Citation Nr: 0813282 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 05-41 143 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for chest pains; and if so, whether the claim may be granted. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for a disability manifested by blood in the stool; and if so, whether the claim may be granted. 3. Entitlement to an evaluation in excess of 20 percent for lumbar myositis prior to February 23, 2004 and entitlement to an evaluation in excess of 40 percent for lumbar myositis with resulting lumbar spine degenerative and herniated nucleus pulposus and discogenic disease. 4. Entitlement to an evaluation in excess of 20 percent for left shoulder impingement syndrome with subacromial bursitis. 5. Entitlement to an evaluation in excess of 10 percent for degenerative joint disease at T11-T12. 6. Entitlement to an evaluation in excess of 10 percent for left knee patellofemoral pain syndrome and patellar tendonitis. 7. Entitlement to an evaluation in excess of 10 percent for left plantar fasciitis, Achilles tendonitis and history of left ankle fracture. 8. Entitlement to an evaluation in excess of 10 percent for right plantar fasciitis and Achilles tendonitis. ATTORNEY FOR THE BOARD P. Olson, Associate Counsel INTRODUCTION The veteran had active military service from May 1982 to May 2002. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The issues of whether new and material evidence has been submitted to reopen a claim for service connection for chest pains and a claim for service connection for a disability manifested by blood in the stool, and entitlement to an increased evaluations for lumbar myositis with resulting lumbar spine degenerative and herniated nucleus pulposus and discogenic disease, left shoulder impingement syndrome with subacromial bursitis, and degenerative joint disease at T11- T12 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 service-connected left patellofemoral pain syndrome and patellar tendonitis is manifested by subjective complaints of radiating pain and objective evidence of flexion limited to 120 degrees, mild weakness, and crepitation; it is not manifested by instability. 2. The veteran's service-connected left foot disability (plantar fasciitis, Achilles tendonitis and history of left ankle fracture) is manifested by tenderness and pain requiring the use of multiple injection therapies, orthopedic shoes, and orthotic inserts. 3. The veteran's service-connected right foot disability (plantar fasciitis and Achilles tendonitis) is manifested by tenderness and pain requiring the use of multiple injection therapies, orthopedic shoes, and orthotic inserts. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for left knee patellofemoral pain syndrome and patellar tendonitis are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5260-5257 (2007). 2. The criteria for an evaluation of 20 percent, but no higher, for left plantar fasciitis, Achilles tendonitis and history of left ankle fracture have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5271 and 5284 (2007). 3. The criteria for an evaluation of 20 percent, but no higher, for right plantar fasciitis and Achilles tendonitis have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5271 and 5284 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the veteran's claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). I. Veterans Claims Assistance Act of 2000 VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Letters dated in September 2003 and March 2006 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Vazques-Flores v. Peake, 22 Vet.App. 37 (2008). The September 2003 letter advised the veteran that to establish entitlement to an increased evaluation for service- connected disabilities, the evidence must show that that the condition had gotten worse. The March 2006 letter advised the veteran of how VA determines disability ratings and effective dates and specifically noted that VA considers the nature and symptoms of a condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. The veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The September 2003 letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Although the March 2006 letter was not sent prior to initial adjudication of the veteran's claim, this was not prejudicial to him, since he was subsequently provided adequate notice, and the claim was readjudicated and an additional supplemental statement of the case (SSOC) was provided to the veteran in October 2006. The veteran's service medical records, VA medical treatment records, and identified private medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file. The veteran was also accorded VA examinations in October 2003. 38 C.F.R. § 3.159(c)(4). There is no objective evidence indicating that there has been a material change in the severity of the veteran's service-connected left knee and feet disorders since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The October 2003 VA examination reports are thorough and supported by VA outpatient treatment records. The examinations in this case are adequate upon which to base a decision. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). II. Increased evaluations Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, as here, the veteran is requesting a higher rating for an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). But the most recent examination is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations. Powell v. West, 13 Vet. App. 31, 35 (1999). In addition, staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In the present case, it should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. a. Left knee The veteran's service-connected left disability has been assigned a 10 percent disability rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5260-5257. 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. See 38 C.F.R. § 4.27 Diagnostic Code 5260 refers to limitation of flexion of a leg (knee) and provides a zero percent disability rating when limited to 60 degrees, 10 percent when limited to 45 degrees, 20 percent when limited to 30 degrees, and 30 percent when limited to 15 degrees. 38 C.F.R. § 4.71a, Code 5260. Normal (full) range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5257 refers to rating other impairment of the knee and provides a 10 percent evaluation for knee impairment with slight recurrent subluxation or lateral instability, a 20 percent evaluation for moderate recurrent subluxation or lateral instability, and a 30 percent evaluation for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The evidence, including VA treatment records dated from August 2002 to November 2006, reflects that the veteran has limited and painful motion of the left knee. The Board has carefully considered the evidence that the veteran has functional impairment in his left knee that interferes with his ability to stand, walk, or run for extended periods of time. 38 C.F.R. §§ 4.10, 4.40, 4.41, 4.44, 4.45, 4.59 At the October 2003 VA examination, the veteran reported that he could not run, walk as an exercise, or play billiards or basketball. At the October 2003 2002 VA examination, the veteran complained of constant left knee lateral aspect pain with radiation to the posterior aspect. Physical examination demonstrated flexion to 120 degrees and full extension with pain throughout movement and additional functional impairment due to pain. There was no objective evidence of edema, effusion, instability, redness, heat, abnormal movement or guarding of movement of the left knee. There was no tenderness to palpation. There was mild weakness of left knee extensor muscle quadriceps with mild weakness graded 4/5. There was a positive patella grinding test and crepitation on the left knee. As there is no objective evidence of recurrent subluxation or lateral instability, neither a separate rating nor a disability rating in excess of 10 percent is warranted under Diagnostic Code 5257. At its worst, physical examination of the right knee demonstrated full extension and flexion from zero to 120 degrees. Pursuant to Diagnostic Code 5261, a 20 percent rating is warranted for extension limited to 15 degrees. Thus, neither a disability rating in excess of 10 percent nor a separate rating is warranted under Diagnostic Code 5260 or Diagnostic Code 5261. As there is no objective evidence of additional functional loss of motion to 30 degrees of flexion or 15 degrees of extension, the Board finds that any functional impairment due to pain is adequately compensated by the 10 percent rating currently assigned for the left knee. The Board has considered the applicability of an alternative diagnostic code for evaluating the veteran's left knee disability, but finds that no higher rating is assignable as Diagnostic Code 5256 requires ankylosis, Diagnostic Code 5258 requires dislocated semilunar cartilage, Diagnostic Code 5262 requires impairment of the tibia and fibula, and Diagnostic Code 5263 requires genu recurvatum, all clearly not present in this case. Applying all of the appropriate diagnostic codes, the objective assessment of the veteran's left knee disability does not suggest that he has sufficient symptoms so as to warrant an evaluation in excess of 10 percent. b. Feet The veteran's service-connected foot disabilities (left plantar fasciitis, Achilles tendonitis, and history of left ankle fracture and right plantar fasciitis and Achilles tendonitis) have each been evaluated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Codes 5299-5071. The veteran's foot disabilities do not have a specific diagnostic code. When a veteran is diagnosed with an unlisted condition, it must be rated under an analogous diagnostic code. 38 C.F.R. §§ 4.20, 4.27. The diagnostic code is "built-up" by assigning the first two digits from that part of the schedule most closely identifying the part of the body involved and then assigning "99" for the last two digits for all unlisted conditions. Then, the disease is rated by analogy under a diagnostic code for a closely related disease that affects the same anatomical functions and has closely analogous symptomatology. Therefore, the veteran's service- connected foot disabilities are rated according to the analogous condition of limited motion of the ankle under Diagnostic Code 5271. Pursuant to Diagnostic Code 5271, moderate limitation of motion of an ankle warrants a 10 percent evaluation. A 20 percent rating requires marked limitation of motion, and is the maximum rating under this diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5271. The standard ranges of motion of the ankle are 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. Alternatively, the veteran's foot disabilities could be evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5284, as a foot injury. Moderate residuals of foot injuries warrant a 10 percent evaluation. A 20 percent rating requires moderately severe residuals. Severe residuals of foot injuries warrant a 30 percent evaluation. A 40 percent evaluation requires that the residuals be so severe as to result in actual loss of use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5284. The evidence, including VA treatment records dated from August 2002 to April 2006, reflects that the veteran has persistent pain and numbness in his feet, and limited and painful motion. The Board has carefully considered the evidence that the veteran has functional impairment in both feet from pain that interferes with his ability to stand or walk during extended periods of time. 38 C.F.R. §§ 4.10, 4.40, 4.41, 4.44, 4.45, 4.59 In a letter dated in August 2006, Dr. Z.V.R. noted that the veteran stated that he could only walk or stand for five minutes and then stop due to the severe discomfort of the bottom of both feet. In addition, at the October 2003 VA examination, the veteran reported that he could not run, walk as an exercise, or play billiards or basketball. At the October 2003 VA examination, the veteran reported that he was using orthopedic corrective shoes with good pain control. Physical examination demonstrated dorsiflexion of each ankle to 10 degrees and plantar flexion to 35 degrees with painful motion on all foot movements, additional functional impairment due to pain, and tenderness with dorsiflexion of each ankle. A letter dated in August 2006 authored by Dr. Z.V.R. noted that upon evaluation, severe tenderness upon palpation of the plantar fascia of both feet and moderate to severe tenderness upon range of motion of both ankles. Dr. Z.V.R. also stated that the veteran had been treated with multiple injection therapies, orthopedic shoes with insoles with not much improvement and that it was recommended that he stay off both feet as much as possible, use cushion shoe gear and take the medications prescribed. Taking such evidence into account, and considering functional loss due to pain and other factors, pursuant to 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202 (1995), the plantar fasciitis of each foot more nearly approximates the criteria for a 20 percent evaluation under Diagnostic Code 5284 as moderately severe residuals of foot injury. Accordingly, an increased rating to 20 percent for each foot is warranted. That being said, while the veteran's symptoms exceed the 10 percent rating, they do not approach the severity contemplated for the 30 percent rating. There is no evidence of ankylosis, marked deformity, or severe residuals to warrant a disability rating for each foot in excess of 20 percent under any diagnostic code. ORDER Entitlement to an evaluation in excess of 10 percent for left knee patellofemoral pain syndrome and patellar tendonitis is denied. Entitlement to an evaluation of 20 percent, but no higher, for left plantar fasciitis, Achilles tendonitis and history of left ankle fracture is granted subject to the law and regulations governing the payment of monetary benefits. Entitlement to an evaluation of 20 percent, but no higher, for right plantar fasciitis and Achilles tendonitis subject to the law and regulations governing the payment of monetary benefits. REMAND With respect to issues of whether new and material evidence has been submitted to reopen claims of entitlement to service connection for chest pains and blood in stool, the Board must address the VCAA, which, as noted above, imposes obligations on VA in terms of its duties to notify and assist claimants. A review of the claims file reveals that the veteran has not been properly notified of what evidence is needed to reopen his claim. In a decision dated in September 2002, the RO denied the veteran's claims for service connection for chest pain and blood in stools. The veteran did not appeal this decision. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2000). Thus, the September 2002 decision is final. The veteran's application to reopen his claim of service connection for chest pain and blood in stool was received in August 14, 2003. The Board notes that there has been a regulatory change with respect to the definition of new and material evidence, which applies prospectively to all claims made on or after August 29, 2001. As the veteran filed his claim after this date, the new version (cited below) applies in this case. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board notes that by a March 2004 rating decision, the RO appears to have reopened the veteran's claims but denied them on the merits. On appeal, however, the Board must make its own determination as to whether any newly submitted evidence warrants a reopening of the claims. This is important because the preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claims on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Therefore, it is apparent that the Board must remand this case to ensure that the veteran is properly notified of the VCAA and to determine whether all evidence needed to consider the claim has been obtained. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Similarly, with respect to the issues of entitlement to an increased evaluations for lumbar myositis with resulting lumbar spine degenerative and herniated nucleus pulposus and discogenic disease, left shoulder impingement syndrome with subacromial bursitis, and degenerative joint disease at T11- T12, a review of the claims file reveals that the veteran has not been properly notified of the provisions of the VCAA. In the recent decision in Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008), the U.S. Court of Appeals for Veteran found that, at a minimum, adequate VCAA notice requires that VA notify the claimant that, to substantiate such a claim: (1) the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. The Board notes that the veteran's lumbar spine disability, left shoulder disability, and thoracic spine disability are evaluated under diagnostic codes that contains criteria not necessarily satisfied by him demonstrating a noticeable worsening. Therefore, it is apparent that the Board must remand this case to ensure that the veteran is properly notified of the VCAA and to determine whether all evidence needed to consider the claim has been obtained. Finally, the veteran receives routine treatment at the VA Medical Center in San Juan and the Outpatient Treatment Center in Ponce. While this case is in remand status, the RO should obtain all records of current treatment. In reviewing the VA records in the file, the Board notes no records were obtained since November 2006. Accordingly, the case is REMANDED for the following action: 1. Development contemplated by the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) should be undertaken in accordance with the decisions in Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004), Kent v. Nicholson, 20 Vet. App. 1 (2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008), as well as 38 U.S.C.A. 5102, 5103, and 5103A, 38 C.F.R. § 3.159, and any other applicable legal precedent. With respect to the increased rating claims, the veteran should be notified that, to substantiate a claim, the veteran must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. The veteran must also be provided general notice of the requirements under the diagnostic codes under which the veteran's service- connected disabilities are rated (General Rating Formula for Diseases and injuries of the Spine, and Diagnostic Code 5201) as well as examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation, e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. 2. All VA treatment records pertaining to treatment from December 2006 to the present from the VA medical center in San Juan and from the Outpatient Treatment Center in Ponce should be obtained. All necessary follow-up efforts must be made to obtain the records, until it is clear from the responses received that further requests would be futile. 3. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs