Citation Nr: 1802155 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 16-05 735 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to a compensable rating for residuals of a fracture of the fourth metacarpal of the right hand. 2. Whether new and material evidence has been received to reopen claim for service connection for residuals of fracture of the right patella. 3. Entitlement to service connection for residuals of fracture of the right patella. 4. Whether new and material evidence has been received to reopen claim for service connection for bilateral high frequency hearing loss. 5. Entitlement to service connection for bilateral high frequency hearing loss. 6. Whether new and material evidence has been received to reopen claim for a kidney infection, by history, with benign prostatic hypertrophy. ATTORNEY FOR THE BOARD M. A. Macek, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from March 1951 to April 1955. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's right ring finger has manifested with pain on palpation and evidence of bony hypertrophy in the fourth metacarpal of the right hand; but, not by loss of function to the point where amputation with prosthesis would serve equally well. 2. The September 1985 Board decision which denied service connection for a fracture of the right patella is final; however, evidence received since that rating decision is new, material, and raises a reasonable possibility of substantiating the claim. 3. The weight of the evidence is against a finding that the Veteran's fractured his right patella in service and his current right knee disability, degenerative arthritis, was not caused or aggravated by a knee injury sustained in service; therefore, his current right knee disability is not etiologically related to such service. 4. The September 1985 Board decision which denied service connection for bilateral hearing loss is final; however, evidence received since that rating decision is new, material, and raises a reasonable possibility of substantiating the claim. 5. The weight of the evidence is against a finding that the Veteran's bilateral hearing loss disability is etiologically related to service. 6. The September 1985 Board decision which denied connection for a kidney infection with benign prostatic hypertrophy is final; evidence received since that rating decision is not new or material, and does not otherwise raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for residuals of a fracture of the fourth metacarpal of the right hand have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5299-5230 (2017). 2. The September 1985 Board decision denying service connection for a fracture of the right patella is final; however, the criteria for reopening that claim have been met. 38 U.S.C. §§ 5108, 7105(c) (West 2012); 38 C.F.R. §§ 3.104 (a), 3.156, 3.159(c)(4), 3.160(d), 20.200, 20.302, 20.1103 (2017). 3. The criteria for service connection for a fracture of the right patella have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1137 (West 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017). 4. The September 1985 Board decision denying service connection for bilateral hearing loss is final; however, the criteria for reopening that claim have been met. 38 U.S.C. §§ 5108, 7105(c) (West 2012); 38 C.F.R. §§ 3.104 (a), 3.156, 3.159(c)(4), 3.160(d), 20.200, 20.302, 20.1103 (2017). 5. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1137 (West 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017). 6. The September 1985 Board decision denying service connection for a kidney infection is final and the criteria for reopening that claim have not been met. 38 U.S.C. §§ 5108, 7105(c) (West 2012); 38 C.F.R. §§ 3.104 (a), 3.156, 3.159(c)(4), 3.160(d), 20.200, 20.302, 20.1103 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Unavailability of records due to 1973 National Personnel Records Center (NPRC) fire. The Board notes that some of the Veteran's records were unavailable. The VA attempted to obtain the Veteran's service treatment and personnel records; however, it was determined that some records were unavailable due to the 1973 fire at the NPRC. The NPRC was able to reconstruct a number of the Veteran's medical and personnel records and added them to the Veteran's case file. When the NPRC informs VA that records were lost in the 1973 fire, or when there is other evidence in the file that a claimant's service records have otherwise been lost or destroyed, VA has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist a claimant in developing a claim, and to explain its findings and conclusions. Russo v. Brown, 9 Vet. App. 46, 51 (1996); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000). II. Increased rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2017). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2 (2017); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2017). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2017). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding, see 38 C.F.R. § 4.14 (2017), do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. However, those provisions should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45 (2017). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2017). However, the evaluation of painful motion as limited motion only applies when the limitation of motion is non-compensable under the applicable diagnostic code. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Residuals of a fracture of the fourth metacarpal of the right hand The Veteran's right ring finger disability, which was found to be a residual of the fracture of the fourth metacarpal of the right hand, is rated under Diagnostic Code 5299, and is rated by analogy to Diagnostic Code 5230, covering range of motion of the ring finger. 38 C.F.R. § 4.71a (2017). He is currently assigned a noncompensable rating since August 18, 2011. Under Diagnostic Code 5230, a noncompensable rating is warranted for any limitation of motion of the ring finger, including the dominant and non-dominant hand. Id. No higher ratings under Diagnostic Code 5230 are possible. As the maximum allowable rating is a noncompensable one, it is not possible to assign the Veteran a higher disability rating under Diagnostic Code 5230. As such, a higher rating for a right ring finger flexion deformity based on range of motion is not warranted. Id. It must also be considered whether an evaluation by analogy to amputation is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5155 (2017). The Veteran contends that he suffers from pain in his right hand resulting in functional loss. See July 2012 NOD. In October 2011, the Veteran was offered a VA examination for residuals of a fourth metacarpal fracture of his right hand. The examiner confirmed a diagnosis of right metacarpal fracture, his dominant hand, occurring in 1952. The Veteran reported flare-ups which occur once a month and last for three hours. The flare ups were precipitated by weather changes and alleviated with rest and medication. The examiner found normal range of motion without evidence of painful motion in the fingers and thumbs. The Veteran was able to perform repetitive-use testing with three repetitions. The Veteran exhibited pain on palpation in both of his hands. Muscle strength testing was considered normal. There was no evidence of ankylosis in the right thumb or fingers. A mid right ring finger metacarpal showed a bony hypertrophy. The examiner noted no functional loss in the right hand, thumb, or fingers. He noted that the Veteran had stopped working in January 2010 when the building where he was employed was sold. The examiner opined that the Veteran's right hand did not present with functional loss that would be equally well served by an amputation of the digit. In evaluating the Veteran's current level of disability, functional loss was considered. 38 C.F.R. §§ 4.40, 4.45 (2017). The medical evidence shows that the Veteran has, at different times, complained of pain on touch and motion, which he is competent to report. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, even after taking these statements and the current symptoms, the VA examiner found that the Veteran would not be better served by amputation of the right ring finger. Additionally, VA treatment records lack any opinion indicating that the Veteran would be equally well served by amputation of the right ring finger. As such, the preponderance of the evidence is against a finding that a higher rating for the Veteran's residuals of a fourth metacarpal fracture of his right hand based on amputation. 38 C.F.R. § 4.71a, Diagnostic Code 5155 (2017). Additionally, the Board finds that the VA medical opinion outweighs the Veteran's statements regarding additional functional loss due to pain, weakness, fatigue, or other factors as per Deluca. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017). All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against a compensable rating for the Veteran's service-connected residuals of a fourth metacarpal fracture of his right hand. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3 (2017). For these reasons, the claim is denied. III. New and Material Evidence Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103 (2017). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a) (2017). 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, 117 (2010). IV. Service Connection A. Direct Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2017); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). B. Presumptive Service Connection Presumptive service connection may be granted for "chronic diseases" if the disease manifests to a compensable degree within service or within the presumptive period of one year after separation. 38 C.F.R. § 3.307 (a)(3) (2017). Sensorineural hearing loss is categorized as a chronic "organic disease of the nervous system." 38 U.S.C. § 1101; 38 C.F.R. § 3.309 (a) (2017). Additionally, osteoarthritis, a form of arthritis, is categorized as a chronic disease. Id. Patella fracture The Veteran contends that he has suffered from right knee pain since having his leg run over by a motorcycle in service. He reported that he sought treatment for the condition and was diagnosed with a "cracked knee." The Veteran also reports that his submitted lay statements from his fellow service-members were not considered in the adjudication of his claim. In the September 1985 Board decision, the Veteran was denied service connection for a right knee disability. While the Board considered the Veteran's complaints of long-standing knee pain, it determined that his current right knee disability was not etiologically related to the right knee bruise he suffered in service. Additionally, there was no probative evidence of a patella fracture sustained in service. The Veteran presented for knee pain several years after separation; however, the Veteran's right knee disability did not manifest to a compensable degree within one year of separation. In October 2011, the Veteran was afforded a VA examination for his right knee. The Board finds this evidence is new as it was not considered in the Board's 1985 decision. The evidence is also material as it contains medical evidence raises a reasonable possibility of substantiating the right knee claim. Therefore, the Board finds that the claim for entitlement to service connection for fracture of the right patella, by history, is reopened. Regarding the Veteran's argument that his submitted lay statements have not been considered in the adjudication of his claim for his right knee, the Board finds this not to be the case. The 1985 Board decision referenced lay statements by the Veteran, his mother, service-members W., T., M., W., and a positive etiology opinion by Dr. S. With respect to first element (1) in a claim for service connection, a current disability, the Veteran has a diagnosis of right knee