Citation Nr: 1517065	
Decision Date: 04/21/15    Archive Date: 04/24/15

DOCKET NO. 13-04 527	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES


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

2. Whether new and material evidence has been submitted to reopen a claim of service connection for a right knee disorder. 

3. Whether new and material evidence has been submitted to reopen a claim of service connection for a left knee disorder. 

4. Whether new and material evidence has been submitted to reopen a claim of service connection for a right ankle disorder. 

5. Entitlement to an increased rating for a left ankle disorder in excess of 20 percent.

6. Entitlement to service connection for rheumatoid arthritis.



REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. Sopko, Associate Counsel


INTRODUCTION

The Veteran had active military service from November 1970 to February 1972.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 

The Veteran testified before the undersigned Veterans Law Judge in August 2013.


FINDINGS OF FACT

1. The Veteran filed a claim for service connection for a right ankle disorder in May 1979. VA denied the claim in an August 1979 rating decision. The Veteran did not submit a Notice of Disagreement for this decision, and it became final.


2. The Veteran filed claims for service connection for disorders of the low back and bilateral knees in July 1999. VA denied the claims in a November 2002 rating decision. The Veteran did not submit a Notice of Disagreement for this decision, and it became final.

3. The Veteran submitted evidence subsequent to the August 1979 and November 2002 rating decisions which tends to substantiate the claims. 

4. The Veteran's left ankle disability is manifested by limitation of motion; he does not have ankylosis of either ankle.


CONCLUSIONS OF LAW

1. The August 1979 rating decision denying the claim for service connection for a right ankle disorder and the November 2002 rating decision denying the claim for service connection for disorders of the low back and bilateral knees are final based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2014).

2. The Veteran has submitted new and material evidence since the August 1979 and November 2002 decisions that allows the reopening of these claims. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2014).

3. The criteria for a rating higher than 20 percent for a left ankle disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5270, 5271 (2014).







REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Introductory Matters

In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. 
§ 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). 

Duties to Notify and Assist

As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014).


The Board is reopening and remanding the claims of service connection for disorders of the low back, bilateral knees, and right ankle on the basis of new and material evidence. Therefore, VCAA notice compliance requires no further discussion for these issues.

With regard to the left ankle claim, upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

VA has satisfied its duty to notify by issuing a notice letter in March 2005. This letter advised the Veteran of what evidence was required to substantiate his claim, and of his and VA's respective duties for obtaining evidence. This letter provided notice informing the Veteran that to substantiate his increased evaluation claim, he needed to submit evidence that his service-connected disability had increased in severity. 

The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records (STRs) and a reports of VA compensation examinations in August 2005 and September 2012.

The examinations were adequate because they were based on a thorough examination, a description of the Veteran's pertinent medical history, and appropriate diagnostic tests. 

The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2014). 

Reopening of the Claims on the Basis of New and Material Evidence

The claims for service connection for disorders of the low back, bilateral knees, and right ankle were previously denied, and the prior decisions were not timely appealed. The Board has the jurisdictional responsibility to determine whether there is new and material evidence, irrespective of what the RO determined. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C.A. §§ 5108, 7105(c)). If the Board finds that no such evidence has been offered, the analysis must end, and what the RO may have determined in this regard is irrelevant. Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the Veteran's previously and finally denied claims). 

If, however, new and material evidence has been submitted since the prior final denial of these claims, then they must be reopened and the former disposition reconsidered. 38 U.S.C.A. § 5108.

When determining whether a claim should be reopened, the Board performs a 
two-step analysis. The first step is to determine whether the evidence secured since the last final disallowance of the claim is "new and material." See 38 U.S.C.A. 
§ 5108. According to VA regulation, "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 cannot be cumulative or 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).



Second, if VA determines the evidence is new and material, it may then proceed to evaluate the merits of the claim on the basis of all the evidence of record, but only after ensuring the duty to assist has been fulfilled. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins v. West, 12 Vet. App. 209 (1999)), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000). This second step becomes applicable only when the preceding step is satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999).

In determining whether evidence is new and material, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). This presumption only applies when determining whether the evidence is new and material. It also does not apply when determining the credibility and weight of the evidence as it relates to the merits of the claim. Essentially, the presumption of credibility "dissolves" once the claim is reopened and decided on the merits. See also Duran v. Brown, 7 Vet. App. 216 (1994) (indicating "Justus does not require the Secretary [of VA] to consider the patently incredible to be credible" or assertions beyond the competence of the person making them).

The last final denials of these claims were in August 1979 and November 2002, and VA must determine whether new and material evidence has been submitted since that time to reopen them. See Evans v. Brown, 9 Vet. App. 273, 283 (1996) (indicating VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of a claim).

The August 1979 and November 2002 rating decisions denied the claims because there was no evidence of a current disability for any of the four disorders. At the time of the denials, the record consisted of the Veteran's service treatment records, post-service private treatment records, and VA treatment records.

After finality attached to the rating decisions, the Veteran submitted VA treatment records evidencing each of the four claimed disorders. The December 2012 VA examiners diagnosed the Veteran with each of the four claimed disorders. In light of this evidence, the Board finds new and material evidence has been submitted since the denials of these claims. The evidence is new since it was not considered during the previous adjudication of the claims, and it is material to the disposition of the claims. 

Accordingly, new and material evidence has been submitted to reopen these previously denied and unappealed claims. 38 U.S.C.A. § 5108. To this extent only, this appeal is granted subject to the further development of these claims.

Increased Evaluation Claims

Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2014). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 

The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. Where an increase in the disability rating is at issue, as is the case here, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 

The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed); Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). 

The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Pertinent to a claim for an increased rating, lay testimony is competent when it describes symptoms, which supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (holding that, in general, for the need for a VA examination to arise, a claimant would only need submit his competent testimony that symptoms, reasonably construed as related to the service-connected disability, have increased in severity since the last evaluation.). 

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 

Merits Analysis

The Veteran contends that his left ankle disability is more severe than is reflected by a 20 percent evaluation. Because he does not have ankylosis of his ankle, his claim will be denied. 

The Veteran's left ankle disability is currently evaluated under Diagnostic Code 5271, limitation of motion of the ankle. 38 C.F.R. § 4.71a. Under Diagnostic Code 5271, a 20 percent evaluation is assigned for marked limitation of motion of the ankle. 38 C.F.R. § 4.71a. Normal dorsiflexion is 20 degrees. Normal plantar flexion is 45 degrees. 38 C.F.R. § 4.71a, Plate II. A 20 percent evaluation is the maximum schedular evaluation available under Diagnostic Code 5271.

Where, as here, the evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). 

However, the Veteran is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, and therefore it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. Johnston, 10 Vet. App. at 80.

There are other potentially applicable Diagnostic Codes that pertain to the ankle. Diagnostic Code 5272 provides criteria for ankylosis of the subastragalar or tarsal joint. Diagnostic Code 5273 provides criteria for malunion of the os calcis or astragalus. Diagnostic Code 5274 provides criteria for an astragalectomy. However, none of these Diagnostic Codes provide criteria for an evaluation higher than 20 percent. Therefore, they are not applicable in this case because they are not more favorable to the Veteran.

The only other Diagnostic Code that pertains to ankle disabilities is Diagnostic Code 5270, under which a 20 percent evaluation is warranted for ankylosis of the ankle in less than 30 degrees of plantar flexion. A 30 percent evaluation is warranted for ankylosis of the ankle in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion, between 0 degrees and 10 degrees. Id. 

At his 2005 and 2012 VA examinations, the Veteran's dorsiflexion measured 10 degrees and 5 degrees, respectively. However, at neither examination, nor during VA treatment, has the Veteran been diagnosed with anklylosis.

At his 2013 hearing, the undersigned informed the Veteran that ankylosis was needed for his symptoms to meet the criteria for a higher rating and the Veteran did not report that his joints were limited to fixed positions. 

The Veteran retains mobility in his ankle joint; he does not manifest ankylosis of any form. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). Therefore, a higher evaluation under Diagnostic Code 5270 is not warranted. 

Reviewing the evidence, the Board finds that the overall disability picture for the Veteran's left ankle disability does not more closely approximate the criteria for a higher rating under the only favorable applicable Diagnostic Code. 38 C.F.R. § 4.7. The preponderance of the evidence is against the claim and the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56. 

Extraschedular Consideration

The Veteran has not raised, and the evidence does not suggest, that referral for extraschedular evaluations are warranted. The Veteran's symptoms are addressed by the rating criteria discussed above, and such a referral is appropriate where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). 

An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. 

The schedular evaluation is adequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disability at issue, but the medical evidence reflect that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected disability. 


ORDER

The petition to reopen the claims of entitlement to service connection for disorders of the low back, bilateral knees, and right ankle is granted. To this extent, the appeal is allowed.

A disability evaluation in excess of 20 percent for a left ankle disability is denied.


REMAND

The Board is reopening the claims of entitlement to service connection for disorders of the low back, bilateral knees, and right ankle because the Veteran has submitted new and material evidence. The Board is remanding these claims to clarify some of this evidence. 

Additionally, the Board is remanding the rheumatoid arthritis claim to clarify when the Veteran was first diagnosed with the condition.



Accordingly, the case is REMANDED for the following action:

1. Ascertain if the Veteran has received any VA, non-VA, or other medical treatment, pertinent to the claims on appeal, that is not evidenced by the current record - to specifically include, but not limited to, any VA outpatient records. The Veteran must be provided with the necessary authorizations for the release of any private treatment records not currently on file. The RO/AMC must then obtain these records, as well as any other pertinent records, and associate them with the claims folder. If VA is unsuccessful in obtaining any medical records identified by the Veteran, it must inform him and provide him an opportunity to submit copies of the outstanding medical records. 

2. The Veteran is receiving Social Security Administration (SSA) disability benefits. The SSA CD-ROM contained in the claims file does not contain SSA's disability decision or the medical records underlying the decision. Therefore, the RO should attempt to obtain these documents. If they cannot be obtained, please document this in the claims file and notify the Veteran.

3. The Veteran submitted VA treatment records and a medical nexus statement in August 2013. The nexus statement, purportedly from one of the Veteran's VA physicians, is undated, unsigned, and does not appear on VA letterhead. 

Contact I.T.H. and J.F.B. III, the two physicians listed in the treatment records, to ascertain if either authored the nexus statement. Document both physicians' responses in the claims file.

4. The July 2002 VA examiner stated "the Veteran was diagnosed with rheumatoid arthritis in 1972" in his report. In contrast, the December 2012 VA examiner found the year of diagnosis was 1986. 

Arthritis qualifies for presumptive service connection under 38 C.F.R. § 3.309. Therefore, it is important to reconcile the date of original diagnosis.

Contact the December 2012 examiner to reconcile the discrepancy and document his response in the claims folder.

5. After undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefits sought remains denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond.

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 2014).



______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).