Citation Nr: 21030899 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-38 489 DATE: May 19, 2021 ORDER Service connection for left thumb disability is granted. Service connection for right hand disability is denied. Service connection for left foot disability is denied. FINDINGS OF FACT 1. Resolving doubt in his favor, the Veteran has experienced continuity of symptomatology related to left thumb arthritis since the applicable presumptive period. 2. The Veteran does not have a right hand disability that is secondary to service-connected right thumb disability, or is otherwise related to an in-service injury or disease. 3. The Veteran does not have a left foot disability that is secondary to service-connected right thumb disability, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for left thumb disability are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for right hand disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for left foot disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1980 to September 1992, from October 2002 to September 2003, from May 2004 to December 2006, and from November 2008 to October 2012. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for hypertension, denied service connection for cataract and anxiety disorder, and denied the Veteran's attempts to reopen claims of service connection for left thumb, right hand, and left foot. In November 2018, the Board reopened the underlying service connection claims and remanded them for further development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 1. Service connection for left thumb disability The Veteran has a current diagnosis of left thumb as evidenced by the January 2018 VA treatment record. Arthritis, including degenerative joint disease, is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. The Veteran previously claimed left thumb arthritis in February 2008, a little more than one year after his separation from an earlier period of service. At the time of his May 2008 VA examination, the Veteran reported that he had been diagnosed with left thumb arthritis previously, based on x-rays. Those x-rays were not available for review and have not been produced since, but the Veteran is competent to report a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran did not specify the date of this x-ray, but given the time frame for his claim, it is reasonable to assume that this occurred within one year of his December 2006 separation and so the Board resolves any doubt in his favor. The May 2008 VA examiner did not order any x-rays at that time. The Veteran returned for his final period of service and filed his current claim within two years of his final separation for service. Ultimately, the Veteran was diagnosed with degenerative joint disease of the left thumb in January 2018. There is no evidence of any intercurrent causes to which this left thumb arthritis may be causally linked. As such, this January 2018 x-ray confirms the Veteran's report of arthritis at the time of his May 2008 VA examination. For the reasons stated above, the Board finds that the preponderance of evidence is in favor the Veteran's claim of entitlement to service connection for left thumb disability and his appeal is granted. 2. Service connection for right hand disability The Veteran contends that his right thumb arthritis has migrated throughout his body, causing his current right hand disability. The Veteran is already service connected for a right thumb disability; therefore, this claim is limited to a right hand disability other than that right thumb disability. Although the Veteran has claimed right arthritis, which is a presumptive disability, the record does not show a current diagnosis of right hand arthritis beyond the already service-connected right thumb arthritis. As such, no further consideration of presumptive service connection is necessary. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of right hand disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The record does not show a diagnosis of right hand arthritis. Nevertheless, the Veteran reports occasional achy to burning pain in the right index finger and service-connected thumb. He described pain with typing, holding a pen, and using hand tools; reduced strength; and reduced dexterity. Again, right hand arthritis is not shown and the record does not contain any other right hand diagnosis. Physical examination at the time of the December 2019 DBQ did not reveal any limitation of motion or functional impairment related to a right hand disability. He had limitation of muscle strength (4/5: active movement against some resistance), but this was attributed to his service-connected right thumb disability, not a separate right hand condition. This examiner found that the was on objective or clinical evidence of any right hand disability other than his service-connected right thumb disability. Nevertheless, the Veteran reports occasional achy to burning pain in the right index finger with typing, holding a pen, and using hand tools; reduced strength, and reduced dexterity. Thus, he has described functional impairment, which could constitute a disability for VA purposes. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (which explains that to establish the presence of a disability absent a diagnosis, a veteran must show that his or her pain reaches the level of a functional impairment of earning capacity). In this case, however, these subjective reports of pain were not shown to rise to the level of a functional impairment of earning capacity. To the extent that he has any functional limitation, they have already been attributed to his service-connected right thumb disability. Thus, there is no indication that the Veteran's subjective reports of right hand pain rises to the level of a functional impairment of earning capacity that could satisfy the current disability requirement and, therefore, no current disability is shown. To the extent that the Veteran has argued that his current right hand symptoms are related to either his active duty military service or his service-connected right thumb arthritis, the December 2019 DBQ medical opinion found that it was not. The rationale was that there was no objective evidence of right hand disability on examination and no right hand complaints during service or within one year of his separation, aside from pain associated with the already service-connected right thumb disability. Furthermore, there was no relationship or cause of effect between the claimed left foot condition and his active duty military service or his service-connected right-thumb arthritis. For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for right hand disability and his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Service connection for left foot disability The Veteran contends that his right thumb arthritis has migrated throughout his body, causing his current left foot disability. The Veteran is already service connected for a left fifth toe disability (residuals of fracture), therefore, this claim is limited to a left foot disability other than that left fifth toe disability. Although the Veteran has claimed left foot arthritis, which is a presumptive disability, the record does not show a current diagnosis of left foot arthritis. Indeed, the April 2019 x-ray specifically found no evidence of degenerative joint disease. As such, no further consideration of presumptive service connection is necessary. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of left foot disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Again, left foot arthritis is not shown and the record does not contain any other left foot diagnosis. Physical examination at the time of the December 2019 DBQ did not reveal any abnormal bone structures, sensitivity to palpation, or sensitivity to movement. There was no objective or clinical evidence of a left foot disability. No pain was noted during the examination. Nevertheless, the Veteran reports occasional achy left foot pain when walking. Thus, he has described functional impairment, which could constitute a disability for VA purposes. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (which explains that to establish the presence of a disability absent a diagnosis, a veteran must show that his or her pain reaches the level of a functional impairment of earning capacity). In this case, however, these subjective reports of pain with prolonged walking were not shown to rise to the level of a functional impairment of earning capacity. The Board notes that the Veteran has also attributed walking limitations to multiple service-connected disabilities, including toe disabilities on both feet. Despite this, the Veteran continues to regularly walk on a treadmill for exercise. Indeed, at his December 2019 DBQ, the Veteran reported that he walked on a treadmill for 30 to 45 minutes three times a week despite pain after 25 to 30 feet. No impairment of occupational functioning was shown. Thus, there is no indication that the Veteran's subjective reports of left foot pain with walking rises to the level of a functional impairment of earning capacity that could satisfy the current disability requirement and, therefore, no current disability is shown. To the extent that the Veteran has argued that his current left foot symptoms are related to either his active duty military service or his service-connected right thumb arthritis, the December 2019 DBQ medical opinion found that it was not. The rationale was that there was no objective evidence of left foot disability on examination, no left foot complaints during service or within one year of his separation, and the medical literature was absent any persuasive documentation stating that arthritis of one single upper extremity digit was causative for any lower extremity condition. There was no relationship or cause of effect between the claimed left foot condition and his active duty military service or his service-connected right-thumb arthritis. For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for left foot disability and his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Joshua Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Houbeck 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.