osteoarthritis as confirmed by the October 2011 VA examination. With respect to element (2), in-service incurrence or aggravation of a disease or injury, the evidence reveals that the Veteran suffered an acute knee bruise while in service. The injury was considered acute and was not found on the Veteran's separation examination. While the Veteran currently reports that he broke his patella in-service, there is no competent medical evidence to confirm this diagnosis, which requires a medical professional to confirm a patellar fracture by radiological review. As noted in its September 1985 decision, the Board, citing the Veteran's submitted lay evidence and a positive etiology opinion by Dr. Schmitz, determined that there was insufficient evidence to confirm that the Veteran suffered a right patella fracture in service. Additionally, the record lacks probative evidence showing a continuity of symptomatology of a right knee disability since the Veteran's separation examination, which considered the Veteran's right knee to be normal. With respect to element (3), a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability, the competent, credible, and probative evidence of record weighs against a finding that the Veteran's current right knee disability, osteoarthritis, is etiologically related to service. In October 2011, the Veteran was afforded a VA examination for his right knee disability. A diagnosis of right knee arthritis was confirmed with an onset of 2008. Specifically, the examiner endorsed that there was moderate arthrosis on the anterior and medial compartments of the right knee. By history, the Veteran first presented with right knee pain in 1954 when his bicycle impacted a motorcycle while stationed in England. The Veteran presented for treatment to the military physicians and was diagnosed with a "cracked knee." He was placed on light duty for eight weeks. While some records were likely destroyed by the 1973 NPRC fire, a notation in 1953 of a "bruised knee" was found. The Veteran returned to full-duty and his separation examination was negative for any right knee condition. The Veteran sought treatment several years after separation for pain in his right knee and was told that he would have to live with the pain. There was reference to a 1982 VA examination where the Veteran complained of right knee swelling. X-rays of the right knee, however, were considered normal. These reports of right knee pathology were considered in the 1985 Board decision denying service connection for a right knee disability. During the October 2011 VA examination, the Veteran reported experiencing flare-ups in his right knee once a month lasting about three hours precipitated by physical activity such as lifting or walking. Rest and medications reduced the symptoms associated with the flare-up. The Board finds that the competent, credible, and probative evidence weighs against a finding that the Veteran's right knee disability is etiologically related to his active service. There is no credible evidence to confirm that the Veteran suffered a right patella fracture in service. Review of all available records revealed no diagnosis of a right patella fracture in service. Similarly, the post-service evidence did not show a fractured right patella. While the Veteran has a current right knee disability, manifested by osteoarthritis, the October 2011 VA examiner found that it was caused by the effects of aging and not by the in-service bruised right knee which was determined to be self-limited and did not become chronic. He compared the Veteran's knees and found that there was no difference in the manifestation of arthritis bilaterally. Even with its heightened duty to sympathetically review the evidence due to its potential unavailability due to the 1973 NPRC fire, the record lacks a competent positive etiology opinion that meets the necessary equipoise to substantiate the claim. As such, service connection for a right patella fracture is not warranted. Bilateral hearing loss Service connection for a hearing loss disability may not be established unless the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 is 40 decibels or greater; or the auditory thresholds for at least three of the frequencies 500, 1000, 2000, or 4000 Hertz are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. §3.385 (2017). The Veteran contends that he has suffered hearing loss due to frequent ear infections he experienced in-service. The Veteran also reports that his submitted lay statements from his fellow service-members were not considered in the adjudication of his claim. In the September 1985 Board decision, the Veteran was denied service connection for bilateral hearing loss. While the Board considered the Veteran's complaints of hearing loss, it was determined that his high frequency bilateral hearing loss was not etiologically related to ear infections he suffered in service. In October 2011, the Veteran was afforded a VA examination for his hearing disability. The Board finds this evidence is new as it was not considered in the Board's 1985 decision. The evidence is also material as it contains medical evidence raises a reasonable possibility of substantiating the bilateral hearing loss claim. Therefore, the Board finds that the claim for entitlement to service connection for bilateral hearing loss, by history, is reopened. Regarding the Veteran's argument that his submitted lay statements have not been considered in the adjudication of his claim for his hearing disability, the Board finds this not to be the case. The 1985 Board decision referenced lay statements by the Veteran, his mother, and service-members W., T., M., and W. As the Board has already considered this evidence in a prior decision, the Veteran's submission of these duplicative records will not be considered in the context of determining whether new and material evidence has been received. In the September 1985 Board decision, the Veteran was denied service connection for bilateral hearing loss as it was determined that he did not meet the criteria for hearing loss as per 38 C.F.R. §3.385 (2017). The Veteran's separation examination revealed normal hearing and did not manifest to a compensable degree within one year of separation. With respect to first element (1) in a claim for service connection, a current disability, the Veteran has a diagnosis of bilateral hearing loss, with an onset of 1982, as confirmed by the October 2011 VA examination. With respect to element (2), in-service incurrence or aggravation of a disease or injury, the evidence does not show that the Veteran met the requirements under §3.385 for bilateral hearing loss in service or within the one year presumptive period. Service treatment records reveal that the Veteran suffered ear infections during service; however, these conditions were considered acute and resolved by separation. The record lacks any evidence of a continuity of symptomatology of hearing loss symptoms since the Veteran's separation examination, which revealed normal hearing. The first noted instance where the Veteran met the requirements of bilateral hearing loss, as per 38 C.F.R. § 3.385 (2017), is the 1982 VA examination, which was considered by the September 1985 Board decision. With respect to element (3), a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability, the competent, credible, and probative evidence of record weighs against a finding that the Veteran's current bilateral hearing loss is etiologically related to service. In October 2011, the Veteran was afforded a VA examination for his bilateral hearing loss disability. The examiner diagnosed the Veteran with bilateral hearing loss. He noted acute ear infections during service; however, he determined that the Veteran's bilateral hearing loss was not etiologically related to service. He endorsed that the in-service ear infections were self-limited and did not become chronic. Further, he concluded that if ear infections were the cause of the Veteran's hearing loss, the pattern of deficit would not be restricted to only high frequencies as was the case in the Veteran's 1982 audiology examination. The Board finds that the competent, credible, and probative evidence weighs against a finding that the Veteran's bilateral hearing loss is etiologically related to his active service. The Veteran's available treatment records reveal that he did not manifest with a hearing loss disability, as per §3.385, in service or within the one year presumptive period. The Veteran did manifest with high frequency bilateral hearing loss in 1982; however, the medical evidence weighs against finding that his hearing loss disability was etiologically related to service. Rather, the Board finds the examiner's opinion is persuasive as he described the pattern of the Veteran's hearing loss indicating it was most likely attributable to natural aging. The Board also finds it significant that the examiner supported this opinion by endorsing that medical literature does not show a nexus linking the Veteran's ear infections to his current bilateral hearing loss. Even with its heightened duty to sympathetically review the evidence due to its potential unavailability due to the 1973 NPRC fire, the record lacks a competent positive etiology opinion that meets the necessary equipoise to substantiate the claim. As such, service connection for bilateral hearing loss is not warranted. Kidney infection with benign prostatic hypertrophy The Veteran contends that his current kidney disability was caused by his service. He submitted lay testimony, including family and service-members, citing frequent urination during service. Regarding the Veteran's argument that his submitted lay statements have not been considered in the adjudication of his claim for his kidney disability, the Board finds this not to be the case. As noted above, the 1985 Board decision referenced the lay statements and therefore they are not new. In the September 1985 Board decision, the Veteran was denied service connection for a kidney disability as it was determined that there was no kidney disability incurred in or aggravated by such service. The Board, citing the Veteran's lay testimony, determined that the Veteran had episodes of incontinence during service; however, there was no objective medical evidence providing a positive etiology opinion linking the Veteran's kidney disability to such service. The 1982 VA examination of the Veteran's genitourinary system revealed a symmetrical enlarged prostate, which were consistent with benign prostatic hypertrophy. No other pathology of the genitourinary system was found on examination. The first clinical evidence of pathology, a urethral stricture, was not found until 1961. Unfortunately, new and material evidence has not been received to reopen the Veteran's claim. The Veteran's contentions are essentially duplicative of those previously before decision-makers. Hence, they are not new. There remains no medical evidence supporting the Veteran's current genitourinary disability is etiologically related to the Veteran's active military service. As such, re-opening the Veteran's claim for a kidney disability with benign prostatic hypertrophy is not warranted. ORDER Entitlement to an initial compensable rating for residuals of a fracture of the fourth metacarpal of the right hand is denied. The petition to reopen the previously denied claim for service connection for entitlement to service connection for a right knee disability is granted. Entitlement to service connection for a right knee disability is denied. The petition to reopen the previously denied claim for service connection for entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for bilateral hearing loss is denied. The petition to reopen the previously denied claim for entitlement to service connection for basal for a kidney infection with benign prostatic hypertrophy is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs