Citation Nr: 22017686 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 15-18 004 DATE: March 25, 2022 ORDER Entitlement to service connection for chronic arthritis is denied. Entitlement to service connection for a right great toe cold disability is denied. Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for a right hip disability is denied. Entitlement to service connection for a left hip disability is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to an increased rating in excess of 10 percent for a left ring finger disability is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's arthritis was not incurred in or due to his time in service. 2. The Veteran does not have a frostbite disability that was incurred in or due to his time in service. 3. The Veteran's right shoulder disability was not incurred in or due to his time in service. 4. The Veteran's left shoulder disability was not incurred in or due to his time in service. 5. The Veteran's right hip was not incurred in or due to his time in service. 6. The Veteran's left hip was not incurred in or due to his time in service. 7. The Veteran's sleep apnea was not incurred in or due to his time in service. 8. The Veteran is in receipt of the highest available rating for his left ring finger under the applicable diagnostic codes. 9. The Veteran's service-connected disability does not render him unable to maintain gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic arthritis are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a frostbite disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for a right shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for a left shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for service connection for a right hip disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 6. The criteria for service connection for a left hip disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 7. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 8. The criteria for an increased rating in excess of 10 percent for a left little finger disability are not met. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.71a, Diagnostic Code (DC) 5230. 9. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1980 to May 1983. These matters are on appeal from a July 2011 rating decision by a Department of Veterans Affairs (VA) regional office (RO). The Veteran had previously requested a hearing before a Veterans Law Judge. However, in February 2022, the Veteran, in writing through his representative, withdrew his request. Service Connection Claims Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310. On the question of continuity of symptomatology, evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2014). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Arthritis, Sleep Apnea, Bilateral Hip, Bilateral Shoulder Claims The Veteran contends he has sleep apnea, bilateral hip and bilateral shoulder disabilities, as well as chronic arthritis, all of which were due to his time in service. (See e.g. November 2010 statement) nearly 40 years ago. The Veteran's claims are not always clear: In August 2011, the Veteran said he hurt his shoulders playing softball while at Fort Hood. The Veteran said he noticed sharp pain in both shoulders throwing the ball and now he had chronic arthritis in both shoulders. However, in May 2014, the Veteran said he injured his shoulders in service because he was a multi-channel equipment operator. The Veteran said he had to put up antennas 30 to 40 feet high and would use five foot metal stakes to stabilize the antennas by hammering the stakes into the group and this repeated action hurt his shoulders. The Veteran said evidence of this injury is in his records. In May 2014, the Veteran said he fell during basic training and injured his hip. The Veteran went to medical and was put on light duty for about three months. The Veteran said his hip was further damaged from a car accident after service. The Veteran said he had various limitations such as an inability to walk long distances and limited his daily activities and caused him pain. In August 2021, the Veteran again said that there were days he was unable to work due to his hip and that it impacts his ability to perform day to day activities. Pertaining to his sleep apnea, in May 2014, the Veteran said he was exposed to TB in Korea. The Veteran said he was quarantined for three months and underwent treatment. The Veteran had a chest x-ray and had experienced problems breathing at night. The Veteran said he stopped breathing 15 to 20 times at night and that he was unable to go to school or drive due to his lack of sleep. The Veteran said he used a CPAP machine. The Veteran has been diagnosed with sleep apnea. (See e.g. 2008 treatment records.) The Veteran has been diagnosed with arthritis in his bilateral hip. The Veteran has been diagnosed with disabilities in both of his shoulders, including arthritis in his right shoulder. The Veteran's service treatment records (STRs) do not indicate he was seen in service or treated for sleep apnea while in service. The Veteran's STRs indicate he was seen in 1980 and 1981 for a right hip condition. These records indicate the Veteran was seen after falling from an overhead ladder. The Veteran's x-rays were negative. However, STRs do not indicate the Veteran was seen for a left hip condition while in service. The Veteran's STRs do not indicate any ongoing shoulder injuries or ongoing arthritic conditions. An entrance examination to the National Guard does not mention any sleep problems or bilateral hip conditions, or bilateral shoulder injuries while noting the Veteran's left ring finger disability. The Veteran's treatment records do indicate he has been treated for sleep apnea. The Veteran's treatment records indicate he was involved in a car accident that fractured his right hip and required surgery. In May 1999, the Veteran reported no chronic medical conditions that interfered with his life. Treatment records after service also indicate the Veteran was diagnosed with left hip arthritis and often note bilateral hip and shoulder pain. (See e.g. July 2002, January 2008, July 2018 treatment records.) In January 2005, the Veteran was seen for shoulder pain, saying that a dolly fell and struck his right shoulder while at work. Records also indicate the Veteran tore his right rotator cuff, which caused a lot of pain and necessitated treatment. (See e.g. January, May 2018 treatment records.) The Veteran was again noted to be obese in April 2010 records that also noted his bilateral hip pain and the report that he had a history of surgery after a car accident in 1989. In May 2011, he was seen again for shoulder pain in his shoulders and hip since there had been changes in the weather. The Veteran has been noted to be obese with complaints of bilateral shoulder pain after lifting large, heavy bags of trash and bilateral hip pain. (See e.g. August 2009, May 2011 treatment records.) Overall, the service records and post-service medical records provide evidence against these claims, indicating problems that began well after service with no connection to service and at some point clear indications of the cause of the problem well after service. The veteran had an examination for his right hip in October 2014. The examiner noted the Veteran had been diagnosed with arthritis status post fracture of the right hip. The examiner reviewed the Veteran's file and opined the Veteran's right hip disability was less likely than not due to his time in service. The examiner explained the Veteran's in service condition was acute with no evidence of chronicity of care. The Veteran reported pain in his right hip from a fall in basic training. The examiner reported the Veteran's STRs indicated treatment for a right hip injury in service and that x-rays at the time were negative. The Veteran had treatment in 1981 but did not have continued pattern of hip pain that continued after that point. The examiner noted the Veteran was in a car accident in 1988 with a fracture of the hip and that he was diagnosed with right hip arthritis in 2004. The examiner opined the "likelihood is greater than arthritic involvement is due to a MVA that was of high enough impact to fracture a large bone." The Veteran's records, while noting arthritis, do not indicate that this arthritis was incurred in or due to his time in service nor do they indicate it manifested to a compensable degree within one year of his separation from service. Additionally, there is no competent medical evidence of record indicating his sleep apnea, his bilateral shoulder or left hip disabilities, or his arthritis were incurred in or due to his time in service as his STRs are negative for trouble with these conditions while in service and there is no other indication those conditions are related to his time in service. Regarding his right hip, the Veteran's STRs do indicate he was seen for his right hip in service. However, this condition appears to have resolved as there was no further mention of an ongoing right hip problem in 1982 or 1983 and a subsequent examination did not mention any chronic right hip disabilities. Additionally, the examination above does not indicate the Veteran's current right hip problem is related to his time in service, and it is rather due to his car accident that happened after service. The United States Court of Appeals for Veterans Claims (Court) has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition). The Board notes the Veteran has said he was treated right after his time in service at Louisiana State Hospital in 1989. Records for that time period were requested. While other records were obtained from that facility, records from 1989 were not available. The Board also notes that the first indication of problems with sleep apnea, shoulder, or hip conditions appear to be decades after the Veteran's time in service. The Board understands that it cannot use the absence of medical records as the sole reason for denying a claim. However, in this case, along with the other objective and medical evidence weighing against his claims, the Board finds this lack of treatment records do weigh against the Veteran's claims. The Board notes the Veteran was not provided a separate examination and opinion as to the current nature and etiology of his claimed arthritis, left hip, bilateral shoulder, or sleep apnea conditions. However, VA need not conduct an examination with respect to the claim on appeal, as information and the evidence of record contains sufficient competent medical evidence to decide the claim. See 38 C.F.R. § 3.159(c)(4). Under McLendon v. Nicholson, 20 Vet. App. 76 (2006), VA must provide an examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. Simply stated, the standards of McLendon are not met in this case as the Veteran is not shown to have suffered his conditions while in service and there is no other competent medical evidence suggesting an association to service. The service records and post-service records provide evidence against these claims. Therefore, based on the above, the claims will be denied. Frostbite Claim The Veteran contends he has a frostbite disability in his right great toe. In August 2011, the Veteran said he got frostbite while in Korea, injured his hip while in basic training. In May 2014, the Veteran said in Korea, he got frost bite when he was outside with diesel fuel heaters to keep warm which ran out. The Veteran said his toenails kept falling out and since then, he had to go to podiatry every three months for routine foot care. The Veteran's record does not indicate he has been diagnosed with a frostbite disability. The Veteran's STRs do not indicate he was seen or treated for an ongoing frostbite condition while in service. While the Veteran is seen in December 1980 for a toenail problem, this was noted to be due to an ingrown toenail. Additionally, the Veteran's entrance examination to the National Guard after his time in active service did not indicate any frostbite problems. As with the claims above, the Veteran was not provided an examination for this condition. However, similarly with the claims above, the Veteran is not shown to have suffered his conditions while in service and there is no other competent medical evidence suggesting an association to service. Therefore, the claim will be denied. Increased Rating Claim Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Veteran. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. The Veteran contends his left little finger disability is worse than indicated by his noncompensable rating prior to April 7, 2008 and 10 percent thereafter. In May 2014, the Veteran said his left ring finger would swell and he couldn't make a fist. The Veteran reported pain and that he couldn't play the guitar anymore, couldn't wear rings, favored his right hand, and that it was sore and unattractive. The Veteran's little finger disability is rated under DC 5227 and 5230. Under DC 5227, favorable or unfavorable ankylosis of the ring or little finger is rated as noncompensable. Under DC 5230, any limitation of motion for the ring or little finger, on either the major or minor side, is rated as noncompensable. Thus, a higher rating is not available to the Veteran under this diagnostic code. Under these two diagnostic codes, the Veteran in in receipt of the highest available rating. The Veteran's painful motion is contemplated by the 10 percent rating from April 7, 2008. The Veteran had an examination for his left ring finger in March 2011. The Veteran was noted to have arthritis. The Veteran worked at a VAMC and was on restriction for past four years. The Veteran can drive for 30 minutes, lift five pounds, and walk a few yards. The Veteran had difficulty picking up small things. The Veteran is right handed. There was no amputation but there was deformity. The Veteran was working in housekeeping full time and had been doing so for two to five years. The Veteran's finger did impact his occupational activities with decreased manual dexterity, problems with lifting and carrying. There was no ankylosis. The Veteran had another examination for his ring finger in October 2014. The Veteran said his finger worsened and was painful every day. The Veteran said his arthritis prevented him from doing things with his hand and that holding items is difficult and he was unable to perform fine motor movements with his hand. The Veteran had painful motion in his ring finger but there was no gap between the thumb pad and his fingers. There was a gap between his fingertips and the proximal transverse crease of the palm of less than one inch. The Veteran had functional loss with less movement than normal, weakened movement, and pain on movement. The Veteran had pain on palpation but no ankylosis. The Veteran's treatment records also indicate he does still have pain and trouble with his left ring finger. However, neither those records nor the other objective evidence of record indicates a problem with the Veteran's left ring finger that would warrant a higher evaluation. Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). TDIU Claim The Veteran contends his service-connected disabilities render him unable to work and that he is entitled to a TDIU. The law provides that a total disability rating 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 service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). The Veteran's combined disability rating is 10 percent from April 7, 2008. Thus, the Veteran does not meet the schedular criteria for a TDIU. The Board has considered whether the Veteran's disability picture warrants referral for an extraschedular TDIU. Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran's disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. The Board cannot award an extraschedular rating in the first instance. Floyd v. Brown, 9 Vet. App. 88, 95 (1996). Here, the Board does not find the Veteran's disability picture is not contemplated by the schedular rating as pain and lack of range of motion are contemplated by his disability rating. Additionally, there is no evidence the Veteran's left ring finger leads to marked interference with employment or frequent periods of hospitalization. An October 2014 examiner found the Veteran's hand impacted his ability to work in that the Veteran was unable to fully close his ring finger around objects. The Board notes the Veteran has taken a lot of time off work, had accommodations at work, and not been employed at certain times following his time in service. However, there is no indication those measures were taken due to his service-connected ring finger. For example, in June 2010, one of the Veteran's doctors completed a form saying the Veteran had chronic arthritis of his bilateral hips, shoulders, and hands. The examiner said the Veteran's conditions began in approximately September 2009 and that it would be necessary for the Veteran to be able to work only intermittently or work on a less than a full-time schedule. The Veteran would miss one day per week and would require monthly treatment. In February 2011, it was noted the Veteran was a full-time employee at a VA medical center. In a June 2008 examination, the Veteran said he had been employed in commercial landscaping but that he couldn't operate lawn equipment due to vibrations causing him pain in his left ring finger. However, as noted above, the Veteran subsequently found employment. Thus, the record does not indicate the Veteran's symptoms of being unable to close his fist, grasp objects completely, and his pain are not contemplated by the schedular rating and the objective evidence does not indicate the Veteran's ring finger leads to marked interference with employment or frequent periods of hospitalization. Therefore, the Board declines to refer the matter to the Direction of Compensation for extraschedular consideration. Regarding the claims above, the Board acknowledges the Veteran's statements that he believes his conditions are due to his time in service and that his service-connected disability warrants a TDIU. The Board also understands the Veteran continues to seek treatment for his medical conditions and that his conditions continue to give him problems and cause him distress. However, the Veteran is not competent to opine on medical issues, such as the nature and etiology of medical conditions, such as those discussed above. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board places more probative weight on the objective medical evidence of record, which includes the examination of record. The Board finds the examination to be adequate as the examiners offered opinions, supported by rationales and considering the Veteran's statements. As noted above, the facts of this case provide evidence against all claims. (Continued on the next page) It is important for the Veteran to understand that these medical findings provide highly probative evidence against these claims that the Board cannot, unfortunately, ignore, outweighing the Veteran's belief that his problems are the result of service, providing a highly clear basis for the opinion. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the evidence is not in approximate balance or nearly equal, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990), Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Snoparsky 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.