Citation Nr: 18147321 Decision Date: 11/06/18 Archive Date: 11/02/18 DOCKET NO. 15-34 937 DATE: November 6, 2018 ORDER New and material evidence having not been received, the claim of entitlement to service connection for a low back disability is not reopened. New and material evidence having been received, the claim of entitlement to service connection for a right knee disability is reopened. The claim of entitlement to an evaluation in excess of 20 percent for a right ankle disability is denied. REMANDED The claim of entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. In a November 2008 rating decision, the RO denied the Veteran’s claim for entitlement to service connection for a low back disability. The Veteran did not file a Notice of Disagreement or submit new evidence within one year of the decision, and it became final. 2. Evidence received since the November 2008 rating decision is not new and material for the purposes of reopening the claim as it is only a lay statement asserting a new theory of entitlement without additional evidentiary support. 3. In a November 2008 rating decision, the RO denied the Veteran’s claim for entitlement to service connection for a right knee disability. The Veteran did not file a Notice of Disagreement or submit new evidence within one year of the decision, and it became final. 4. Evidence has been received since the November 2008 rating decision that relates to unestablished fact necessary to substantiate the claims and that raises a reasonable possibility of substantiating the claims of service connection for a right knee disability. 5. Throughout the period on appeal, the Veteran’s right ankle disability manifested with, at most, marked limitation of motion without ankylosis of the ankle; the subastragalar or tarsal joint; malunion of os calcis or astragalus; or an astragalectomy. CONCLUSIONS OF LAW 1. The November 2008 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2018). 2. Evidence received since the November 2008 decision is not new and material, and the criteria for reopening of the claim for entitlement to service connection for a low back disability have therefore not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). 3. New and material evidence has been received since the November 2008 denial of service connection for a right knee disability. 38 U.S.C. §§ 5103, 5108 (2012); 38 C.F.R. §§ 3.156, 3.303 (2018). 4. The criteria for an evaluation in excess of 20 percent for a right ankle injury have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.20, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Marine Corps from December 1992 to May 1996. New and Material Evidence Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In general, Board decisions which are unappealed become final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing 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. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has emphasized that the final sentence of 38 C.F.R. § 3.156 (a), especially the phrase “raise[s] a reasonable possibility of substantiating the claim,” does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 “suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]” Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Court has elaborated on what constitutes “new and material evidence.” New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans, 9 Vet. App. at 273. 1. New and material evidence has not been received sufficient to reopen the claim of entitlement to service connection for a low back disability The Veteran’s initial claim of entitlement to service connection for a low back disability was denied in November 2008 due to insufficient evidence establishing a nexus between the Veteran’s low back disability and active duty service. Therefore, in order for evidence to be both new and material, it must address this unestablished fact. With his claim to reopen the issue, the Veteran reported that his private physician informed him that his low back disability was related to his right ankle disability. The Board notes that this by itself, as it is supported only by the Veteran’s lay contention, is not indicative of new and material evidence. New theories of entitlement are not a basis for reopening a claim, but if evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). Lay contentions to support new theories alone are not competent evidence, and cannot serve to support reopening of a claim. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). The private medical records obtained from the Veteran’s physician do not state the belief that the Veteran’s low back disability is etiologically related to his right ankle disability. The Veteran’s lay assertion of an alternate theory of entitlement without supporting evidence does not constitute new and material evidence for the purposes of reopening the claim. Accordingly, reopening of the claim of entitlement to service connection for a low back disability is not warranted. 2. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a right knee disability The Veteran’s initial claim of entitlement to service connection for a right knee disability was denied in November 2008 due to lack of a present diagnosis. Therefore, in order for evidence to be both new and material, it must address this unestablished fact. In August 2013, private treatment records reflect that the Veteran experienced chronic right knee pain. His physician reported that he “feel[s] that his knee soreness is related to his ankle pain.” In October 2013, the Veteran’s private medical records reflect that his physician assessed him with chronic right posterior lateral knee pain. The Veteran reportedly switched jobs to one that was more sedentary due to his pain. As pain may be a disability for VA purposes if it causes functional impairment, the Veteran’s evidence is both new and material. Accordingly, reopening of the claim of entitlement to service connection for a right knee disability is warranted. Increased Rating 3. The claim of entitlement to an evaluation in excess of 20 percent for a right ankle disability The Veteran contends that he is entitled to an evaluation in excess of 20 percent for his right ankle disability. Disability ratings are determined by application of a ratings schedule which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran’s service-connected disability. 38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran’s claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. VA’s determination of the “present level” of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disabilities must be reviewed in relation to their entire history. 38 C.F.R. § 4.1. VA must also interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity. 38 C.F.R. § 4.10. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Functional loss may be due to pain if supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Functional impairment may be due to pain, including during flare-ups, or from repetitive use. Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011). 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 veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. The Veteran seeks a higher rating for his service-connected gouty arthritis, left ankle. The Veteran’s service-connected gouty arthritis is rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5271-5017, effective from February 12, 2008. The Veteran’s gouty arthritis has been rated as 20 percent since February 12, 2008, the day following his separation from active service. The applicable rating period is from February 12, 2008, the effective date for the award of service connection for gouty arthritis, left ankle, through the present. See 38 C.F.R. § 3.400. The Veteran’s right ankle disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, pertaining to limitation of the motion of the ankle. A 20 percent rating is assigned for marked limitation of motion of the ankle. A 20 percent is the highest available schedular rating for limitation of motion of the ankle under Diagnostic Code 5271. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. Terms such as “mild,” “moderate,” and “marked” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence so that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Under 38 C.F.R. § 4.71a, Diagnostic Code 5167, a 40 percent rating is assigned when there is loss of use of the foot. Loss of use of the foot is held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with the use of prosthesis. 38 C.F.R. §§ 3.350 (a) (2), 4.63. 38 C.F.R. § 4.71a, Diagnostic Code 5270 provides ratings based on ankylosis of the ankle. Under Diagnostic Code 5270, a 20 percent rating is assigned when the ankle is ankylosed at less than 30 degrees in plantar flexion; a 30 percent rating is assigned when the ankle is ankylosed at between 30 and 40 degrees in plantar flexion, or at between 0 and 10 degrees in dorsiflexion; and a maximum 40 percent rating is assigned when the ankle is ankylosed at more than 40 degrees in plantar flexion, at more than 10 degrees in dorsiflexion, or with abduction, adduction, inversion, or eversion deformity. In November 2011, the Veteran refractured his right ankle in a fall from a ladder. He experienced pain and some swelling to the area. In a January 2012 follow up, VA treatment records reflect some ongoing pain in the medial malleolus and over the lateral joint line. The fracture site was nontender. There was some residual swelling of the ankle. X-rays showed healing in the joint. In March 2012, VA treatment records reflect no residual swelling or inflammation of the right ankle. There was good range of motion in dorsiflexion and plantar flexion with pain. Imaging revealed the development of anterior osteophytes breaking the talotibial joint as well as joint space narrowing. There was also evidence of the development of osteoarthritis. In June 2012, the Veteran underwent a VA examination to assess the nature and severity of his service-connected right ankle disability. The Veteran reported pain associated with his ankle, but no flare ups. Plantar flexion was to 40 degrees with no objective evidence of pain on examination. Dorsiflexion was to 15 degrees with no objective evidence of pain on examination. Range of motion was not additionally limited with repetitive use testing. There was localized tenderness or pain on palpation. Muscle strength was normal. No instability was found on examination. There was also no ankylosis found on examination. The Veteran reported occasionally using a brace during periods of activity. The examiner found no functional impact attributable to the Veteran’s right ankle. In May 2013, the Veteran reported that he was told that his right ankle joint was ankylosing, and was almost fused together. He reported wearing an ankle brace, and occasionally needing to sit down because he could not put weight on his ankle. He also stated that, at times, he experienced intense pain that nearly caused him to fall. In August 2013, the Veteran’s private treatment records reflect ongoing pain in his right ankle that had progressively worsened. There was full range of motion in the right ankle on examination. In January 2014, the Veteran’s range of motion in the right ankle was noted to be “functional” in his private treatment records. In September 2013, the Veteran reported that his right ankle had worsened after his November 2011 injury. In September 2015, he reported ongoing ankle pain that had worsened following his November 2011 injury. After a thorough review of the medical and lay evidence of record, the Board finds that the Veteran’s right ankle disability is not entitled to an evaluation in excess of 20 percent. The June 2012 VA examination of record reveals only minor limitations of motion in his right ankle with no objective evidence of pain on examination. The examination report did not find ankylosis or instability. In the December 2012 rating decision, the RO noted that improvement in his ankle disability was noted in the June 2012 examination, but as the results had not been sustained over a period of time, they were continuing his previous 20 percent evaluation. The Board has considered whether the Veteran is entitled to a higher rating on the basis of functional loss or impairment under 38 C.F.R. §§ 4.40, 4.45 and 4.59. See DeLuca, 8 Vet. App. at 202. During the entire appeal period, the Veteran reported that his service-connected right ankle disability caused pain that could be severe enough for him to require rest. The Veteran’s range of motion, however, remained largely intact throughout the period on appeal. Additionally, the Veteran himself has not alleged that his ankle is immobile at any point due to his disability. A 20 percent rating is the maximum schedular rating provided for limited motion of the ankle when ankylosis is not present. Ankylosis was not found on examination, despite the Veteran’s lay assertion that his ankle was ankylosing. The Board finds that the Veteran’s pain and any functional loss do not warrant a higher rating at any time during the rating period under Diagnostic Code 5271. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 202. The Board has also considered other Diagnostic Codes to determine whether the Veteran might be entitled to a higher rating at any time during the rating period in relation to his service-connected right ankle disability. Diagnostic Codes 5272, 5273, and 5274 pertain to disabilities of the ankle, but are not for application in the present case because the record is absent for evidence of ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy, as required under those Diagnostic Codes. In addition, the record does not show that the Veteran’s functioning of the right lower extremity was so diminished that amputation with prosthesis would have equally served him at any time during the period on appeal. Therefore, the provisions under Diagnostic Code 5165 are not for application. In light of the above, the Board finds that a preponderance of the evidence is against assignment of a rating in excess of 20 percent for the Veteran’s service-connected right ankle disability. Therefore, the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. The claim of entitlement to service connection for a right knee disability is remanded. The Board cannot make a fully informed decision regarding the claim of entitlement to service connection for a right knee disability as a complete etiological opinion is not of record. The Veteran’s physician reported in August 2013 that the Veteran’s right knee pain was related to his ankle pain. This in of itself is insufficient to sustain a grant of service connection as it provides no rationale for its conclusion. As a VA examination was not afforded, and there is at least an indication of a relationship between the Veteran’s right knee disability and his service-connected right ankle disability, an examination is warranted on remand. See McLendon v. Nicholson, 20 Vet. App. 79, 82-3 (2006). The matter is REMANDED for the following action: 1. Contact the Veteran and his representative in order to identify any outstanding non-VA treatment records regarding the issues on appeal. If non-VA providers are identified, obtain releases for those records. Make all reasonable attempts to obtain the non-VA treatment records and associate them with the claims file. If such records cannot be obtained, inform the Veteran and his representative, and afford an opportunity for him to provide these outstanding records. 2. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). All attempts to contact the Veteran should be documented in the record. 3. Once the aforementioned development is complete, schedule the Veteran for a VA examination to assess the etiology of his right knee disability. A complete copy of the claims file must be provided to the examiner, including a copy of this remand. The examiner should take a history from the Veteran, and must consider lay reports of observable symptomatology. After a thorough review of the record, the examiner should opine as to the following: (a.) Identify any and all diagnoses pertaining to the Veteran’s right knee. (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s right knee disability was caused by or aggravated by his service-connected right ankle disability? (c.) If aggravation of the right knee disability is found to have occurred as a result of a service-connected disability, state if there is medical evidence created prior to the aggravation, or at any time between the onset of aggravation and the current level of disability that shows a baseline for the right knee disability prior to aggravation. Note: The term “aggravation” in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 4. Following completion of the foregoing, the AOJ should review the record and readjudicate the claim on appeal. If it remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel