Citation Nr: 18148262 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-20 192 DATE: November 7, 2018 ORDER New and material evidence having not been received, the application to reopen a previously denied claim for entitlement to service connection for ankylosis of the right fourth metacarpal joint is denied. Entitlement to a compensable rating for ankylosis, residuals of fracture right fifth finger (also claimed as broken hand) is denied. FINDINGS OF FACT 1. The Veteran’s claim for service connection for ankylosis of the right fourth metacarpal joint was denied in July 2011 and April 2014 rating decisions. Both decisions became final as a notice of disagreement and/or new and material evidence was not submitted within one year of those decisions. 2. The evidence added to the record since the last final denial does not related to unestablished facts necessary to substantiate a claim of service connection. 3. The Veteran is in receipt of the maximum schedular rating of 0 percent for service-connected for ankylosis, residuals of fracture right fifth finger (also claimed as broken hand). CONCLUSIONS OF LAW 1. As the evidence received subsequent to the April 2014 rating decision is not new and material, the requirements to reopen the claim for entitlement to service connection for ankylosis of the right fourth metacarpal joint have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309. 2. The criteria for entitlement to a compensable rating for ankylosis, residuals of fracture right fifth finger (also claimed as broken hand) have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, diagnostic code (DC) 5227. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served a period of Active Duty for Training (ACDUTRA) from August 1974 to December 1974. He served on active duty from February 1975 to February 1978. 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). 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 v. Brown, 9 Vet. App. 273 (1996). However, for the purpose of establishing whether new and material evidence has been received, the credibility of the such evidence is to be presumed unless “patently incredible” See Duran v. Brown, 7 Vet. App. 216 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for ankylosis of the right fourth metacarpal joint The Veteran contends that he is entitled to service connection for ankylosis of his right fourth metacarpal joint. The Veteran’s claim was previously denied in a July 2011 rating decision on the basis that the condition neither occurred in nor was caused by service. The Veteran did not appeal that decision, nor did he submit any new and material evidence within a year of receiving it and is now final. See Buie v. Shinseki, 24 Vet. App. 242. The Veteran submitted a claim to reopen his claim for service connection on October 1, 2013. In an April 2014 rating decision, the RO confirmed and continued the denial for service connection of ankylosis of the right fourth metacarpal joint as no new and material evidence had been received. The Veteran did not appeal that decision, nor did he submit any new and material evidence. Therefore, that decision is now final. Id. The Veteran submitted a new claim to reopen his claim for service connection for ankylosis of his right fourth metacarpal joint in October 2015. The claim was denied in a January 2016 rating decision. The Veteran submitted a notice of disagreement (NOD) in February 2016 and his appeal was perfected following an issuance of an April 2016 statement of the case (SOC). After a review of the evidence, the Board finds that the claim for service connection for ankylosis right fourth metacarpal joint should not be reopened. Since the last final denial in April 2014 for service connection for ankylosis of his right fourth metacarpal joint, the Veteran has attended three VA examinations in 2015, 2016, and 2017. While these examinations reveal that the Veteran suffers from ankylosis of his right fourth metacarpal joint, they merely show continued post-service treatment. Additional evidence that merely demonstrates that the Veteran continues to receive treatment for his diagnosed ankylosis of his right fourth metacarpal joint and does not provide evidence that the disability is service connected, is not new and material. See Cox v. Brown, 5 Vet. App. At 99. Furthermore, the Board has searched the records and has not found any medical evidence, such as a medical opinion, which supports the Veteran’s contention that his ankylosis of his right fourth metacarpal joint was a result of his service. Accordingly, the Board finds that new and material evidence has not been submitted in connection with the claim of service connection for ankylosis of the right fourth metacarpal joint and the claim is not reopened. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.   Increased Ratings 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 illness proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. While the Board typically considers only those factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). When 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. 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, in cases where the Veteran’s claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). 2. Entitlement to a compensable rating for ankylosis, residuals of fracture right fifth finger (also claimed as broken hand) The Veteran’s right fifth finger disability is assigned a noncompensable rating under diagnostic code 5227. Under DC 5227, a noncompensable (0 percent) disability rating is assigned for unfavorable or favorable ankylosis of the ring or little finger for both the major and minor finger; no higher disability ratings are available. 38 C.F.R. § 4.71a, DC 5227. A note to DC 5227 instructs to the rater to consider whether evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand. Id. With respect to amputation, under DC 5155, disability ratings are assigned for amputation of the ring finger. 38 C.F.R. § 4.71a, DC 5155. Limitation of motion of the individual fingers is rated under 38 C.F.R. § 4.71a, DCs 5228, 5229, and 5230. DC 5228, for limitation of motion of the thumb, provides for a noncompensable evaluation when there is a gap of less than one inch (2.5 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 10 percent evaluation is warranted when there is a gap of one to two inches (2.5 to 5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A maximum 20 percent application is warranted when there is a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. 38 C.F.R. § 4.71a, DC 5228. Under DC 5229, for limitation of motion of the index or long finger, a noncompensable evaluation is for application when a gap of less than one inch (2.5 cm) between the fingertip and the proximal transverse crease of the palm, with the fingers flexed to the extent possible, and; extension is limited by no more than 30 degrees. The maximum 10 percent evaluation is for application when there is a gap of one inch (2.5 cm.) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees. 38 C.F.R. § 4.71a, DC 5229. DC 5230 provides for a maximum noncompensable evaluation for limitation of motion of the ring or little finger. 38 C.F.R. § 4.71a, DC 5230. Further, the provisions of 38 C.F.R. § 4.40 state that a disability affecting the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. In December 2015, the Veteran was afforded a VA examination. The Veteran reported decreased extension of motion at the right 5th finger, increased intermittent pain and stiffness, and increased pain with use. He further reported daily flare-ups with intermittent pain lasting several hours. As noted, DC 5227 and DC 5230 provide for a maximum rating of 0 percent. Although the Board recognizes that the Veteran currently is in receipt of the maximum disability rating, the Note to DC 5227 states that an amputation evaluation should also be considered. 38 C.F.R. § 4.71a. There is no evidence of record that indicates that the right little finger is so disabled, by ankylosis or by any other symptoms, to include pain, such that its functional impairment more nearly approximates amputation. Additionally, during his VA examinations in July 2015 and September 2017, the examiners marked no in response to whether the Veteran’s finger condition would be equally well served by an amputation. Thus, the Board concludes that an increased rating is not warranted via the amputation codes because the nature of the Veteran’s service-connected right little finger disability is not analogous to amputation. The Board recognizes the Veteran’s lay statements of pain and limitation of motion in his right little finger. However, limitation of motion does not entitle the Veteran to a higher disability rating. Even if rated under DC 5230, he is already in receipt of the maximum schedular disability rating available for limitation of motion of the right little finger. Furthermore, in Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the United States Court of Appeals for Veterans Claims (Court) determined that if a claimant is already receiving the maximum disability rating, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. Moreover, 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 or 5230. In Sowers v. McDonald, the Court held that the provisions of 38 C.F.R. § 4.59 are not an independent provision that may be applied without an underlying diagnostic code. See Sowers v. McDonald, 27 Vet. App. 472. Because Codes 5227 and 5230 provide for a maximum noncompensable rating, a compensable rating is not available under either diagnostic code due to the provisions of 38 C.F.R. § 4.59. The Note to DC 5227 also states that an additional evaluation is warranted for any resulting limitation of motion of other digits or interference with the overall function of the hand due to the service-connected right little finger. Here, although the Veteran has a diagnosis of ankylosis of the right fourth metacarpal joint, the evidence does not demonstrate that the disability is a result of his service connected right little finger disability. In fact, the Veteran injured his right fourth metacarpal when he punched a wall in 2008. Additionally, the August 2008 VA examiner opined that the Veteran’s fourth metacarpal disability was unrelated to his right fifth finger disability. Therefore, the competent medial evidence does not support a separate evaluation under DC 5227. 38 C.F.R. § 4.71a, DC 5227.   In short, the preponderance of the evidence is against the Veteran’s claim for compensable rating for his service-connected right little finger disability. Therefore, the benefit of the doubt doctrine is not for application and the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Vample, Associate Counsel