Citation Nr: 18153251 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 15-15 445 DATE: November 27, 2018 ORDER New and material evidence having been received, the claim of service connection for a back condition is reopened; to this extent only the appeal is granted. Entitlement to a compensable rating for a healed 4th digit, left hand, fracture (left 4th finger disability) is denied. REMANDED Entitlement to service connection for a back condition is remanded. Entitlement to service connection for a left hand condition, to include as secondary to service-connected left 4th finger disability, is remanded. Entitlement to service connection for a left arm condition, to include as secondary to service-connected left 4th finger disability, is remanded. Entitlement to service connection for a left shoulder condition, to include as secondary to service-connected left 4th finger disability, is remanded. Entitlement to an initial rating in excess of 30 percent prior to November 13, 2017 and in excess of 50 percent beginning November 13, 2017 for other specified trauma and stressor related disorder (also claimed as posttraumatic stress disorder, depressive disorder, and anxiety disorder) (hereinafter acquired psychiatric disorder) is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for a back condition was most recently denied by a January 2009 rating decision; the Veteran did not appeal the decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period. 2. Additional evidence received since the January 2009 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for a back condition, and raises a reasonable possibility of substantiating the claim. 3. The Veteran is right-hand dominant; throughout the appeal period his left 4th finger disability was manifested by chronic pain but no limitation of motion; there is no evidence of amputation without metacarpal resection, at the proximal interphalangeal joint or proximal thereto. CONCLUSIONS OF LAW 1. The January 2009 rating decision declining to reopen a claim of service connection for a back condition is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. 2. Evidence received since the January 2009 rating decision is new and material to reopen the claim for service connection for a back condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for a compensable rating for a left 4th finger disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Codes 5155, 5227, 5230. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from May 1977 to October 1980. These matters are before the Board of Veterans’ Appeals (Board) on appeal from May 2013 and November 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board at a hearing in July 2018. A transcript of the hearing is of record. At the hearing, the Veteran was granted a 60-day abeyance period for the submission of additional evidence to support his claims. The Veteran submitted additional evidence received by VA in August 2018 in support of his claims. For all substantive appeals received on or after February 2, 2013, any evidence submitted to the Board shall be subject to initial review by the Board unless the Veteran or the Veteran’s representative requests in writing that the Agency of Original Jurisdiction (AOJ) initially review such evidence. 38 U.S.C. § 7105(e). As the Veteran filed his VA Form 9, Substantive Appeal, in these matters in April 2015 and June 2018, a waiver of initial AOJ review is unnecessary. In addition, following the March 2015 and April 2018 statement of the cases, VA added additional medical evidence to the Veteran’s file. Pertinent evidence is initially reviewed by the AOJ. Additional pertinent evidence that becomes available after the RO’s statement of the case but prior to certification to the Board is to be addressed in an additional supplemental statement of the case. 38 C.F.R. § 19.31(b). After certification to the Board, such evidence must be referred back to the AOJ for initial review. 38 C.F.R. § 20.1304(c). Exceptions are when the Veteran or his representative waives this review right, or when the Board grants the benefit being sought in full. Id. In the Veteran’s case, the RO issued a rating decision in August 2018 on the Veteran’s claim of entitlement to service connection for a back condition and on his claims for increased ratings for a fracture of the fourth finger on the left hand and for his acquired psychiatric disorder. Therefore, although this evidence was not reviewed in a supplemental statement of the case, the issuance of a rating decision on the issues reflects that the evidence has initially been reviewed by the AOJ. In addition, the Veteran’s remaining claims are being remanded to the AOJ for further development; thus, the AOJ will review all of the additional evidence added to the file since the statement of the cases. Lastly, the Board acknowledges that in July 2018 the Veteran submitted a VA Form 21-0958, Notice of Disagreement (NOD), with an October 2017 rating decision that denied petitions to reopen claims for bilateral hearing loss and tinnitus. The Board’s review of the claims file reveals that the AOJ is in the process of taking action on this NOD. As such, the Board will not take any further action on the matters, and they will only be before the Board if the Veteran timely files a substantive appeal after a statement of the case is issued. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. § 3.159. Neither the Veteran nor his attorney has raised any issues with the duty to notify. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”). Regarding the duty to assist, the Board is remanding several issues below in part to obtain copies of the Veteran’s Social Security Administration (SSA) records. However, the evidence in the file indicating the Veteran has been awarded SSA disability benefits based on conditions unrelated to the history of fracture of the left 4th finger. Therefore, there is no indication in the record that the Veteran is receiving SSA benefits as a result of the claim being decided herein and such records would not be relevant in adjudicating the claim. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (finding that SSA records are not relevant when a SSA decision is on a completely unrelated medical condition and the Veteran makes no allegations that the records may otherwise be relevant to the claim for which the Veteran seeks VA benefits). Neither the Veteran nor his attorney has alleged that SSA records are relevant to the claim being adjudicated herein. Neither the Veteran nor his attorney has raised any other issues with the duty to assist. Scott, 789 F.3d at 1381; Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). New and Material Evidence for Back Condition A claim for service connection for a back condition was most recently denied in a January 2009 rating decision. The RO denied the claim on the basis that new and material evidence had not been received to reopen the claim previously denied in December 2006. The Veteran did not appeal the decision, nor was any new and material evidence actually or constructively received within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. The Veteran’s petition currently before the Board to reopen his claim for a back condition was received by the RO in March 2012. The RO granted the petition to reopen the claim and denied the claim on the merits in a May 2013 rating decision. Although the RO reopened the claim in the May 2013 rating decision, the Board must independently consider the question of whether new and material evidence has been received because it goes to the Board’s jurisdiction to reach the underlying claims and adjudicate the claims de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. In determining whether evidence is “new and material,” the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118 (2010). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512 (1992). Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. Here, the Board finds new and material evidence has been added to the Veteran’s file since the January 2009 rating decision denying service connection for a back condition. A March 2017 lumbar spine MRI showed degenerative disc disease of the lumbar spine, most pronounced at L3-L4 and L4-L5, moderate narrowing of the central canal at L3-L4, and bilateral neural foraminal narrowing from L3 to S1. An August 2018 VA examination report reflects diagnoses of degenerative arthritis of the thoracolumbar spine and degenerative disc disease of the lumbar spine. The MRI results and the diagnoses of back conditions were not before adjudicators when the Veteran’s claim was last denied in January 2009, and the evidence is not cumulative or redundant of the evidence of record at the time of that decision. The claim has previously been denied in part based on a finding that the Veteran did not have a current chronic back disability. Therefore, the evidence also relates to an unestablished fact necessary to substantiate the claim for service connection, as it reflects he now has a back condition, and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. Increased Rating for Left 4th Finger Disability The Veteran and his attorney contend the Veteran is entitled to a compensable rating his left 4th finger disability. For the reasons that follow, the Board concludes a compensable rating is not warranted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has 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). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran’s service-connected left 4th finger disability has been rated as non-compensable under Diagnostic Code 5230 throughout the appeal period. Under Diagnostic Code 5230, a noncompensable rating is assigned for any limitation of motion of the ring or little finger regardless of whether the affected hand is dominant or minor. Diagnostic Code 5230 does not provide for a compensable rating. 38 C.F.R. § 4.71a. Diagnostic Code 5155 evaluates amputation of the 4th finger. The record contains no evidence of an amputation of the left 4th finger. Therefore, this Diagnostic Code is not applicable and will be discussed no further. Diagnostic Code 5227 evaluates ankylosis of the 4th finger. The record contains no evidence of ankylosis of the left 4th finger, and the Veteran has not described symptoms that are suggestive of ankylosis. Therefore, this Diagnostic Code is not applicable and will be discussed no further. Turning to the evidence of record, an August 2018 VA examination reflects the Veteran had normal range of motion in the left 4th finger but with pain on flexion and extension. The Veteran was noted to have pain on palpation throughout his left hand. The Veteran performed repetitive use testing without functional loss or range of motion. The Veteran had reduced grip strength on the left at 4/5, no ankylosis, and the VA examiner noted the impairment caused no functional impact. The examiner stated the tenderness throughout the Veteran’s left hand could not be explained by his left 4th finger fracture in service. The Veteran reported he has trouble holding onto objects, which he attributed to numbness and paresthesia in his hand. In addition to the Veteran’s subjective reports at the August 2018 VA examination, the Board acknowledges the Veteran’s statements at his July 2018 Board hearing where the Veteran reported that his left 4th finger fracture affects his whole left hand and that he cannot hang onto objects. See Board Hearing Transcript, page 3. Furthermore, the Board acknowledges the Veteran’s daughter’s July 2018 statement in which the daughter stated that the Veteran complained of pain in his left hand and the Veteran’s spouse would have to rub the Veteran’s hand. The Board finds that the preponderance of the evidence is against a finding that a compensable rating is warranted under Diagnostic Code 5230. Under Diagnostic Code 5230, any level of limitation of motion of a 4th finger results in a noncompensable rating, even where there is associated pain and functional loss. See Sowers v. McDonald, 27 Vet. App. 472, 480 (2016) (there is no minimum compensable rating available for painful motion under Diagnostic Code 5230 for the 4th and 5th fingers). Thus, even with consideration of 38 C.F.R. § 4.59, a compensable rating is not warranted. The Veteran has not been diagnosed with, nor is there evidence of arthritis of the left 4th finger or left hand; therefore, Diagnostic Code 5003 is not applicable. Regarding whether referral for an extraschedular rating is appropriate, such has not been raised by the appellant or reasonably raised by the record and will not be further discussed herein. Doucette v. Shulkin, 28 Vet. App. 366, 369−70 (2017). In sum, the Board finds the criteria for a compensable rating for a healed 4th digit, left hand, fracture are not met. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND 1. All Claims Initially, the Board notes that the record reflects that the Veteran has been awarded disability benefits from the SSA. VA examinations in January 2009 and April 2010 reflect that the Veteran has been awarded SSA disability benefits. However, the claims file does not contain the decision or any of the medical records upon which the determination was based. On remand, all records pertaining to the Veteran’s award of SSA disability benefits should be obtained as they are potentially relevant to the remanded claims. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). 2. The newly reopened claim of entitlement to service connection for a back condition is remanded. The Veteran underwent a VA examination for his back condition in August 2018. Following the examination, the VA examiner opined the Veteran’s back condition was less likely than not incurred in or caused by service. In support of the opinion, the VA examiner noted how the Veteran’s service treatment records (STRs) are silent for neck and back complaints except for a motor vehicle accident in which there was questionable discomfort in the neck. The rationale provided did not clearly address the question of the relationship to service, including the Veteran’s allegation that he injured his back in 1978 when he jumped off a truck with his full gear. Therefore, remand is necessary for an additional VA examination and opinion to determine the etiology of the Veteran’s back condition. Furthermore, in the Veteran’s March 2012 application, the Veteran indicated his back condition is secondary to his service-connected left 4th finger disability. Therefore, a VA opinion as to secondary service connection should also be obtained. 3. The claims of entitlement to service connection for a left hand condition, left arm condition, and a left shoulder condition, to include as secondary to the service-connected left 4th finger disability, are remanded. Regarding the Veteran’s left hand claim, a VA examiner opined in March 2013 that it is less likely as not that the Veteran’s current left hand condition is secondary to his left 4th finger fracture. The Board finds this opinion to be inadequate as the examiner did not clearly address whether the Veteran’s left 4th finger disability caused or aggravates the Veteran’s left hand condition per 38 C.F.R. § 3.310(a), (b). Therefore, remand for an additional examination and opinion as to secondary service connection is necessary. Regarding the Veteran’s left arm and shoulder claims, the Veteran underwent a VA examination in March 2013. The examiner diagnosed the Veteran with complex regional pain syndrome. However, the examiner did not specify whether the diagnosis applies to both the arm and shoulder. Furthermore, the VA examiner opined that it is less likely as not that the Veteran’s current left upper extremity condition is secondary to his left 4th finger fracture. The Board finds this opinion to be inadequate as the examiner did not clearly address whether the Veteran’s left 4th finger disability caused or aggravates the Veteran’s left arm and/or left shoulder condition per 38 C.F.R. § 3.310(a), (b). Therefore, remand for an additional examination and opinion as to secondary service connection is necessary. The matters are REMANDED for the following actions: 1. Obtain from the SSA complete copies of all records pertaining to the Veteran’s award of SSA disability benefits, including all medical evidence considered in making the decision, and a copy of the decision awarding SSA disability benefits. All attempts to secure these records must be documented in the record, and the Veteran must be notified of the unavailability of any records in accordance with 38 C.F.R. § 3.159(e). 2. Obtain and associate with the Veteran’s electronic record VA treatment records from July 2018 to the present. Contact the Veteran and afford him the opportunity to identify or submit any pertinent evidence in support of his claim, to include records of any private treatment. Based on his response, attempt to procure copies of all records which have not been obtained from identified treatment sources. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 3. After completing the development requested in items 1 and 2, provide the Veteran an appropriate VA examination to determine the nature and possible relationship to service of the Veteran’s back, left hand, left arm, and left shoulder conditions. His electronic claims file, including a copy of this decision and remand, must be made available to the examiner. All indicated tests should be conducted, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. The examiner should answer the following questions for the following claimed conditions: A) Back Condition: i) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s back condition is related or attributable to his military service, to include an event in 1978 when he jumped off a truck with his full gear? In answering this question, the examiner is to specifically comment on whether the Veteran’s current back condition is related to service irrespective of the Veteran declining to undergo an exit examination. ii) Is it at least as likely as not (a 50% or greater probability) that the Veteran’s back condition is caused by the Veteran’s left 4th finger disability? iii) Is it at least as likely as not (a 50% or greater probability) that the Veteran’s back condition is aggravated (that is, any increase in severity beyond the natural progress of the condition as shown by comparing the current disability to medical evidence created prior to any aggravation) by the Veteran’s left 4th finger disability? If the Veteran’s back condition is aggravated by his left 4th ring finger disability, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. B) Left Hand Condition: i) Provide any diagnoses of any left hand condition, including explaining whether any pain or other symptoms cause functional impairment of earning capacity. ii) Is it at least as likely as not (a 50% or greater probability) that any diagnosed left hand condition (or pain or other symptoms that cause functional impairment of earning capacity) is caused by the Veteran’s left 4th finger disability? iii) Is it at least as likely as not (a 50% or greater probability) that any diagnosed left hand condition (or pain or other symptoms that cause functional impairment of earning capacity) is aggravated (that is, any increase in severity beyond the natural progress of the condition as shown by comparing the current disability to medical evidence created prior to any aggravation) by the Veteran’s left 4th finger disability? If the Veteran has a left hand condition that is aggravated by his left 4th ring finger disability, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. C) Left Arm and Left Shoulder Conditions: i) Provide any diagnoses of any left arm and/or left shoulder conditions. In responding to this, please note the March 2013 VA examiner diagnosed the Veteran with complex regional pain syndrome of the left wrist, arm, and shoulder. ii) Is it at least as likely as not (a 50% or greater probability) that any diagnosed left arm and/or shoulder conditions is caused by the Veteran’s left 4th finger disability? iii) Is it at least as likely as not (a 50% or greater probability) that any diagnosed left arm and/or shoulder condition is aggravated (that is, any increase in severity beyond the natural progress of the condition as shown by comparing the current disability to medical evidence created prior to any aggravation) by the Veteran’s left 4th finger disability? If the Veteran has a left arm and/or shoulder condition that is aggravated by his left 4th ring finger disability, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner must fully explain the rationale for all opinions, with citation to supporting clinical data/lay statements, as deemed appropriate. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. M. Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Breitbach, Associate Counsel