Citation Nr: 1805944 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 13-30 591 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating in excess of 10 percent for status post amputation, distal phalanx, left index finger ("left index finger disability"). 2. Entitlement to service-connection for a left ankle disability. 3. Entitlement to service-connection for a low back disability. REPRESENTATION Appellant represented by: Colin E. Kemmerly, Attorney ATTORNEY FOR THE BOARD A. Kutrolli, Associate Counsel INTRODUCTION The Veteran served honorably in the United States Marine Corps from April 1972 to April 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, denying the claim of entitlement to an increased evaluation for status post amputation, distal phalanx, left index finger, and declining to reopen the claims of entitlement to service connection for a left ankle disability and a low back disability for failure to submit new and material evidence. In February 2014, the Board found that new and material evidence had been submitted and reopened the claims of entitlement to service connection for a left ankle disability and a low back disability. The Board then remanded these claims to the Agency of Original Jurisdiction (AOJ) for further development. The record reflects substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (conferring upon an appellant the right to substantial compliance with the Board's order). 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) (2012). FINDINGS OF FACT 1. The Veteran's left index finger was amputated through the distal joint, but is not manifested by metacarpal resectioning. 2. The Veteran's left upper extremity is the minor upper extremity. 3. The Veteran's left ankle disability was neither incurred in, nor is related to, active military service. 4. The Veteran's low back disability was neither incurred in, nor is related to, active military service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to a disability rating in excess of 10 percent for a right index finger disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.44, 4.45, 4.71a, Diagnostic Code (DC) 5153 (2017). 2. The criteria for establishing entitlement to service-connection for a left ankle disability have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 3. The criteria for establishing entitlement to service-connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. When an appellant fails to raise procedural arguments, the Board is not required to search the record and address them. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Initial Disability Rating for a Left Index Finger Disability The Veteran contends that he is entitled to an evaluation in excess of 10 percent for his service-connected left index finger disability. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran's left index finger disability has not met the schedular criteria for an evaluation in excess of 10 percent at any time during the pendency of this claim. Disability ratings are determined by applying the criteria in VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. § Part 4. 38 U.S.C.A. § 1155. Separate Diagnostic Codes (DCs) identify the various disabilities. Each disability is viewed in relation to its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Id. § 4.7. Otherwise, the lower rating will be assigned. Id. After reviewing the evidence, the Board finds nothing in the record which would lead to the conclusion that the current evidence is not adequate for rating purposes. 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). In Fenderson v. West, the Court noted that where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. 12 Vet. App. 119, 126 (1999). The Veteran's left index finger disability is currently rated as 10 percent disabling under DC 5153, regarding amputations of the index finger. DC 5153 provides a 10 percent rating for an amputation through the middle phalanx or at the distal joint of the major or minor extremity. A higher evaluation of 20 percent is warranted for amputation of the minor index finger without metacarpal resection, at proximal interphalangeal joint or proximal thereto, or, for amputation of the minor index finger with metacarpal resection (more than one-half the bone lost). 38 C.F.R. § 4.71a. The evidence of record demonstrates that the Veteran is right hand dominant. As such, the left index finger is the "minor" extremity in this case. The Veteran was afforded a VA examination of the left index finger in March 2011. The examiner noted that the Veteran slammed a steel door on his left index finger tip in 1974 and lost his finger tip. He now has to have a small amount of nail removed from this finger on a yearly basis. It was noted that this condition resulted in minimal functional impairment. The Veteran most recently underwent a VA examination in January 2015. It was noted that the Veteran was status post amputation distal phalanx left index finger. There was no evidence of metacarpal resectioning or amputation at the proximal interphalangeal joint or proximal thereto. During the examination, the Veteran reported "having some ache." Otherwise, the Veteran identified no significant changes since 1974 - the date of the initial injury. X-rays revealed stable findings with no inflammation or osteomyelitis. The examiner further concluded that the Veteran's left finger disability did not result in any functional impact to the hand, finger or thumb. The preponderance of the above evidence demonstrates that the Veteran is not entitled to an evaluation in excess of 10 percent for a left (minor) index finger disability at any time during the pendency of this claim, as there is no evidence of metacarpal resectioning or amputation at the proximal interphalangeal joint or proximal thereto. See id. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court discussed the applicability of 38 C.F.R. §§ 4.40 and 4.45 to examinations of joint motion. 38 C.F.R. § 4.40 listed several factors to consider in evaluating joints including inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss due to pain was a consideration, as well as weakness, which was an important consideration in limitation of motion. 38 C.F.R. § 4.40 (2012). As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal; (b) more movement than normal; (c) weakened movement; (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; (f) pain on movement, swelling, deformity or atrophy of disuse; instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are related considerations. 38 C.F.R. § 4.45 (2017). In the present case, there is no evidence that the Veteran's left index finger disability results in functional loss of such severity as to warrant a higher rating. In fact, the January 2015 VA examiner specifically noted that this condition did not result in functional loss to the hand, finger or thumb and the 2011 VA examiner noted only minimal functional impairment. The Veteran has also not provided VA with any statement or evidence demonstrating that his left index finger disability results in functional loss of such a degree as to meet the schedular criteria for a rating in excess of 10 percent. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to an evaluation in excess of 10 percent for a left index finger disability must be denied. III. Service-connection for Left Ankle and Back Disabilities The Veteran is also seeking entitlement to service connection for disabilities of the left ankle and the lumbar spine. However, as outlined below, the preponderance of the evidence of record demonstrates that the criteria for establishing entitlement to service connection for either of these disabilities have not been met. Service-connection may be granted if there is a disability resulting from personal injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). To establish service-connection, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service-connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Whether these requirements are met is based on analysis of all the evidence of record and an assessment of its credibility and probative weight. 38 C.F.R. § 3.303(a); Baldwin v. West, 13 Vet. App. 1 (1999). Ultimately, it is the appellant's burden "to present and support a claim for benefits under laws administered by the Secretary." See 38 U.S.C. § 5107(a). Certain chronic diseases, including arthritis, are subject to presumptive service-connection if they manifest to a compensable degree within one year of discharge from service. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307(d), 3.309(a). A showing of chronicity requires a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). When a disease listed at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service-connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was shown in service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Id.; Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); Walker v. Shinseki, 708 F.3d 1331, 1336, 1339 (Fed. Cir. 2013) (explaining that "shown as such in service" means "clearly diagnosed beyond legitimate question"). However, the use of continuity of symptoms to establish service-connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker, 708 F.3d at 1338-39. The Board thoroughly reviewed the evidence in this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss in detail each piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000). After reviewing all the evidence, the Board finds that the preponderance of the evidence is against the claims. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998) (finding it is the Board's duty to assess the credibility and weight of all the evidence and determine its probative value). A. Left Ankle Disability The Veteran has alleged that he sustained a left ankle injury during service while playing football, but his service treatment records only show one complaint of left foot (not ankle) pain. See STRs (Oct. 12, 1973). Notably, the Veteran entered the military with pes planus and the examiners repeatedly referred to the October 1973 complaints as related to the left foot. Evaluation of the left foot in October 1973 revealed a tender fifth metatarsal. X-rays were deemed to be negative. Furthermore, an evaluation of the lower extremities was deemed to be normal during the March 1976 separation examination. Simply, there is no record of any left ankle injury or left ankle complaints during service; thus, it cannot be said that the Veteran had a left ankle injury or disability, chronic or otherwise, that was shown in service. As a result, service-connection cannot be awarded based on chronicity or continuation of symptomatology since service. Likewise, there is no credible, objective medical evidence linking any current left ankle disability to service. While there are passing references in medical records to a left ankle injury during service, these notations were based on the Veteran's unfiltered history and are not supported by his STRs. See LeShore v. Brown, 8 Vet. App. 406 (1995) ((noting that the mere transcription of medical history does not transform information into competent medical evidence). According to a June 2017 VA examination report, the Veteran was diagnosed with a left ankle sprain. It was noted that the original date of diagnosis was July 30, 2012. The Veteran reported that he first injured his left ankle playing football in 1974 after being tackled. The Veteran also reported multiple flare-ups, including an incident in the 1980s in which he had to crawl back to his truck in order to get to a hospital for treatment. The record does not contain any evidence in support of this reported treatment. Examination revealed no pain or crepitus, but range of motion was limited. The examiner did not suggest any potential link between a current left ankle disability and military service, to include the Veteran's reported football injury. The Board recognizes that the Veteran believes he is entitled to service connection for a left ankle disability. However, the record contains no evidence to suggest that the Veteran has the requisite training or expertise to offer a medical opinion as complex as linking a current disability to a foot injury that occurred approximately four decades earlier. While the Veteran has reported injuring his ankle during military service, the Board does not find this assertion to be credible. There was no mention of ankle pain or symptomatology at the time of the October 1973 left foot injury and an evaluation of the left lower extremity was deemed to be normal upon separation. Furthermore, while the Veteran has reported flare-ups and symptomatology since this time, the Board does not find this assertion to be credible. The record contains no medical or lay evidence in support of the Veteran's assertions. Specifically, during private treatment in August 2009, the Veteran reported that he had a "crushed left ankle that had surgery on it." It was noted that the Veteran appeared intoxicated at this time and that he had previously denied any past medical history. Despite this report, the Board does not find it to be credible. The record contains no medical or lay evidence in support of this statement and the Veteran made no reference to a previously crushed left ankle or a prior surgery during his more recent VA examination of June 2017. In summary, the Veteran's service treatment records do not reflect that he suffered from an injury or symptomatology associated with the left ankle during active military service. Likewise, there is no evidence of symptomatology associated with the left ankle within one year of separation from active duty. In fact, the first complaints related to the left ankle come many years after the Veteran's separation from active duty. When considering whether or not to grant a claim for service connection, the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence). In this case, the absence of any medical evidence of treatment or complaints associated with the left ankle for many years after separation from service tends to establish that the Veteran's current left ankle disability was not a result of his military service. Finally, there is no competent or credible evidence of record suggesting any potential relationship between a current left ankle disability and military service. As previously noted, while the Veteran has reported injuring his left ankle during military service, this statement is not credible due to the conflicting nature of the medical evidence of record. For these reasons, the preponderance of the evidence is against the claim; thus, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Accordingly, the claim for entitlement to service-connection for a left ankle disability is denied. B. Low Back Disability Finally, the Veteran contends that he is entitled to service connection for a low back disability. The Veteran's service treatment records fail to reflect that he injured his back during active military service. As previously noted, there is evidence of a left foot injury in October 1973 due to football. However, there is absolutely no mention of injury or symptomatology associated with the back at this time. Likewise, subsequent service treatment records fail to indicate any complaints associated with the spine. An evaluation of the spine was also specifically noted to be normal upon separation. As such, there is no evidence of an in-service injury to the spine. Likewise, there is no evidence of symptomatology associated with the spine within one year of separation from active duty. According to a December 1995 private treatment note, the Veteran injured his back approximately one month earlier in November 1995 as a result of a fall while at work. The Veteran also reported that he injured his back "several years ago" but that he had relief of those symptoms and returned to work. It was noted that the Veteran was treated at this same facility for this injury until October 1994. No other significant medical history, including an in-service injury to the spine during active military service approximately twenty years earlier, was noted. The record reflects that the Veteran was afforded a VA examination of the spine in June 2017. The Veteran was noted to be suffering from a lumbosacral strain, degenerative disc disease and lumbar radiculopathy. The Veteran reported that while playing a football game during military service he was hit in the back and front and suffered a back injury. As previously noted, the Veteran's service-treatment records make no mention of injury to the back in association with the Veteran's foot-related football injury. A magnetic resonance image (MRI) scan from April 2009 was reviewed and noted to reflect significant degenerative disk disease. No opinion was offered suggesting any link between the Veteran's current low back disability and military service. The record contains no other competent and credible evidence suggesting a relationship to military service either. The preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for a low back disability. The record contains no in-service evidence of a back injury or treatment for symptomatology associated with the back. An evaluation of the Veteran's spine was also deemed to be normal upon separation in 1976. While there was evidence of an in-service injury while playing football, all treatment and diagnostic studies focused solely on the left foot. Likewise, there is no evidence of symptomatology or injury associated with the spine for nearly 2 decades after separation from active duty when the Veteran specifically related to his doctor that he injured his back in November 1995 after falling at work. It was noted that the Veteran injured his back several years earlier but that this condition resolved upon seeking private medical treatment in 1994. When considering whether or not to grant a claim for service connection, the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue. See Maxson, 12 Vet. App. at 459, aff'd sub nom. Maxson, 230 F.3d at 1333; see also Forshey, 12 Vet. App. at 74 (1998), aff'd sub nom. Forshey, 284 F.3d at 1358 (the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence). In this case, the absence of any medical evidence of treatment for back symptomatology for many years after separation from service tends to establish that the Veteran's current back disability was not a result of his military service. Finally, the record contains no competent or credible evidence suggesting any potential link between a current back disability and military service. The Board recognizes that the Veteran has argued that his back disability is related to a football injury during military service. As a lay person, the Veteran is certainly competent to offer this testimony. However, the Board does not find the Veteran's assertion to be credible. Competency is distinguishable from weight and credibility. Competency is a legal concept determining whether evidence may be heard and considered by the trier of fact; weight and credibility are factual determinations going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Credibility means worthiness of belief or plausibility. The Board may consider many factors when assessing the credibility and weight of lay evidence, including lay statements made during treatment, self-interest or bias, internal consistency, and consistency with other evidence. Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam); Pond v. West, 12 Vet. App. 341, 345 (1999) (explaining that the Board may consider the appellant's self-interest when determining credibility and weight); Madden v. Gober, 125 F.3d 1477, 1480-81 (1997) (noting that the Board is entitled to discount the credibility and weight of evidence in light of its own inherent characteristics and relationship to other items of evidence). In this case, the Veteran's assertion that he had back pain since service is inconsistent with his STRs which do not show any back complaints or treatment. It is also inconsistent with his separation physical, which shows a normal back. Additionally, the first medical evidence of a back injury or disability was not until the early 1990s. Buchanan, 451 F.3d at 1337; Maxson, 12 Vet. App. at 459. During those initial visits, the Veteran reported injuring his back in the course of employment. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (finding that contemporaneous evidence was more probative than history as reported by the claimant); November 1995 Biloxi VAMC Record (showing the Veteran fell and injured his back at work while employed as a food service worker); Jan. 1997 Springhill Memorial Hosp. Record (showing the Veteran sustained a low back injury while lifting a heavy piece of equipment during the course of his employment with the City of Prichard, Alabama); see also Jan. 1997 Radiology Report (showing normal lumbosacral spine which does not suggest a longstanding back injury). During the June 2017 Back VA examination (VAX), the Veteran did not mention his history of post-service, employment related, back injuries shown by objective medical evidence. Finally, the Board finds the statements provided by the Veteran at the time of seeking medical treatment in 1995 to be more credible than his current assertions provided while seeking benefits many years after his work-related injury. See Caluza, 7 Vet. App. at 511 (the credibility of a witness can be impeached by a showing of interest, bias, or inconsistent statements). For these reasons, the preponderance of the evidence is against the claim. Thus, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Accordingly, the claim for entitlement to service-connection for a low back disability must be denied. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a rating in excess of 10 percent for a left index finger disability is denied. Entitlement to service-connection for a left ankle disability is denied. Entitlement to service-connection for a low back disability is denied. ____________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs