Citation Nr: 21015864 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 15-25 890 DATE: March 18, 2021 ORDER Entitlement to service connection for a right hand disability is denied. Entitlement to service connection for a left hand disability is denied. REMANDED Entitlement to an increased initial rating in excess of 10 percent for a left wrist strain is remanded. Entitlement to an increased rating in excess of 10 percent prior to April 21, 2014 and in excess of 20 percent from April 21, 2014 to April 22, 2015, and in excess of 60 percent from June 1, 2016 forward for left knee degenerative joint disease (DJD), and a left knee replacement is remanded. Entitlement to an increased rating in excess of 10 percent prior to November 16, 2016, and in excess of 30 percent from January 1, 2017 and in excess of 60 percent from November 25, 2019 forward for right knee degenerative joint disease (DJD) and a right knee replacement is remanded. Entitlement to an increased initial rating in excess of 10 percent for degenerative joint disease of the lumbar spine is remanded. Entitlement to an increased initial rating in excess of 10 percent for left lower extremity radiculopathy is remanded. Entitlement to an increased initial rating in excess of 10 percent for right lower extremity radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The weight of the competent and credible evidence is against finding that the Veteran’s right hand arthritis manifested in service or within one year of service; and is not etiologically caused by an in-service injury, event or disease. 2. The weight of the competent and credible evidence is against finding that the Veteran’s left hand arthritis manifested in service or within one year of service and is not etiologically caused by an in-service injury, event or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for right hand arthritis have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2019). 2. The criteria for service connection for left hand arthritis have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from November 1971 to November 1973. These matters come before the Board of Veterans’ Appeals (Board) on appeal from June 2014 and August 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). Previously, the claims were before the Board in November 2018, and were remanded for additional development. As to the Veteran’s claims for entitlement to service connection for a right and left hand disability the Board finds the prior remand directives have been substantially complied with, and these claims are again before the Board. As to the Veteran’s outstanding increased rating claims for his left wrist, right and left knee, low back, right and left lower extremity radiculopathy and TDIU the Board finds the prior remand directives have not been substantially complied with and will be discussed in greater detail below. See Stegall v. West, 11 Vet. App. 268, 271 (1998). During the course of the appeal an increased rating was granted for the Veteran’s left knee total replacement and he was granted a temporary total evaluation from April 23, 2015 to May 31, 2016, and an evaluation of 60 percent from June 1, 2016 forward in an April 2019 rating decision. Additionally, during the course of the appeal an increased rating was granted for the Veteran’s right knee total replacement and he was granted a temporary total evaluation from November 17, 2016, a 30 percent evaluation from January 1, 2017, and a 60 percent evaluation from November 25, 2019 forward in a June 2020 rating decision. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110. To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service” - the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 Fed. Cir. (2004). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. Entitlement to service connection for right hand arthritis Entitlement to service connection for left hand arthritis The Veteran contends that service connection is warranted for a right hand disability and for a left hand disability. The Veteran contends that his current symptoms of right and left hand pain, and difficulty gripping items and tying his shoes are related to service. For the sake of brevity, the Board will discuss the Veteran’s claims for entitlement to service connection for a right and left hand disability together. The Veteran reports in-service injuries while playing basketball and during training and that he has had ongoing symptomology since service. The Veteran reports an in-service injury to his right hand due to a blow from a “pogo stick” (likely a pugil stick) during hand to hand combat drills while stationed at Fort Jackson. In addition, the Veteran reports jamming his fingers while playing basketball and touring as part of the all-armed forces basketball team. Service personnel records show that his Army occupation was physical activities specialist, and he submitted news articles mentioning him as a member of an inter-service basketball team. The Veteran is competent to describe his current symptoms, in-service events, and the occurrence of ongoing symptoms, and to this extent, these statements are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The question for the Board is whether the Veteran has a right hand injury and a left hand injury that began during service, manifested during the applicable presumptive period, or is at least as likely as not caused by an in service, injury or disease. The Veteran has a diagnosis of right and left hand arthritis. The Veteran’s service treatment records (STRs) and personnel records have been associated with the claims file. October 1972 STRs note the Veteran was seen for a sore wrist after falling on his outstretched hand and landing on his left wrist. At separation in August 1973 on the report of medical examination clinical evaluation of the upper extremities and musculoskeletal system was normal. At separation in November 1973 on the report of medical history the Veteran denied arthritis. Personnel records note the Veteran served as part of the inter-service sports program participating in the basketball championship. Based on the Veteran’s statements only, the Board finds an in-service event, relating to an injury, but without a diagnosis or clear clinical confirmation of symptoms. The Veteran was afforded a VA examination in November 2019. The Veteran reported bilateral hand pain from an in-service basketball injury where he jammed his fingers. Currently the Veteran reports ongoing pain and that these symptoms have worsened over time. The examiner noted a review of the Veteran’s STRs and claims file and noted current degenerative arthritis. The Veteran denied flare ups and reported ongoing functional loss with difficulty tying his shoes due to hand pain. Range of motion testing of the right hand and left hand was normal. Repetitive use testing did not result in any additional loss of range of motion. Pain, weakness, fatigability or incoordination significantly limits functional ability with repeated use over time with reported pain. There was no objective evidence of pain on passive range of motion testing or non-weight bearing bilaterally. The Veteran reports ongoing pain while tying his shoes, no objective findings of such were noted on examination. Muscle strength testing was 5/5 bilaterally with no muscle atrophy. Examination noted a normal grip bilaterally. No ankylosis of the right or left hand was noted. Imaging noted bilateral degenerative or traumatic arthritis. The Veteran reported that right and left hand arthritis impacts his current employment status in that he reports difficulty holding a strong grip on certain objects and is unable to dribble a basketball or write reports due to pain. Additionally, the Veteran reports pain in his hands while driving. The examiner found that it is less likely than not that the Veteran’s current right and left hand arthritis was incurred in or caused by the claimed in-service injury, event or illness. The examiner noted the Veteran’s reports of an in-service injury and current X-ray imaging noted bilateral osteoarthritis in both hands. The examiner found that based on the pattern of osteoarthritis bilaterally this is an indication that the current disability and symptomology is age related and is not related to an injury which occurred during active duty. As such the examiner found that it is less likely than not that the Veteran’s current bilateral hand arthritis is related to an in-service injury, event or illness. VA and private treatment records have been associated with the claims file. A review of these records show that the Veteran’s earliest self-reporting of hand symptomology began in 2014 with reported pain. November 2018 VA treatment records note the Veteran reported his right hand grip was weak. These treatment records do not contradict the VA examination and are absent indications between the Veteran’s current right and left hand arthritis and an in-service disease or injury. After consideration of all the evidence of record the Board finds that the weight of the evidence is against finding that service connection for right hand arthritis and service connection for left hand arthritis is warranted. The Board concludes that his arthritis of the right and left hand was not caused by service. The Veteran’s reports of the onset of arthritis in-service warrant low credible and probative weight as they are not consistent with the STRs at discharge from active duty when clinical evaluation of the upper extremities and musculoskeletal system was normal in August 1973. While the Veteran reports that his current right and left hand arthritis is related to service the record does not reflect that he has the requisite training or expertise to offer a medical opinion linking a current disability to service decades earlier and as such the Veteran is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board finds that the medical evidence is more probative and credible than the lay opinions of record. The competent medical evidence of record including the VA examination in November 2019 is entitled to significant probative weight. The VA examiner found that it is less likely than not that the Veteran’s current right and left hand arthritis was incurred in or caused by the claimed in-service injury, event or illness. The examiner noted the Veteran’s reports of an in-service injury and current X-ray imaging noted bilateral osteoarthritis in both hands. The examiner found that based on the pattern of osteoarthritis bilaterally this is an indication that the current disability and symptomology is age related and is not related to an injury which occurred during active duty. The examiner noted a thorough review of the Veteran’s STRs claims file and statements regarding an in-service injury. After consideration of such the examiner found that it is less likely than not that the Veteran’s current bilateral hand arthritis is related to an in-service injury, event or illness, attributing the Veteran’s current arthritis to aging. The Board finds that the opinion was based on an adequate rationale and is not contradicted by other opinions of record. The Board finds that direct service connection is not warranted as the Veteran’s current right and left hand arthritis is not caused by service. The Board notes that STRs note at separation in August 1973 on the report of medical examination clinical evaluation of the upper extremities and musculoskeletal system was normal. Further, at separation on the report of medical history in November 1973 the Veteran denied arthritis. The Board has thoroughly considered the Veteran’s lay statements however, the Board gives more probative weight to the competent medical evidence. At separation, clinical evaluation of the Veteran was normal. Further, the Board gives significant probative weight ot the November 2019 VA examination. As such the Board finds that the Veteran’s current right and left hand arthritis is less likely than not related to active service. As to presumptive service connection the Veteran’s arthritis of the right and left hand did not manifest until many years post-service. The Board concludes that while the Veteran has arthritis, which falls within a chronic disease under 38 U.S.C. § 1101 (3)/38 C.F.R. § 3.309(a), however such was not chronic in service nor did these manifest to a compensable degree in service or within the presumptive period, and continuity of symptomatology is not established. The Veteran’s arthritis was not noted during service or within one year of separation. See Walker, 708 F.3d 1331. At separation on the report of medical examination in August 1973 clinical evaluation of the upper extremities and musculoskeletal system was normal. Service records do not support an onset of the Veteran’s arthritis in active service. Based on the probative evidence of record the Board finds that the Veteran’s arthritis did not manifest within the one-year period after service and service connection is not warranted on a presumptive basis. Private treatment records note degenerative changes and symptoms associated with such in 2014, which is over 40 years after his separation from service in 1973. In addition, in weighing the evidence of record the Board finds the competent and credible evidence of record is against finding continuity of symptomatology. As a result, service connection based on continuity of symptomology is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claims for service connection for a right hand disability and service connection for a left hand disability. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38 C.F.R. § 3.102. . REASONS FOR REMAND 1. Entitlement to an increased initial rating in excess of 10 percent for a left wrist strain 2. Entitlement to an increased rating in excess of 10 percent prior to April 21, 2014 and in excess of 20 percent from April 21, 2014 to April 22, 2015, and in excess of 60 percent from June 1, 2016 forward for left knee DJD, and a left knee replacement 3. Entitlement to an increased rating in excess of 10 percent prior to November 16, 2016, and in excess of 30 percent from January 1, 2017 and in excess of 60 percent from November 25, 2019 forward for right knee DJD and a right knee replacement 4. Entitlement to an increased initial rating in excess of 10 percent for DJD of the lumbar spine 5. Entitlement to an increased initial rating in excess of 10 percent for left lower extremity radiculopathy 6. Entitlement to an increased initial rating in excess of 10 percent for right lower extremity radiculopathy 7. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) The Veteran contends that an increased rating is warranted for his service connected left wrist strain, and increased ratings are warranted for his right and left knee disabilities. In addition, the Veteran contends that an increased rating is warranted for his service connected low back disability and right and left lower extremity radiculopathy. Regrettably, another remand is warranted to comply with the prior remand directives. 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. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As a result of the November 2018 remand, the Veteran was afforded VA examinations relating to his left wrist, right and left knee and low back and right and left lower extremity radiculopathy in November 2019. Based on the prior remand directives the examiner was to address and provide additional information as to the Veteran’s reports of ongoing flare ups. The November 2019 examiner failed to address the Veteran’s reports of ongoing flare ups. Treatment records note and the Veteran has consistently reported ongoing functional loss related to flare ups. The November 2018 remand directives noted the VA examiner was to provide a retrospective medical opinion regarding the Veteran’s historical reports of flare-ups relating to his left wrist, right and left knee and low back disabilities. The VA examiner in November 2019 noted no left wrist flare ups noting the Veteran denied flare ups. As to the Veteran’s right and left knee the examiner noted no flare ups of the knees, noting the Veteran denied flare ups. Further, the examiner noted no low back flare ups, noting the Veteran denied flare ups. However, the examiner failed to fully to address the Veteran’s reports of ongoing flare ups as well as the prior remand directives, noting that the examiner was to provide a retrospective opinion regarding the Veteran’s historical reports of flare ups. Additionally, in October 2020 correspondence the Veteran contends that the November 2019 VA examination failed to fully address his contentions and was inaccurate. The Veteran reported that the November 2019 VA examiner failed to fully address the Board’s remand directives, and his reported ongoing flare ups of his knee and left wrist during this examination. Additionally, the Veteran contends that the examiner provided inaccurate information regarding joint stability testing and the use of assistive devices relating to this service connected disabilities on appeal. As such a remand is warranted for clarifying VA examinations. Further, because a decision on the remanded increased rating claim for the Veteran’s low back could significantly impact a decision on the issues of an increased rating for right and left lower extremity radiculopathy, these issues are inextricably intertwined. A remand of the claims for an increased rating for right and left lower extremity radiculopathy is warranted. Finally, because a decision on the remanded increased rating claims could significantly impact a decision on the issue of entitlement to a TDIU, these issues are also inextricably intertwined. A remand of the claim for entitlement to a TDIU is required. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left wrist sprain, right and left knee disabilities and low back disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner should provide a retrospective medical opinion regarding the Veteran’s historical reports of flare ups of his left wrist, right and left knee and low back. The Veteran has consistently reported, and treatment records note ongoing flare ups. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.R. Kardian, 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.