Citation Nr: 0813445	
Decision Date: 04/24/08    Archive Date: 05/01/08

DOCKET NO.  96-26 758	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, 
California


THE ISSUES

1.  Entitlement to service connection for post-traumatic 
stress disorder (PTSD).  

2.  Entitlement to service connection for systemic lupus 
erythematous (SLE).  

3.  Entitlement to service connection for migraine headaches.  

4.  Entitlement to service connection for allergic rhinitis 
with sinusitis.  

5.  Entitlement to an increased rating for patellofemoral 
syndrome of the left knee, currently evaluated as 10 percent 
disabling.  

6.  Entitlement to an increased (compensable) rating for 
residuals of a fracture of the right proximal fifth 
metacarpal.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans




WITNESS AT HEARINGS ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Brian J. Milmoe, Counsel


INTRODUCTION

The veteran served on active duty from June 1988 to February 
1992.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from rating decisions entered by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Oakland, California, denying entitlement to service 
connection and increased ratings for various disorders.  

Pursuant to her request, the veteran was afforded an RO 
hearing in June 1997, as well as a hearing before the Board, 
sitting at the RO, in March 2007.  A transcript of each 
proceeding is of record.  At the Board hearing in 2007, the 
veteran indicated that she was seeking a temporary total 
rating following arthroscopic left knee surgery in January 
2006.  Such matter is beyond the Board's jurisdiction for 
review at this time and it is referred to the RO for initial 
development and adjudication.  

The issues of the veteran's entitlement to service connection 
for SLE and for allergic rhinitis with sinusitis and to an 
increased rating for a left knee disorder are addressed in 
the REMAND portion of the decision below and are REMANDED to 
the RO via the VA's Appeals Management Center (AMC) in 
Washington, DC.  



FINDINGS OF FACT

1.  While there is competent evidence of a diagnosis of PTSD 
linked to a sexual assault; in the absence of any 
corroborating evidence, the preponderance of the evidence is 
against verification of an alleged in-service rape.  

2.  Service medical records identify multiple complaints of 
headaches; medical data confirm the existence of migraine 
headaches as early as within a year of service with a 6 month 
history of such headaches; it is at least as likely as not 
that the veteran's migraine headaches began during service.  

3.  The veteran's service-connected residuals of a fracture 
of the right proximal fifth metacarpal are manifested by pain 
and slight limitation of motion; indicia of ankylosis, 
arthritis, or manifestations tantamount to amputation are 
absent.  


CONCLUSIONS OF LAW

1.  PTSD was not incurred in or aggravated by military 
service.  38 U.S.C.A. §§ 1110, 1131, 5100, 5102, 5103, 5103A, 
5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 
3.303, 3.303, 3.304 (2007).  

2.  With application of the doctrine of reasonable doubt, 
migraine headaches were incurred in active service.  38 
U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2008); 38 
C.F.R. §§ 3.102, 3.303 (2007).  

3.  The criteria for the assignment of an increased 
(compensable) rating for service-connected residuals of a 
fracture of the right fifth metacarpal have not been met.  38 
U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002 & 
Supp. 2008); 38 C.F.R. § 4.71a, Diagnostic Code 5227 (2002); 
38 C.F.R. §§ 3.102, 3.159, 3.326, 4.2, 4.3, 4.6, 4.7, 4.10, 
4.40, 4.45. 4.59, 4.71a, Diagnostic Codes 5227, 5230 (2007).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Preliminary Considerations

Under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. 
L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000), VA first has a 
duty to provide an appropriate claim form, instructions for 
completing it, and notice of information necessary to 
complete the claim if it is incomplete.  38 U.S.C.A. § 5102; 
38 C.F.R. §  3.159(b)(2).  Second, VA has a duty to notify 
the appellant of the information and evidence needed to 
substantiate and complete a claim, notice of what part of 
that evidence is to be provided by the claimant, and notice 
of what part VA will attempt to obtain for the claimant.  38 
U.S.C.A. § 5103(a); Charles v. Principi, 16 Vet. App. 370, 
373-74 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 187 
(2002).  Third, VA has a duty to assist claimants in 
obtaining evidence needed to substantiate a claim.  This 
assistance includes obtaining all relevant evidence 
adequately identified in the record, and in some cases, 
affording VA examinations.  38 U.S.C.A. § 5103A; 38 C.F.R. 
§ 3.159.  Finally, VA has a duty to notify the appellant that 
he or she should submit all pertinent evidence in his 
possession.

During the pendency of this appeal, a decision was entered by 
the United States Court of Appeals for Veterans Claims 
(Court) in the consolidated appeal of Dingess/Hartman v. 
Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA 
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. 
§ 3.159(b) apply to all five elements of a service connection 
claim.  Those five elements include: 1) Veteran's status; 2) 
existence of disability; 3) a connection between the 
veteran's service and the disability; 4) degree of 
disability; and 5) effective date of the disability.  The 
Court held that the VCAA notice must include notice that a 
disability rating and an effective date for the award of 
benefits will be assigned if service connection is awarded.  

For an increased-compensation claim, 38 U.S.C.A. § 5103(a) 
requires, at a minimum, that the Secretary notify the 
claimant that, to substantiate a claim, the claimant must 
provide, or ask the Secretary 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.  Vazquez-Flores v. 
Peake, 22 Vet. App. 37 (2008).  Further, if the Diagnostic 
Code (DC) 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 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.  
Additionally, the claimant must be notified that, should an 
increase in disability be found, a disability rating will be 
determined by applying relevant DCs, which typically provide 
for a range in severity of a particular disability from 
noncompensable to as much as 100 percent (depending on the 
disability involved), based on the nature of the symptoms of 
the condition for which disability compensation is being 
sought, their severity and duration, and their impact upon 
employment and daily life.  As with proper notice for an 
initial disability rating and consistent with the statutory 
and regulatory history, the notice must also provide examples 
of the types of medical and lay evidence that the claimant 
may submit (or ask the Secretary 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.  Id. 

In this case, the Board finds that there is no issue as to 
providing an appropriate application form or completeness of 
the application.  Written notice of the information and 
evidence needed by the veteran-appellant to substantiate and 
complete her claims, notice of what part of that evidence is 
to be provided by the claimant, and notice of what part VA 
will attempt to obtain for the appellant was provided to her 
through the RO's VCAA letters of September 2002, May and 
August 2003, and May 2005.  The appellant was thereby 
notified that she should submit all pertinent evidence in her 
possession.  The record further reflects that the veteran was 
advised of the Court's holding in Dingess/Hartman by the RO's 
March 2006 correspondence to the veteran.

VCAA notice is to be furnished to a claimant before the 
initial unfavorable agency of original jurisdiction (AOJ) 
decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 
(2004).  Here, the initial VCAA notice letters were prepared 
and furnished to the veteran-appellant subsequent to the RO's 
initial decision as to the claims for service connection for 
migraine headaches and an increased rating for a finger 
fracture, although the VCAA letter regarding PTSD of August 
2003 was issued prior to the initial PTSD denial in October 
2003, in accord with Pelegrini.  Notice of the holding in 
Dingess-Hartman was furnished subsequent to all initial 
adjudications.  

Where, as here, the VCAA notice is defective, the Board must 
presume that the error was prejudicial, and VA bears the 
burden of rebutting said presumption.  Sanders v. Nicholson, 
487 F.3d 881 (2007) (recognizing that "VCAA notice errors 
are reviewed under a prejudicial error rule" and holding 
that "all VCAA notice errors are presumed prejudicial and . 
. . VA has the burden of rebutting this presumption"); see 
also Mayfield v. Nicholson, 19 Vet. App. 103, 111-16 (2005), 
rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

In Sanders, the Federal Circuit held that any error by VA in 
providing the notice required by 38 U.S.C.A. § 5103(a) and 38 
C.F.R. § 3.159(b)(1) is presumed prejudicial and that once an 
error is identified by the Veterans Court (Court of Appeals 
for Veterans Claims), the burden shifts to VA to demonstrate 
that the error was not prejudicial.  The Federal Circuit 
reversed the Court of Appeals for Veterans Claims' holding 
that an appellant before the Court has the initial burden of 
demonstrating prejudice due to VA error involving: (1) 
providing notice of the parties' respective obligations to 
obtain the information and evidence necessary to substantiate 
the claim: (2) requesting that the claimant provide any 
pertinent evidence in the claimant's possession; and (3) 
failing to provide notice before a decision on the claim by 
the agency of original jurisdiction.  

An error "whether procedural or substantive, is prejudicial 
when [it] affects a substantial right so as to injure an 
interest that the statutory or regulatory provision involved 
was designed to protect such that the error affects 'the 
essential fairness of the [adjudication].'"  Mayfield, supra, 
at 116; accord Sanders.  That is, "the key to determining 
whether an error is prejudicial is the effect of the error on 
the essential fairness of the adjudication."  Id.  "[A]n 
error is not prejudicial when [it] did not affect 'the 
essential fairness of the [adjudication],'" Mayfield, supra, 
at 121, and non-prejudicial error may be proven by a showing 
that "the purpose of [VCAA] notice was not frustrated, e.g., 
by demonstrating: (1) that any defect was cured by actual 
knowledge on the part of the claimant, (2) that a reasonable 
person could be expected to understand from the [defective] 
notice what was needed, or (3) that a benefit could not have 
been awarded as a matter of law."  Sanders, 487 F.3d at 889.  
accord Dalton v. Nicholson, 21 Vet. App. 23, 30 (2007) 
(determining that no prejudicial error to veteran resulted in 
defective VCAA notice when the veteran, through his counsel, 
displayed actual knowledge of the information and evidence 
necessary to substantiate his claim).  Accordingly, "there 
could be no prejudice if the purpose behind the notice has 
been satisfied . . . that is, affording a claimant a 
meaningful opportunity to participate effectively in the 
processing of [the] claim. . . ."  Mayfield, supra, at 128.

To show that the error did not affect the essential fairness 
of the adjudication, VA must demonstrate that the purpose of 
the notice was not frustrated, such as by demonstrating:  
(1) That any defect was cured by actual knowledge on the part 
of the claimant, per Vazquez-Flores ("(a)ctual knowledge is 
established by statements or actions by the claimant or the 
claimant's representative that demonstrate an awareness of 
what was necessary to substantiate his or her claim.") 
(citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); 
(2) that a reasonable person could be expected to understand 
from the notice what was needed; or (3) that a benefit could 
not have been awarded as a matter of law.  Sanders, 487 F.3d 
at 889.  Additionally, consideration also should be given to 
"whether the post-adjudicatory notice and opportunity to 
develop the case that is provided during the extensive 
administrative appellate proceedings leading to the final 
Board decision and final Agency adjudication of the claim ... 
served to render any pre-adjudicatory section 5103(a) notice 
error non-prejudicial."  Vazquez-Flores, supra.  

The record in this instance demonstrates that full VCAA 
notice was effectuated prior to the issuance of a 
supplemental statement of the case by the RO in December 
2006.  See Prickett v. Nicholson, 20 Vet. App. 370, 376-78 
(2006) (validating the remedial measures of issuing fully 
compliant VCAA notification and readjudicating the claim in 
the form of a supplemental statement of the case to cure 
timing of a notification defect).  More timely VCAA notice 
would not have operated to alter the outcome of the issue on 
appeal, in view of the fact that the record does not identify 
a factual predicate for entitlement to service connection for 
PTSD or an increased schedular rating for residuals of a 
fracture of the right fifth finger (although a plausible 
basis for service connection for migraine headaches is 
presented).  Sanders, supra (recognizing that "a 
demonstration that the outcome would not have been different 
in the absence of the error would demonstrate that there was 
no prejudice").  In view of the foregoing, the Board cannot 
conclude that any defect in the timing of the notice provided 
affected the essential fairness of the adjudication, and, 
thus, the presumption of prejudice is rebutted.  Id.

As to the claim for service connection for PTSD, as explained 
in detail in the analysis below, the RO met all of its duties 
with regard to such a claim based upon an alleged in-service 
sexual assault.  See Patton v. West, 12 Vet. App. 272 (1999); 
YR v. West, 11 Vet. App. 393, 398-99 (1998). 

The allegations offered by and on behalf of the veteran 
regarding her claim for increase for her right finger 
fracture reflect actual knowledge of the basis for rating of 
the disorder at issue; namely, criteria for amputations, 
ankylosis, and limitation of motion.  On that basis, the 
Board cannot conclude that prejudice would result to the 
appellant were the Board to enter a final decision as to her 
claim for increase.  See Bernard v. Brown, 4 Vet. App. 384 
(1993). 

Finally, all pertinent examination and treatment records have 
been obtained and made a part of the appellant's claims 
folder to the extent that such records have been adequately 
identified or are otherwise available.  Notice is taken that 
the evidence of record includes the veteran's service medical 
and personnel records, as well as voluminous examination and 
treatment reports compiled by VA and non-VA sources during 
post-service years.  The record reflects that the appellant 
was afforded multiple VA medical examinations during the 
appeal period with respect to her claim for increase for 
residuals of a finger fracture.  She was also afforded a VA 
medical evaluation for her migraine headaches, although no 
examination regarding her PTSD claim was accorded her and, in 
view of the fact that credible supporting evidence of a 
stressor is lacking, none is warranted.  Given that there is 
ample competent evidence of record to render an appellate 
decision, there is no duty to provide any further examination 
or to obtain any additional medical opinion.  38 U.S.C.A. 
§ 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. 
Nicholson, 20 Vet. App. 79, 83 (2006); Wells v. Principi, 326 
F.3d 1381, 1384 (Fed. Cir. 2003).

In view of the foregoing, the Board finds that VA has 
satisfied its duties under the VCAA.  

Service Connection: PTSD

Applicable law provides that service connection will be 
granted if it is shown that the appellant suffers from 
disability resulting from an injury suffered or disease 
contracted in line of duty, or for aggravation of a 
preexisting injury or disease in line of duty, in the active 
military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 
38 C.F.R. § 3.303.  Service connection also may be granted 
for any disease initially diagnosed after discharge, when all 
the evidence, including that pertinent to service, 
establishes that the disease was incurred in service.  38 
C.F.R. § 3.303(d).

Service connection generally requires evidence of a current 
disability with a relationship or connection to an injury or 
disease or some other manifestation of the disability during 
service.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 
2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) 
(citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)).  
Where the determinative issue involves medical causation or a 
medical diagnosis, there must be competent medical evidence 
to the effect that the claim is plausible; lay assertions of 
medical status do not constitute competent medical evidence.  
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).

Alternatively, the nexus between service and the current 
disability can be satisfied by medical or lay evidence of 
continuity of symptomatology and medical evidence of a nexus 
between the present disability and the symptomatology.  See 
Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 
Vet. App. 488, 495 (1997).

It is neither alleged, nor shown, that the appellant engaged 
in combat with the enemy during her period of military 
service.  To that extent, the provisions of 38 U.S.C.A. 
§ 1154(b) (West 2002) are not for application in this 
instance and it is noteworthy that, even were that statute 
applicable to the facts of this case, 38 U.S.C.A. § 1154(b) 
does not address the questions of the existence of a present 
disability or of a nexus between such disability and service, 
both of which are still required for a grant of service 
connection.

In this instance, the veteran alleges that her PTSD is the 
result of an in-service rape by a fellow service person.  
Service connection for PTSD requires medical evidence 
diagnosing the condition in accordance with 38 C.F.R. 
§ 4.125(a); a link, established by medical evidence, between 
current symptoms and an in-service stressor; and credible 
supporting evidence that the claimed in-service stressor 
occurred.  38 C.F.R. § 3.304(f).  Service connection for PTSD 
requires a verified stressor unless the veteran engaged in 
combat and such combat is the alleged stressor.  Id.  Given 
that there is no allegation or showing of combat, the issue 
to be resolved is whether there is credible supporting 
evidence of the in-service rape.

A PTSD claim based upon personal assault involves different 
considerations.  38 C.F.R. § 3.304(f)(3).  In Patton v. West, 
12 Vet. App. 272, 280 (1999) (quoting Cohen v. Brown, 10 Vet. 
App. 128, 145 (1997), the Court recognized that it had at one 
point held "an opinion by a mental health professional based 
on a post-service examination of the veteran cannot be used 
to establish the occurrence of a stressor[.]"  The latter 
statement, however, had been made in the "context of 
discussing PTSD diagnoses other than those arising from 
personal assault."  Id.  As to personal-assault cases, the 
Court noted that VA had provided for special evidentiary 
development procedures, "including interpretation of behavior 
changes by a clinician and interpretation in relation to a 
medical diagnosis."  Id.

The Board specifically notes that if a PTSD claim is based on 
a claimed in-service personal assault, evidence from sources 
other than the veteran's service records may corroborate the 
veteran's account of the stressor incident.  Examples of such 
evidence include, but are not limited to: records from law 
enforcement authorities, rape crisis centers, mental health 
counseling centers, hospitals, or physicians; pregnancy tests 
or tests for sexually-transmitted diseases; and roommates, 
fellow service members, or clergy.  Evidence of behavior 
changes following the claimed assault is one type of relevant 
evidence that may be found in these sources. Examples of 
behavior changes that may constitute credible evidence of the 
stressor include, but are not limited to: a request for a 
transfer to another military duty assignment; deterioration 
in work performance; substance abuse; episodes of depression, 
panic attacks, or anxiety without an identifiable cause; or 
unexplained economic or social behavior changes.  See M21- 
1MR, Part IV, Subpart ii, Chapter 1, Section D, Subsection 17 
(Dec. 13, 2005); 38 C.F.R. § 3.304(f)(3).

VA will not deny a PTSD claim that is based on in-service 
personal assault without first advising the claimant that 
evidence from sources other than the veteran's service 
records or evidence of behavior changes may constitute 
credible supporting evidence of the stressor and allowing him 
or her the opportunity to furnish this type of evidence or 
advise VA of potential sources of such evidence.  VA may 
submit any evidence that it receives to an appropriate 
medical or mental health professional for an opinion as to 
whether it indicates that a personal assault occurred.  38 
C.F.R. § 3.304(f)(3).

Compliance with the various regulatory requirements and the 
Manual provisions pertaining to personal assault, including 
rape, was effectuated through the RO's August 2003 
correspondence to the appellant, wherein evidence tending to 
corroborate the claimed stressor was requested.  

Here, the veteran alleges that her rape was perpetrated 
during 1989 by a known acquaintance with whom she had a 
dinner date and had invited into her quarters following the 
date.  Testimony in July 2007 was to the effect that the rape 
occurred in February 1989, although the veteran in her 
substantive appeal, received by the RO in February 2004, 
indicated that the date of the rape was August [redacted], 1989.  Her 
assailant, whom the veteran refers to only as "[redacted]," is 
alleged to have demanded sexual intercourse and when the 
veteran refused, the assailant overpowered her and forced 
himself upon her.  The veteran asserts that she was scratched 
and bruised as a result of the rape, although medical 
assistance was not sought or obtained as a result.  She 
further avers that she was threatened that the assailant 
would falsely alter her listed body weight when she came to 
him for a weigh-in while in the weight management program to 
which she was assigned.  It is also reported by the veteran 
that she advised her supervisor and commanding non-
commissioned officer of the rape and that they instructed her 
that they would investigate, but no such investigation was 
then undertaken.  She further links a sexually transmitted 
disease, genital warts, which were medically documented in 
December 1991, to the in-service rape.  As well, she 
testifies that she voiced complaints of the in-service rape 
and associated depression at the time of her separation 
medical examination.  

Notwithstanding the veteran's recollection of the in-service 
rape and her testimony as to its occurrence and its 
aftermath, credible supporting evidence that it occurred is 
absent from the record.  Service medical and personnel 
records provide no corroboration of such rape, to include any 
documentation of the veteran's complaint to her superior or 
commanding officer, medical or psychiatric treatment at or 
about the time of the incident, or other evidence of 
behavioral changes experienced by her which were consistent 
with the claimed rape.  Testing for the presence of the human 
immunodeficiency virus was undertaken in 1988, prior to the 
date of the claimed rate, and there is no indication that a 
pregnancy test was sought at any time during 1989.  On the 
basis of her complaints of vaginal bleeding and cramping in 
November 1989, testing for the Chlamydia antigen was 
undertaken in November 1989 and found to be negative, with 
repeat testing occurring in December 1990, also with negative 
results.  

On a general medical evaluation by the service department in 
September 1989, the veteran denied having or having had 
depression or excessive worry, although she noted the 
presence of depression on a separation medical evaluation in 
December 1991, when the examining physician then stated in a 
report of medical history that her depression had been self-
diagnosed and treated in 1989 and was "NC," meaning no 
casualty or no change.  Contrary to the veteran's testimony, 
no history of an in-service rape was noted on that occasion 
either by herself or the examining physician.  Service 
medical records denote treatment in December 1991 for 
vulvular condyloma, a sexually transmitted infection, but 
aside from the veteran's own assertions, the record fails to 
any way link the veteran's condyloma in December 1991 to the 
rape during 1989.  

By her own admission, the veteran did not divulge to any 
other person, other than her supervisor and commanding non-
commissioned officer, that she had been raped, nor is there 
any indication that any writing contemporaneous with the 
rape, such as a diary, was compiled as might tend to verify 
the existence of the claimed event.  Testimony was received 
to the effect that she did not seek counseling from a member 
of the clergy or rape crisis center or otherwise confide in 
her roommate, family member, or other person as to the 
occurrence of the rape in February or August 1989.  While the 
veteran indicated at her March 2007 hearing that she had 
requested a transfer following the rape, the record reflects 
that she served at Hickam Air Force Base in Hawaii from 
January 1989 to February 1992, when she was transferred to 
Travis Air Force Base for separation.  

In-service participation in a weight management program is 
shown by service personnel records, and her failure to 
progress in that program is shown to have led to her eventual 
separation from service.  Such records reflect disciplinary 
actions based on her lack of success in the weight program, 
but do not reveal any deterioration in work performance; 
substance abuse; episodes of depression, panic attacks, or 
anxiety without an identifiable cause; or unexplained 
economic or social behavior changes.  

Notice is taken that the veteran's weight management records 
compiled in service reveal the surname of an individual whose 
first name is "[redacted]," and who recorded the veteran's weight 
on several occasions.  Whether this individual is the 
"[redacted]" that was the veteran's assailant is unknown and, 
while the Board takes note of the veteran's request for VA to 
make personal contact with that individual or to obtain his 
service records in an effort to assist the veteran, the Board 
lacks the authority to do so, largely based on Privacy Act 
concerns.  

The Board is bound by laws enacted by the Congress and the 
regulations promulgated by VA and, in this instance, there is 
a need for credible supporting evidence that an in-service 
rape occurred.  Here, the record does not permit the Board to 
so find and given that such rape is the lone, alleged 
stressor leading to the onset of the veteran's diagnosed 
PTSD, it necessarily follows that a preponderance of the 
evidence is against the veteran's entitlement to service 
connection for PTSD.  The Board is thus compelled to deny the 
claim for service connection for PTSD.  

Service Connection:  Migraine Headaches

In-service complaints by the veteran with respect to 
headaches are noted, only some of which were attributed by 
attending medical providers to unrelated disorders, such as 
an upper respiratory infection or allergies.  In fact, an in-
service diagnosis of tension headaches was recorded in May 
1991.  Medical assistance is likewise shown to have been 
received by the veteran for migraine headaches in January 
1993, when a history of migraines of six months' duration was 
set forth.  Further treatment for chronic disablement due to 
migraine headaches is thereafter demonstrated by the record.  
The veteran has provided a history consistent with migraine 
headaches from a point in time in which she was serving on 
active duty and a continuation thereof during post-service 
years.  Inasmuch as the veteran is competent to testify as to 
the occurrence of her headaches and their frequency and in 
view of the fact that migraine headaches were diagnosed 
within months of service and treatment records show that they 
have continued thereafter, the relevant evidence of record, 
in the aggregate, is at least in equipoise and therefore 
warrants the conclusion that her migraine headaches were 
incurred in service.  Accordingly, service connection for 
migraine headaches is warranted.  

Increased Rating:  Fracture of the Right Fifth Metacarpal

Disability evaluations are determined by the application of a 
schedule of ratings which is based on average impairment of 
earning capacity.  Separate DCs identify the various 
disabilities.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4.  Each 
disability must be viewed in relation to its history and 
there must be emphasis upon the limitation of activity 
imposed by the disabling condition.  38 C.F.R. § 4.1.  
Examination reports are to be interpreted in light of the 
whole recorded history, and each disability must be 
considered from the point of view of the appellant working or 
seeking work.  38 C.F.R. § 4.2.  Where there is a question as 
to which of two disability evaluations shall be applied, the 
higher evaluation is to be assigned if the disability picture 
more nearly approximates the criteria required for that 
rating. Otherwise, the lower rating is to be assigned.  38 
C.F.R. § 4.7.

By rating action in February 1993, the RO granted entitlement 
to service connection for residuals of a fracture of the 
right fifth metacarpal, with assignment of a 0 percent 
evaluation therefor under DC 5299-5227, effective from 
February 1992.  The 0 percent schedular evaluation has 
remained in effect since that time.  Notice is taken that by 
separate action of the RO, service connection has been 
established for right distal ulnar neuropathy and carpal 
tunnel syndrome, secondary to the fracture of the right fifth 
metacarpal, and to that extent, such disorders and their 
related manifestations, inclusive of neurological impairment 
involving sensory loss and related diminution of grip 
strength, are not for consideration in connection with the 
instant appeal.  

Handedness for the purpose of a dominant rating will be 
determined by the evidence of record, or by testing on VA 
examination.  Only one hand shall be considered dominant.  
The injured hand, or the most severely injured hand, of an 
ambidextrous individual will be considered the dominant hand 
for rating purposes.  38 C.F.R. § 4.69 (2007).  

The Board notes that VA's criteria for evaluating finger 
injuries were revised, effective August 26, 2002.  See 67 
Fed. Reg. 48784-48787 (July 26, 2002).  Because of this fact, 
the question arises as to which set of rating criteria 
applies.  See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 
2003) (the rule of Karnas v. Derwinski, 1 Vet. App. 308 
(1991), that the version most favorable to the claimant be 
applied when there has been a change in rating criteria has 
been overruled to the extent that it conflicts with authority 
established by the Supreme Court and United States Court of 
Appeals for the Federal Circuit); see also VAOPGCPREC 7-
2003,69 Fed. Reg. 25179 (2004).

"[C]ongressional enactments and administrative rules will not 
be construed to have retroactive effect unless their language 
requires this result."  Landgraf v. USI Film Prods., 511 U.S. 
244, 272 (1994) (quoting Bowen v. Georgetown Univ. Hosp., 488 
U.S. 204, 208 (1988)); Dyment v. Principi, 287 F.3d 1377, 
1385 (Fed. Cir. 2002), and Bernklau v. Principi, 291 F.3d 
795, 804 (Fed. Cir. 2002).  Karnas has been overruled to the 
extent it is inconsistent with the Supreme Court's holdings.  
Kuzma, supra.

VA's General Counsel has held that a liberalizing law would 
generally not have prohibited retroactive effects.  If a 
veteran could receive a higher evaluation under the new 
criteria, the effect of the change would be liberalizing.  
Therefore, the Board will consider the claim under the old 
rating criteria for the entire period of the appeal, and 
under the new criteria from the effective date of the noted 
revisions.

The former rating criteria provided a noncompensable 
disability rating for ankylosis of any finger other than the 
thumb, index finger, or middle finger.  38 C.F.R. § 4.71a, DC 
5227 (2002).  The former criteria also provided that 
extremely unfavorable ankylosis would be rated as amputation 
under DCs 5152 through 5156.

The new criteria provide for a noncompensable evaluation for 
ankylosis of the little finger, whether it is favorable or 
unfavorable.  38 C.F.R. § 4.71a, DC 5227 (effective from 
August 26, 2002).  Again, a noncompensable rating is the only 
schedular rating available for this disorder.  Pursuant to 
the note following DC 5227, VA may also 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 new rating criteria also provide evaluations for 
limitation of motion of the fingers, and, for the little 
finger, the only schedular rating assignable is a 
noncompensable rating for any degree of limitation of motion, 
whether it affects the minor or the major hand.  38 C.F.R. 
§ 4.71a, DC 5230.

In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held 
that in evaluating a service-connected joint disability, the 
Board erred in not adequately considering functional loss due 
to pain under 38 C.F.R. § 4.40 and functional loss due to 
weakness, fatigability, incoordination or pain on movement of 
a joint under 38 C.F.R. § 4.45.  

Notice is taken that in Hart v. Mansfield, 21 Vet. App. 505 
(2007), the Court held that "staged ratings are appropriate 
for an increased-rating claim when the factual findings shown 
distinct time periods where the service-connected disability 
exhibits symptoms that would warrant different ratings."  
The Court found no basis for drawing a distinction between 
initial ratings and increased-rating claims for applying 
staged ratings.  

In connection with the veteran's claim for increase filed in 
January 1995, she has alleged that a compensable rating is 
warranted on the basis of diminished range of motion, pain, 
and neurological impairment involving sensory loss.  As 
indicated above, neurological impairment, including that 
pertaining to sensory loss, is not herein at issue, as it is 
a manifestation of separately rated right ulnar neuropathy 
and carpal tunnel syndrome.  

In this case, regardless of which criteria are used to 
evaluate the veteran's service-connected residuals of a fifth 
finger fracture, a compensable rating is not warranted, based 
on all the pertinent evidence including data obtained on VA 
medical examinations April 1995, April 1996, August 1997, 
September 2001, and June 2005.  The initial VA medical 
evaluation in 1995 identified full flexion and extension of 
all fingers and there was no overt angulation of the fifth 
metacarpal.  Tenderness over the fifth metacarpal was shown 
in April 1996, but the veteran was able to approximate the 
tips of her fourth and fifth fingers to the thumb and to 
reach the transverse palmar crease.  No evidence of deformity 
or arthritic involvement was shown on examination in 
September 1997, and in September 2001, there was a full range 
of motion, without evidence of arthritis.  On evaluation in 
June 2005, tenderness in the affected area was shown, and it 
was indicated that the proximal interphalangeal joint of the 
right fifth finger lacked five degrees of full extension but 
that there was full flexion.  As well, the veteran was able 
to bring her finger to nearly touch the fifth 
metacarpophalangeal joint.  

The prior rating criteria did not provide an evaluation for 
limitation of motion, and the new rating criteria only 
provide a noncompensable evaluation for any limitation of 
motion of the little finger, no matter how severe.  While the 
veteran has alleged that her right fifth finger is ankylosed, 
ankylosis is defined as immobility and consolidation of a 
joint due to disease, injury, or surgical procedure.  See 
Lewis v. Derwinski, 3 Vet. App. 259 (1992); Dorland's 
Illustrated Medical Dictionary 86 (28th ed. 1994).  
Notwithstanding a showing of some limitation of motion on one 
or more recent examinations, a showing of ankylosis is 
lacking throughout the appeal period.  Moreover, favorable 
ankylosis would only warrant a noncompensable rating under 
the old and new rating criteria.  There is certainly no basis 
for finding the severity of the veteran's right little finger 
disability is equivalent to extremely unfavorable ankylosis 
or amputation.  The Board further notes that the veteran's 
right fifth finger disability does not result in limitation 
of motion of other digits or interference with the overall 
function of the hand.  Accordingly, a compensable evaluation 
is not warranted under either the old or new criteria.

The Board has considered whether an increased disability 
rating is warranted for the veteran's right fifth finger 
disorder based on functional loss due to pain, weakness and 
flare-ups, pursuant to 38 C.F.R. §§ 4.40 and 4.45 and the 
Court's holding in DeLuca.  The focus of DC 5227 is upon 
ankylosis, not range of motion, and consideration of pain and 
functional loss is required only with respect to those DCs 
where the basis for rating is limitation of motion.  See 
Johnson v. Brown, 9 Vet. App. 7, 11 (1996).  Under DC 5230, 
which is range of motion based, the Board notes that the 
Court determined in Johnston v. Brown, 10 Vet. App. 80, 85 
(1997), that if a claimant was already receiving the maximum 
disability rating available based on symptomatology that 
includes limitation of motion, it is not necessary to 
consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable.  
In this case, a compensable rating for limitation of motion 
of the small finger is not possible under DC 5230.  
Therefore, 38 C.F.R. §§ 4.40, 4.45 are not applicable.  
Johnston, supra.  Moreover, there is no showing of arthritis 
in this case, such that the minimum compensable rating might 
be for assignment under 38 C.F.R. § 4.59.  

In all, a preponderance of the evidence is against 
entitlement to an increased (compensable) rating for the 
residuals of a fracture of the right fifth metacarpal at any 
point during the appeal period.  Denial of the veteran's 
claim for increase is thus in order.  

ORDER

Service connection for PTSD is denied.  

Service connection for migraine headaches is granted.  

Entitlement to an increased (compensable) rating for 
residuals of a fracture of the right fifth metacarpal is 
denied.  


REMAND

The veteran alleges that she continues to be bothered by 
pain, swelling, and instability of her left knee following 
arthroscopic left knee surgery in January 2006.  Such 
procedure disclosed mild patellar chondromalacia, mild laxity 
of the anterior cruciate ligament.  In order to assess the 
current nature and severity of the veteran's service-
connected patellofemoral syndrome of the left knee, further 
VA medical examination is found to be in order.  See 
38 C.F.R. § 3.327 (2007); see also, e.g., Caffrey v. Brown, 6 
Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 
(1991).  

Regarding the veteran's claim for service connection for 
allergic rhinitis and sinusitis, the veteran requested VA 
assistance during the course of her Board hearing in March 
2007 to obtain medical records compiled by the service 
department when she was a child and receiving medical care as 
a dependent of a service person.  Such records are alleged to 
be significant as they are proffered to show that while her 
rhinitis and/or sinusitis may have been present prior to 
service, they were not nearly as severe at that point as when 
she was serving on active duty.  Such records allegedly will 
thus assist her in proving in-service aggravation.  
38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2007).  
Pursuant to the VA's duty to assist the veteran in the 
development of all pertinent evidence in support of her 
claim, further development to obtain any available service 
department records compiled during the veteran's childhood is 
deemed necessary.  38 C.F.R. § 3.159(c)(1) (2007).

To date, the veteran has not been afforded a VA medical 
examination in order to determine the etiology of her SLE.  
She alleges that such disorder began in service or as a 
result of service, as manifested by various bone and joint 
complaints, fatigue, and depression, although not diagnosed 
until after her discharge from service.  Following her 
service discharge, the existence of leukopenia or lymphopenia 
dates by history to 1994, based on an October 1998 entry that 
such had been present for a four-year period, although SLE is 
not shown to have been diagnosed until approximately 1999.  
Further medical input, to include a medical opinion as to the 
nexus of the veteran's SLE to service is deemed to be in 
order.  U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 
3.159(c)(4) (2007); see also McLendon v. Nicholson, 20 Vet. 
App. 79, 81 (2006).

Accordingly, this portion of the veteran's appeal is REMANDED 
for the following actions:  

1.  Consistent with the provisions of 38 
U.S.C.A. §§ 5100, 5103 (West 2002) and 38 
C.F.R. § 3.159 (2007), the veteran must 
be notified of what information and 
evidence are still needed to substantiate 
her claims of service connection for 
allergic rhinitis, sinusitis, and SLE and 
her claim for increase for a left knee 
disorder.  The veteran must be notified 
by written correspondence of any 
information and evidence not of record 
(1) that is necessary to substantiate her 
claims; (2) that VA will seek to provide; 
(3) that the veteran is expected to 
provide; and (4) must ask the veteran to 
provide any evidence in her possession 
that pertains to the claims.  38 C.F.R. 
§ 3.159(b)(1).  

The VCAA notice under 38 U.S.C.A. 
§ 5103(a) and 38 C.F.R. § 3.159(b) must 
be consistent with the information or 
evidence needed to establish an increased 
rating as outlined by the Court in 
Vazquez-Flores v. Peake, 22 Vet. App. 37 
(2008).  The AMC/RO must advise the 
appellant that he may submit evidence 
showing the effects of the worsening of 
her left knee disorder upon her 
employment and daily life.  The AMC/RO 
must also provide more specific notice of 
the applicable diagnostic criteria.  
Specifically, the notice must inform the 
appellant of the criteria needed to 
obtain an increased rating under 38 
C.F.R. §§ 4.71a, Diagnostic Codes 5257, 
5260 and 5261.  Among the other 
information and evidence to be referenced 
specifically are lay and/or medical data 
indicating the presence of recurrent 
subluxation, lateral instability and 
limitation of flexion and extension. 

The RO or AMC must obtain any relevant VA 
or other Federal records, such as those 
compiled by or on behalf of the service 
department, which are identified.  If 
requested, VA will assist the veteran in 
obtaining updated records of treatment 
from private medical professionals or 
other evidence, provided that she 
supplies sufficient, identifying 
information and written authorization.

Depending upon the veteran's response, 
any and all assistance due her must then 
be provided by VA.  

2.  Any and all records pertaining to the 
veteran as a child, which were compiled 
by the applicable service department 
during the time she was a dependent of a 
service person should be obtained and 
made a part of the claims folder.  

3.  All pertinent records of VA medical 
treatment, not already on file, must be 
obtained for inclusion in the veteran's 
claims folder.

4.  Thereafter, the veteran should be a 
VA orthopedic examination for the 
evaluation of the severity of the her 
service-connected left knee disorder.  
The claims folder should be made 
available to the examiner for use in the 
study of this case and the prepared 
report of such evaluation should indicate 
whether the claims folder was made 
available and reviewed.  Such examination 
should include a review of the evidence 
in the claims folder, a comprehensive 
clinical evaluation, range of motion 
studies, and any other tests that are 
indicated, followed by entry of all 
pertinent diagnoses involving the left 
knee.  The examiner is requested to note 
whether it is at least as likely as not 
(50 percent or greater degree of 
probability) that there is any additional 
functional loss (i.e., additional loss of 
motion) of the left knee due to pain or 
flare-ups of pain supported by adequate 
objective findings, or additional loss of 
left knee motion due to weakness on 
movement, excess fatigability, 
incoordination, or any other relevant 
symptom or sign.  Any additional 
limitation of motion should be expressed 
in degrees. 

The examiner is advised that that the 
term "as likely as not" does not mean 
within the realm of possibility. Rather, 
it means that the weight of medical 
evidence both for and against a 
conclusion is so evenly divided that it 
is medically sound to find in favor of 
causation as to find against causation.  
More likely and as likely support the 
claim; less likely weighs against the 
claim.

5.  Thereafter, the veteran should be 
afforded a VA medical examination by a 
physician in the field of rheumatology in 
order to evaluate the nature, approximate 
onset date and etiology of her claimed 
SLE.  The claims folder should be made 
available to the examiner for use in the 
study of this case and the prepared 
report of such evaluation should indicate 
whether the claims folder was made 
available and reviewed.  Such examination 
should include a review of the evidence 
in the claims folder, a comprehensive 
clinical evaluation, and any and all 
indicated testing, followed by entry of 
all pertinent diagnoses.  

The examiner is asked to furnish a 
professional opinion, with full 
supporting rationale as to the following:  

Is it at least as likely as not 
(50 percent or greater degree 
of probability) that the 
veteran's SLE began during 
service or is causally linked 
to any incident of or clinical 
finding recorded in her service 
medical records during her 
period of active duty from June 
1988 to February 1992?  

The examiner is advised that that the 
term "as likely as not" does not mean 
within the realm of possibility. Rather, 
it means that the weight of medical 
evidence both for and against a 
conclusion is so evenly divided that it 
is medically sound to find in favor of 
causation as to find against causation.  
More likely and as likely support the 
claim; less likely weighs against the 
claim.

6.  Lastly, the remaining issues on 
appeal should be readjudicated on the 
basis of all pertinent evidence and all 
governing legal criteria, including the 
holding in Hart, supra.  If any benefit 
sought on appeal is not granted to the 
veteran's satisfaction, she and her 
representative should be furnished with a 
supplemental statement of the case and 
afforded an opportunity to respond before 
the record is returned to the Board for 
further review.

The veteran need take no action until otherwise notified.  
The veteran has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded to 
the AMC/RO.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  

The purpose of this remand is to obtain additional 
development.  No inference should be drawn regarding the 
final disposition of the claims in question as a result of 
this action.



_________________________________________________
R. F. WILLIAMS
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs