Citation Nr: 1318893 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 09-07 149 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for bilateral pes planus and if so whether the claim should be granted. 2. Entitlement to service connection for a right ankle disability. 3. Entitlement to a compensable rating for residuals of fractures of the fifth metacarpal and thumb of the right hand. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty from February 1995 to January 2003. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. A February 2003 rating decision denied service connection for bilateral pes planus; the Veteran did not appeal the rating decision. 2. The evidence added to the record subsequent to the February 2003 rating decision is cumulative of the evidence previously or record or does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim. 3. A right ankle disability has not been present during the pendency of the claim. 4. The residuals of fractures of the thumb and fifth metacarpal of the right hand do not approximate amputation, ankylosis, or limitation of motion of the thumb. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim of entitlement to service connection for bilateral pes planus. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 2. The criteria for service connection of a right ankle disability have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 3. The criteria for a compensable rating for residuals of fractures of the thumb and fifth metacarpal of the right hand have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5223 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002) requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Additionally, the Court has held that because the terms "new" and "material" in a new and material evidence claim have specific, technical meanings that are not commonly known to VA claimants, when providing the notice required by the VCAA, it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of the evidence that must be presented. Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006). The record reflects that the originating agency provided the appellant with all required notice by letters mailed in October 2007, November 2007 and April 2008, prior to the initial adjudication of the claims. The record also reflects that service treatment records and relevant post-service treatment records have been obtained. Neither the Veteran nor her representative has identified any additional, existing evidence that could be obtained to substantiate any of the claims. The Board is also unaware of any such evidence. In addition, the Veteran was afforded VA examinations in response to the claims. With respect to the claim of entitlement to service connection for right ankle disability, the Board finds the January 2009 VA examination report is adequate for adjudicative purposes: the examiner reviewed the claims files and provided probative opinions (i.e. opinions supported by rationale) as to whether the Veteran has a right ankle disability. With respect to the claim to reopen, the Board need not discuss the adequacy of the examination; once the Board decides a claim cannot be reopened, VA's duty to provide the appellant an examination is extinguished and the adequacy of a new VA examination becomes moot. See Woehlaert v. Nicholson, 21 Vet. App. 456, 463-64 (2007). With respect to the claim for an increased rating, the January 2008 VA examination report is adequate for rating purposes. The Board acknowledges that the Veteran has argued that the examination was not adequate because it only lasted "five minutes." The examination report contains all information necessary to rate the disability, however, and the Veteran has not alleged that the residuals of the fractures have increased in severity or changed in symptomatology since the June 2008 examination. Thus, the Board finds the examination report is adequate. Accordingly, the Board will address the merits of the claims. Claim to Reopen Legal Criteria Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which, "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Factual Background and Analysis The Veteran's claim of entitlement to service connection for bilateral pes planus was denied in a February 2003 rating decision. The Veteran was informed of her right to appeal the decision but did not do so. Service connection was previously denied because the evidence indicated that the pes planus preexisted service and was not aggravated by service. Evidence previously considered included the Veteran's service treatment records, which reflect a clinical finding of mild pes planus at entry, a history of right ankle pain and an assessment of pes planus in February 1995, and a history of pes planus with low back pain exacerbated by prolonged standing or lifting in June 2002, and a June 2003 VA "General Medicine" examination record. Evidence added to the record since the time of the February 2003 rating decision includes VA outpatient treatment records, private treatment records, and the Veteran's statements indicating that her pes planus was aggravated by service, to include because it was "mild at entry but complete at separation." The evidence also includes a January 2009 VA examination record which reflects the examiner's determination that the Veteran's pes planus was less likely than not aggravated beyond the natural progression by the Veteran's active service because the Veteran participated in more of an administrative role in the military and did not have significant amount of physical activity. The aforementioned VA and private treatment and examination records reflect treatment for pes planus. The January 2009 VA examination record and a June 2007 private treatment record also reflect findings of mild pes planus, which is the same degree of severity of pes planus noted at entry. These records are cumulative in nature in that they continue to show that the Veteran has pes planus. The records are not material because they do not tend to establish a previously unestablished fact, namely that the Veteran's pes planus was aggravated by service. Thus, the records could not raise a reasonable possibility of substantiating the claim. The Veteran's statements are also not material. The Board acknowledges the Veteran's contention that her pes planus was aggravated by service because she wore the wrong size boots during service and experienced foot pain during service, because her service medical records showed treatment for pes planus and "complete" pes planus at separation, and because a private podiatrist has described her pes planus as "extreme." Initially, the Board notes that the service treatment and examination records were already considered in the June 2003 decision; as such, they are not possible bases for reopening the claim. With respect to the reported symptoms in service (which the Veteran has explained were not always documented because she worked with medical professionals), history of poorly fitted boots during service, and description of the current severity of the pes planus, although the Veteran is competent to report that that she experienced foot pain and used poorly fitted boots during service and that a podiatrist has described her current pes planus as extreme, she is not competent to conclude that the existence of symptoms in service or the current severity of the pes planus is due to aggravation rather than normal progression of the preexisting pes planus or that the use of boots resulted in an aggravation of the preexisting pes planus. Such a determination is a matter of medical complexity and requires specialized knowledge. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009). See also Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993) (flare-ups of a preexisting disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened). As such, her contentions are not probative evidence of aggravation which raises a reasonable possibility of substantiating the claim. In sum, there is still no competent evidence that the pes planus was aggravated by service. The Board acknowledges that the threshold for reopening a claim is low, but it is a threshold nonetheless. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Thus, the Board finds that new and material evidence has not been submitted, and reopening of the claim is not in order. Service Connection Legal Criteria Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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.). Factual Background and Analysis A Febraury1995 treatment record reflects the Veteran's history of bilateral ankle pain for two days. She denied trauma or injury. After examination, the Veteran was assessed with pes planus and provided arch supports. Subsequent treatment records reflect no abnormal findings or histories with regard to the right ankle. They do reflect treatment for left ankle sprain attributed to a previous injury playing softball. A June 2007 VA treatment record reflects the Veteran's history of intermittent right ankle pain for the "last several weeks." The Veteran reported that years earlier she injured the ankle playing softball. After examination and review of X-ray images, which were normal, the Veteran was assessed with tendonitis. In September 2007, the Veteran filed a claim of service connection for a right ankle disability. A September 2008 private treatment record reflects the Veteran's history of bilateral foot and ankle discomfort, which "had been a problem since service." The Veteran was diagnosed with hyperpronation with chronic plantar fasciitis, hindfoot malalignment causing lower extremity discomfort bilaterally. A January 2009 VA examination record reflects the Veteran's history of injuring her ankle playing softball, for which she received conservative treatment and physical therapy. She denied any current pain in the ankle, though she did report experiencing pain in 2007 for a "short period of time," which was treated and attributed to tendonitis. She explained that the tendonitis had abated and that she could not remember which ankle was affected by the tendonitis. The examiner determined that the right ankle was normal. No diagnosis was rendered. The examiner explained that the ankle did not currently have a problem. Service connection is not warranted for a right ankle disability. The Board has carefully reviewed the evidence of record but finds no probative evidence of a right ankle disability at any point during the pendency of the claim. The medical record does not reveal any medical findings or diagnoses indicative of a right ankle disability during the claim period, and the Veteran denied the existence of continuous or recurrent symptoms of the previously diagnosed tendonitis at the 2009 VA examination. The Board acknowledges that the Veteran reported the existence of right ankle pain in statements received in 2008. Except in circumstances not applicable here, service connection will not be granted for pain alone; there must be a diagnosed or identifiable underlying malady or condition. Sanchez-Benitez v. West, 13 Vet. App. 283, 285 (1999). The evidence does not document the existence of a current underlying right ankle disability, and the Board notes that previously reported histories of pain have been attributed to a foot disability (i.e. pes planus or plantar fasciitis) rather than an ankle disability per se. Accordingly, service connection is not warranted for a right ankle disability. Increased Rating Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). When two or more digits of the same hand are affected by any combination of amputation, ankylosis, or limitation of motion that is not otherwise specified in the rating schedule, the evaluation level assigned will be that which best represents the overall level of disability, assigning the higher level of evaluation when the level of disability is equally balanced between one level and the next higher level. 38 C.F.R. § 4.71a, Note (2). In every instance where the schedule does not provide a noncompensable evaluation for a diagnostic code, a noncompensable evaluation will be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Impairment of two digits is rated under the criteria of 38 C.F.R. § 4.71a, Diagnostic Codes 5219 and 5223. Compensable ratings are provided for ankylosis (favorable or unfavorable) of the thumb and fifth finger of the major hand. The accompanying note indicates that VA should also consider whether evaluation as amputation is warranted and whether additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand. 38 C.F.R. § 4.71a, Diagnostic Code 5227. Impairment of the thumb is rated under the criteria of 38 C.F.R. § 4.71a, Diagnostic Codes 5224 and 5228. Compensable ratings are provided for ankylosis (favorable or unfavorable) of the thumb or limitation of motion of the thumb with a gap of one inch (2.5 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. Impairment of the fifth finger is rated under the criteria of 38 C.F.R. § 4.71a, Diagnostic Codes 5227 and 5230. Noncompensable ratings are provided for any limitation of motion or ankylosis. In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012). Factual Background and Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. In this regard the Board notes that where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Service connection was granted for residuals of fractures of the thumb and fifth finger or the right hand in a February 2003 decision. A noncompensable disability evaluation was assigned. In the June 2008 rating decision on appeal, the RO denied a compensable evaluation. A June 2008 VA examination record reflects the Veteran reported that her thumb was ok but her little finger hurt. The Veteran explained that she had moderate flare-ups of the little finger symptoms with typing or rainy weather. She explained that the flare-ups result in cramping with typing or decreased ability to open jars. Examination revealed no ankylosis or deformity. There was not a gap between the thumb pad and tips of the fingers on attempted opposition of thumb to finger or between a finger and proximal transverse crease of the hand on maximal flexion of the finger. There was not decreased strength for pushing, pulling, or twisting or decreased dexterity for twisting, probing, writing, touching, or expression. There was no pain on range of motion or loss of motion after repetition of any finger. X-ray images were normal except for perhaps a healed distal fracture of the fifth metacarpal. The examiner diagnosed residuals of right hand fractures. The examiner opined that the disability resulted in decreased manual dexterity, problems with lifting and carrying, weakness or fatigue, decreased strength, and upper extremity pain. A September 2008 private treatment record reflects a finding of normal range of motion in the right upper extremity. An October 2008 private treatment record reflects the Veteran's history of periodic numbness in the right fourth and fifth digits. The Veteran also reported a dull ache which travels from the wrist along the forearm up to the elbow. After examination she was assessed with carpal tunnel syndrome. The residuals of fractures are currently rated as noncompensable under Diagnostic Code 5223. A compensable rating is not warranted under Diagnostic Code 5219 or 5223 because there is no evidence, to include history, of ankylosis in the thumb or finger. The Board acknowledges that the Veteran reports functional impairment in the hand during flare-ups. The record does not suggest that the associated functional impairment approximates ankylosis, however: there is no evidence indicative of fixation or an inability to manipulate the thumb and little fingers during flare-ups. As such, a compensable rating is not warranted by rating the residuals of fractures of the thumb and little finger together. A compensable rating is also not warranted by rating the thumb and little finger separately. As noted above, the rating criteria only provide compensable ratings for impairment to the thumb; a noncompensable rating is the only rating available for impairment of the little finger. The Veteran has denied any specific impairment of the thumb, and the record does not suggest the existence of ankylosis of the thumb or a gap between the thumb pad and the fingers with the thumb attempting to oppose the fingers. Rather, the medical records indicate that the thumb is not ankylosed and that there is no such gap. Thus, a compensable rating is not warranted under Diagnostic Code 5224 or 5228. The Board has considered whether a higher or separate rating is warranted on any other schedular basis but has determined that it is not. In this regard, the Board notes that there is no evidence to suggest that the impairment of the thumb or little finger approximates amputation of the thumb or little finger, and X-ray images have been negative for arthritis in the thumb or little finger. Furthermore, the probative evidence does not suggest impairment of the hand as a result of the fractures warranting a compensable rating. Although the Veteran has competently reported impairment of the hand, notably loss of strength and dexterity, the VA examiner found no loss of strength or dexterity and the record includes no findings of associated loss of range of motion of other fingers or the wrist which might warrant a compensable rating. See 38 C.F.R. § 4.71a, Diagnostic Codes 5214 to 5230. The Board finds the objective findings are more probative than the Veteran's histories, particularly in light of the evidence of carpal tunnel syndrome with symptoms involving the right hand. In sum, the criteria for a compensable schedular rating have not been met. Consideration has been given to assigning a staged rating; however, at no time during the period in question have the residuals of fractures warranted a higher rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered whether this case should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The residuals of fractures are manifested by discomfort in the little finger and diminished strength and dexterity in the hand. The functional impairment associated with these manifestations is contemplated by the schedular criteria, and the schedular criteria provide higher ratings for more severe symptoms. Therefore, referral of the case for extra-schedular consideration is not in order. ORDER New and material evidence having not been received, the application to reopen a claim of entitlement to service connection for bilateral pes planus is denied. Service connection for a right ankle disability is denied. A compensable rating for residuals of fractures of the thumb and fifth metacarpal of the right hand is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs