Citation Nr: 1605864 Decision Date: 02/17/16 Archive Date: 03/01/16 DOCKET NO. 12-29 643 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left wrist disorder and if so, whether service connection is warranted. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral lower extremity neuropathy, now claimed as numbness feet and ankles bilaterally and carpal tunnel syndrome, and if so, whether service connection is warranted. 3. Entitlement to an initial schedular rating in excess of 10 percent for a right ankle disability. 4. Entitlement to service connection for a right wrist disorder. 5. Entitlement to service connection for a chronic back disorder, claimed as chronic back pain and/or a herniated disk. 6. Entitlement to service connection for a right knee disorder. 7. Entitlement to service connection for a left knee disorder 8. Entitlement to service connection for vertigo, claimed as a vertigo ear condition. 9. Entitlement to service connection for diabetes mellitus type II. 10. Entitlement to an initial rating in excess of 10 percent for left ankle strain. 11. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral upper extremity neuropathy, now claimed as numbness hands and wrists and carpal tunnel syndrome, and if so, whether service connection is warranted. 12. Entitlement to an extraschedular rating. 13. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Kenneth L. LaVan, Attorney ATTORNEY FOR THE BOARD Tracie N. Wesner, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1995 to September 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran requested a hearing before the Board, but withdrew that request in February 2015. The Veteran reports that he is unable to work because of his service-connected disabilities. Because the issue of entitlement to a TDIU is part and parcel of a claim for a higher rating, the Board has jurisdiction of this issue on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The issues of entitlement to service connection for a left wrist disorder, bilateral lower extremity neuropathy, chronic back disorder, a right knee disorder, a left knee disorder, vertigo, diabetes mellitus type II, right wrist disorder; entitlement to an initial rating in excess of 10 percent for left ankle strain; whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral upper extremity neuropathy; entitlement to an extraschedular rating for a right ankle disability and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The February 1996 and October 2008 rating decisions denying service connection for a left wrist disorder and bilateral lower extremity neuropathy respectively became final, and new and material evidence has been received to reopen the previously denied claims. 2. Throughout the appeal period the Veteran's right ankle disability has been productive of marked limitation of motion of the right ankle, but not ankylosis, malunion of the os calcis or astragalus, or astragalectomy. CONCLUSIONS OF LAW 1. New and material evidence having been received, the previously denied claim of service connection for a left wrist disorder is reopened. 38 C.F.R. § 3.156(a) (2015). 2. New and material evidence having been received, the previously denied claim of service connection for bilateral lower extremity neuropathy, now claimed as numbness feet and ankles bilaterally and carpal tunnel syndrome, is reopened. 38 C.F.R. § 3.156(a) (2015). 3. The criteria for a schedular rating of 20 percent for a right ankle disability have been met throughout the appeal period. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2015); 38 C.F.R. §§ 3.102, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5271 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence The Board finds that the December 2012 VA examinations of the Veteran concerning his left wrist disorder and peripheral neuropathy is new and material evidence sufficient to allow for the reopening of his previously denied claims of entitlement to service connection for a chronic left wrist injury and neuropathy affecting the lower extremities, bilaterally. See 38 U.S.C.A. § 5108; see also 38 C.F.R. § 3.156(a) (a claim that has been finally adjudicated can be reopened and reconsidered if new and material evidence is presented raising a reasonable possibility of substantiating the claim). The Veteran's claim of service connection for a left wrist disorder was originally denied in a February 1996 rating decision because the evidence did not support a nexus between his in-service left wrist injury and his then current symptoms. His claim of service connection for numbness of hands and feet, also claimed as nerve damage and neuropathy, was denied in an October 2008 rating decision. The February 1996 and October 2008 rating decisions became final because the Veteran did not submit a Notice of Disagreement or new evidence within the appeal period. See 38 C.F.R. § 3.156(b). In December 2012, the Veteran was provided with a VA examinations and opinions addressing his left wrist injury and peripheral neuropathy. The Board finds this evidence to be "new" and "material" because it was not previously of record and addresses an unestablished element. See 38 C.F.R. § 3.156(a); see also Shade v. Shinseki, 24 Vet. App. 110, 117 (2010)(finding that the regulatory requirement that the new evidence must raise a reasonable possibility of substantiating the claim must be read as creating a "low threshold"). Therefore, the Board finds that the Veteran's claims of entitlement to service connection for a left wrist disorder and bilateral lower extremity neuropathy should be reopened. II. Higher Initial Rating for Right Ankle Disability A. VA's Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159(b) (2015); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The claim for a higher rating for the Veteran's right ankle disability arises from disagreement with the initial disability rating that was assigned following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist the Veteran in the development of the claim. Relevant to the duty to assist, the Veteran's service treatment records and post-service VA records have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. The Veteran has been provided with examinations in connection with his right ankle disability in April 2012 and February 2014. He has not alleged that his disability has worsened in severity since the most recent VA examination, and his treatment records do not indicate a worsening. Therefore, the Board finds that the examinations of record are adequate to adjudicate the Veteran's claim for an increased initial rating and no further examination is necessary. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). In light of the foregoing, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim for a higher initial rating for his right ankle disability, and he will not be prejudiced as a result of the Board proceeding to a decision on the merits of this claim. B. Higher Schedular Rating The Veteran is service connected for a right ankle disability, for which he is receiving a 10 rating under 38 C.F.R. § 4.71a, DC 5271. The Board finds that a disability rating of 20 percent is warranted for the Veteran's right ankle disability throughout the appeal period. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. 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. The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. When evaluating joint disabilities, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, 1 Vet. App. at 592. The Veteran contends in his right ankle disability is more disabling than his current 10 percent evaluation reflects. He was provided with VA examinations in April 2012 and February 2014. At the April 2012 VA examination he reported that when he stands for a prolonged period of time, his ankle swells. Ankle swelling prevents him from driving for more than 30 minutes. He reported that he uses ankles braces occasionally when he must stand for a longer period of time, and he uses a wheelchair on occasion because his ankles give out. He reported that during flare ups, he has increased pain, swelling and instability of his ankle. On physical examination, he was found to have a limitation of right ankle plantar flexion to 25 degrees on repeat testing with no evidence of pain, and a limitation of dorsiflexion to 5 degrees on repeat testing with no evidence of pain. The April 2012 VA examiner found no ankylosis or malunion of the os calcis or astragalus. At the February 2014 VA examination, the Veteran reported symptoms of edema, pain, numbness, and atrophy. He reported severe pain and cramping of the ankle if he drives more than 15 minutes, and an inability to walk more than one block without pain. He also reported experiencing flare ups of right ankle symptoms resulting in increased pain, swelling, limping and an inability to walk without pain. The February 2014 VA examiner found right ankle limitation of plantar flexion to 35 degrees with pain, and a limitation of dorsiflexion to 15 degrees with pain. No additional limitation of motion was identified on repeat testing. The examiner noted that the Veteran has functional loss or impairment due to less movement than normal, pain on movement and swelling. The February 2014 VA examiner noted that the Veteran experienced additional pain, swelling, stiffness and range of motion loss during flares, but could not provide an opinion as to the degree of additional range of motion loss during these periods. Again, the Veteran was found to have no ankylosis of the ankle, subtalar and/or tarsal joint, and no malunion of the os calcis or astragalus. Regarding limitation of motion of the ankle, the Board notes that normal dorsiflexion of the ankle is to 20 degrees, and normal plantar flexion of the ankle is to 45 degrees. 38 C.F.R. § 4.71, Plate II. The Board finds that a disability rating of 20 percent, but no higher, is warranted for the Veteran's right ankle disability with heel spur throughout the appeal period. A 20 percent rating is for application under DC 5271 for right ankle limitation of motion that is "marked." As noted above, he was found to have a limitation of dorsiflexion to 5 degrees during the April 2012 VA examination, and a limitation of dorsiflexion to 15 degrees during the February 2014 VA examination. The Board acknowledges the April 2012 VA examiner's notation that the Veteran did not give good effort during testing; however, the examiner did not state that the range of motion test results were invalid due to his lack of effort. Additionally, the Board notes that the February 2014 VA examiner reported that the Veteran would have increased pain, swelling and limitation of motion during flare up periods, but could not provide an opinion as to the additional limitation of motion that would be experienced during this period. Thus, affording the Veteran the benefit of the doubt, the Board finds that his right ankle has more nearly approximated a "marked" limitation of motion throughout the appeal period. As such, a 20 percent rating is for application. This is the highest schedular rating possible under DC 5271. Higher ratings are not available under other potentially applicable Diagnostic Codes because there is no evidence of ankylosis of the ankle, subastragalar or tarsal joint, nor is there evidence of malunion of the os calcis or astragalus. Furthermore, there is no evidence that the Veteran has had an astragalectomy. See 38 C.F.R. §§ 4.7, 4.71a, DCs 5270, 5272-74. (CONTINUED ON NEXT PAGE) ORDER The claim of entitlement to service connection for a left wrist disorder is reopened. The claim of entitlement to service connection for bilateral lower extremity neuropathy, now claimed as numbness feet and ankles bilaterally and carpal tunnel syndrome, is reopened. Entitlement to an initial 20 percent schedular rating for a right ankle disability with heel spur is granted, subject to the law and regulations governing the payment of VA monetary benefits. REMAND VA Examination The Board finds that the Veteran's claim of entitlement to service connection for the residuals of a left wrist injury must be remanded to afford him a new VA examination and medical opinion. As noted above, the Veteran was provided an examination in connection with his left wrist disorder in December 2012. The December 2012 VA examiner noted that the Veteran's service treatment records (STRs) mentioned a left wrist injury that occurred when he was seven (7) years old that had fully resolved prior to his entry into service. His September 1994 entrance report of medical history noted the prior wrist injury, and also noted "closed reduction, no problem." The September 1994 entrance examination report did not address the Veteran's prior left wrist injury, noting instead that his upper extremities were normal. As such, a left wrist disability was not noted at entry into service, and the Veteran was presumed to be in sound condition at entrance into service. See 38 C.F.R. § 3.304(b). The December 2012 VA examiner provided a negative nexus opinion, finding that the Veteran's left wrist disorder "clearly and unmistakably existed prior to service, and was clearly and unmistakably not aggravated during service." The Board finds that this opinion was based on an inaccurate factual basis. As noted above, the left wrist injury that occurred when the Veteran was a child was found to have resolved, and no left wrist injury was noted on his September 1994 entrance examination. The December 2012 VA examiner's opinion was provided in response to a November 2012 Examination Request stating "please . . . state if the Veteran's left wrist condition, which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression by in service treatment for left wrist condition." Thus, the Board finds that remand is necessary to provide the Veteran with a new VA examination and opinion. See Coyalong v. West, 12 Vet. App. 524, 534-35 (1999); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2006). Due Process Considerations Next, the Board finds that the issues of entitlement to service connection for a chronic back disorder, a right knee disorder and a left knee disorder must be remanded to provide a copy of the September 2012 Statement of the Case (SOC) to the Veteran's current representative. In January 2010, the Veteran submitted a Notice of Disagreement (NOD) with the July 2009 rating decision denying his claims of service connection for a chronic back disorder and a bilateral knee disorder. In March 2012, the RO received a VA Form 21-22a appointing Attorney LaVan as the Veteran's representative. An SOC was issued in September 2012. Despite the change in representation, the September 2012 SOC was sent to American Legion, the Veteran's former representative. See September 2012 SOC. Statute and regulation require that a copy of an SOC be sent to the Veteran's representative, if any, along with information concerning appellate rights and the procedures for continuing an appeal. 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. § 19.30 (2015). VA regulations also provide that an appellant will be accorded full right to representation in all stages of an appeal by a recognized organization, attorney, agent, or other authorized person. 38 C.F.R. §§ 20.600, 3.103. To date, it does not appear that the Veteran's current representative has ever received a copy of the September 2012 SOC and attached information concerning appellate rights. In May 2013, Attorney LaVan sent a letter to the RO inquiring as to the status of the January 2010 NOD. No response is contained in the claims file. A report from the Decision Review Officer's July 2014 Informal Conference states that the issues on appeal were discussed, but does not identify the specific issues addressed at that conference. The Board notes that the Appellate Briefs submitted by counsel in July 2014 and May 2015 do not list these issues among those currently on appeal. Thus, these issues must be remanded to provide the Veteran's current representative with a copy of the September 2012 SOC and appropriate statement regarding appellate rights, and to afford them an opportunity to offer any additional evidence and/or argument on the issues addressed in the SOC. Issuance of SOC/Manlincon Additionally, the Veteran and his representative must be provided with an SOC concerning the claims of service connection for vertigo and diabetes mellitus type II, the claim to reopen his previously denied claim of service connection for numbness of the hands and wrists bilaterally, and the claim for an initial disability rating in excess of 10 percent for his left ankle disability. These issues were decided in a November 2012 rating decision that, like the September 2012 SOC, were sent to the incorrect representative. See November 2012 Rating Decision. Thus, the Board finds that the November 2012 rating decision did not become final. The one-year period during which a claimant has to file an NOD does not begin to run until the date the notice of the claim denial is mailed. 38 U.S.C.A. §§ 7105(b)(1). The applicable statute and regulation provides that notice of a decision by the Secretary affecting the provision of benefits to claimants shall be provided to the claimant and to his or her representative. See 38 U.S.C.A. § 5104; see also 38 C.F.R. § 3.103(b). A claim will be considered to be pending if the VA has failed to provide proper notification of the denial or the claimant's right to appeal. See Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009) (citing Cook v. Principi, 318 F.3d 1334, 1340 (Fed.Cir. 2002) (en banc)). In July 2014, the Veteran, through Attorney LaVan, submitted an NOD to the November 2012 rating decision concerning these issues. Counsel indicated that he first learned of this rating decision in July 2014, during an informal conference with the Decision Review Officer. In light of these facts, the Board finds the Veteran's July 2014 NOD related to his November 2012 to be timely. As the RO has not yet issued an SOC with respect to the claims addressed in the November 2012 rating decision, the Board must remand them for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). Intertwined Claims Finally, the Board finds that the Veteran's remaining claims of entitlement to service connection for a right wrist disorder and bilateral lower extremity neuropathy and entitlement to a TDIU are inextricably intertwined with the remanded issue of service connection for diabetes mellitus type II. Thus, these claims must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Any development affecting the TDIU issue may have an impact on the complete picture of the Veteran's service-connected disabilities and their effect on his employability as it pertains to extraschedular consideration. See Brambley v. Principi, 17 Vet. App. 20, 24 (2003). Thus, the issue of entitlement to an extraschedular rating will also be remanded. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA and private treatment records concerning the Veteran's treatment for any disorders affecting his left wrist. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any left wrist disorder found to be present. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examination report must include a complete rationale for all opinions expressed. The examiner should state the likelihood that any left wrist disorder found to be present existed prior to service. If the examiner concludes that a left wrist disability found to be present existed prior to service, the examiner should indicate that likelihood that the disability worsened during service. If the examiner diagnoses the Veteran as having a left wrist disability that did not pre-exist service, the examiner must opine as to whether it is at least as likely as not that the condition had its onset during service or is related to service, including the left wrist injury noted in his August 1995 STRs. In offering each of these opinions, the examiner should specifically acknowledge and comment on the Veteran's September 1994 entrance report of medical history noting a prior wrist injury, as well as the September 1994 entrance examination noting normal upper extremities. The examiner should also consider the Veteran's reports of continuing left wrist symptoms since service. 3. Provide the Veteran's current representative with a copy of the September 2012 SOC and information as required by 38 C.F.R. § 19.30, and allow an adequate amount of time so that the Veteran and/or his representative may offer any additional evidence or argument in support of the issues addressed in the SOC. 4. Issue to the Veteran and his representative an SOC regarding: the claims of service connection for vertigo and diabetes mellitus type II, the claim to reopen his previously denied claim of service connection for numbness of the hands and wrists bilaterally and the claim for an initial disability rating in excess of 10 percent for his left ankle disability. 5. After completing the above development and any additional development deemed necessary, including consideration of whether referral for an extraschedular rating is warranted and the adjudication of entitlement to a TDIU, readjudicate the remanded issues of entitlement to service connection for a left wrist disorder, a right wrist disorder and bilateral lower extremity neuropathy. If any of the benefits sought remain denied, furnish the Veteran and his representative with a Supplemental Statement of the Case and afford them the opportunity to respond before the file is returned to the Board for further consideration. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs