Citation Nr: 22019303 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 19-00 797A DATE: March 31, 2022 ORDER Entitlement to at least a 10 percent rating for left second metacarpal fracture from May 19, 2017 is granted. REMANDED Entitlement to service connection for left knee arthritis is remanded. Entitlement to service connection for left foot arthritis is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to a rating in excess of 10 percent for left second metacarpal fracture from May 19, 2017 is remanded. FINDING OF FACT Throughout the appeal period, the Veteran's left second metacarpal fracture has been manifested by painful motion. CONCLUSION OF LAW The criteria for at least a 10 percent rating for left second metacarpal fracture are met from May 19, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5229. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from November 1976 to December 1980, with subsequent Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In January 2021, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge. During the Board hearing the Veteran waived AOJ consideration of the VA treatment records added to the file after the issuance of the Statement of the Case. The Board is bifurcating the increased rating claim as reflected on the title page, as the Board is able to award a partial grant at this time. See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of an appeal is generally within the Board's discretion). 1. Entitlement to at least a 10 percent rating for left second metacarpal fracture from May 19, 2017 is granted. The Veteran asserts that his left second metacarpal fracture warrants a 10 percent rating. See January 2021 Board Hearing Transcript at 6. The Board agrees. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, 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. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court of Appeals for Veterans Claims (Court) later clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38C.F.R. §§4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Veteran's left second metacarpal fracture is currently rated as noncompensable pursuant to DCs 5307-5229. 38 C.F.R. § 4.27 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020). However, the rating criteria for DC 5229 was not affected by the February 7, 2021 amendments. The period on appeal is from the date of the veteran's May 19, 2017 increased rating claim, plus the one-year "look back" period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Here, the Board finds that at least a 10 percent rating is warranted for the Veteran's left second metacarpal fracture, based on the Veteran's competent and credible reports of painful motion as confirmed in the September 2020 VA examination, effective from the beginning of the appeal period, or May 19, 2017. 38 C.F.R. §§ 4.40 , 4.45, 4.59; See Petitti v. McDonald, 27 Vet. App. 415 (2015); Burton v. Shinseki, 25 Vet. App. 1 (2011) (painful motion is entitled to at least the minimum compensable rating); September 2020 VA examination (noting painful motion in the left finger flexion and extension); January 2021 Board Hearing Transcript at 4-6. In this regard, the prior September 2017 VA examination report is inadequate, given its lack of discussion of additional loss of motion during a flare-up, and therefore is of no probative value. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board will not address entitlement to an increased or separate ratings under alternative DCs at this time, given the development requested below. REASONS FOR REMAND 2. Entitlement to service connection for left knee arthritis is remanded. 3. Entitlement to service connection for left foot arthritis is remanded. The Veteran asserts that his diagnoses of left knee and left foot arthritis are the result of in-service injuries while playing sports. See January 2021 Board Hearing Transcript at 9-11 and 13. He presented for VA examinations regarding his left knee and left foot disabilities in June 2017. However, the Board finds these examinations inadequate, as the examiner who conducted the examinations did not discuss an August 1982 foot injury nor consider the Veteran's lay statements, and the opinion regarding the left knee disability does not address subsequently diagnosed left knee arthritis or adequately address how the Veteran's knee disability is not due to the in-service meniscal tear. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that a VA examination is inadequate if it does not consider all the relevant evidence of record). Based upon the foregoing, the Board finds that a remand is warranted to cure these deficiencies via an addendum opinion. Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). 4. Entitlement to service connection for a right ankle disability is remanded. The Veteran asserts that he injured his ankle during active duty while playing basketball. See Board Hearing Transcript January 2021 at 11. In this regard, service treatment records reflect an ankle injury during service. In the alternative, he asserts that his right ankle disability is to due overcompensation from his left knee and left foot disabilities. Id. at 12-13. The Board acknowledges the June 2017 VA examination report indicating the Veteran does not have a diagnosis of a right ankle disability; however, during the Board hearing the Veteran testified to pain in his right ankle, which was not adequately addressed by the June 2017 VA examination. Id. The Board notes that pain that results in functional impairment may be considered a disability for VA purposes. Saunders v. Wilkie, 886 F.3d 1356 (2018) (holding that pain resulting in functional impairment constitutes a disability as contemplated in 38 U.S.C. § 1131, even in the absence of a presently-diagnosed condition). Given the above, a remand is required to afford the Veteran a new examination to determine any current disability/functional impairment caused by the Veteran's right ankle injury and whether it may be caused by or aggravated by his left knee or left foot disabilities, should they become service-connected. 5. Entitlement to a rating in excess of 10 percent for left second metacarpal fracture, from May 19, 2017, is remanded. During the January 2021 Board Hearing, the Veteran reported aches, pain, and loss of function in his left index finger. He also reported poor gripping and neurological symptoms, and additionally reported possible arthritis in his left thumb and long finger, as secondary to his left index finger condition. The Board finds that a updated VA examination is required to address these matters. Additionally, as a neurological or arthritic condition could be secondary to his left index finger, a medical opinion addressing secondary service connection is necessary. See Morgan v. Wilkie, 31 Vet. App. 162 (2019) (explaining that VA's duty to maximize benefits may require it to consider secondary service connection as part of an increased rating claim). Any outstanding VA treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records, to include any "grip" tests conducted. 3. Then obtain an addendum opinion from an examiner other than the June 2017 VA examiner to determine the nature and etiology of the Veteran's left knee and left foot arthritis. Following a review of the claims file, the examiner should address the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's left knee and left foot arthritis had their onset in service or are otherwise related to service, to include as the result of the conceded in-service injuries from playing sports? In addressing this question, please discuss: (1) the service treatment records (STRs) showing complaints of injury to the left foot in August 1978 and August 1982; the STRs showing complaints and/or treatment for the left knee in September and October 1977 (pain for 3 weeks, residual musculotendinous strain), July 1979 (left knee sprain), August 1979 (struck by a motor vehicle; possible meniscal tear; history of pain, swelling, and loss of motion), and September 1979 (left knee medical collateral ligament strain and treatment), as well as the Veteran being placed on a physical profile for his left knee meniscal tear in August 1979; and (2) the Veteran's report that his left knee and left foot pain started in service and has continued since that time to the present (Id. at 17-18). (b.) Please thoroughly explain whether a nexus between the Veteran's left knee and left foot arthritis and service is "medically consistent" with items (1)-(2) above. 4. Then schedule the Veteran for a VA examination with an examiner other than the June 2017 examiner to determine the nature and etiology of any right ankle disorder. All necessary testing should be accomplished, and a thorough review of the claims file should be conducted. The examiner should diagnose any current right ankle disability. If no such disability is identified, the examiner must indicate whether the Veteran's reported right ankle pain causes any functional impairment. For any right ankle disability diagnosed/functional impairment identified, please opine as to the whether it is at least as likely as not (a 50 percent or greater probability) that such disability/functional impairment: (a.) had its onset in service or is otherwise related to service, to include as the result of the conceded in-service injury playing sports. Please discuss: (1) the May and June 1980 right ankle injury due to playing basketball (See January 2021 Board Hearing Transcript at 12); and (2) his testimony that his left ankle pain onset in service and continued to the present. (b.) Please thoroughly explain whether a nexus between the Veteran's right ankle disability/functional impairment and service is "medically consistent" with items (1)-(2) above. (c.) If and only if a left knee disability is service-connected, then please opine on whether it is it at least as likely as not (a 50 percent or greater probability) that the Veteran's right ankle disability/functional impairment is (i) proximately due to his left knee disability or (ii) has been aggravated (worsened) by his left knee disability? (d.) If and only if a left foot disability is service-connected, then please opine on whether it is it at least as likely as not (a 50 percent or greater probability) that the Veteran's right ankle disability/functional impairment is (i) proximately due to his left knee disability or (ii) has been aggravated (worsened) by his left foot disability? (e.) If the Veteran's right ankle disability/functional impairment has been aggravated by the left knee or left foot arthritis, please describe the degree of aggravation attributable to the service-connected left knee or left foot arthritis. In addressing questions (c) and (d), please address and discuss the Veteran's testimony that when his left knee and/or left foot hurt he overcompensates by leaning more on his right side, which causes his ankle to become extremely sore. See January 2021 Board Hearing Transcript at 12-13. Please also render two separate opinions (on proximate cause and aggravation) for each diagnosed ankle disability. The examiner is also advised that it is not necessary for the evidence to demonstrate that the left ankle disability existed during military service in order for it to be considered due to or aggravated by his left knee or left foot disability for VA purposes. Moreover, it is not necessary that his left knee or left foot disability be service-connected, or even diagnosed, at the time the right ankle disability is incurred, and reliance on this temporal element in support of a negative opinion will render it inadequate. 5. Then schedule the Veteran for a VA examination with an appropriate clinician to address the nature and severity of his service-connected left second metacarpal fracture disability and determine whether the Veteran experienced left thumb and left long finger disabilities as a result of his service-connected left second metacarpal fracture, and if so, whether there are any current residuals of such (to include pain or neurological conditions). The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. After examining the Veteran, conducting any needed diagnostic testing, and considering his medical history, the clinician should provide an opinion regarding the following: (a.) Indicate whether the Veteran's left index finger loss of function is the functional equivalent of amputation with metacarpal resection (more than one-half the bone lost). (b.) Indicate whether the Veteran's left index finger loss of function is the functional equivalent of amputation without metacarpal resection at proximal interphalangeal joint or proximal thereto. (c.) Identify any additional neurological and orthopedic disabilities affecting the Veteran's left hand, to include any arthritis in his left thumb and long finger, considering the Veteran's reports of weakness, tingling, intermittent numbness, grip problems and finger pain. (d.) Can the additional neurological and orthopedic disabilities affecting the Veteran's left hand, to include any arthritis in his left thumb and long finger, be considered complications of his left index finger disability? Note: A "complication" is a condition that is considered to be so closely related to the disability at issue that it may be considered a part of that service-connected disability. (e.) If the additional neurological and orthopedic disabilities affecting the Veteran's left hand, to include any arthritis in his left thumb and long finger, can be considered a complication of his left index finger disability, please describe the nature and severity of any current residuals. (f.) If the additional neurological and orthopedic disabilities affecting the Veteran's left hand, to include any arthritis in his left thumb and long finger, cannot be considered a complication of the left index finger disability, please state whether it is at least as likely as not (50 percent probability or greater) that the additional neurological and orthopedic disabilities affecting the Veteran's left hand, to include any arthritis in his left thumb and long finger, were caused by the Veteran's service-connected left index finger disability. Please explain why or why not. (g.) If not caused by the service-connected left index finger disability, is it at least as likely as not that the additional neurological and orthopedic disabilities affecting the Veteran's left hand, to include any arthritis in his left thumb and long finger, were worsened beyond their normal progression by the service-connected left index finger disability. Please explain why or why not. (h.) If the examiner finds that the additional neurological and orthopedic disabilities affecting the Veteran's left hand, to include any arthritis in his left thumb and long finger, were worsened beyond normal progression (aggravated) by the service-connected left index finger disability, please describe the degree of aggravation attributable to the left index finger disability. A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. J. Rogers, 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.