Citation Nr: 22067775 Decision Date: 12/08/22 Archive Date: 12/08/22 DOCKET NO. 15-24 681 DATE: December 8, 2022 ORDER Service connection for carpal tunnel syndrome of the left arm is denied. Service connection for hypertension is denied. Service connection for gastroesophageal reflux disease (GERD) is denied. REMANDED Service connection for a bilateral knee disability is remanded. Service connection for a lumbar spine disability is remanded. Service connection for an acquired psychiatric disability, claimed as major depressive disorder (MDD), is remanded. Service connection for bilateral lower extremity neuropathy is remanded. An initial compensable rating for a healed boxer's fracture of the right fifth metacarpal is remanded. FINDINGS OF FACT 1. The weight of the evidence is against finding that the Veteran has had a diagnosis of carpal tunnel syndrome of the left upper extremity at any time during the period on appeal. 2. The weight of the evidence is against finding that the Veteran's hypertension is related to, or was otherwise the result of, his active duty service. 3. The weight of the evidence is against finding that the Veteran's GERD is related to, or was otherwise the result of, his active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for carpal tunnel of the left arm have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for service connection for GERD have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1980 to August 1983, and from December 1987 to May 1989, with additional periods of Reserve service. This appeal was previously before the Board of Veterans' Appeals (Board) in May 2021. After the Board's May 2021 decision remanded the claims for pes planus and for right carpal tunnel syndrome, a January 2022 rating decision granted service connection for these issues. The grant of service connection constitutes a full grant of benefits sought on appeal, and the service connection claims for pes planus and right carpal tunnel syndrome are no longer before the Board. See Grantham v. Brown,114 F.3d 1156, 1158 (Fed. Cir. 1997). The May 2021 Board decision also remanded the service connection claims for hypertension, GERD, a bilateral knee condition, a lumbar spine disability, left carpal tunnel syndrome, bilateral lower extremity neuropathy, MDD, and an increased rating for residuals of a boxer fracture to the right metacarpal. Specifically, the May 2021 Board decision remanded the service connection claims, for hypertension, GERD, depression, right and left knees, and the lumbar spine condition to attempt to obtain outstanding private treatment records. The Veteran sent a completed VA Form 21-4142 Authorization for Release of Information in September 2021. A September 2021 VA Report of Contact shows that an attempt was made to the Veteran's treating physician to obtain his outstanding treatment records. VA received correspondence from the provider and was informed that the Veteran was searched for by name and by date of birth, but was unable to locate any records in their system. VA indicated that the request was closed. The Veteran was informed by written correspondence in October 2021, that an attempt to retrieve his outstanding medical records was made, but that the provider reported that the records were not available. Here, given that VA attempted to obtain the Veteran's outstanding treatment records, the Board finds that there was substantial compliance with the Board's May 2021 Board remand as it pertains to obtaining outstanding private treatment records. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection To establish entitlement to service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or at least has since filing the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Presumptive service connection can satisfy the requirements of an in-service event and a nexus to military service. Chronic diseases listed under 38 C.F.R. § 3.309(a)-(f) that manifest either during active service or subject to the requirements of 38 C.F.R. § 3.307 after discharge or release from military service are sufficient to establish in-service incurrence or aggravation. If a chronic disease enumerated in 38 C.F.R. § 3.309 does not manifest in-service or within the applicable time limits, the second and third elements of service connection may be granted based on continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The United States Court of Appeals for the Federal Circuit (Federal Circuit) clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to those "chronic" diseases listed under 38 C.F.R. § 3.309(a). See id. Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) competent evidence establishing that the service-connected disability caused or aggravated the nonservice-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). 1. Service connection for carpal tunnel syndrome of the left arm is denied. The Veteran asserts that service connection is warranted for left carpal tunnel syndrome. A review of the Veteran's service treatment records (STRs) showed treatment and reports for wrist pain. The May 2021 Board decision also found that the STRs suggested that the Veteran had been treated for wrist fractures prior to service. The Veteran was afforded a VA examination in January 2022. After an in-person examination and a review of the Veteran's claims file, the examiner noted a diagnosis of right carpal tunnel syndrome. There was no indication that the Veteran had any current diagnosis of the left upper extremity, nor was there any clinical evidence of any left arm symptoms. The examiner provided a positive nexus opinion for right carpal tunnel syndrome, which was the basis for the January 2022 grant of service connection for right carpal tunnel syndrome. However, the examiner did not provide a nexus opinion regarding the left upper extremity because there was no evidence of a current diagnosis. A review of the Veteran's post-service treatment records does not show any treatment or diagnosis of left carpal tunnel syndrome during the period on appeal. The Board acknowledges that the Veteran was diagnosed with left carpal tunnel syndrome prior to the period on appeal, in April 2009, which was confirmed by nerve conduction studies (NCS), and underwent a left carpal tunnel release in June 2011. However, there was no indication whether the condition still existed after that procedure, or whether it had resolved. The period on appeal began in February 2013, when the Veteran's service connection claim was received; no records on or after that date show a current diagnosis, or functional impairment resulting in disability. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Here, given the Veteran's in-service complaints of wrist pain, the May 2021 Board decision found that the Veteran should be afforded a VA examination to determine the etiology of his carpal tunnel syndrome. The January 2022 VA examination revealed that the Veteran only had a diagnosis of right carpal tunnel syndrome. The examiner noted the Veteran's past surgery for the left carpal tunnel syndrome, and ultimately found that there was no disability to diagnose at the time of that VA examination. As such, the Board finds that there has been substantial compliance with the May 2021 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). To the extent that the Veteran believes that he has a current diagnosis of left carpal tunnel syndrome, and that it is the result of his in-service wrist complaints, such a diagnosis and medical opinion requires medical expertise, and those determinations cannot simply be made by lay observation alone; and the Veteran is not considered competent (meaning medically qualified by training or experience) to provide such findings. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Given the Veteran's STRs that showed in-service complaints for wrist pain, a VA examination was ordered, which took into account the evidence of record. However, the January 2022 VA examiner found that there was no current diagnosis of left carpal tunnel syndrome and as a result did not provide an etiology opinion. While recognizing the past diagnostic evidence and treatment for left carpal tunnel syndrome, the Veteran has not offered any medical evidence that shows a diagnosis of left carpal tunnel syndrome during the period on appeal, or an opinion that links such a current diagnosis to his active-duty service. Here, the Board is sympathetic to the Veteran's assertions and belief that service connection is warranted for bilateral carpal tunnel syndrome. However, the Veteran has only shown a current diagnosis and positive nexus opinion regarding right carpal tunnel syndrome, which is why he was granted service connection. However, the Board notes that there has been no indication from a competent medical source that he is diagnosed with left carpal tunnel syndrome. Further, the post-service treatment records shows that the last treatment for left carpal tunnel syndrome was in June 2011, about two years prior to the period on appeal. There was no indication of a sustained diagnosis, or any further treatment for left carpal tunnel syndrome, after June 2011 in the post-service treatment records, and the January 2022 VA examiner did not find a diagnosis of left carpal tunnel syndrome. Ultimately, the Board finds that the Veteran does not have a current diagnosis of left carpal tunnel syndrome, 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). Accordingly, service connection must be denied. In reaching the conclusions stated above, the Board has considered the applicability of the benefit of the doubt doctrine. As the evidence persuasively favors one side or the other, the doctrine is not for application. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Service connection for hypertension is denied. The Veteran asserts that his hypertension is due to his military service. However, neither the Veteran nor his representative have offered a specific contention as to why service connection is warranted. A review of the Veteran's STRs do not show complaints, treatment, or diagnosis of hypertension or within 1 year of service separation. However, the Veteran's post-service treatment records show a diagnosis of hypertension as early as 2001. See Private Treatment Records dated March 2001 and April 2001. However, this is beyond the 1-year period following the Veteran's separation from active duty service; further, the record does not reflect that the Veteran had service during a period or in a location where he would be eligible for service connection for hypertension based strictly on that service. Accordingly, presumptive service connection is not warranted. As discussed, VA attempted to obtain the Veteran's outstanding treatment records. However, they were found to be unavailable. To that end, the Veteran has not been afforded a VA examination and/or opinion regarding a potential nexus between his hypertension and his military service. However, the Board finds that they were not required because there has been no credible indication that has provided any suggestion that there is a relationship between an alleged in-service incurrence that was not contained in the STRs and the claimed conditions. Indeed, in the records provided by the Veteran or that VA was able to obtain, there has been no assertion by any of the Veteran's treating medical professionals that his hypertension is related to his military service. The criteria to trigger VA's duty to assist by providing a VA examination have not been met. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). To the extent that the Veteran believes that his hypertension is the result of his active-duty service, such a medical opinion requires medical expertise, and that determination cannot simply be made by lay observation alone; and the Veteran is not considered competent (meaning medically qualified by training or experience) to provide a medical opinion. See Jandreau, supra. Unfortunately, there is no probative or competent medical or other evidence in the record establishing a connection between his military service and hypertension. Here, the only assertion that his claimed conditions are related to his military service are the lay assertions made by the Veteran; the Veteran has contended only that there is a connection, but no substantive argument as to the basis of that connection. The Board is sympathetic to the Veteran's claims and does not wish to minimize his assertions or beliefs. However, the criteria for service connection have not been met; until an in-service incurrence can be established and a competent medical opinion is associated with the Veteran's claims file, the Board cannot resolve reasonable doubt in his favor because the weight of the evidence is not in relative equipoise. Accordingly, service connection for hypertension must be denied. In reaching the conclusions stated above, the Board has considered the applicability of the benefit of the doubt doctrine. As the evidence persuasively favors one side or the other, the doctrine is not for application. See Lynch, supra; 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Service connection for GERD is denied. The Veteran asserts that his GERD is due to his military service. However, neither the Veteran nor his representative have offered argument or otherwise specified why service connection is warranted. A review of the Veteran's STRs do not show complaints, treatment, or diagnosis of GERD or gastrointestinal symptoms. Post-service treatment records also reflect that a current diagnosis of GERD is of record. As discussed, VA attempted to obtain the Veteran's outstanding treatment records. However, they were found to be unavailable. There has been no assertion by any of the Veteran's treating medical professionals that his GERD is related to his military service. Here, the Veteran has not been afforded a VA examination and/or opinion regarding his GERD. However, the evidence of record, including those records that VA was able to obtain, does not tend to suggest a relationship between the Veteran's GERD and his military service; the threshold for obtaining an examination in conjunction with a claim for service connection, while low, requires this. See McLendon, supra; see also Waters, supra. Accordingly, the Board finds that VA's duty to assist has not been triggered and a VA examination is not required. To the extent that the Veteran believes that his GERD is the result of his active-duty service, again the Veteran is not considered competent (meaning medically qualified by training or experience) to provide a medical opinion. See Jandreau, supra. Unfortunately, evidence of GERD or gastrointestinal symptoms are not noted in the Veteran's STRs and the only assertion that his claimed conditions are related to his military service are the lay assertions made by the Veteran; indeed, these assertions claim that a connection exists, but not how or why. The Board is sympathetic to the Veteran's claims and does not wish to minimize his assertions or beliefs. However, the criteria for service connection have not been met; until an in-service incurrence can be established and a competent medical opinion is associated with the Veteran's claims file, the Board cannot resolve reasonable doubt in his favor because the weight of the evidence is not in relative equipoise. Accordingly, service connection for GERD is denied. In reaching the conclusions stated above, the Board has considered the applicability of the benefit of the doubt doctrine. As the evidence persuasively favors one side or the other, the doctrine is not for application. See Lynch, supra; 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 4. Service connection for a bilateral knee disability is remanded. 5. Service connection for a lumbar spine disability is remanded. The Veteran asserts that his bilateral knee condition and his lumbar spine disability began during his active-duty service. Specifically, he asserts that his knee pain began while he was in basic training and has continued ever since; and that his back pain began when he was building bridges and has also continued ever since. A review of the Veteran's STRs shows that he complained of knee pain in August 1980, numerous times in September 1980, and in October 1986, during a period between active-duty services dates. However, there were no complaints, treatment, or diagnosis of any lumbar spine disabilities. The Board's May 2021 decision remanded the service connection claims for a bilateral knee condition and the lumbar spine condition. The Board asked the examiner to consider the Veteran's January 2019 Appellate Brief and its associated exhibits. The examiner was also asked to address the Veteran's assertion that he has had continuity of symptomatology following his in-service complaints of knee pain. Regarding the lumbar spine, the Veteran has asserted that his in-service duties required heavy labor, to include building bridges, which caused him to develop back pain. Three of the Veteran's fellow service members, with whom the Veteran remains friends today, have provided buddy statements corroborating his assertions of an in-service onset of knee and back pain, with continuity of symptomatology. Pursuant to the Board's May 2021 remand, the Veteran was afforded a VA examination for the knees in January 2022. After an in-person examination and a review of the Veteran's claims file, to include the Appellate Brief and its associated exhibits, the examiner noted a diagnosis of degenerative arthritis of both knees. The examiner also provided a negative nexus opinion. The examiner noted a review of the Veteran's STRs, his statements, and the medical literature he referenced, and all other provided information. The examiner explained that there were no recorded entries of a knee condition during his active-duty service. The examiner noted that the Veteran spent many years as a carpet and tile installer after his separation from the military. The examiner noted that the Veteran's knees were often used during the installation of carpets. The examiner also acknowledged the medical literature showing how military training can lead to arthritis and recognized that the evidence was supported by peer reviewed journals. However, the examiner also noted that the medical literature also shows that arthritis can be caused by a career as a carpet installer. The examiner found that since the Veteran spent over 20 years as a carpet installer, while only spending 5 years on active-duty service, it was more likely than not that his career as a carpet installer was the cause of his current knee condition. The Veteran was also afforded a VA examination for his back in January 2022. After an in-person examination and a review of the Veteran's claims file, the examiner noted a diagnosis of degenerative disc disease. The examiner also provided a negative nexus opinion. The examiner noted a review of the Veteran's STRs, his statements, the medical literature he referenced, and all other provided documentation. The examiner explained that there were no recorded entries of a lumbar spine disability during his active-duty service. The examiner noted that the Veteran spent many years as a carpet and tile installer, after his separation from the military. The examiner noted that such work has hard on the lumbar spine. The examiner also noted that the first report of back pain, post-service, was in 2009. The examiner also acknowledged the medical literature showing how military training can lead to arthritis and recognized that the evidence was supported by peer reviewed journals. The examiner reported that there could be a connection between his lumbar spine disability and his active-duty service if the reported back pain was closer to his discharge date. Here, the Board finds that the January 2022 VA examiner's medical opinions for both the knees and the lumbar spine are based on an incorrect factual premises, for differing reasons. Regarding the knees, the examiner reported that the Veteran's STRs did not contain any recorded entries of a knee condition during his active-duty service. However, as discussed, the Veteran's STRs showed numerous complaints for bilateral knee pain in 1980, which was during his active-duty service. Regarding the lumbar spine, the examiner reported that the first report of post-service back pain was in 2009. However, a review of the post-service private treatment records shows an April 2003 treatment note reported that the Veteran was diagnosed with a chronic back strain. Regarding both the knees and the lumbar spine, the Board also notes that the examiner did not address the Veteran's assertions of continuity of symptomatology. The examiner found that the Veteran's work as a carpet and tile installer was the main reason for the knee and back problems. However, the examiner did not address the credible assertions made by the Veteran and his fellow service members, that their hard labor caused in-service knee and back pain, and that it continued ever since. As such, the Board also finds that there has not been substantial compliance with the Board's May 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). On remand, the examiner should also address the assertions of an in-service onset of knee and back pain and continuity of symptomatology. Accordingly, service connection for a bilateral knee condition and for a lumbar spine disability is remanded. 6. Service connection for an acquired psychiatric disability, claimed as MDD, is remanded. 7. Service connection for bilateral lower extremity neuropathy is remanded. The Veteran asserts that his MDD is secondary to his lumbar spine and knee disabilities, and that his neuropathy is related to his lumbar spine disability. VA mental disorders and peripheral nerve examinations were conducted, and resulted in negative nexus opinions for claims that were based on the premise that the underlying conditions were not in receipt of service connection. Being that the Board is remanding the lumbar spine and knee claims, the Board finds that the Veteran's bilateral lower extremity neuropathy and required psychiatric disability claims are inextricably intertwined, and must also be remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991). 8. An initial compensable rating for a healed boxer's fracture of the right fifth metacarpal is remanded. The Veteran asserts that he is entitled to an initial compensable rating for his service-connected right little finger condition. The Veteran indicated in his Appellate Brief that he needed to use a cane or walker to ambulate, and that required full use of his hands, in order to use the equipment. See Appellate Brief received January 16, 2019. The Veteran's VA treatment records also indicate that he ambulates with a cane. The Board finds that this raises the issue of an extraschedular rating. However, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that it is improper for the Board to consider entitlement to an extraschedular rating in the first instance. See Kuppamala v. McDonald, 27 Vet. App. 447, 456-57 (2015). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the current schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture, and that picture has, attendant to it, related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Here, the Board finds that the evidence does present an exceptional disability picture, such that the available schedular ratings for the right little finger are inadequate because the maximum schedular rating, for a limitation of motion under Diagnostic Code 5230, is a noncompensable rating. This means that a rating based on painful motion cannot be assigned. See Sowers v. McDonald, 27 Vet. App. 472, 479-80 (2016). Turning to the second step of the inquiry under Thun, the Board acknowledges that the Veteran is retired, but otherwise finds that the need to use a cane, which requires the full use of his right hand, would include a marked interference with employment, given that he had a long history as a tile and carpet installer. Given the foregoing, the Board finds that the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extra-schedular rating. The matters are REMANDED for the following action: 1. Return the record, to include a copy of this Remand, to the VA examiner who conducted the January 2022 VA examination for the knees, or another qualified medical professional if the original examiner is unavailable, for an addendum opinion regarding the etiology of the bilateral knee condition. The need for an additional in-person physical examination is left to the discretion of the examiner. The examiner should provide an opinion as to whether it is at least as likely as not whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's bilateral knee condition is related to his active-duty service. In providing such opinion, the examiner must address the Veteran's and his fellow service members' lay statements regarding continuity of symptomatology. The Board's finding elsewhere in this decision that the January 2022 VA examiner's opinion is based on an incorrect factual premise is highlighted here; the Veteran's STRs show numerous complaints for bilateral knee pain in 1980, which was during a period of active-duty service. The examiner's attention is also directed towards the January 2019 Appellate Brief, where the Veteran reported continuity of symptomatology. The record also contains lay statements from the Veteran's fellow service members and his wife, reporting that he had knee problems during his active-duty service. The Veteran and his fellow service members are competent to report his symptoms and history, including those of continuity of symptomatology. Such assertions must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's and his fellow service member's reports, the examiner must provide an explanation for such a rejection. 2. Return the record, to include a copy of this Remand, to the VA examiner who conducted the January 2022 VA examination for the lumbar spine, or an appropriate substitute if unavailable, for an addendum opinion regarding the etiology of the lumbar spine disability. The need for an additional in-person examination is left to the discretion of the examiner. The examiner should provide an opinion as to whether it is at least as likely as not whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's lumbar spine disability is related to his active-duty service. In providing such opinion, the examiner must address the Veteran's and his fellow service members' lay statements regarding continuity of symptomatology. The examiner is remanded that the January 2022 VA examiner's opinion is based on an incorrect factual premise. The Veteran's post-service treatment records show a diagnosis of a chronic back strain in 2003, about 6 years before the examiner reported was the first indication of post-service back pain. The examiner's attention is also directed towards the January 2019 Appellate Brief, where the Veteran reported continuity of symptomatology. The record also contains lay statements from the Veteran's fellow service members and his wife, reporting that he had back pain when building bridges, during his active-duty service. The Veteran and his fellow service members are competent to report his symptoms and history, including those of continuity of symptomatology. Such assertions must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's and his fellow service member's reports, the examiner must provide an explanation for such a rejection. 3. If, and only if, an examiner provides a favorable nexus opinion for either the lumbar spine or knee disabilities, return the record, to include a copy of this Remand, to the respective VA examiners who conducted the January 2022 VA peripheral nerves and mental disorders, or a similarly qualified medical provider, for an addendum opinion regarding the etiology of the bilateral lower extremity neuropathy and of the diagnosed MDD. The need for an additional in-person examination is left to the discretion of the respective examiners. The neurology examiner should state whether it is at least as likely as not whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's bilateral lower extremity neuropathy were caused (direct causation) or aggravated (to any degree) by a service-connected disability, to include the knees or the lumbar spine? Why or why not? (Continued on the next page) The mental disorders examiner should state whether it is at least as likely as not whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's bilateral lower extremity neuropathy were caused (direct causation) or aggravated (to any degree) by a service-connected disability, to include the knees or the lumbar spine? Why or why not? 4. Forward the claim to the Undersecretary of Benefits or the Director of the Compensation Service for consideration of the assignment of an extra-schedular disability rating for service-connected right fifth finger disability pursuant to the provisions of 38 C.F.R. § 3.321 (b). J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, 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.