Citation Nr: 1801114 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 12-28 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right elbow disability. 2. Entitlement to service connection for a right elbow disability, claimed as right elbow injury with residual loss of motion and extension. 3. Entitlement to a compensable evaluation for laceration, tip of right middle/2nd finger (scar). 4. Entitlement to a compensable evaluation for laceration, distal phalanx, right ring/3rd finger (scar). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Leanne M. Innet, Associate Attorney INTRODUCTION The Veteran served on active duty from January 1975 to March 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office in Houston, Texas (RO). As will be discussed below, the Veteran filed a claim to reopen his previously denied claim for entitlement to service connection for a right elbow disability. The Board is required to determine its jurisdiction by addressing in the first instance the issue of whether the Veteran presented new and material evidence to support reopening his previously adjudicated claim. Any decision the RO made with regard to new and material evidence is irrelevant in regards to the Board's jurisdiction. See Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); see also Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (holding that the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous act of denying the claim was appealed to the Board). If the Board determines that new and material evidence was not presented, the adjudication of the underlying claim ends, and further analysis is neither required nor permitted. In August 2017, the Veteran testified at a videoconference hearing before the undersigned, and a transcript is of record. This appeal was processed using the Virtual VA (VVA) and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future review of this Veteran's case should take into consideration the existence of these electronic records. The issue of entitlement to service connection for a right elbow disability is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. In an unappealed December 2009 rating decision, the RO denied the Veteran's claim for service connection for a right elbow disability. 2. The evidence received since the December 2009 rating decision in the form of the Veteran's statements is new and material since it relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a right elbow disability. 3. Throughout the entire rating period on appeal, the Veteran's laceration, tip of right middle/2nd finger, resulted in one painful scar located on the right middle finger. 4. Throughout the entire rating period on appeal, the Veteran's laceration, distal phalanx, right ring/3rd finger, resulted in one painful scar located on the right ring finger. CONCLUSIONS OF LAW 1. The December 2009 rating decision, denying service connection for a right elbow disability, is final. 38 U.S.C. § 7105 (2002); 38 C.F.R. §§ 3.104, 19.32, 20.200, 20.302, 20.1103 (2009). 2. The evidence presented since the December 2009 rating decision to reopen the claim for entitlement to service connection for a right elbow disability is new and material, and the claim is reopened. 38 U.S.C. §§ 501, 5103A(f), 5108, 7104(b) (2002); 38 C.F.R. § 3.156 (2017). 3. The criteria for a disability rating of 10 percent, but no higher, for laceration, tip of right middle/2nd finger, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.118, Diagnostic Code 7804 (2017). 4. The criteria for a disability rating of 10 percent, but no higher, for laceration, distal phalanx, right ring/3rd finger, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.118, Diagnostic Code 7804 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Claim to Reopen In August 2009, the Veteran filed a service connection claim for right elbow injury with residual loss of motion and extension, which the RO denied in a December 2009 rating decision. The Veteran did not appeal and the rating decision became final. In a July 2011 supplemental claim, the Veteran sought an increased evaluation for right elbow injury with residual loss of motion and extension, which was construed as a claim to reopen his claim of entitlement to service connection for a right elbow disability. In a May 2012 rating decision, the RO confirmed and continued the denial, finding that no new and material evidence had been presented. Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 501, 5103A(f), 5108, 7104(b), 7105(c) (2012). The exception is when new and material evidence is presented or secured which Congress intended to be a low threshold. See 38 U.S.C. § 5108 (2012); 38 C.F.R § 3.156 (2017); Shade v. Shinseki, 24 Vet. App. 110, 121 (2010) (holding that the law should be interpreted as enabling reopening of a claim, rather than precluding it). Existing evidence not previously before agency decision makers is "new evidence." 38 C.F.R. § 3.156(a) (2017). "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." Id. The proffered evidence cannot be cumulative or redundant "of the record evidence 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." Id. The phrase "raise a reasonable possibility of substantiating the claim" does not create a third element for new and material evidence; rather, it provides guidance in determining whether submitted evidence meets the new and material requirements. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether evidence is new and material, the evidence must be presumed credible. Shade v. Shinseki, 24 Vet. App. 110, 122 (2010); Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). New evidence may be sufficient to reopen a claim if it contributes to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Evidence that corroborates record evidence is not cumulative or redundant. Paller v. Principi, 3 Vet. App. 535, 538 (1992). VA's duty to assist in providing a medical examination does not attach unless the claim is reopened. 38 C.F.R. § 3.159(c)(4)(iii) (2017); Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). If the Board finds that new and material evidence has been presented and reopens the claim, after ensuring that VA's duty to assist has been fulfilled, the Board may proceed to evaluate the merits of the claim. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). The question for the Board, therefore, is whether the evidence presented since the December 2009 rating decision constitutes new and material evidence such as to support reopening his claim for service connection for a right elbow disability and, after a careful review of the evidence of record, the Board finds that it does. In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). In August 2009, the Veteran filed a service connection claim for right elbow injury with residual loss of motion and extension. The Veteran's February 1980 separation examination report showed that the Veteran lost a finger in June 1977. A narrative summary from June 1977 revealed that the Veteran suffered a crush injury to the fingertip of the right ring and middle fingers, sustaining a distal amputation at the base of the fingernail of the middle finger with an open fracture through the nail bed of the ring finger. It was noted that there was no nerve or artery involvement. It states that the wounds were debrided and a Wolfe graft was attempted on the middle finger, which failed. A June 1977 consultation report shows that an acetylene welder fell on the Veteran's dominant right hand resulting in the previously noted injuries to his fingers. The Veteran is service-connected for these injuries. In November 2009, the Veteran was scheduled for a VA examination that he did not attend. In a December 2009 rating decision, the RO denied service connection for a right elbow disability finding that there was no evidence of a disability in service or a link between service and current disability. In a July 2011 supplemental claim, the Veteran sought an increased evaluation for right elbow injury with residual loss of motion and extension, which was construed as a claim to reopen his service connection claim. A print out from the Veteran's VA medical records showing a list of active medical conditions was associated with the claims file in September 2011. The list did not include any arm conditions. The Veteran was afforded a VA examination in September 2011, and in the examination report it was remarked that there was calcified bursitis of the right elbow with decreased motion that limited movement of the right arm, which affected the Veteran's usual occupation and daily activities. The Veteran did not respond to the RO's September 2011 VCAA Letter. In a May 2012 rating decision, the RO found that no new and material evidence had been submitted. In June 2012, the Veteran submitted his notice of disagreement, and in August 2012, the Veteran's VA medical treatment records for the period June 2009 to August 2012 were associated with the claims file. These records are silent for complaints concerning the right elbow. In an August 2012 statement of the case, the RO remarked that the September 2011 VA examination report noted calcified bursitis of the right elbow with decreased motion. The RO stated that the Veteran's service treatment records show no evidence of complaints, treatment, or a diagnosis of a right elbow condition or injury during active military service. The Veteran's claim remained denied. The Veteran perfected his appeal and submitted a waiver of AOJ consideration of additional evidence. In an August 2017 statement in support of claim, the Veteran related that while in service he was a machinist, and while cleaning the shop, a welding machine fell on him, he fell to the ground hitting his right elbow, and the machine landed on his hand, causing scars, extreme pain, and partial amputation of his right middle finger. He stated that ever since the injury he has suffered throbbing, cramps, swelling, and pain in his right hand. He stated that he was diagnosed as having arthritis in the right hand, and it has affected his ability to work as a professional 18-wheel truck driver. In August 2017, the Veteran testified at a videoconference hearing. The Veteran testified that while in the service he was a machinist and when they were moving equipment for a field day a welding machine fell on top of him; when he landed on the ground, he landed elbow first and the welding machine caught his fingers. He stated that he did not seek treatment for his elbow until he arrived in Texas. He stated that he had surgery on the elbow last year to remove a growth that had been growing for thirty years. He stated that he was advised that eventually the elbow would lock up, that he would get arthritis, and that future surgery would be required. The Board finds that the diagnosis on the September 2011 VA examination report, the Veteran's August 2017 statement in support of claim, and his August 2017 hearing testimony constitute new evidence because it had not been before the agency decision makers previously. It is material evidence because it relates to the unestablished facts of an in-service incurrence. The Veteran is competent to report events and his symptoms. See 38 C.F.R. § 3.159(a)(1)-(2) (2017) (defining competent medical evidence and competent lay evidence); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that competent lay evidence requires facts perceived through the use of the five senses); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating that "lay persons are not competent to opine on medical etiology or render medical opinions."). For the purpose of new and material evidence analysis, his statements are presumed credible. Shade v. Shinseki, 24 Vet. App. 110, 122 (2010); Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Accordingly, the claim for entitlement to service connection for a right elbow disability is reopened. Increased Rating Claims The Veteran essentially contends that his service-connected scars from laceration of his right middle and ring fingers have been more disabling than the assigned noncompensable evaluation of disability. Since the legal analysis is the same for both, the Board will address the right middle and ring fingers in conjunction with one another. Disability ratings are assigned under a schedule for rating disabilities and based on a comparison of the veteran's symptoms to the criteria in the rating schedule. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Disability evaluations are determined by assessing the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the ratings schedule. Individual disabilities are assigned separate Diagnostic Codes, and ratings are based on the average impairment of earning capacity. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2 (2017). If there is a question as to which evaluation should be applied to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). The primary focus in a claim for increased rating is the present level of disability. Although the overall history of the veteran's disability shall be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, a staged rating is warranted if the evidence demonstrates distinct periods of time in which a service-connected disability exhibited diverse symptoms meeting the criteria for different ratings throughout the course of the appeal. Fenderson v. West, 12 Vet. App, 119, 125-126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the Veteran's scars from lacerations on his right middle and ring fingers are rated under 38 C.F.R. § 4.118, Diagnostic Code 7804 (2017). Diagnostic Code 7804 provides disability ratings for scars that are unstable or painful, with the assignment of a 10 percent rating for one or two such scars, a 20 percent rating for three or four such scars, and a 30 percent rating for five or more such scars. Note (1) defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that where one or more scars are both unstable and painful, 10 percent shall be added to the evaluation based on the total number of unstable or painful scars. Note (3) states that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under 7804 when applicable. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2017). Here, the Board reviewed all evidence in the claims file, with an emphasis on that which is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claims. In September 2011, the Veteran was afforded a VA examination. The Veteran reported that the scar on his right middle finger limited his ability to bend the finger and that it was painful. The examiner recorded that there was a linear scar on the ring finger measuring 4 cm by 0.2 cm; a scar on the right tip finger measuring 2.5 cm by 0.2 cm; a scar on the middle finger tip measuring 1.5 cm by 0.1 cm; and on the index finger measuring 5 cm by 0.1 cm. It was recorded that the scars were not painful; there was no skin breakdown; they were superficial scars with no underlying tissue damage; inflammation was absent; edema was absent; there was no keloid formation; the scars were not disfiguring; the scars did not limit motion; and the scars did not limit function. In December 2011, the Veteran was afforded a VA examination. It was noted that the Veteran had amputation in 1977 of the right ring finger tuft with scars on the right index, middle, and ring fingers, which were the result of an in-service accident. In regards to the stump, the Veteran reported swelling, pain, and phantom pain, and he reported that the symptoms occurred constantly. He reported that the pain was a 10 of 10, which is relieved by pain medication. The Veteran reported that the symptoms impaired his ability to drive, lift his hand, and to close his hand. The examiner described three scars with the following measurements: 3.5 cm by 0.1cm; 1 cm by 0.3 cm; 3 cm by 0.2 cm. All of the scars had the following evaluation: not painful on examination; no skin breakdown; a superficial scar with no underlying tissue damage; no inflammation; no edema; no keloid formation; no disfigurement; no limitation of motion due to the scar; and no limitation to function due to the scar. It was noted that the Veteran is right-hand dominate and that there was no signs of lowered endurance or impaired coordination. For muscle group IX, muscle strength was graded at 5/5. It was reported that palpation of the muscle group IX revealed no loss of deep fascia or muscle substance and no impairment of muscle tone. Muscle injury did not affect the function of the particular body part it controlled. There was no muscle herniation, and the muscle injury did not involve any tendon, bone, joint, or nerve damage. The examiner reported that the bilateral hand examination did not reveal a decrease in strength in regards to pulling, pushing, and twisting. In regards to dexterity, it was reported that the bilateral had examination did not reveal a decrease in twisting, probing, writing, touching, and expression. The examination did not reveal any deformities in the digits. It was reported that examination revealed no ankylosis. It was reported that examination of the amputation stump revealed no tenderness, neuroma, circulation problems, swelling, or deformity. Under Other Findings, it was noted that the tuft of the ring finger was amputated only. It was noted that the X-ray of the right hand was abnormal, showing old amputation or incompletely healed fracture of the tuft of the ring finger. The Veteran testified that the scar on his right middle finger has gotten worse because he drives an 18-wheeler and shifting 12 hours a day makes it cramp up, which does not go away. He stated that because of the cramping, he quit driving because he had to pull off the road to avoid having an accident. The Veteran also stated that his hands shake. The Veteran stated that he started working on Mondays and by Fridays his symptoms had increased. Due to repetitive use during the week, the Veteran stated that he had to use ice and Ben-Gay to bring it down. The Veteran stated that it affected his whole hand. The Veteran stated that he discussed the problem with his primary care physician who advised that a consultation should be set up with an outside hand specialist so that he could receive therapy and a glove or brace. The Veteran stated that when he had the VA examinations in 2011 he was told that he had 50 percent loss of motion and loss of control of his fingers. He stated that since then it just hurts, it cramps, his hands shake, and it affects his elbow. He stated that he cannot use it anymore; so long as he does not use it, he is okay. Based upon a careful review of the foregoing, the Board finds that the evidence establishes that the Veteran's disability picture for the scar on each finger more nearly approximates the criteria for a 10 percent rating. The evidence shows that he Veteran has one painful scar on the right middle finger and one painful scar on the right ring finger. The evidence does not support that the Veteran's service-connected scars warrant more than an evaluation of 10 percent disabling. The Veteran's scars are not unstable, deep, or nonlinear sufficient to justify an increased rating per the provisions of Diagnostic Codes 7800 to 7803 and 7805. As such, the Board finds that the record does not support the assignment of a disability rating in excess of 10 percent during the rating period on appeal. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER New and material evidence has been presented, and the claim for entitlement to service connection for a right elbow disability is reopened. Entitlement to a rating of 10 percent, but no higher, for laceration, tip of right middle/2nd finger, is granted, subject to the laws and regulations governing the payment of monetary awards. Entitlement to a rating of 10 percent, but no higher, for laceration, distal phalanx, right ring/3rd finger, is granted, subject to the laws and regulations governing the payment of monetary awards. REMAND The Veteran contends that his current right elbow disability, manifested by loss of motion and extension, is the result of landing on his right elbow when a welding machine landed on his right hand, lacerating fingers and amputating one. The Veteran's service treatment records reflect the June 1977 injuries and treatments to his right hand. The Veteran has not been afforded a VA examination for his right elbow disability. The record shows that during a September 2011 VA examination for increased evaluation of his service-connected disability of the right fingers, it was noted that the Veteran had calcified bursitis of the right elbow with decreased motion of the right arm. The record also shows that the Veteran sustained an injury to his right hand while in service that reasonably also involved his right elbow as he explained the events in his August 2017 written statement and August 2017 testimony. Taken together, there is an indication that the Veteran's current right elbow disability may be associated with his in-service accident involving the welding machine that injured his right hand. Thus, the Veteran must be afforded an examination to determine the nature and etiology of the Veteran's current right elbow disability, taking into account the record evidence and accepted medical principles. See 38 U.S.C. § 5103A(d)(2) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Additionally, in August 2017, the Veteran testified that he had surgery on the right elbow last year. The most recent VA medical records associated with the Veteran's claims file are from August 2012. Accordingly, any outstanding medical records should be obtained. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the record all VA treatment records for the Veteran dated from August 2012 to the present. All actions to obtain the requested records should be fully documented in the record. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. 2. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment to his right elbow and obtain all necessary authorizations. After acquiring this information, these records should be associated with the claims file. All actions to obtain the requested records should be fully documented in the record. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. 3. After all additional records are associated with the claims file, schedule the Veteran for an appropriate VA examination for a right elbow disability to determine the etiology of his right elbow condition. The claims folder (including Virtual VA and VBMS documents) and a copy of this Remand must be provided to the examiner in conjunction with the examination. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements; the examiner must indicate on the examination report that such review was undertaken. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed in addition to those addressed below. The examiner must obtain a full history from the Veteran. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must provide a fully reasoned explanation. The examiner should state whether there has been a disorder for the Veteran's right elbow during the appeal period. For any identified right elbow disorder, the examiner must provide an opinion whether it is at least as likely as not (50 percent or greater probability) that such disability was either incurred in or aggravated by service. The examiner should reconcile any opinion with the evidence of record and cite to the record as appropriate. Also, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, readjudicate the claim on appeal. If the benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012). ______________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs