Citation Nr: 1750175 Decision Date: 11/06/17 Archive Date: 11/17/17 DOCKET NO. 10-14 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been received to reopen the claim for service connection for a posttraumatic stress disorder (PTSD). 2. Whether new and material evidence has been received to reopen the claim for service connection for skin disorder due to chemical burns. 3. Entitlement to a disability rating greater than 10 percent for right foot onychomycosis. 4. Entitlement to a disability rating greater than 10 percent for left foot onychomycosis. 5. Entitlement to a disability rating greater than 10 percent for residuals of a right 1st metatarsal fracture with arthritis. 6. Entitlement to a disability rating greater than 10 percent for residuals of a left 1st metatarsal fracture with arthritis. 7. Entitlement to a disability rating greater than 40 percent for fibromyalgia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from January 1980 to January 1983 and from November 1987 to November 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from 2008 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran died in July 2013, and his surviving spouse has been substituted as the appellant. The May 2008 rating decision increased the rating for right and left foot onychomycosis from noncompensable to 10 percent effective from August 29, 2005. A March 2017 rating decision increased the ratings for right and left 1st metatarsal fractures from noncompensable to 10 percent effective from November 20, 2007. The Board notes that in March 2017, the RO granted, among other benefits, service connection for chronic fatigue syndrome and increased the disability rating for fibromyalgia, awarding them 100 and 40 percent ratings, respectively, from November 20, 2007, the date of claim resulting in special monthly compensation at the S1 rate from that date until the date of the Veteran's death. FINDINGS OF FACT 1. The RO denied service connection for PTSD in July 2001 and notified the Veteran of its decision and of his right to appeal it within 1 year thereof in that month. The Veteran did not appeal, nor was new and material evidence received within one year of the notification of the decision at the time. 2. Since the final July 2001 decision denying service connection for PTSD, evidence relating to an unestablished fact necessary to substantiate the claim and which is neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim has been received. 3. The Veteran did not have PTSD related to service. 4. The RO denied service connection for skin disorder due to chemical burns in July 2001 and notified the Veteran of its decision and of his right to appeal it within 1 year thereof in that month. The Veteran did not appeal, nor was new and material evidence received within one year of the notification of the decision at the time. 5. Since the final July 2001 decision denying service connection for skin disorder due to chemical burns, evidence relating to an unestablished fact necessary to substantiate the claim and which is neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim has not been received. 6. The Veteran's onychomycosis of his right and left foot did not affect 20 to 40 percent of his entire body or exposed areas; and systemic therapy such as corticosteroids or other immunosuppressive drugs was not required for a total duration of 6 weeks or more during a 12-month period. 7. The Veteran's right and left 1st metatarsal fractures are not the equivalent of a moderately severe foot injury. 8. The currently assigned 40 percent rating is the maximum schedular rating available for service-connected fibromyalgia. 9. Throughout the appeal period, the Veteran's fibromyalgia has been manifested by widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbances, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms that are constant or near constant and refractory to therapy. 10. The manifestations of the Veteran's fibromyalgia are reasonably described by the established schedular criteria. CONCLUSIONS OF LAW 1. The July 2001 RO decision denying service connection for PTSD is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2017). 2. The criteria to reopen the claim for service connection for PTSD based on new and material evidence are met. 38 U.S.C.A § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2017). 3. The criteria for service connection for PTSD are not met. 38 U.S.C.A §1131 (West 2014); 38 C.F.R. § 3.303, 3.304 (2017). 4. The July 2001 RO decision denying service connection for skin disorder due to chemical burns is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2016). 5. The criteria to reopen the claim for service connection for skin disorder due to chemical burns based on new and material evidence are not met. 38 U.S.C.A § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2016). 6. The criteria for a disability rating in excess of 10 percent for right foot onychomycosis are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.118, Diagnostic Code 7899-7806 (2016). 7. The criteria for a disability rating in excess of 10 percent for left foot onychomycosis are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.118, Diagnostic Code 7899-7806 (2016). 8. The criteria for a disability rating in excess of 10 percent for right 1st metatarsal fracture are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §4.71a , Diagnostic Code 5284 (2016). 9. The criteria for a disability rating in excess of 10 percent for left 1st metatarsal fracture are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2016). 10. The criteria for the assignment of a rating in excess of 40 percent for the service-connected fibromyalgia are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.71a Diagnostic Code (DC) 5025 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Prior unappealed RO rating decisions are final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Claims are to be reopened when new and material evidence is submitted. 38 U.S.C.A. § 5108. Applicable 38 C.F.R. § 3.156 provides that new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. For purposes of determining whether VA has received new and material evidence sufficient to reopen a previously-denied claim, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). PTSD Service connection was denied by the RO on the merits with consideration of the Veterans Claims Assistance Act for an acquired neuropsychiatric disorder in July 2001. Previously, service connection for a psychiatric disorder, to specifically include PTSD, had been denied in February 2000, when the evidence showed no complaints or findings in the service treatment records and no evidence of PTSD on VA examination. The Veteran had been examined specifically for PTSD by a VA psychiatric examiner in September 1999, and that examiner found that the Veteran did not have a diagnosis of PTSD that accords with DSM-IV. Instead, anxiety disorder was found under DSM-IV. The Veteran was notified of the July 2001 decision and of his right to appeal it within 1 year thereof, but no timely appeal or new and material evidence was received within 1 year of such notice. Accordingly, that decision became final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The Veteran applied to reopen in November 2007. Since the prior final decisions, the Veteran has submitted additional evidence showing that he has a diagnosis of PTSD. For instance, his July 2013 death certificate reports that he has PTSD as do June and October 2008 assessments of PTSD. An October 2004 VA detailed work-up to determine whether the Veteran had a diagnosis of PTSD which accords with DSM-IV found that he did not, but that instead, he had major depressive disorder. As new and material evidence has been received, the claim is reopened. The RO readjudicated the claim for PTSD on the merits; thus the Board may proceed to adjudication. Generally, service connection for PTSD requires medical evidence diagnosing the condition; 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 is denied as the preponderance of the evidence is against a finding that the Veteran had PTSD due to an in-service stressor. There is no competent, credible evidence linking PTSD to a corroborated, noncombat in-service stressor; or combat; or fear of hostile military or terrorist activity. Skin disability due to chemical burns The Veteran claimed that he sustained chemical burns during service in Saudi Arabia in November 1990. He first intimated this in March 1994. Service connection was denied by the RO in July 2001 for a skin condition due to chemical burns, when the evidence did not show that the Veteran sustained chemical burns in service or that he then had a skin condition due to such chemical burns. The record at that time included several lay statements as well as treatment records. The Veteran was notified of the July 2001 decision and of his right to appeal it within 1 year thereof, but no timely appeal or new and material evidence was received within 1 year of such notice. The Veteran submitted several statements within this period that were duplicative or cumulative of evidence already submitted. Accordingly, that decision became final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The Veteran applied to reopen the claim in November 2007. Since the prior final decision, neither the Veteran nor the appellant have submitted any new and material evidence showing that he had chemical burns in service, or showing that he had a current skin disorder caused by such in-service chemical burns. Previously considered Akron Children's Hospital records show that the Veteran was seen in February 1994 for complaints of a cutaneous rash affecting the bilateral medial malleoli and the sacrum that was seen as not inconsistent with a chemical burn which the Veteran reported had been present since his service in Saudi Arabia and had been treated at VA facilities including the Canton, Ohio community based VA outpatient treatment clinic. Microscopic analysis of ankle tissue suggested an allergic reaction. A repaired burn could not be excluded, but there was nothing specifically suggesting that possibility either. At the time of a service evaluation in November 1997, the assessment was probable eczematous dermatitis. On VA examination in September 1999, the Veteran had no skin rash or chemical burns. Instead, he was assessed with venous stasis and skin pigmentation due to varicose veins on his right lower leg. Outpatient records dating in and about 2008 show that the Veteran had skin ulcers on his feet. However, these have not been determined to have been caused by chemical burns based upon the records available. VA treatment records show treatment for athlete's foot or tinea pedis as well as onychomycosis (for which service connection has been established), but do not demonstrate any relationship between a skin disability and claimed chemical burns to service, or service origin of dermatitis. Because the medical record fails to demonstrate a skin disorder due to service, including chemical burns, including the dermatitis of the ankles (medial malleolus) or sacrum that is shown in the treatment records, it is not material to the issue of service incurrence of this claimed condition or the Veteran's claim for service connection for skin disability due to chemical burns. There is no medical evidence of record showing that this condition is related to military service. As new and material evidence has not been submitted, the Veteran's claim may not be reopened and service connection for the claimed skin disorder due to chemical burns continues to be denied. Higher ratings Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1 (2016). A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7 (2016). Onychomycosis The appellant appeals for higher ratings than the two 10 percent ratings currently assigned for the Veteran's service-connected onychomycosis of his right and left foot. In May 2006, service connection was granted for onychomycosis. The Veteran was informed of that decision and of his right to appeal it within 1 year thereof at the time, but no timely appeal or new and material evidence was submitted within 1 year thereof. The claim for an increased rating was received on August 29, 2005, and the Veteran appealed from the May 2008 determination regarding that claim. The Veteran's onychomycosis is rated under Diagnostic Code 7806, which provides for a 10 percent rating for dermatitis or eczema when at least 5 percent, but less than 20 percent, of the entire body or exposed areas is affected; or where intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of less than 6 weeks during the past 12-month period. It provides for a 30 percent rating when 20 to 40 percent of the entire body or exposed areas is affected; or where intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of 6 weeks or more during the past 12-month period. On VA examination in June 2008, the Veteran reported foot skin problems. Some skin breakdown was shown on the skin of the feet, and he was diagnosed with onychomycosis of the right and left foot. There are current treatment reports of record concerning the Veteran's feet, but they do not show onychomycosis warranting a higher rating based on the rating criteria. Based on the evidence, the Board concludes that higher ratings than 10 percent are not warranted for right or left foot onychomycosis. The evidence does not show that 20 to 40 percent of the entire body or exposed areas is affected by the Veteran's onychomycosis; or that intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of 6 weeks or more during any past 12-month period during the rating period. 1st metatarsal fractures The Veteran also appeals for higher ratings than the two 10 percent ratings assigned for his service-connected right and left foot 1st metatarsal fractures. His appeal stems from a November 20, 2007 claim concerning these disabilities. His metatarsal fractures are rated under Diagnostic Code 5284, which provides for a 10 percent rating for moderate foot injuries, and a 20 percent rating for moderately severe foot injuries. On VA examination in June 2008, the Veteran reported toe fractures. He indicated that he had had a fusion of his right great toe, that he has rotation deformities of the great toes, and that he walks on the medial aspect of the great toes on both feet. He reported getting bilateral foot pain, soreness, tenderness, and so forth, and that prolonged standing and walking bothered it. The examination showed that his right great toe was fused at the metatarsophalangeal joint, with no motion there, and that he had some pain and tenderness and a little bit of rotational deformity of the interphalangeal joint of that toe, and some skin breakdown over the right great toe medially. His left foot showed some tenderness and soreness, more over the 2nd metatarsal with limited deformity of the proximal interphalangeal joint of the left great toe and some skin breakdown over the medial aspect of the left great toe. The diagnoses were residual fracture, right 1st metatarsal with fusion of the metatarsophalangeal joint; and residual fracture of the left foot (1st) metatarsal. X-rays in July 2008 showed degenerative changes about the 1st tarsometatarsal joints bilaterally. There are also treatment reports of record concerning other foot problems, but they do not show that the Veteran's right and left 1st metatarsal fracture disabilities represent moderately severe injuries of either foot. Based on the evidence, the Board concludes that a higher rating than 10 percent is not warranted for the right or left foot 1st metatarsal fracture disability. The preponderance of the evidence indicates that the Veteran's right and left 1st metatarsal fracture disabilities do not represent moderately severe foot injuries of either foot. The Veteran's right and left foot metatarsal fractures may cause some pain, soreness, tenderness, and some localized arthritis, but they are not the equivalent of moderately severe foot injuries. To the contrary, information in the June 2008 VA examination report shows that his metatarsal fractures do not prevent him from standing for a prolonged period of time or from walking, although those activities do bother him. A higher degree of symptomatology associated with a finding of moderately severe injuries to either foot due to the Veteran's service-connected bilateral 1st metatarsophalangeal joint fractures is not shown. Fibromyalgia In the instant case the Veteran already receives a 40 percent disability rating for his service-connected fibromyalgia. The Veteran's service-connected fibromyalgia is rated under Diagnostic Code 5025. 38 C.F.R. § 4.71a (2015). Diagnostic Code 5025 provides that fibromyalgia (fibrositis, primary fibromyalgia syndrome) with widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms, is to be assigned a 40 percent disability rating if the symptoms are constant, or nearly so, and refractory to therapy. This is the maximum rating available under the code. A note to Diagnostic Code 5025 provides that widespread pain means pain in both the left and right sides of the body, that is both above and below the waist, and that affects both the axial skeleton (i.e., cervical spine, anterior chest, thoracic spine, or low back) and the extremities. A December 2009 statement from a private physician identifies that the Veteran meets the criteria for the maximum 40 percent schedular rating by circling printed criteria corresponding to the 40 percent rating criteria. The private provider noted that the conclusinons were based on longitudinal evaluations of the Veteran over several years and with the exclusion of other similar conditions. Subsequent to the award of the 40 percent rating in the March 2017 rating decision, neither the appellant nor her representative have indicated disagreement with the rating currently assigned throughout the appeal period. Neither the appellant nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). The preponderance of the evidence is against the claims and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). The Board is thankful for the Veteran's years of honorable service, and wishes to express its condolences to the appellant for her loss. ORDER As new and material evidence has been received, the claim for service connection for PTSD is reopened; service connection for PTSD is denied. As new and material evidence has not been received, the claim for service connection for skin disorder due to chemical burns is not reopened and remains denied. A disability rating in excess of 10 percent for right foot onychomycosis is denied. A disability rating in excess of 10 percent for left foot onychomycosis is denied. A disability rating in excess of 10 percent for right 1st metatarsal fracture is denied. A disability rating in excess of 10 percent for left 1st metatarsal fracture is denied. A disability rating in excess of 40 percent for fibromyalgia is denied. ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs