Citation Nr: 0811053	
Decision Date: 04/03/08    Archive Date: 04/14/08

DOCKET NO.  03-23 787	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, 
the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to an increased (compensable) rating for 
residuals, fracture, right thumb. 

2.  Whether new and material evidence has been submitted to 
reopen the claim of entitlement to service connection for 
joint pain due to undiagnosed illness. 

3.  Whether new and material evidence has been submitted to 
reopen the claim of entitlement to service connection for a 
low back disorder. 

4.  Entitlement to service connection for bilateral post-
traumatic elbow epicondylitis.  


REPRESENTATION

Appellant represented by:	Puerto Rico Public Advocate 
for Veterans Affairs

ATTORNEY FOR THE BOARD

K. Seales, Associate Counsel


INTRODUCTION

The veteran served on active duty from December 1985 to May 
1993.  

This appeal arises from a September 2002 rating decision of 
the Department of Veterans Affairs (VA) Regional Office (RO) 
in San Juan, the Commonwealth of Puerto Rico.  

This appeal was previously before the Board in February 2005; 
at which time it was remanded for evidentiary and procedural 
development. Such development having been accomplished, the 
appeal has been returned to the Board for further appellate 
review.

The issues of entitlement to service connection for a low 
back disorder and joint pain due to undiagnosed illness are 
addressed in the REMAND portion of the decision below and are 
REMANDED to the RO via the Appeals Management Center (AMC), 
in Washington, DC.


FINDINGS OF FACT

1.  The veteran's right thumb has not ankylosed, does not 
have limited motion, and does not interfere with the motion 
of any other finger of the right hand or the function of the 
right hand.

2.  By rating decision dated October 1997, the RO denied the 
veteran's claim for service connection for joint pain due to 
undiagnosed illness.  The veteran was notified of that 
decision; however, he did not submit a notice of disagreement 
or perfect an appeal. 
3.  The evidence submitted since the October 1997 rating 
decision bears directly and substantially upon the matter of 
service connection for joint pain due to undiagnosed illness, 
and is so significant that it must be considered in order to 
fairly decide the merits of the claim.

4.  By rating decision dated October 1997, the RO denied the 
veteran's claim for service connection for a low back 
disorder.  The veteran was notified of that decision; 
however, he did not submit a notice of disagreement or 
perfect an appeal. 

5.  The evidence submitted since the October 1997 rating 
decision bears directly and substantially upon the matter of 
service connection for a low back disorder, and is so 
significant that it must be considered in order to fairly 
decide the merits of the claim.

6.  Bilateral post-traumatic elbow epicondylitis did not 
manifest during service and is not related to a disease or 
injury in service.


CONCLUSIONS OF LAW

1.  The criteria for a compensable evaluation for residuals 
of a fracture of the right thumb, major hand, have not been 
met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, 
Diagnostic Code 5224, 5228 (2007).

2.  The October 1997 rating decision which denied entitlement 
to service connection for joint pain due to an undiagnosed 
illness is final.  38 U.S.C.A. § 7104(b)(West 2002); 38 
C.F.R. § 3.104, 20.1103 (1997).

3.  New and material evidence has been received, and the 
veteran's claim for service connection for joint pain due to 
undiagnosed illness is reopened.  38 U.S.C.A. §§ 5108, 7105 
(West 2002); 38 C.F.R. § 3.156 (2007). 

4.  The October 1997 rating decision which denied entitlement 
to service connection for a low back disorder is final.  38 
U.S.C.A. § 7104(b)(West 2002); 38 C.F.R. § 3.104, 20.1103 
(1997).

5.  New and material evidence has been received, and the 
veteran's claim for service connection for a low back 
disorder is reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 
38 C.F.R. § 3.156 (2007). 

6.  Bilateral post-traumatic elbow epicondylitis was not 
incurred in or aggravated by active service. 38 U.S.C.A. 
§§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), the United States Department of Veterans Affairs (VA) 
has a duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).  

The record reflects that the VA has made reasonable efforts 
to notify the veteran of the information and evidence needed 
to substantiate his claim.  The veteran was provided VCAA 
notice letters in April 2001 and April 2005, as well as a 
copy of the rating decision, a statement of the case, and 
supplemental statements of the case.  These documents, 
collectively, provide notice of the law and governing 
regulations, as well as the reasons for the determination 
made regarding his claim and identified the cumulative 
evidence already having been previously provided to VA or 
obtained by VA on his behalf.  The VCAA letter also informed 
the veteran of what evidence was needed to establish his 
claim and what evidence VA would obtain. Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).  

Given the foregoing, and the content of the veteran's 
correspondence over the 7+ years of administrative appellate 
proceedings, as well as the fact he has been represented 
since October 2002, it may be concluded the purpose of the 
notice requirements has not been frustrated and any error of 
notice has not effected the essential fairness of the 
adjudication.  

VA has a duty to assist the veteran in the development of the 
claim.  This duty includes assisting the veteran in the 
procurement of service medical records and pertinent 
treatment records and providing an examination when 
necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The record discloses that VA has met its duty to assist the 
veteran in obtaining any relevant evidence available to 
substantiate his claim.  All available records identified 
have been obtained and associated with the claims folder.  
The veteran underwent VA examinations in August 2001 and 
October 2006.  The veteran was not afforded a VA examination 
in connection with his claim for his bilateral elbow 
disorder; however, as there is no evidence of an injury or 
illness related to an elbow disorder during service, the 
Board finds that such an examination is not necessary.  The 
veteran declined the opportunity to testify before a Veterans 
Law Judge in August 2003.  VA has satisfied both its duty to 
notify and assist the veteran in this case.

Standard of Review

Once the evidence has been assembled, it is the Board's 
responsibility to evaluate the record. 38 U.S.C.A. § 7104(a).  
When there is an approximate balance of evidence regarding 
the merits of an issue material to the determination of the 
matter, the benefit of the doubt in resolving each such issue 
shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. 
§ 3.102.  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), 
the Court stated that "a veteran need only demonstrate that 
there is an 'approximate balance of positive and negative 
evidence' in order to prevail."  To deny a claim on its 
merits, the evidence must preponderate against the claim.  
Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing 
Gilbert, 1 Vet. App. at 54.

The Board has reviewed all of the evidence in the veteran's 
claim folder, which includes service medical records, lay 
statements, private and VA medical treatment records, and VA 
compensation and pension examination reports.  Although the 
Board has an obligation to provide reasons and bases 
supporting this decision, there is no need to discuss, in 
detail, all the evidence submitted by the veteran or on his 
behalf.  The Board will summarize the relevant evidence where 
appropriate, and the Board's analysis will focus specifically 
on what the evidence shows, or fails to show, on the claim. 
Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). 

Compensable Disability Rating

Disability evaluations are determined by comparing a 
veteran's present symptomatology with criteria set forth in 
VA's Schedule for Rating Disabilities, which is based on 
average impairment in earning capacity.  See 38 U.S.C.A. § 
1155; 38 C.F.R. Part 4.  When a question arises as to which 
of two ratings apply under a particular diagnostic code, the 
higher evaluation is assigned if the disability more closely 
approximates the criteria for the higher rating; otherwise, 
the lower rating will be assigned.  See 38 C.F.R. § 4.7.  
After careful consideration of the evidence, any reasonable 
doubt remaining is resolved in the veteran's favor.  See 38 
C.F.R. § 4.3.  The veteran's entire history is reviewed when 
making disability evaluations.  See 38 C.F.R. 4.1; Schafrath 
v. Derwinski, 1 Vet. App. 589, 592 (1995).  

In cases such as this, where entitlement to compensation has 
already been established and an increase in the disability 
rating is at issue, it is the present level of disability 
that is of primary concern.  See Francisco v. Brown, 7 Vet. 
App. 55, 58 (1994).  Nevertheless, where the evidence 
contains factual findings that show a change in the severity 
of symptoms during the course of the rating period on appeal, 
assignment of staged ratings would be permissible.  

Throughout the entire appeal period the veteran's right thumb 
disability has been rated noncompensable (zero percent) 
pursuant to 38 C.F.R. § 4.71A, Diagnostic Code 5224 (2007).  
Under Diagnostic Code 5224, favorable ankylosis of either 
thumb warrants a 10 percent rating.  Unfavorable ankylosis of 
either thumb warrants a 20 percent rating.  

Diagnostic Code 5228 indicates that a noncompensable rating 
is warranted for limitation of motion of either thumb if 
there is a gap of less than one inch (2.5 cm.) between the 
thumb pad and the fingers, with the thumb attempting to 
oppose the fingers. A 10 percent rating is warranted for 
limitation of motion of either thumb if there is a gap of one 
to two inches between the thumb pad and the fingers, with the 
thumb attempting to oppose the fingers.  38 C.F.R. § 4.71a, 
Diagnostic Code 5228 (2007).  In addition, VA may consider 
whether evaluation as amputation is warranted and whether an 
additional evaluation is warranted for resulting limitation 
of motion of other digits or interference with overall 
function of the hand.  

The veteran underwent a VA physical examination in August 
2001.  On examination, he reported increased pain, decreased 
range of motion, and numbness in his right thumb.  He 
indicated that the pain was continuous and increased at 
night.  On examination, no atrophy in the right hand was 
noted, although a decrease in active and passive range of 
motion in the right thumb was observed.  The veteran was able 
to touch the tip of his thumb to the tips of the other four 
fingers.  He demonstrated a decreased cylindrical good hook 
grip; however, he was able to grasp, push, pull, twist, and 
probe with the right hand.  X-rays of the right thumb 
revealed no bony abnormalities.  

The veteran underwent an October 2006 VA hand examination, at 
which time he reported severe pain in his right thumb.  The 
veteran also reported flare ups in pain at least three or 
four times per month for one or two hours at a time.  On 
examination, no evidence of ankylosis was observed and the 
veteran was able to present functional position of the hand.  
He was also able to touch the tip of his thumb to the tips of 
the other fingers and the proximal transverse crease of the 
palm.  The veteran's strength was within normal limits for 
pushing, pulling and twisting.  His dexterity was appropriate 
and no flexion deformities interfered with the function of 
his fingers.  The examiner noted that the veteran was 
currently working as a cable television technician without 
any restrictions.

Taking into account all relevant evidence, the Board finds 
that the criteria for a compensable evaluation for the 
veteran's right thumb disability have not been met.  There is 
no evidence of either favorable or unfavorable ankylosis in 
the right thumb; therefore, the criteria for a compensable 
evaluation pursuant to Diagnostic Code 5224 are not met.  
Furthermore, the veteran is able to touch the tip of the 
right thumb to the tips of the other four fingers of the 
right hand.  On examination, the veteran has repeatedly 
demonstrated his ability to flex all of the fingers of right 
the hand normally.  Thus, the veteran has not demonstrated 
limitation of motion in the right thumb sufficient to warrant 
a compensable rating pursuant to Diagnostic Code 5228.

The Board has considered the other diagnostic codes 
pertaining to individual digits but finds no evidence that 
the evaluation of the veteran's right thumb disability as an 
amputation is warranted, or that the veteran's disability 
limits the motion of other digits or interferes with the 
overall function of his right hand.  

In reaching this decision, the Board also has considered the 
veteran's additional functional limitation due to factors 
such as pain, weakness, fatigability and incoordination. See 
38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 
202, 206-07 (1995).  In this regard, it is observed that 
those factors were considered in concluding the veteran's 
thumb is not ankylosed or that the disability produces a gap 
of one to two inches when attempting to touch the tip of the 
thumb to those of the other four fingers of the right hand; 
which exceeds the limitation of motion necessary to warrant 
the next higher 10 percent rating.  Therefore, a higher 
evaluation under these considerations is not warranted.  

In conclusion, the criteria for a compensable disability 
rating for the veteran's residuals of fracture of the right 
thumb are not met, and the claim must be denied.   

Claims to Reopen

The veteran's claims for service connection for a low back 
disability and joint pain due to undiagnosed illness were 
previously denied in an unappealed October 1997 rating 
decision.  Consequently, that determination became final. See 
38 C.F.R. § 7105.

In order to reopen this claim, new and material evidence must 
be presented.  Regulations provide that "new" evidence is 
evidence not previously submitted to agency decision makers 
which bears directly and substantially upon the specific 
matter under consideration, and is neither cumulative nor 
redundant of the evidence of record at the time of the last 
prior final denial of the claim sought to be reopened.  
"Material" evidence means existing evidence that, by itself 
or in connection with evidence previously assembled, is so 
significant that it must be considered in order to fairly 
decide the merits of the claim.  38 C.F.R. § 3.156(a) [An 
amended version of 38 C.F.R. § 3.156(a) is effective only for 
petitions to reopen filed on or after August 29, 2001, and 
does not apply here, as the instant petition to reopen was 
filed prior to that date.]

When determining whether the claim should be reopened, the 
credibility of the newly submitted evidence is presumed.  
Justus v. Principi, 3 Vet. App. 510 (1992).

The Court has clarified that, with respect to the issue of 
materiality, the newly presented evidence need not be 
probative of all the elements required to award the claim as 
in the case of claims for service connection.  Evans v. 
Brown, 9 Vet. App. 273 (1996).  However, it is the specified 
bases for the final disallowance that must be considered in 
determining whether the newly submitted evidence is 
probative. Id.  Such evidence must tend to prove the merits 
of the claim as to each essential element that was a 
specified basis for that last final disallowance of the 
claim. Id.

The evidence of record at the time of the last final rating 
action in October 1997 included the veteran's service medical 
records and VA outpatient treatment records.  A VA 
compensation and pension examination was scheduled; however, 
the veteran failed to report for his examination or show good 
cause for his absence.  Service connection was denied based 
on the lack of evidence of either a low back or joint 
disorder in service, as well as the absence of evidence of a 
current diagnosis of a low back or joint disorder.  

Evidence added to the record since the time of the last final 
denial in October 1997 includes VA and private outpatient 
treatment records noting the veteran's complaints of low back 
and joint pain.  Specifically, the veteran has reported pain 
in his lumbar spine, big toes, feet, ankles, thumbs, hands, 
and wrists bilaterally.  During a June 2002 VA general 
medical examination, limitation of motion in forward flexion 
of the thoracolumbar spine was observed, although no lumbar 
spine disabilities were diagnosed.    

Evidence received since the last final rating decision was 
not previously submitted to agency decision makers and is so 
significant that it must be considered to fairly decide the 
merits of the veteran's claims.  Specifically, the veteran's 
claims for service connection were denied in October 1997 
based on an absence of any complaints of low back or joint 
pain, as well as the veteran's failure to report for a VA 
compensation and pension examination.  The veteran has 
submitted both lay statements and competent medical evidence 
which notes his complaints of chronic low back and joint 
pain.  Although the newly submitted evidence does not reflect 
a competent diagnosis of either a low back or a joint 
disorder, the veteran claims that his disabilities are 
undiagnosed illnesses related to his Gulf War service.  The 
newly submitted evidence is sufficient to reopen the 
veteran's claims for service connection for a low back 
disorder and joint pain, as it bears directly on the matter 
at hand and is so significant that it must be considered in 
order to fairly decide the merits of the claim. 38 U.S.C.A. § 
5108; 38 C.F.R. § 3.156. 

The Board finds, therefore, that new and material evidence 
has been received, and the claims of entitlement to service 
connection for a low back disorder and joint pain due to 
undiagnosed illness are reopened. 

Service Connection

To establish service connection, three elements must be 
satisfied.  There must be (1) medical evidence of a current 
disability; (2) medical, or in certain circumstances, lay 
evidence of the in-service incurrence or aggravation of a 
disease or injury; and (3) medical evidence of a nexus 
between the claimed in-service disease or injury and the 
current disability.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 
38 C.F.R. § 3.303 (2007).  See also Hickson v. West, 12 Vet. 
App. 247, 253 (1999).   

Service connection may also be granted for any disease 
diagnosed after discharge, when all the evidence, including 
that pertinent to service, establishes that the disease was 
incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 
C.F.R. § 3.303(d) (2007).  The determination as to whether 
these requirements are met is based on an analysis of all the 
evidence of record and the evaluation of its credibility and 
probative value.  Baldwin v. West, 13 Vet. App. 1, 8 (1999).
Service medical records reveal no complaints of or treatment 
for any conditions affecting the veteran's elbows.  No 
abnormalities affecting the upper extremities were noted 
during the veteran's February 1985 enlistment examination, 
and at separation from service in March 1993, the veteran did 
not complain of elbow pain and no elbow disorders were noted 
on examination.   

A July 2000 private medical treatment note reflects the 
earliest indication of a diagnosis of bilateral elbow 
epicondylitis.  An olecranon spur was observed on x-rays 
taken during an August 2002 VA examination.  The VA examiner 
diagnosed a history of left elbow fracture with degenerative 
joint disease.  The veteran has also submitted a July 2005 
report from his private physician which reflects a current 
diagnosis of bilateral epicondylitis syndrome.  

In this case, there is no dispute that the veteran is 
currently receiving medical treatment for a bilateral elbow 
disorder.  The question is whether the veteran's current 
disability is related to service in any way.

The initial diagnosis of bilateral epicondylitis was not made 
until July 2000, more than seven years after the veteran's 
discharge from active duty.  The veteran underwent a physical 
examination at separation from service in March 1993, at 
which time neither a history of left elbow fracture nor any 
chronic symptoms which may be medically attributed to the 
current diagnosis of bilateral epicondylitis syndrome were 
noted.  Despite competent medical evidence of a current 
disability, direct service connection, based upon incurrence 
during active service, is not warranted.  38 U.S.C.A. § 1110, 
1131; 38 C.F.R. § 3.303.  The lengthy period without 
treatment and lack of documented evidence of continuity of 
symptomatology weighs against the claim. Maxson v. Gober, 230 
F.3d 1330 (Fed. Cir. 2000).  

Moreover, the Board finds that the veteran's contentions 
regarding the etiological relationship between his claimed 
bilateral elbow disabilities and active service are not 
probative, given the content of his service records.  In this 
regard, the veteran's service medical records do not reflect 
complaints of or treatment for any conditions affecting 
either elbow during active service.  
In addition, there is no competent medical opinion of record 
which relates the veteran's current disability to service.  
As a lay person, the veteran is not shown to have the 
necessary medical competence to diagnose a disability or 
offer probative opinions as to medical etiology.  Thus, no 
connection to service is shown by the medical evidence of 
record. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 
303, 305 (1992). 

Accordingly, service connection for bilateral elbow disorder 
is denied.  


ORDER

Entitlement to an increased (compensable) rating for 
residuals, fracture, right thumb is denied. 

New and material evidence to reopen claim of entitlement to 
service connection for joint pain due to an undiagnosed 
illness has been presented; to this extent, the appeal is 
granted. 

New and material evidence to reopen claim of entitlement to 
service connection for a low back disorder has been 
presented; to this extent, the appeal is granted. 

Entitlement to service connection for bilateral post-
traumatic elbow epicondylitis is denied.  


REMAND

Although the veteran's claims for service connection for a 
low back disorder and joint pain due to undiagnosed illness 
have been reopened, additional development is needed before a 
final determination may be entered.  In this regard, the 
veteran has submitted a May 2001 statement from his private 
physician which indicates he sought medical treatment for 
back and joint pains in 1994.  Also of record is a July 2005 
statement from Dr. L. J. Flores-Vilar which notes signs and 
symptoms of a low back condition.  Thus, this claim must be 
remanded to obtain an opinion regarding whether the veteran's 
low back and joint pain disorders are related to active 
service, to include as due to undiagnosed illness.  

Accordingly, these matters are remanded for the following:  

1.  Copies of VA treatment records dated 
since June 2003 should be associated with 
the claims file.  If no additional 
records exist, this should be indicated.

2.  Next, the veteran should be afforded a VA 
examination to determine the nature, severity, 
and etiology of any disability effecting the 
low back and joints.  All diagnoses are to be 
noted, including whether any disability found 
can not be attributed to any known clinical 
entity.  The claims folder should be made 
available to the examiner for review in 
conjunction with the examination, and the 
examiner should acknowledge such review in the 
examination report.

3.  Thereafter, the RO should re-adjudicate 
the issues on appeal.  If any benefit sought 
on appeal remains denied, the veteran and his 
representative should be provided a 
supplemental statement of the case and given 
an opportunity to respond, before the case is 
returned for further review.  

The appellant has the right to submit additional evidence and 
argument on the matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner.  
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).




____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs