Citation Nr: 18144198 Decision Date: 10/24/18 Archive Date: 10/23/18 DOCKET NO. 14-35 060 DATE: October 24, 2018 ORDER New and material evidence has been received to reopen a claim of service connection for a low back disability. To that extent, the claim is granted. Entitlement to an initial compensable rating for residuals of a right ring finger proximal fracture, post traumatic arthritis, distal interphalangeal joint, is denied. Entitlement to an initial compensable rating for scars of the right ring finger is denied. REMANDED Entitlement to service connection for a low back disability is remanded. (The issues of service connection for a right eye disability, a rating in excess of 30 percent for a left eye scar, a rating in excess of 30 percent for a right shoulder disability, and special monthly compensation based on aid and attendance or housebound status will be discussed in a separate Board decision). FINDINGS OF FACT 1. A May 2000 rating decision denied service connection for low back pain. 2. Evidence added to the record since the May 2000 rating decision provides a reasonable possibility of substantiating the claim for a low back disability. 3. At no point during the period on appeal was the Veteran’s a right ring finger proximal fracture, post traumatic arthritis, distal interphalangeal joint, manifested by ankylosis or limitation of motion of other digits. 4. At no point during the period on appeal was the Veteran’s scar of his right ring finger manifested by pain or effect areas of at least 6 square inches. CONCLUSIONS OF LAW 1. The May 2000 rating decision that denied service connection low back pain is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the May 2000 rating decision is new and material, and the claim for service connection for a low back disability is reopened. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. 3. The criteria for a compensable rating for a right ring finger proximal fracture, post traumatic arthritis, distal interphalangeal joint, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (Code) 5155, 5227, 5230. 4. The criteria for a compensable rating for scar of the right ring finger have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.188, Diagnostic Code (Code) 7801, 7802, 7804 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1974 to August 1975 and from February 1978 to January 1994. In his August 2014 VA Form 9 (substantive appeal), the Veteran requested a Central Office hearing. In a correspondence dated in September 2018, he withdrew the hearing request Claim to Reopen The Veteran seeks to reopen a claim of entitlement to service connection for his back disability. The claim was previously denied in a May 2000 rating decision because there was no evidence of a relationship between the Veteran’s diagnosed low back disability and his active duty service. The question before the Board is whether new and material evidence has been submitted to reopen the claim. Since the May 2000 rating decision, on September 2011 VA examination lumbar spine congenital spinal canal stenosis at the L4-L5 and L5-S1 vertebrae was diagnosed. In his October 2011 notice of disagreement, the Veteran asserted that his congenital back problem was aggravated by exercising during his active duty service. The Board finds this evidence is “new” in that it had not been previously submitted. Moreover, the evidence is “material” because it relates to an unestablished fact necessary to substantiate the Veteran’s claim; that is, whether the Veteran has a low back disability that is related to his active duty service. Evidence of record at the time of the May 2000 denial included the Veteran’s service treatment records (STRs), VA treatment records, and lay statements, which reflect the Veteran had a diagnosis of mild degenerative joint disease. The new evidence, the September 2011 VA examination includes a newly diagnosed back disability which pre-existed service, and which the Veteran asserts was aggravated by his service. The evidence is neither cumulative nor redundant of the evidence previously considered and raises a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010); Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). De novo consideration of the claim is addressed in the remand below. Increased Rating The Veteran seeks entitlement to initial compensable ratings for his service-connected a right ring finger proximal fracture, post traumatic arthritis, distal interphalangeal joint (right ring finger disability) and scars on his right ring finger. His right ring finger disability has been rated as noncompensable (0 percent disabling) from July 12, 2010, under 38 C.F.R. § 4.71a Code 5230. His scars on his right ring finger has been rated as noncompensable (0 percent disabling) from July 12, 2010, under 38 C.F.R. § 4.118 Code 7805. Disability ratings are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate Codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board concludes that higher compensable ratings are not warranted for either the Veteran’s right ring finger disability or the scars on his right ring finger for any period on appeal. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Hart, 21 Vet. App. at 505. Right Ring Finger 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. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. See 38 C.F.R. § 4.45. These determinations are, if feasible, be expressed in terms of the degree of additional loss-of-motion due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Disability of the ring finger is rated based on limitation of motion. Any limitation of motion of the ring finger, including ankylosis, is rated as noncompensable (0 percent disabling. 38 C.F.R. § 4.71a, Codes 5230 and 5227. With ankylosis, it must also be considered whether an additional evaluation is warranted for resulting limitation of motion of other digits, or for interference with overall function of the hand. See Note following Code 5227. In this case, September 2011, March 2012, July 2013 VA examinations and VA treatment records through July 2018 do not reflect that the Veteran has ankylosis of any finger. The Board notes that although 38 C.F.R. § 4.59 and Burton v. Shinseki, 25 Vet. App. 1 (2011) provide that actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint, there is no compensable minimum rating available under Codes 5227. In Sowers v. McDonald, the Court held that 38 C.F.R. § 4.59 is not an independent provision that may be applied without an underlying Diagnostic Code. Because Codes 5227 and 5230 for limitation of motion of the finger of either hand provide for a maximum noncompensable rating, a compensable rating is not available under those diagnostic codes due to the provisions of 38 C.F.R. § 4.59. Scar of the Right Ring Finger The Veteran’s scar of his right ring finger has been evaluated as noncompensable under 38 C.F.R. § 4.118 Code 7805. The code applies to other scars (including linear scars) and other effects of scars evaluated under DC 7800, 7801, 7802 and 7804. Any disabling effects not considered in a rating provided under DC 7800 through 7804 should be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118, DC 7805. Under Code 7801, scars that are associated with underlying soft tissue damage are assigned a 10 percent rating for area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) 10 Under Code 7802 scars that are not associated with underlying soft tissue damage warrant assignment of a 10 percent rating for area or areas of 144 square inches (929 sq. cm.) Under Code 7804, one or two scars that are unstable or painful warrant assignment of a 10 percent rating. On September 2011 VA examination a scar on the Veteran’s right ring finger was diagnosed. The examiner found that the scar was not painful, unstable, or covered a total area greater than 6 square inches. On July 2013 VA examination the examiner found the Veteran’s did not have a scar on his right ring finger. On July 2014 VA examination, the scar on the Veteran’s right ring finger was not painful and not unstable with frequent loss of covering of skin over the scar. The examiner described the scar as linear and 5 centimeters in length. Based on a review of the record, the Board concludes that a compensable rating is not warranted for the Veteran’s scar on his right ring finger. Throughout the period on appeal, the Veteran’s scar of his right ring finger was not manifested by pain or instability, and never covered an area of at least 6 square inches. On both September 2011 and July 2014 VA examinations, the Veteran’s scar was not found to be painful or unstable, and the Veteran did not report any pain from his scar at any point during the period on appeal. Additionally, on September 2011 VA examiner found the scar did not cover 6 square inches, and the July 2014 VA examiner specified the scar was linear and only 5 centimeters in length. Accordingly, the evidence does not more closely approximate the criteria for a higher compensable rating under Code 7801, 7802, or 7804 at any point during the period on appeal. In deciding the increased rating claims, the Board has also considered the Veteran’s lay statements that his right ring finger disability and scar of his right ring finger are worse than currently evaluated. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disabilities are evaluated. As such, the Board finds these records to be more probative than the Veteran’s subjective complaints of increased symptomatology. The Board has considered the doctrine of reasonable doubt but has determined that it is inapplicable because the preponderance of the evidence is against higher ratings for the Veteran’s right ring finger disability and scar of his right ring finger. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7, 4.71a, 4.118. REASONS FOR REMAND Entitlement to service connection for a low back disability is remanded. Further development of the record is needed for a proper de novo consideration of the claim for a low back disability. The record reflects that the Veteran has multiple diagnosed low back disorders, mild degenerative joint disease and lumbar spine congenital spinal canal stenosis. Service connection is available for congenital diseases, but not defects, that are aggravated in service. See Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009); Monroe v. Brown, 4 Vet. App. 513, 515 (1993). In cases where the appellant seeks service connection for a congenital condition, the Board must indicate whether the condition is a disease or defect and discuss the presumption of soundness. Quirin, 22 Vet. App. at 394-97. It follows that in such cases where a congenital condition is at issue, a VA medical opinion may be needed to determine whether the condition is a disease or defect, whether the presumption of soundness has been rebutted, and if so whether there was aggravation during service. Id. at 395. In July 2014 the Veteran was provided a VA examination to address whether the Veteran’s current low back disability was aggravated beyond its natural progression during service. While the examiner noted that the Veteran had been diagnosed with both mild degenerative joint disease and lumbar spine congenital spinal canal stenosis, she only provided an opinion regarding the Veteran’s degenerative joint disease. The examiner also did not address whether the Veteran’s congenital spinal stenosis amounted to a defect or a disease. Accordingly, the examination is inadequate and a new examination is necessary on remand. Additionally, updated treatment records should be obtained. See 38 C.F.R. § 3.159. See also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matter is REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the Veteran for any low back complaints since service. After securing the necessary release, take all appropriate action to obtain these records, including any updated VA treatment records since July 2018. 2. After the completion of the above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any low back disability. Copies of all pertinent records should be made available to the examiner for review. Based on an examination, review of the record, and any tests or studies deemed necessary the examiner should provide opinions as to the following: (a.) Identify all currently diagnosed low back disabilities, to include mild degenerative joint disease and lumbar spine congenital spinal canal stenosis. (b.) Is any diagnosed low back disability a congenital defect or disease? The examiner is informed that for VA adjudication purposes, “disease” generally refers to a condition considered capable of improving or deteriorating, whereas “defect” generally refers to a condition not considered capable of improving or deteriorating. (c.) For any diagnosed low back disability that is a congenital defect, is it at least as likely as not that there was a superimposed injury or disease in service that resulted in additional back disability. (d.) For any diagnosed low back disability that is a congenital disease, is it clear and unmistakable that the condition preexisted the Veteran’s military service? The examiner should identify the specific evidence relied upon in answering this question. (e.) If so, is it clear and unmistakable that the preexisting low back disease WAS NOT aggravated (i.e., permanently worsened) during the Veteran’s active duty service or that any increase in disability was due to the natural progression of the disease? (f.) For any diagnosed low back disability that is not a congenital defect or disease, is it at least as likely as not that the low back disability was incurred in service or is otherwise causally related to his active service or any incident therein? The examiner should consider and discuss as necessary the Veteran’s November 1991 in-service complaint of low back pain and assessment of muscle strain and his lay statements that his back pain began during service and have continued since service. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Eric Struening, Associate Counsel