Citation Nr: 21015045 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 15-28 529 DATE: March 16, 2021 ORDER Entitlement to an initial 10 percent rating for left middle finger deformity is granted. Entitlement to service connection for a left forearm condition is granted. Entitlement to service connection for a right knee condition is denied. REMANDED Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for a right leg condition is remanded. FINDINGS OF FACT 1. The Veteran’s left fourth finger disability has been characterized by limitation of motion as well as painful motion throughout the appeal period. 2. The preponderance of the evidence supports that the Veteran’s left forearm condition manifested by pain, tingling and numbness is etiologically linked to his service-connected cervical spine degenerative disc disease. 3. The preponderance of the evidence does not support that the Veteran’s right knee condition is etiologically linked to his active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial 10 percent rating for left middle finger deformity have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 38 C.F.R. § 4.71a, Diagnostic Code 5229 (2019). 2. The criteria for service connection for a left forearm condition have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for a right knee condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from June 1975 to August 1990. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision issued by the Agency of Original Jurisdiction (AOJ). The appeal was remanded in January 2019 for further development to include obtaining an examination assessing the current severity of the Veteran’s left middle finger deformity as well as to obtain adequate medical opinions as to the nature and etiology of the Veteran’s bilateral knee conditions, right leg condition and left arm condition. New medical examinations and opinions were associated with the file in September 2019 and August 2020. The Board finds that September 2019 examination of the Veteran’s left middle finger was adequate. Similarly, the September 2019 medical opinion issued in connection with the Veteran’s claim for service connection for a right knee condition is adequate. Thus, the Board determines that there has been substantial compliance with the January remand directives as to those claims, and further remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that remand not required where there was substantial compliance with remand directives). The Board notes that the September 2019 examiner opined only as to direct service connection for the Veteran’s left arm condition. As the examiner did not address secondary service connection, the Board determines that there has not been substantial compliance with the January 2019 remand directives requesting an adequate medical opinion as to service connection for a left arm condition. Id. However, in light of the favorable decision to grant the Veteran’s claim of service connection for a left arm condition, further remand is not required. To the extent that the requested development was not substantially complied with regarding the claims for service connection for a left knee condition and a right leg condition, those claims are not ready for appellate review and are addressed in the Remand portion of this decision. Id. 1. Entitlement to an initial compensable rating for left middle finger deformity Disability evaluations 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 his 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. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, with respect to musculoskeletal disabilities, the law recognizes that “[p]ainful motion is an important factor of disability, and it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.” See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran’s left fourth finger deformity has been evaluated under DC 5229, which concerns limitation to range of motion of index or long fingers. Under DC 5229, any limitation of motion with a gap of one inch (2.5 cm) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees, is rated as 10 percent disabling. 38 C.F.R. § 4.71a. 10 percent is the maximum rating available under this Diagnostic Code and is applied irrespective of whether the digit is on the major or minor hand. The only Diagnostic Code relating to disabilities of the individual digits that avails a rating in excess of 10 percent is Code 5228, which addresses limitation of motion of the thumb. As the record does not demonstrate any such limitation, that code will not be discussed further. Moreover, because a compensable rating is unavailable under any other code, the Board will limit its discussion to Diagnostic Code 5229. Examination and treatment records confirm the presence of pain, stiffness, and weakness affecting the left long finger. The Veteran has reported difficulty buttoning small buttons or handing small items. Application of the Burton holding warrants assignment of the minimum compensable rating under DC 5229 to the Veteran’s disability, as the record plainly shows painful motion. Burton, 25 Vet. App. 1. There is no basis for a rating in excess of 10 percent for any portion of the appeal period. As noted above, 10 percent is the maximum rating available under DC 5229, and no other code is more appropriately applied to the Veteran’s disability. As such, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that assignment of a 10 percent rating for left middle finger deformity, but no higher, is warranted for the entire period on appeal. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 48 (1995) (en banc). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a left arm condition There is no dispute that the Veteran is service connected for degenerative disc disease of the cervical spine. There is also no dispute that the Veteran has been diagnosed with several conditions of the left arm resulting in pain, tingling and numbness. Therefore, the sole remaining issue is nexus. In November 2011 VA treatment records, the Veteran reported pain starting at the base of his neck which radiated into his shoulder and left upper arm and caused numbness of all the fingers of the left hand. The Veteran was diagnosed with cervical radiculopathy affecting the left arm. In February 2012, the Veteran underwent an EMG to determine the source of persistent pain, tingling and numbness in his left forearm. Based on the results of the EMG, the physician diagnosed the Veteran with probable left chronic brachial plexopathy involving upper trunk potentially related to an injury sustained in service. The physician indicated it was less likely that the Veteran’s issues emanated from the spine given the results of the EMG but found that chronic left C5 cervical radiculopathy could not be excluded. Further, superimposed cervical radiculopathy of C8/T1 was included in the differential diagnosis. Pursuant to the January 2019 Board remand, the Veteran was provided with a VA examination for elbow and forearm conditions in September 2019. The examiner opined that the Veteran’s left arm disability was not incurred in service. Instead, the examiner found it was more likely than not, that the Veteran’s neck condition accounted for his reported symptoms. The examiner acknowledged that the Veteran had been diagnosed with ulnar neuropathies at the elbow in February 2012. However, the examiner found his physical examination of the Veteran did not support this diagnosis. Instead, the examiner opined that the Veteran had cervical radiculopathy in the C5/6 distribution which would correlate with MRI and EMG findings in the record. The Board notes that the examiner repeatedly mentioned he did not have the raw EMG data before him. Therefore, his findings are afforded less weight than that of the February 2012 physician. Nevertheless, the totality of the evidence supports that it is at least as likely as not that Veteran’s pain, tingling and numbness of the left forearm are related to his service-connected cervical spine condition. The Board finds that the preponderance of the evidence supports the Veteran’s claim. As such, service connection for a left forearm disability as secondary to the Veteran’s service-connected degenerative disc disease of the cervical spine is granted. 3. Entitlement to service connection for a right knee condition The Veteran contends that his arthritis of the right knee was incurred in service. There is no dispute that the Veteran is diagnosed with right knee osteoarthritis. In several lay statements, the Veteran competently and credibly reported that he injured his right knee during service. The Veteran’s service treatment records (STRs) reveal he was treated for trauma to the right knee in in August 1978. Therefore, the first element and second elements of service connection, a current diagnosis and an in-service incurrence of an event, injury or disease, are established. Nevertheless, the claims must fail for lack of a nexus. Arthritis is included among the “chronic diseases” under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303(b) applies. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The record adequately reflects that the Veteran was diagnosed with osteoarthritis of the right knee in November 2002, 12 years after the Veteran’s separation from active duty. Thus, the Veteran’s arthritis of the knee was not diagnosed in service or within one year from separation from service, and a nexus cannot be presumed under 38 C.F.R. §§ 3.307, 3.309. As noted, the first and second elements of service connection have been established. The Veteran was afforded VA examinations knee conditions in September 2019. The examiner opined that the Veteran’s current right knee disability was less likely than not caused by or incurred in military service. The examiner acknowledged the Veteran’s ongoing complaints of knee pain since service. However, the examiner noted that the September 1978 STR indicated a “normal right knee” despite documentation of pain. Therefore, the examiner reasoned the record did not support an objective injury which was still causing pain 42 years later. Further, the examiner noted that there had been no significant issues noted on prior VA examination. Therefore, the examiner reasoned the evidence was inconsistent with a chronic long-standing problem. Rather, the examiner found the Veteran’s current right knee issues were more consistent with normal aging, wear and tear. The Board finds the examination opinion is well-supported, based on review of the record prior, and considered the Veteran’s lay statements and is highly probative. See Taylor v. McDonald, 27 Vet. App. 158, 165 (2014). Although the Veteran is competent to identify observable symptoms such as pain and their onset, he is not competent to determine the diagnosis or etiology of his knee arthritis, and its potential relationship to any observable symptoms. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). These questions are complicated and require greater knowledge of medicine and science than a lay person such as the Veteran possesses. Thus, his lay statements as to nexus or diagnosis are not competent evidence. In light of the negative nexus opinion and lack of a probative or competent positive opinion to contradict the negative evidence, there is no basis for a grant of service connection for the Veteran’s right knee condition. In this case, the probative value of the Veteran’s general assertions regarding the etiology of his condition is outweighed by the probative value of the specific, reasoned opinion of the physician who provided the September 2019 VA opinion. Because the preponderance of the evidence weighs against the claim, the claim of entitlement to service connection for a right knee condition is denied. REASONS FOR REMAND 1. Entitlement to service connection for a left knee condition is remanded. In the January 2019 remand, the Board requested a medical opinion to address the nature and etiology of the Veteran’s left knee condition. In September 2019, the Veteran was afforded a VA examination and an etiological opinion was provided in compliance with the Board’s remand directives. However, the examiner’s opinion is over reliant on the lack of documented treatment and appears to be based on an inaccurate factual basis. The examiner noted that remarks from an orthopedic surgeon regarding the Veteran’s arthritis may indicate chronic disease. However, because there was no documentation of any prior treatment to the left knee, the examiner opined that the Veteran’s left knee condition was not related to service. The Board acknowledges that the examiner believed the Veteran’s symptoms did not start until 2002. However, VA treatment records from 4 days prior to the VA examination contain the Veteran’s reports of ongoing left knee pain during and after service. Moreover, the record is replete with lay statements from several witnesses detailing years of ongoing left knee problems. The examiner’s opinion lacks sufficient rationale as it does not account adequately for the competent lay evidence of record and is over-reliant on the lack of documented in-service and post-service treatment. Consequently, further remand is required for compliance with the January 2019 remand directives. 2. Entitlement to service connection for a right leg condition is remanded. In its January 2019 remand, the Board requested a VA examination and opinion as to the nature and etiology of any right leg conditions. To date, no such opinion has been provided. The examiner noted that the Veteran did not have a diagnoses of shin splints or stress fractures of the right leg and opined only as to the etiology of the Veteran’s right knee condition. The Board notes that the Veteran has competently and credibly reported pain and numbness in his right leg and, the Veteran’s medical records indicate treatment for such symptoms. Further, the Veteran has reported that the pain in his right leg results in functional loss. The Board takes note of the recent Federal Circuit decision in Saunders v. Wilkie in which the Court found that where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. F.3d 1356 (Fed. Cir. 2018). Therefore, further remand is necessary to obtain a nexus opinion as to remaining conditions of the right leg and to ensure compliance with the January 2019 remand directives. The matters are REMANDED for the following action: 1. Associate with the record any VA clinical documentation not already of record pertaining to treatment of the Veteran for his left knee and right leg conditions. 2. Thereafter, schedule the Veteran for a VA medical examination by a qualified examiner to determine the nature and etiology of the Veteran’s left knee and right leg conditions. The claims file, including a copy of this Remand, must be made available to the examiner and the examiner should indicate in his/her report whether or not such was reviewed. All necessary tests and studies should be accomplished. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left knee disorder had onset in service or within one year following separation from service. The examiner is also asked to determine the nature of any right leg disabilities and whether it is at least as likely as not (50 percent or greater probability) that such a disability had onset in service or within one year following separation from service. The examiner is specifically asked to comment on any functional loss of the right leg and its causes. The examiner is reminded that functional loss caused by pain is considered a disability and an opinion as to the etiology of that disability must be provided. The examiner must provide a complete rationale on which his/her opinion is based and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion. The examiner is asked to address the Veteran’s documented treatment and the VAMC records relating to the Veteran’s documented left knee symptomology and diagnoses, specifically including the September 2010 left knee X-ray and MRI. The Veteran’s lay assertions as to onset and continuity and symptomatology, as well as the lay statements submitted on behalf of the Veteran contained in his claims file, should be recorded and considered. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it. If the examiner finds that he/she cannot provide an opinion without resorting to speculation, he/she should explain the inability to provide an opinion. 3. Thereafter, the AOJ should ensure compliance with the above directives and readjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Sherman 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.