Citation Nr: 21041823 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-02 342 DATE: July 10, 2021 ORDER Entitlement to service connection for denervation of left C8/T1 myotomes with cervical radiculopathy is denied. Entitlement to service connection for left wrist median neuropathy is granted. Entitlement to service connection for left elbow ulnar neuropathy is granted. Entitlement to an initial compensable rating for residuals of left fifth digit fracture, (non-dominant) hand, (hereinafter, "finger disability"), is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's left C8/T1 myotomes with cervical radiculopathy is etiologically related to service or secondary to the service-connected finger disability. 2. The Veteran's left wrist median neuropathy is proximately due to his service-connected finger disability. 3. The Veteran's left elbow ulnar neuropathy is proximately due to his service-connected finger disability. 4. The Veteran's finger disability was manifested by limitation of motion, but not by ankylosis or symptoms analogous to amputation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for denervation of left C8/T1 myotomes with cervical radiculopathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to secondary service connection for left wrist median neuropathy have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for entitlement to secondary service connection for left elbow ulnar neuropathy have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for entitlement to an initial compensable rating for a finger disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5230. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1965 to March 1966 and on active duty for training (ACDUTRA) from March to April 1987. The matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a travel board hearing before the undersigned Veterans Law Judge (VLJ) in December 2018. The hearing transcript is of record. The Board remanded the claim in August 2019 for further development by the RO. The case has been returned to the Board for further appellate action. 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). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). 1. Entitlement to service connection for denervation of left C8/T1 myotomes with cervical radiculopathy The Veteran contends that his left C8/T1 myotomes with cervical radiculopathy is secondary to his service-connected finger disability, or otherwise directly related to service. The record in this case is clear as to whether the Veteran has denervation of left C8/T1 myotomes with cervical radiculopathy. See April 2013 private treatment record. Thus, the first element of service connection, the existence of a current disability, is satisfied. Concerning the in-service event, illness, or injury, the Veteran's STRs show that in April 1987 the Veteran fractured his left fifth digit. The Board notes that the Veteran is service connected for the residuals of the left fifth digit fracture in the non-dominant hand. The Veteran's STRs do not contain any record of complaints, treatment, or diagnosis of arm or cervical conditions during service. The STRs are not otherwise suggestive of such conditions during service. As the first and second elements of the secondary service connection analysis were satisfied, the remaining question before the Board was whether there was a nexus with service or the service-connected finger disability. The Board remanded the claim in August 2019 to obtain medical opinions on whether the Veteran's claimed condition was related to the service-connected finger disability or otherwise related to service. Pursuant to the remand directives, the RO obtained a VA examination and medical opinions in February 2020. The examiner conducted an in-person examination of the peripheral nerves and noted that the diagnosis of the status post left fifth digit finger fracture had evolved to include only median and ulnar nerve entrapment. The examiner opined against direct or secondary service connection. The examiner also explicitly noted that he reviewed the entire file and highlighted multiple records he found particularly relevant. The examiner noted a May 1994 MAMC orthopedic clinic record noting the finger fracture and residual deformity, as well as the Veteran's complaints of forearm and elbow pain; the clinician noted that these symptoms are new and unrelated to the in-service fracture. A 2014 cervical spine MRI showed multilevel neuro-foraminal stenosis, which was worse on the left as compared to the right. A March 2018 private treatment record noted a pinched nerve of the lower neck. An August 2019 private treatment record noted that the Veteran complained of pain radiating from his small finger through his arm and neck. Concerning the claimed disability, the examiner stated that the 2014 MRI showed chronic changes, suggesting they would have taken a long time to develop; however, the STRs did not indicate any findings that might be related to the MRI findings. As such, the examiner opined against direct service connection. The Board acknowledges that this is styled as an opinion regarding secondary service connection; however, in substance, this addresses direct service connection. The examiner further opined that the claimed disability was not caused or aggravated by the service-connected finger disability, citing the 1994 orthopedic record noting that the arm symptoms are new and unrelated to the injury. The Board acknowledges that in October and December 2020, the Veteran submitted medical opinions from private service providers Dr. T.T. and Dr. B.L. opining in favor of service connection. However, the Board notes that, while these opinions address the Veteran's claimed wrist and elbow conditions, as further discussed below, they do not address the Veteran's claimed disability of denervation of left C8/T1 myotomes with cervical radiculopathy. The Board also notes that the record contains favorable evidence in the form of a September 2014 private medical treatment record by Dr. B.L. that includes results of a cervical spine MRI. It states there are multiple levels of "wear and tear" changes of the neck with severe narrowing of the neuroforamen on the left side; this is what is likely causing the irritation of the nerve root as seen on EMG testing. Dr. B.L. further states: "However, I continue to believe the majority of your symptoms are due to peripheral nerve entrapments (carpal tunnel syndrome and ulnar neuropathy)." Neck pain and electromyography testing suggesting left C8 radiculopathy are also noted. The Board finds that this record does not conclude that the Veteran's service-connected finger disability has caused or aggravated the Veteran's claimed denervation of left C8/T1 myotomes with cervical radiculopathy; but rather notes only that it is the clinician's belief that certain nerve entrapments contribute to neck symptoms. Given these deficiencies, the Board finds this evidence speculative as to whether the claimed disability is proximately due to or aggravated by the service-connected finger disability, and thus, is insufficient to warrant an award of service connection. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993); Bloom v. West, 12 Vet. App. 185, 187 (1999). The Board also acknowledges the lay statements of record and the assertion that the Veteran's denervation of left C8/T1 myotomes with cervical radiculopathy is related to service. However, the Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex. He does not have the requisite specialized knowledge, training, or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Thus, although the Board has carefully considered the lay contentions of record suggesting that his claimed disability is due to his service-connected finger disability or otherwise began during service, the Board ultimately affords the objective medical evidence of record, which weighs against finding such a connection, with greater probative weight than the lay opinion. Consequently, the Board affords more probative weight to the competent medical evidence of the February 2020 VA medical opinions. Here, the Board finds that the VA medical opinions are based on an accurate medical and lay history as well as medical documentation provided in the claims file, to include the Veteran's STRs. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning). Additionally, the Board notes that neither the Veteran nor his representative have presented or identified any contrary medical opinion or treatment that adequately supports his claim. Having considered the evidence of record, the Board finds that the preponderance of the evidence does not show that Veteran's claimed disability of denervation of left C8/T1 myotomes with cervical radiculopathy is related to his service-connected finger disability or is otherwise related to service. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine cannot be applied. 38 U.S.C. § 5107(b); Gilbert v. Derwinksi, 1 Vet. App. 49, 53-56 (1990). Thus, service connection for denervation of left C8/T1 myotomes with cervical radiculopathy is not warranted. 2. Entitlement to service connection for left wrist median neuropathy 3. Entitlement to service connection for left elbow ulnar neuropathy The Veteran contends that his left wrist median neuropathy and left elbow ulnar neuropathy are secondary to his service-connected finger disability or otherwise directly related to service. The record in this case is clear as to whether the Veteran has left wrist median neuropathy and left elbow ulnar neuropathy. See April 2013 private treatment record. Thus, the first element of service connection, the existence of a current disability, is satisfied. Concerning the in-service event, illness, or injury, the Veteran's STRs show that in April 1987 the Veteran fractured his left fifth digit. The Board notes that the Veteran is service connected for the residuals of the left fifth digit fracture. The Veteran's STRs do not contain any record of complaints, treatment, or diagnosis of wrist or elbow conditions during service. The STRs are not otherwise suggestive of such conditions during service. As the first and second elements of the secondary service connection analysis were satisfied, the remaining question before the Board was whether there was a nexus with service or the service-connected finger disability. The Board remanded the claim in August 2019 to obtain medical opinions on whether the Veteran's claimed conditions were related to the service-connected finger disability or otherwise related to service. Pursuant to the remand directives, the RO obtained a VA examination and medical opinions in February 2020. The examiner opined against direct or secondary service connection for both conditions. However, in the examination report, the examiner stated that the VA-established diagnosis of status-post residuals of fracture of the left fifth digit had evolved to include neurological manifestations, namely, median nerve and ulnar nerve entrapment. The Board finds that the medical opinion and examination report findings are contradictory, as the evolution of the diagnosis to include neurological manifestations necessarily implies that these symptoms are related to the fracture residuals. Thus, the Board affords lesser probative value to the medical opinions opposed to service connection. In October and December 2020, the Veteran submitted medical opinions from private service providers opining in favor of service connection. When the evidence of record contains conflicting medical opinions, it is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The Board may favor the opinion of one competent medical expert over another if his or her statement of reasons and bases is adequate to support that decision. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Having considered the evidence of record, the Board finds that it is at least as likely as not that the Veteran's claimed disabilities were proximately due to, the result of his service-connected finger disability. The February 2020 VA is opposed to this conclusion, but given the deficiencies noted above, the Board finds that the contrary opinions of October and December 2020 by the private examiners deserve greater probative value. A private medical opinion from Dr. T.T. dated September 2020 states that the Veteran is under his professional care for follow-up of his in-service finger and wrist injuries related to repetitive trauma as a defensive tactic instructor. His finger deformity led to altered wrist mechanics. His service led to his present wrist neuropathy and elbow neuropathy. These symptoms were further aggravated by continued use in service. A second private medical opinion from Dr. T.T. dated October 2020 states that he is Board-certified in orthopedic/hand surgery and that he had reviewed the Veteran's medical history. He also states that the Veteran has been his patient since October 2014. He stated that it is his professional opinion that it is more likely than not that the Veteran's present condition is a direct result of his in-service injury to the left small finger and wrist resulting from repetitive trauma as a defensive tactic instructor. A private medical opinion from Dr. B.L. also dated October 2020 states that he is board-certified in physical medicine and rehabilitation. He reviewed the medical history and his partial STRs. The examiner noted having treated the Veteran on several occasions in 2013, 2014 and on the present date. He opined that his finger and wrist injury are due to repetitive trauma as a defensive tactic instructor and agreed with Dr. T.T.'s opinion that the injury led to altered wrist mechanics and that his wrist and elbow neuropathy are related to the in-service injury. All opinions are on a "more probable than not" basis. The Board finds that the private examiners' opinions are probative because they are based on an accurate medical history and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In conclusion, the Board finds that the evidence shows that the Veteran's left wrist median neuropathy and left elbow ulnar neuropathy were proximately due to the Veteran's service-connected finger disability. Accordingly, the Board must resolve reasonable doubt in the Veteran's favor and finds that service connection for left wrist median neuropathy and left elbow ulnar neuropathy is warranted. 38 U.S.C. § 5107 (b); 39 C.F.R § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as 'staged ratings.' Fenderson v. West, 12 Vet. App. 119, 12627 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 4. Entitlement to an initial compensable rating for residuals of left fifth digit fracture, (non-dominant) hand The Veteran's residuals of left fifth digit fracture, (non-dominant) hand, is rated under DC 5230. 38 C.F.R. § 4.71a. Under DC 5230, any limitation of motion of the ring or little finger is noncompensable for both the major and minor joint. Further ratings involving the little finger in combination with other fingers are found in 38 C.F.R. § 4.71, DCs 5216-5229. Turning to the medical evidence of record, the Veteran underwent a VA examination in January 2014. Diagnoses were noted as degenerative joint disease and an old healed fracture with a flexion deformity of the fifth finger. The Veteran reported current symptoms as pain. He reported flare-ups, namely, he is unable to carry anything or use his left hand. Limitation of motion of the left little finger only was noted. Functional loss of the left little finger was noted, to include less movement, pain on movement and deformity of the little finger. Tenderness or pain to palpation was noted. Left hand grip strength was noted to 4/5. No ankylosis was noted. The examiner noted that function is not so diminished that amputation with prosthesis would equally serve the Veteran. No other pertinent findings were noted. The Veteran was noted to regularly use a wrist brace. The Board remanded the claim in August 2019 given the Veteran's contentions that the severity had increased, specifically, that he developed neurological symptoms. The Veteran underwent a VA examination of the peripheral nerves in February 2020. The Veteran reported decreased strength and intermittent pain in hand, thumb, fingers (middle, ring and pinky). Treatment included physical therapy, massage and acupuncture, as well as pain medications. Functional impact was noted as limited repetitive grasping and fine manipulation. The Board notes that the rating schedule intends to represent "the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations." 38 C.F.R. § 4.1. Under DC 5230, a 0 percent rating for 'any limitation of motion' indicates that there is no reduction in earning capacity, irrespective of impairment of motion. Sowers v. McDonald, 27 Vet. App. 472, 480 (2016). The Veteran also cannot be compensated for painful motion under DC 5230. For a painful joint, a veteran can be awarded at least the minimum compensable rating. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (applying § 4.59 in non-arthritis contexts). However, a higher rating for pain is not available under DC 5230 because there is no minimal compensable rating. See Sowers, 27 Vet. App. at 480 ("Reading § 4.59 in conjunction with [Diagnostic Code] 5230, [the veteran] is not entitled to a compensable rating under this [code]."). The Board has considered whether a compensable disability is available under any other diagnostic code pertaining to the fingers. However, the evidence does not demonstrate either favorable or unfavorable ankylosis in the left fifth digit, and even if favorable or unfavorable ankylosis were found, DC 5227 only provides a single noncompensable rating. The Board finds that the left fifth digit pain does not more nearly approximate the disability picture contemplated by amputation without metacarpal resection at the proximal interphalangeal joint or proximal thereto under DC 5156. As such, the Board does not find that a compensable rating under any other diagnostic code is warranted. 38 C.F.R. § 4.71a. The Board acknowledges the Veteran's competent and credible reports of relevant observable symptoms, as set out in the VA treatment records and examinations. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Veteran's claimed radiating symptoms are captured by the Veteran's newly-service connected disabilities of left wrist median neuropathy and left elbow ulnar neuropathy. These disabilities will be assigned appropriate ratings in the first instance by the agency of original jurisdiction (AOJ) as an appealable issue. Moreover, the Veteran is not entitled to additional separate disability ratings where the symptoms for the conditions in question overlap or are duplicative. See 38 C.F.R. §§ 4.14 (prohibiting evaluation of the same manifestation under various diagnoses). In sum, the Board finds that a disability rating in excess of the currently assigned noncompensable rating is not warranted for the Veteran's service-connected finger disability. To the extent that the Veteran contends entitlement to a higher rating, the preponderance of the evidence is against the claim; there is no reasonable doubt to be resolved; and any further increased rating is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Minaya, 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.