Citation Nr: 18142248 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 16-03 407 DATE: October 15, 2018 ORDER Entitlement to an initial 20 percent rating, but no more, for a left heel spur, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a 10 percent rating, but no more, for a keloid scar from a cesarean section, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial 40 percent rating, but no more, for the sciatic nerve of the left leg, is granted, subject to the laws and regulations governing the payment of monetary benefits. New and material evidence having been submitted, the application to reopen a previously denied claim for entitlement to service connection for a heart disability, to include mitral valve and tricuspid valve regurgitation, is granted. New and material evidence having been submitted, the application to reopen a previously denied claim for entitlement to service connection for hypertension is granted. REMANDED Entitlement to service connection for hypertension, to include as due to a heart disability, is remanded. Entitlement to service connection for a heart condition is remanded. FINDINGS OF FACT 1. The Veteran’s left heel spur has been characterized by moderately severe symptoms. 2. The Veteran’s keloid scar from a cesarean section is unstable. 3. The Veteran’s sciatic nerve of the left leg has been characterized by moderately severe symptoms. 4. In October 1997, service connection for a heart disability was denied; a notice of disagreement and/or new and material evidence was not submitted within one year of notice of the decision. 5. In January 2007, the RO determined that new and material evidence had not been received to reopen the previously denied claim of service connection for a heart disability; a notice of disagreement and/or new and material evidence was not submitted within one year of notice of the January 2007 decision. 6. The evidence added to the record since the January 2007 decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a heart disability. 7. In August 2002, service connection for hypertension was denied; a notice of disagreement and/or new and material evidence was not submitted within one year of notice of the decision. 8. In January 2007, the RO determined that new and material evidence sufficient to reopen the previously denied claim for entitlement to service connection for hypertension was not received; a notice of disagreement and/or new and material evidence was not submitted within one year of notice of the January 2007 decision. 9. The evidence added to the record since the January 2007 decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for hypertension. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 20 percent rating, but no more, for a left heel spur have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5284. 2. The criteria for entitlement to a 10 percent rating, but no more, for a keloid scar from a cesarean section have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, DC 7804. 3. The criteria for entitlement to a 40 percent rating, but no more, for sciatic nerve of the left leg, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8520. 4. The January 2007 decision that denied the Veteran’s claim for entitlement to service connection for a heart disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 5. As the evidence received subsequent to the January 2007 decision is new and material, the requirements to reopen the claim for entitlement to service connection for a heart disability have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.102, 3.156. 6. The January 2007 decision that denied the Veteran’s claim for entitlement to service connection for hypertension is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 7. As the evidence received subsequent to the January 2007 decision is new and material, the requirements to reopen the claim for entitlement to service connection for hypertension have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.102, 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1981 to August 1996. This case comes before the Board of Veterans’ Appeals (Board) on appeal from August 2013 and February 2016 rating decisions by the Department of Veterans Affairs (VA). A hearing with a Decision Review Officer was conducted in September 2015. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the 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 on 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 enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by 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. 38 C.F.R. §§ 4.10, 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are as entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See 38 C.F.R. § 4.59. 1. Entitlement to an initial compensable rating for a left heel spur The Veteran is seeking an initial compensable rating for her left heel spur. She currently receives a noncompensable rating under 38 C.F.R. § 4.71(a), Diagnostic Code 5284, which addresses other foot injuries not covered by the other diagnostic codes. The Board agrees that this diagnostic code is the most appropriate for the Veteran’s condition as it has no specific diagnostic code. Additionally, the ability to rate her heel spur based on criteria such as “moderately severe” is helpful to capture all possible manifestations of the Veteran’s left heel condition. Under Diagnostic Code 5284, a 10 percent rating is warranted for a moderate foot injury. A 20 percent rating is warranted for moderately severe foot injury while a 30 percent rating is warranted for a severe foot injury. A 40 percent rating is assigned when there is actual loss of use of the foot. 38 C.F.R. § 4.71(a), DC 5284. The descriptive words “moderate,” “moderately severe,” and “severe,” as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. In this case, the Board has determined that an initial 20 percent rating, but no more, is warranted for the Veteran’s left heel spur throughout the appeal period. The Veteran’s left heel spur has caused various symptoms throughout the appeal period. At its worse, such as in January 2012, she complained of a dull, throbbing, burning, and aching pain. As a result, she was unable to stand or run long distances. In a statement, she recalled that she had been seen at the VA hospital several times in the past year due to her heel pain. Her daughter also recalled her mother’s “great” pain that resulted from performing activities because of her heel spurs. A May 2012 VA examination documented that the Veteran suffered from pain from prolonged standing. The Veteran’s left heel spur did not improve later in the appeal period. During an October 2015 VA examination, she reported utilizing inserts for boots and receiving no complete relief even after taking Tylenol. When she has flare-ups, she utilizes splints, including at night. Even recently, she has continued to complain of left foot pain. Notably, on her January 2016 VA Form 9, the Veteran reported that her left heel spur is worse than her right heel spur, yet her right heel spur has been assigned a compensable rating while the left heel spur has been rated as noncompensable. Additionally, in July 2018, she complained of intermittent left foot pain despite the lack of trauma to her foot. The Board acknowledges that the examiner also diagnosed the Veteran with bilateral pes planus at the examination. However, the examiner stated that the tenderness and pain on the foot examination was associated with her heel spur condition. Despite the Veteran’s recorded left foot complaints, the Board concludes that her left heel spur cannot be characterized as a “severe” disability. She has pain on the use of her feet, but the pain was not accentuated on use or upon manipulation. There was also no swelling or calluses. There was no objective evidence of marked deformity or marked pronation. The “moderately severe” characterization recognizes the difficulties she is having with jogging and running. However, the Board notes that she still retains the ability to walk and stand for short periods of time without pain. Consequently, the Board finds that a 20 percent rating, but no more, is warranted for the Veteran’s left heel spur. 2. Entitlement to a compensable rating for a keloid scar from a cesarean section The Veteran is seeking a compensable rating for her keloid scar, which resulted from a cesarean section. The Veteran’s scar is most appropriately rated under DC 7804, which addresses unstable and painful scars. After reviewing the evidence, the Board has determined that a 10 percent rating, but no more, is warranted for the Veteran’s scar. In this regard, the Board concludes that the Veteran’s scar is both stable and unpainful. The Veteran underwent a VA examination for her scar in February 2016. The examiner determined that the Veteran has both a residual scar from her cesarean section as well as a residual scar from her laparoscopy to repair an incisional hernia that resulted from her cesarean section scar. The cesarean section scar was seventeen centimeters. She also had two additional scars from her laparoscopy, which were measured at two centimeters and one centimeter. With regards to her laparoscopy scars, they were small, not painful, stable, and did not result in functional limitations. Therefore, the resulting scarring would be noncompensable. With regards to the cesarean section scar, the examiner noted that the Veteran’s scar was neither painful nor unstable. As noted below, any pain the Veteran asserted is due to her scarring appears to be related to her resulting hernia, not the scar itself. Additionally, it appears that the examiner may have been strictly adhering to VA’s definition of an unstable scar, which is a scar where there is a frequent loss of covering of skin. See 38 C.F.R. § 4.118, DC 7804, Note 2. However, given the fact that a hernia resulted from the scar itself, the Board concludes that the scar can be deemed as equivalent to unstable. Moreover, service connection for a ventral hernia secondary to the cesarean section scar was granted in a February 2018 rating decision. Under 38 C.F.R. § 4.118, DC 7804, a single unstable or painful scar warrants a 10 percent rating. A 20 percent rating is only warranted if there are three or more scars that are unstable or painful. As the Veteran’s scar is unstable, the Board concludes that the Veteran is entitled to a 10 percent rating, but no more, for her residual scar from her cesarean section. 3. Entitlement to an initial rating in excess of 20 percent for the sciatic nerve of the left leg The Veteran is currently assigned a 20 percent rating for her left lower extremity sciatic nerve disability under 38 C.F.R. § 4.124a, DC 8520, which addresses paralysis of the sciatic nerve. The Board agrees DC 8520 is appropriate as the examiner indicated that the Veteran’s condition affects the sciatic nerve. Under DC 8520, incomplete paralysis and/or neuritis and/or neuralgia of a moderate nature warrants a 20 percent rating. Additionally, incomplete paralysis, neuritis and/or neuralgia of a moderately severe nature warrants a 40 percent rating. Incomplete paralysis of a severe nature with marked muscular atrophy warrants a 60 percent rating. 38 C.F.R. § 4.124a, DC 8520. The descriptive words “moderate,” “moderately severe,” and “severe,” as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. The Board concludes that a 30 percent rating, but no more, is warranted for the Veteran’s sciatic nerve of the left leg. In April 2012, her pain was severe enough that she stated that she could not take the pain anymore. During an October 2015 VA examination, she complained of severe constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness. Other symptoms included snapping and popping in the morning. Although the VA examiner concluded that the Veteran’s sciatic nerve disability is best characterized as incomplete paralysis of a mild nature, the Board finds that the examiner did not consider the Veteran’s competent and credible reports of pain. During the examination, the examiner recorded the Veteran’s complaints of a sciatic nerve disorder that caused her severe pain and numbness, among other symptoms. In a January 2016 statement, she explained that her leg has limited and controlled her lifestyle for the past few years. She is unable to ride in a car for over an hour without pain, numbness, tingling, and loss of feeling. She is also unable to sit or stand for over an hour without suffering the same symptoms. She also notes that an unusual allergy to anti-inflammatory medications limits her control of this pain. As noted above, the descriptive words used to assign a rating are not defined. Rather, the Board must base its decision on all the provided evidence. In this case, the Board explicitly cites her allergy to anti-inflammatories as one of the reasons why her condition warrants a 40 percent rating. However, the Board concludes that a 60 percent rating is not warranted. A higher rating requires severe symptoms with marked muscular atrophy. Importantly, the Veteran displayed normal muscle strength testing and no muscle atrophy during her VA examination. She had a normal reflex examination and normal sensory examination for light touch. Consequently, the Board finds that a 40 percent rating, but no more, is warranted for the Veteran’s sciatic nerve of the left leg. In considering the appropriate disability ratings, the Board has also considered the Veteran’s statements that her disabilities are worse than the ratings she currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When considering the appropriate rating, the Board has considered the impact of functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). In this case, the Board has explicitly noted how the Veteran’s conditions in a flare-up would affect her functional loss. Consideration of the Veteran’s conditions during flare-ups was a key factor in awarded her additional compensation. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance). Put another way, while the Veteran has complained of pain, numbness, and other difficulties with movement, these complaints are adequately contemplated in the ratings she currently receives. Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses, she is not competent to identify a specific level of disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s disability has been provided by the medical personnel who have examined her during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which the disability is evaluated. New and Material Evidence In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulation, “new” evidence is defined as evidence not previously submitted to agency decision-makers. “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. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999); but see 38 U.S.C. § 5103A (eliminates the concept of a well-grounded claim). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Whether new and material evidence has been received to reopen the claims for entitlement to service connection for a heart disability and hypertension, to include mitral valve and tricuspid valve regurgitation The Veteran is seeking service connection for hypertension and a heart disorder. These claims were previously denied in unappealed rating decisions of October 1997 (heart disorder), August 2002 (hypertension) and January 2007 (both). Based on the additional evidence added to the record since the previous final denial of the Veteran’s claims, the Board finds that new and material evidence has been added to the record. The Veteran’s claim of service connection for a heart disorder was first denied in an October 1997 rating decision. The basis for the denial of service connection for a heart disorder was that the Veteran’s in-service mitral valve regurgitation was not considered a disability because it did not cause any functional impairment. The Veteran’s initial claim of service connection for hypertension was denied in an August 2002 rating decision. The basis for the denial of service connection for hypertension was that there was not a current disability of hypertension shown. She did not file a Notice of Disagreement or submit new and material evidence within one year of the decision. Therefore, the rating decision became final. Next, the Veteran requested to reopen her previously denied claims, but that request was denied in a January 2007 rating decision, which found that new and material evidence sufficient to reopen the claim had not been received. A review of the rating decision reveals that the Veteran was denied service connection as she did not present anything new other than a statement, which allegedly included no new medical evidence. She did not file a Notice of Disagreement or submit new and material evidence within one year of the decision. Therefore, the rating decision represents the last final denial of the claims. Since the last final denial, additional evidence has been added to the claims file. For example, in a November 2011 statement, the Veteran explained that she is not on blood pressure medication for her hypertension. Further, she believes that she has a separate heart condition that may be related to her hypertension. This evidence is new and material because it suggests that the Veteran has a current disability which was part of the basis of the original denial. As the evidence now suggests a possible link between the Veteran’s current heart disability, if any, and her hypertension, which may have had its onset during service, the Board concludes that reopening of the claims for entitlement to service connection for a heart disability and hypertension is warranted. REASONS FOR REMAND The claims of entitlement to service connection for hypertension and a heart disorder are remanded. The Veteran is seeking service connection for hypertension and a heart disorder. The Veteran and her representative have suggested that the Veteran’s hypertension first manifested during active service, and may be related to a current heart condition. Although the RO found in 1997 that the Veteran’s in-service mitral valve regurgitation was not a disability because it did not cause any functional impairment, the Veteran has since indicated that her heart condition has evolved to a point that causes functional impairment. As there is insufficient medical evidence to decide the claim, the Veteran should be afforded a VA examination to determine the nature of her hypertension, whether it began during service or to a degree of at least 10 percent within the first post-service year; and, the current nature and likely etiology of any heart condition. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any hypertension disability and any other heart condition. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner should also opine whether the Veteran’s hypertension at least as likely as not (1) began during active service, (2) manifested within 1 year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. Finally, the examiner should opine whether the Veteran has a current heart disability that, as likely as not, began during service; or, is related to any in-service disease or injury. L. B. CRYAN Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Borman, Associate Counsel