Citation Nr: 18148165 Decision Date: 11/08/18 Archive Date: 11/06/18 DOCKET NO. 16-33 710 DATE: November 8, 2018 ORDER New and material evidence has not been presented and the claim of entitlement to service connection for a closed rib fracture is not reopened. An effective date prior to June 23, 2015 for a lumbar spine disability is denied. A 10 percent rating for a right foot disability is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACTS 1. The November 2010 rating decision denying the Veteran’s claim of entitlement to service connection for a closed rib fracture is final. 2. Evidence received since the November 2010 rating decision is not new and material, and does not raise a reasonable possibility of substantiating the Veteran’s claim for service connection. 3. The Veteran’s claim for increased rating for his back disability was received by VA on June 23, 2015; and it is not factually ascertainable that a rating in excess of 10 percent was warranted for his back disability within a year before the receipt of his claim. 4. For the entire period on appeal, the Veteran’s service connected right foot condition most nearly approximate a mild disability, but the evidence does show pain in the foot and toes. CONCLUSIONS OF LAW 1. The November 2010 rating decision denying the Veteran’s claim for service connection for residuals of a closed rib fracture is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence pertaining to the Veteran’s closed rib fracture has not been submitted, and the Veteran’s claim is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for an effective date prior to June 23, 2015, for a 40 percent rating for a lumbar disability have not been met. 38 U.S.C. §§ 5107 (b), 5110; 38 C.F.R. §§ 3.102, 3.157, 3.155, 3.400. 4. The criteria for a 10 percent rating, but no higher, for a right foot disability have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2006 to November 2010. This matter is on appeal from an October 2015 rating decision. Reopening Claims Generally, a claim that has been finally denied in an unappealed RO decision or a Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decision makers, and it is material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Court interprets the language of 38 C.F.R. § 3.156 (a) as creating a low threshold, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Veteran’s claim for service connection for a closed rib fracture was first denied by a November 2010 rating decision. That decision became final as the Veteran did not timely file a Notice of Disagreement and did not submit new and material evidence within one year of the rating decision. At the time of the November 2010 rating decision, the record consisted of the January 2010 VA examination, which found that the condition had resolved in service. Evidence received since then included updated VA treatment records that merely confirmed the past existence of a closed rib fracture. The evidence did not describe any residual disability from the injury, and therefore the evidence is not considered to be material for the purpose of reopening the Veteran’s claim for service connection. 38 C.F.R. § 3.156. Even considering the holding in Shade v. Shinseki, 24 Vet. App. 110, to the effect that the VA regulation as to reopening a claim “must be read as creating a low threshold,” there is still a minimum threshold. It does not raise a reasonable possibility of substantiating the claim and does not reach the minimum threshold. As such, the claim is not reopened. Effective Dates Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. If a claim is received within one year following separation, the effective date of an award of compensation shall be the day following separation from service or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b); 38 C.F.R. § 3.400 (b)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). The essential elements for any claim, whether formal or informal, are: (1) intent to apply for benefits; (2) identification of the benefits sought; and (3) communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). In the context of a claim of service connection, the date of entitlement hinges on when the service-connected disability first manifested itself under all facts found. See McGrath v. Gober, 14 Vet. App. 28, 35 (2000). The Veteran asserts that he is entitled to an earlier effective prior to June 23, 2015 for his service connected lumbar compression fracture. By way of history, the Veteran filed his claim for service connection for a low back disability on November 23, 2010 which was granted with a 10 percent rating assigned as of that date. He later filed for an increased rating on June 23, 2015, and was granted a 40 percent rating pursuant to an August 2015 VA examination, which showed worsening symptoms. No evidence has been presented since that rating decision to change this determination. VA regulations provide that an effective date may go back up to one year prior to the receipt of claim, but only if it is factually ascertainable that the condition was worse. For example, VA treatment records were obtained from the period between June 2014 and June 2015, but while there was discussion of back pain and problems, the treatment records did not show range of motion test results, abnormal gait or abnormal spinal contour, prescribed bed rest, neurologic impairment, or ankylosis. That is, the treatment records did not make it factually ascertainable that prior to June 23, 2015 a rating in excess of 10 percent should be assigned for the Veteran’s service connected back disability. Therefore, an earlier effective date for the grant of the 40 percent rating is denied. Increased Ratings The Veteran was granted service connection for a right foot stress fracture and assigned a noncompensable rating, effective June 23, 2015. Under DC 5284, foot injuries are rated as 10 percent disabling when moderate, as 20 percent disabling when moderately severe, and as 30 percent disabling when severe. 38 C.F.R. § 4.71a. With actual loss of use of the foot, a 40 percent rating is assigned. Id. Words such as “moderate,” “moderately severe,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. 4.6. Use of terminology such as “severe” by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in reaching a rating decision. 38 C.F.R. §§ 4.2, 4.6. At a July 2016 VA examination, the Veteran reported discomfort to base of this toes on the right shoe due to pain. Despite attending physical therapy, his symptoms continued to persist. He reported “constant pain” in toes and sometimes severe spikes in pain to the base of his toes with increased activity. He reported flare-ups with functional loss/impairment. Upon examination, the examiner found no other foot conditions such as flat foot, Morton’s neuroma, hammer toe, hallux valgus, hallux rigidus, acquire pes cavus, malunion or nonunion of tarsal or metatarsal bones. Overall, the examiner concluded that the Veteran’s right foot condition was of mild severity. VA treatment records show that the Veteran complained of pain in his foot. Given that there is no other diagnosed condition of his foot, a rating other than Diagnostic Code 5284 is not appropriate. Based on the probative medical evidence of record, which is the July 2010 VA examination, the Board finds that a compensable rating for the Veteran’s right foot condition is not warranted under Diagnostic Code 5284, as the record fails to reflect a disability of at least a moderate degree. However, VA regulations provide that painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. 4.59. The Veteran is competent to provide evidence about his disability such as describing the pain he experiences; for example, he is competent to describe his foot pain and symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As such, while the foot disability is mild, it is nevertheless painful and therefore merits a 10 percent rating. To that extent the Veteran’s claim is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.Yeh, Associate Counsel