current records, there is no active hand diagnosis. Even the subjective bilateral pain diagnosis is not substantiated, as it was not noted on the 2018 exam. Therefore, there are no current diagnoses for a hand condition and it is less likely than not that any hand condition had its nexus in service or is due to complaints noted on the 2011 exam. While the Veteran is competent to report subjective symptoms such as hand pain, he is not competent to provide a diagnosis or etiology of his claimed left hand disability, as such requires medical training and knowledge that he has not been shown to possess. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The June 2018 and July and August 2020 VA examiners provide reasoned opinions against a finding that the Veteran has a left hand condition that is attributable to service. The examiners explained that the Veteran did not have rheumatoid arthritis, and that no actual left hand disability was present. There is no medical evidence of record showing a left hand disability, and there are no opinions of record that contradict these examiners’ conclusions. Without a current diagnosis, service connection cannot be granted. See Brammer v. Derwinski, 3 Vet. App. 233, 225 (1992). The Board is mindful of Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018) in which the Federal Circuit explained that where pain alone results in functional impairment that affects earning capacity, even if there is no identified underlying diagnosis, it can constitute a disability. However, in this case, there is no assertion or showing of impaired earning capacity due to the left hand/finger pain. The preponderance of the evidence is against the claim of service connection for a left hand disability; there is no doubt to be resolved; and service connection is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Increased Rating 2. Entitlement to an initial disability rating (or evaluation) in excess of 10 percent for iliotibial band syndrome of the left knee (a left knee disability). 3. Entitlement to a separate, 10 percent rating for left knee instability The Veteran’s iliotibial band syndrome of the left knee is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5260 based on painful motion of the knee. Diagnostic Code 5003 provides that arthritis can be rated at 10 percent for X-ray evidence of degenerative arthritis involving two or more major joints or two or more minor joint groups. A 20 percent rating is provided for degenerative arthritis of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a ; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for iliotibial band syndrome of the left knee. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, weakened movement, incoordination, repetitive use, and pain during flare-ups. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the Veteran has difficulty standing for prolonged periods, running, taking stairs, and kneeling would not result in limitation of motion more nearly approximating flexion limited to 30 degrees. In reaching this conclusion, the Board notes the Veteran underwent a VA examination in March 2013. As a preliminary matter, the Board notes that although the Veteran presented for this examination, it is not fully compliant with the requirements set forth by Correia, 28 Vet. App. 158 and Sharp, 29 Vet. App. at 33. However, the report contains some relevant findings that are included herein. During the examination, the Veteran reported constant 2/10 pain in his left knee. He denied flare-ups. On examination, the initial range of left knee motion was from zero to 140 degrees or greater. There was no objective evidence of painful motion. The range of motion was unchanged after three repetitions. The examiner noted functional loss due to pain on movement. Muscle strength testing was normal. Joint instability testing was normal and there was no history of recurrent patellar subluxation or dislocation. There was no history of any meniscal condition or surgical procedure. The examiner noted that the Veteran’s left knee disability limited him to walking or standing for two hours at a time, and that he was not able to do repetitive lifting of more than 50 pounds. A May 2017 private treatment record noted that the Veteran reported that his left knee pain was significant. The pain was located on the left side and anteriorly. The Veteran reported tenderness and limited range of motion. The pain was aggravated by ascending or descending stairs, running, standing, walking and work. The Veteran reported difficulty with bending, twisting and stooping, standing, walking, and working. He reported associated catching, clicking giving out, joint stiffness, and pain on movement. On examination, the Veteran walked with a normal gait. The left knee was normal to inspection and palpation. There was no swelling. Tenderness of the left lateral collateral ligament was noted. Anterior and posterior drawer tests were negative. Lachman test was negative. Valgus stress test at full extension was negative. There was 4 millimeters of laxity with left varus stress test at full extension. Valgus stress test at 30 degrees flexion was negative. There was laxity with left varus stress testing at 30 degrees flexion. Patellar apprehension test was negative. Patellar grind test was negative. McMurray’s test was positive laterally in the left knee. A VA examination was conducted in June 2018, and the examiner provided an addendum statement in January 2020 clarifying some findings noted on the examination report. The Veteran reported that he had left knee posterior lateral aspect of knee tightness, and intermittent throbbing-like sharp pain behind the knee cap. He reported swelling and had a single episode of instability of the left leg giving out while at work two months earlier. The Veteran denied flare-ups, but reported functional loss as “there are periods of time when I cannot even walk, let alone run.” He reported having trouble finding a comfortable position. “These symptoms can last from hours to the entire day.” On examination, initial range of left knee motion was from zero to 130 degrees. Pain was noted with flexion. There was objective evidence of crepitus, but no pain with weight bearing. The examiner stated that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over time or with flare-ups. The examiner noted mild pain to palpation over the head of the left fibula. There was no additional loss of function or range of motion after three repetitions. Muscle strength testing was normal. There was no muscle atrophy. There was no ankylosis. There was a history of slight lateral instability. Joint stability testing showed no instability. The examiner noted that the Veteran used a compression sleeve for long runs or a long standing day at work. The examiner noted that the Veteran complained of left knee instability which resulted in a fall in April 2018 while at work. “As a result of this fall, he fell onto another employee and is restricted from using a jack hammer.” The examiner noted that there was no objective evidence of pain on passive range of motion testing; there is objective evidence of pain when the joint is used in non-weight bearing; and the opposing joint did have evidence of damage. After a review of the evidentiary record, the Board finds that entitlement to an initial rating in excess of 10 percent for left knee disability is not warranted. Notably, the Veteran’s flexion has been limited to no less than 130 degrees. Left knee extension showed no limitation of motion during the appeal period. The Board reiterates that a higher rating under Diagnostic Code 5260 requires limitation of flexion to 30 degrees and a higher rating under Diagnostic Code 5261 requires limitation of extension to 15 degrees. Thus, a higher rating is not warranted for limitation of flexion or extension under Diagnostic Codes 5260 or 5261. 38 C.F.R. § 4.71a, even with consideration of the DeLuca factors. In this case, the Veteran’s 10 percent rating is based on painful motion of the knee and already reflects consideration of the DeLuca factors. 38 C.F.R. §§ 4.40, 4.45, 4.59. Moreover, while the Board acknowledges the Veteran’s lay reports of pain; there is no evidence of functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time, that is shown to results in limitation of motion more nearly approximating flexion limited to 30 degrees. The January 2020 addendum opinion indicated that pain does not significantly limit functional ability, including during flares-ups or with repeated use over time. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). Higher or separate ratings under Diagnostic Codes 5256, 5258, 5259, 5262, or 5263 are not warranted because the evidence of record does not demonstrate ankylosis of the left knee, dislocated or removed semilunar cartilage, impairment of the tibia or fibula, and/or genu recurvatum. However, the Board does find that a separate rating for left knee instability is warranted under Diagnostic Code 5257. English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). The Veteran has given subjective reports that his left knee gives out, causes him to fall, or statements similarly indicating left knee instability. While the presence of instability and subluxation can be detected on objective testing and the competent medical evidence of record indicates both instability and no instability throughout the appeal period, the Board notes the Veteran is competent to report such symptoms. While the VA examiners have not found instability, the May 2017 private treatment report noted some evidence of laxity. In addition, the June 2018 VA examiner indicated that there was a history of slight lateral knee instability. In consideration of these competent reports, and resolving any doubt in the Veteran’s favor, the Board finds that a 10 percent rating for slight instability is warranted under Diagnostic Code 5257. A higher rating is not warranted as such would require moderate instability and the competent medical evidence of record reflects no more than slight instability throughout the appeal period. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for iliotibial band syndrome of the left knee; however, resolving reasonable doubt in the Veteran’s favor, a separate 10 percent rating for instability is granted. In reaching these conclusions, the Board has considered the benefit of the doubt doctrine. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, 43, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Mazzucchelli, 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.