Citation Nr: 22007294 Decision Date: 02/09/22 Archive Date: 02/09/22 DOCKET NO. 16-40 372 DATE: February 9, 2022 ORDER Entitlement to service connection for left hand disability, to include as secondary to service-connected left fifth finger fracture, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The evidence of record persuasively supports that the Veteran's left hand disability was neither caused nor aggravated by the Veteran's service-connected left finger disability, and therefore there is no benefit of the doubt to resolve in the Veteran's favor. 2. The evidence of record demonstrates the Veteran was unable to secure and maintain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left hand disability, to include as secondary to service-connected left fifth finger fracture, have not been met. 38 U.S.C. §§ 1153, 5107, 5121A; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.1010. 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5110, 5121A; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.1010, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force on active duty from March 1980 to June 1988. The issues come before the Board of Veterans' Appeals (Board) on appeal from July 2015 and December 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in September 2019. A transcript of the hearing has been included with the record. The Board notes that the Veteran died in March 2021, and the Appellant is the surviving spouse of the Veteran. The Board acknowledges that the Veteran's claims were pending before the Board at the time of his death. Following the Veteran's death, in March 2021, the Board dismissed the Veteran's appeal for lack of jurisdiction. In March 2021, the RO received the Appellant's VA Form 21-0847, Request for Substitution of Claimant Upon Death of Claimant. The RO informed the Appellant in May 2021 correspondence that the Appellant is proper for substitution under 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. The issues were previously before the Board in August 2021. The Board remanded for further development. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be warranted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Additionally, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Alternatively, for chronic diseases shown in service, the third element of service connection may be established through demonstrating chronicity or continuity of symptomatology in accordance with 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310. 1. Entitlement to service connection for left hand disability, to include as secondary to service-connected left fifth finger fracture The Appellant contends that the Veteran suffered from degenerative arthritis of the left hand secondary to the Veteran's left fifth finger fracture sustained in service. The evidence of record shows the Veteran had a diagnosis of degenerative joint disease of the left hand for the entire period on appeal. The Veteran's September 2014 VA treatment record demonstrates the Veteran complained of bilateral hand pain and stiffness. The Veteran reported experiencing pain for many years but noted the pain had worsened. The Veteran noted numbness and tingling in his hands. The Veteran noted that he dropped hand-held tools more frequently. The Veteran noted that he had trouble writing due to difficulties holding a pencil. The RO provided the Veteran a VA examination in May 2015. The Veteran reported a history of hand pain. The Veteran noted that he could not use his hands at work due to pain. The VA examination noted the Veteran's right hand was his dominant hand. The Veteran noted that he fractured his left fifth finger in service. The VA examiner identified the Veteran's May 2014 x-rays, which noted mild to moderate multifocal osteoarthrosis, and provided the diagnosis of degenerative arthritis of the Veteran's left and right hands. The examiner noted the degenerative changes in the Veteran's left hand were worst in the third and fifth distal phalanges. The examiner opined that it was less likely than not that the Veteran's left hand disability was proximately due to or the result of the Veteran's service-connected left fifth finger fracture. The examiner concluded that the Veteran had generalized hand degenerative joint disease, which was not caused by the Veteran's in-service fracture of his finger. The examiner added that the Veteran's left hand degenerative joint disease was due to aging and genetics. The Veteran underwent a VA examination in December 2019. The VA examiner confirmed the Veteran's diagnosis of degenerative arthritis and noted the Veteran's residuals of the left fifth finger fracture. The examination noted the Veteran's December 2019 x-rays showed minimal degenerative changes in the distal phalanges joints. The VA examiner noted the Veteran's diagnosis of degenerative arthritis was separate and unrelated to the service-connected residuals of left fifth finger fracture. The examiner stated that the residuals of the Veteran's left fifth finger fracture had no correlation with the new diagnosis of left hand degenerative arthritis. The examiner opined that the Veteran's degenerative hand conditions were a result of daily wear and tear overtime, and could occur without the status post left fifth finger fracture. The RO obtained another medical opinion addressing the Veteran's left hand disability in May 2020. Following a review of the Veteran's claims file and medical history, the VA examiner provided the medical opinion that the Veteran's left hand disability was not at least as likely as not aggravated beyond its natural progression by the Veteran's service-connected residuals of the left fifth finger fracture. The examiner noted the Veteran's bilateral hand degenerative joint disease of the distal phalanges joints. The examiner reported the Veteran suffered a left, fifth middle phalanx fracture during service, which did not involve the joint. The examiner noted the Veteran's separation examination was absent of complaints of a hand condition. Further, the examiner noted the Veteran's medical records demonstrated the Veteran's normal grip strength, as well as normal range of motion, absence of flare-ups and absence of loss of function on repetitive use. The VA examiner reported that there was no objective aggravation of the left hand due to the left finger condition. Thus, the VA examiner concluded it was less likely than not that the Veteran's left hand degenerative joint disease was due to or incurred by the Veteran's in-service left fifth finger injury, as the fracture did not involve the joint space and the Veteran's degenerative joint disease was equal in both the Veteran's right and left hands. VA provided an addendum opinion addressing the Veteran's left hand disability in September 2021. The VA examiner reviewed all available medical records, as well as the Veteran's lay evidence. The VA examiner reported the Veteran's service treatment records established the Veteran's fifth middle phalanx fracture, but noted the medical records are negative of a diagnosis of a chronic left hand disorder during active-duty service. The examiner noted the Veteran's normal findings for his hand on the Veteran's separation examination. The VA examiner stated there were no documented complaints or treatments, either in service or post service, to support the Veteran's claims that his fractured fifth finger resulted in chronic left hand arthritis. The VA examiner noted the Veteran reported ongoing hand complaints with difficulty gripping and carrying objects during the hearing; however, the VA clinician stated the Veteran's arthritic conditions were not diagnosed until 2014, more than 20 years after service. The VA examiner provided the medical opinion that the Veteran's left hand condition was less likely than not proximately due to or the result of Veteran's service-connected residuals of the left fifth finger fracture. Additionally, the VA examiner noted there was no credible objective evidence of increased flare-ups, treatment or exacerbations of the left hand arthritis due to the left fifth finger middle phalanx fracture. The examiner reported the evidence of record did not reveal that the Veteran's in-service fracture affected joint spacing. The VA examiner stated the Veteran's left hand arthritis was separate and unrelated to the in-service fracture. Thus, the VA examiner opined that it was not at least as likely as not that the Veteran's left hand disability was aggravated beyond its natural progression by the Veteran's service-connected residuals of the left fifth finger fracture. The Veteran testified before the Board in September 2019. The Veteran testified that his left hand condition did not begin when he broke his finger. The Veteran noted that his left hand condition developed over time following his in-service fifth finger fracture. The Veteran noted that his primary care physician stated that his left hand condition was relative to his left fifth finger fracture. Examined as a whole, the medical opinions provided in May 2015, December 2019, May 2020, and September 2021, provide probative evidence that the Veteran's left hand disability did not have its onset in or was otherwise the result of active duty service, to include as secondary to the Veteran's service-connected left finger disability. The Board assigns probative weight to the medical opinions, which note the Veteran's service treatment records are absent of diagnosis or complaints of chronic hand conditions in service. Additionally, the Board assigns probative weight to the VA examiners' medical opinions that the Veteran's left hand degenerative arthritis was not the result of the Veteran's in-service fifth finger fracture, as the fracture did not involve damage to the joint, and the Veteran's osteoarthritis of his bilateral hands, worst seen in the distal phalanges joints, developed equally in both hands. Moreover, the Board notes the medical opinion provided in the September 2021 VA examination provided probative evidence that the residuals of the Veteran's left fifth finger fracture did not aggravate the Veteran's left hand disability. The examiner noted there was no credible objective evidence of increased flare-ups, treatment or exacerbations of the left hand arthritis due to the left fifth finger middle phalanx fracture, as the left fifth finger fracture did not affect the joint spacing of the Veteran's left hand. The Board finds the May 2015, December 2019, May 2020, and September 2021 medical opinions to be probative evidence that the Veteran's left hand disability was not related to the Veteran's active-duty service, to include as secondary to the Veteran's service-connected left finger disability. Here, the Board finds, as a whole, the May 2015, December 2019, May 2020, and September 2021 medical opinions offer a fully articulated rationale with consideration of the Veteran's medical history and a thorough physical examination of the Veteran. See Prejean v. West, 13 Vet. App. 444 (2000); see also Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board notes the Veteran's September 2019 hearing testimony, which reported that the Veteran's primary care physician indicated that the Veteran's left hand condition was related to his old left fifth finger fracture. Here, the Board notes the Veteran is competent to report a contemporaneous medical diagnosis. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Further, the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). As a medical opinion is not required to establish a nexus relationship sufficient for a finding of service connection, the Board must address the Veteran's lay evidence account of his primary care physician's positive secondary nexus opinion. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Here, the Board assigns little probative value to the Veteran's lay account of the positive nexus opinion provided by the Veteran's primary care physician. The Veteran's lay statements did not recount an exact diagnosis or specific statement made by the private physician addressing the Veteran's left hand condition sufficient for the Board to make an informed decision on the matter. Without a medical opinion that clearly addresses the relevant facts and medical science, the Board is left to rely on its own lay opinion, which it is forbidden from doing. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). While the Board acknowledges the Veteran's lay statements relay a positive medical opinion connecting the Veteran's service-connected left fifth finger residuals with his left hand disability, the Veteran's lay statements lack sufficient medical detail required to provide probative evidence of whether the Veteran's service-connected disability proximately caused or aggravated the Veteran's left hand disability. See El-Amin v. Shinseki, 26 Vet. App. 136, 138-40 (2012); see generally Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board considered the Veteran's lay statements reporting the Veteran's primary care physician's positive medical opinion, but assigns a greater probative weight to the opinions, as a whole, of the May 2015, December 2019, May 2020, and September 2021 VA examiners. The Board recognizes the Veteran's lay statements of ongoing complaints, including pain and difficulty gripping and carrying objects. Additionally, the Board acknowledges the Veteran's assertions that his left hand degenerative arthritis was related to his service-connected residuals of his fifth finger fracture. As a lay person, the Veteran is competent to provide opinions on certain subjective medical issues and of observable symptomatology. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, since the cause of degenerative joint disease is a complex medical matter and the onset can occur later in life, the Veteran as a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion as to an etiology of his left hand disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has also considered whether presumptive service connection or service connection based on continuity of symptomatology is warranted for the Veteran's degenerative arthritis of the left hand. However, the medical evidence of record does not show that the Veteran was diagnosed with arthritis within one year after discharge from service. See 38 C.F.R. § 3.307(a)(3). The Veteran's medical treatment records noted the Veteran's complaints of pain, but the record is absent of treatment for bilateral hand pain until 2014, more than 20 years since the Veteran's separation from service. Further, while the Veteran's service treatment records note the Veteran's left fifth finger injury in June 1984, and the Veteran's August 1987 medical board examination noted the Veteran's loss of motion of the left fifth finger, the Veteran's separation examination noted normal findings for the Veteran's hands and joints. Although the absence of medical treatment records since service is not dispositive, a period without complaints of symptoms is evidence of a lack of continuity of symptomatology and can weigh against establishing a nexus between the Veteran's current degenerative arthritis and his in-service injury. See generally Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting the trier of fact should consider all relevant facts, including the availability of medical records, the nature and course of the disease or disability, and the amount of time that elapsed since military service). Moreover, the Veteran did not contend that his left hand condition manifested within one year after service or that he experienced it continuously after discharge from service, as he testified that his left hand condition developed over time following his in-service fifth finger fracture. Thus, presumptive service connection or service connection based on continuity of symptomatology is not warranted. Accordingly, considering the probative weight of the evidence of record as a whole, the Board concludes that the Veteran's left hand disability was not related to his active service, to include as secondary to service-connected residuals of left fifth finger fracture. The Board concludes that, as the evidence persuasively favors against entitlement to service connection, it is not in approximate balance, and the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) The Appellant contends that the Veteran's service-connected disabilities barred the Veteran from securing and maintaining substantial employment. In the November 2019 application for TDIU, the Veteran stated that he was unable to work due to his service-connected disabilities. A total disability rating based on individual unemployability may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability rated 60 percent or more; or as a result of two or more service connected disabilities, provided at least one disability is rated 40 percent or more, and there are additional service connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Board must consider all theories of entitlement either expressly raised by the claimant or which are reasonably raised by the record. See Robinson v. Shinseki, 557 F.3d 1355, 1362 (Fed. Cir. 2009). When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447 453-54 (2009). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but, the veteran's age or the impairment caused by nonservice-connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Prior to the Veteran's death, during the pendency of the appeal, the Veteran met the necessary schedular rating criteria under 38 C.F.R. § 4.16(a), as his service-connected disabilities provided a combined 90 percent disability rating. The Veteran had ratings of 50 percent for bilateral pes planus; 50 percent for posttraumatic stress disorder (PTSD); 20 percent for right knee disorder state post meniscectomy; 10 percent for bilateral knee disabilities, to include degenerative joint disease; 10 percent for tinnitus; and noncompensable ratings for hypertension, residuals of left fifth finger fracture, and bilateral hearing loss and right knee surgical scar. The evidence of record shows the Veteran completed high school prior to entering the service. While on active duty, the Veteran worked as an aircraft frame repair mechanic. After separation, the Veteran worked as a sheet metal leadman mechanic for 26 years. Additionally, the Veteran reported working part time as a porter since September 2017. The Veteran reported that his job duties as a porter consisted of making collections, delivering mail, and going to the bank. Additionally, the Veteran's April 2016 medical record noted that he volunteered his time with a charitable organization picking up and separating donations. Following a review of the record, the evidence supports a finding that the Veteran's service-connected disabilities, as a whole, precluded the Veteran from obtaining and maintaining substantially gainful employment prior to his death. The Veteran testified at the September 2019 Board hearing that his knee disabilities affected his ability to walk or stand for long periods of time. The Veteran testified that he was laid off from his job as a sheet metal mechanic due to medical issues. The Veteran reported that his right knee condition limited his ability to drive long distances. Additionally, the Veteran testified that the pain in his feet caused by his pes planus limited his ability to stand for long periods of time. The Veteran complained of pain rated as nine out of ten when standing. The Veteran underwent a VA mental health conditions examination in November 2020. The VA examiner confirmed the Veteran's diagnosis of PTSD. The VA examiner reported the Veteran displayed symptoms of lethargy and difficulties with memory and concentration. Additionally, the VA examiner noted the Veteran exhibited depressed mood, isolation from others, weekly panic attacks, and difficulty establishing and maintaining effective work and social relationships. The VA examiner noted the Veteran's diagnosis of PTSD manifested as occupational and social impairment with reduced reliability and productivity. The Veteran's medical history indicates the Veteran suffered from knee pain. The Veteran's October 2014 medical treatment record noted that he was laid off from his job due to his knee pain. The RO provided a VA examination to address the Veteran's service-connected knee disabilities in December 2019. The VA examiner noted the Veteran's knee disabilities impacted the Veteran's abilities to perform occupational tasks. The VA examiner noted the Veteran missed up to a week of his part-time work in the previous year due to his knee condition. The Veteran reported he was unable to walk or stand for prolonged periods without pain. The Veteran underwent a VA examination to address his service-connected left finger disability. Additionally, the VA clinician diagnosed the Veteran's bilateral hand osteoarthritis. The VA examination noted the Veteran missed up to one week of work time in the previous year. The Veteran noted that he called out of work due to pain his hands. Notably, the Veteran stated he was unable to perform repetitive gripping and holding of packages. As the evidence of record demonstrates that the Veteran maintained part-time employment since 2017, the Board must determine whether the Veteran had marginal employment due to his service-connected disabilities. Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). For purposes of TDIU, marginal employment is generally deemed to exist when a veteran's earned annual income does not exceed the poverty threshold established by the U.S. Department of Commerce, Bureau of the Census. Marginal employment may also be held to exist, on a facts-found basis, including but not limited to, employment in a protected environment such as a family business or sheltered workshop, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). The Board finds that the Veteran's part-time porter position was marginal employment during the period on appeal. The record contains the Veteran's statement of earnings from 2019, which indicated the Veteran's income failed to exceed the poverty threshold determined by the U.S. Department of Commerce, Bureau of the Census. See U.S. Census Bureau, Poverty Thresholds, https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. Accordingly, resolving the evidence of record in a light most favorable to the Veteran, the Board finds the evidence of record as a whole demonstrates the Veteran's service-connected disabilities prevented him from securing and maintaining substantial employment. The Board recognizes the Veteran's service-connected physical and psychological conditions prevented the Veteran from performing occupational tasks for employment in the fields for which the Veteran had experience and was qualified to work. The Board notes the Veteran's military occupational specialty and training received while in service was as a sheet metal mechanic. The Board finds the Veteran's service-connected physical and psychological conditions barred the Veteran from unskilled substantial employment, notably including physically strenuous activity requiring the Veteran to be on his feet. Further, the Veteran's service-connected disabilities barred the Veteran from positions involving operating equipment or driving. Moreover, once the physical requirements for the position for which he was qualified became too demanding, the Veteran's lack of higher education and symptoms of his service-connected PTSD, to include memory impairment, decreased concentration, and difficulty establishing and maintaining effective work and social relationships, barred the Veteran from learning additional employment skills needed to obtain substantial employment. Thus, the Board finds the evidence of record demonstrates that prior to the Veteran's death, the Veteran's service-connected mental and physical disabilities barred the Veteran from securing and maintaining gainful employment, and the Appellant's claim to entitlement to TDIU is granted. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.V. Bona, 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.