Citation Nr: 18153730 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 10-29 187 DATE: November 28, 2018 ORDER Entitlement an initial compensable evaluation for right hand disability, to include a scar and arthritis, is denied. New and material evidence having been received, the Veteran’s claim for entitlement to service connection for service connection for bilateral flat feet/pes planus is reopened. New and material evidence having been received, the Veteran’s claim for entitlement to service connection for sleep apnea is reopened. REMANDED Entitlement to an evaluation in excess of 10 percent for lumbar spine disability is remanded. Entitlement to an evaluation in excess of 10 percent for cervical spine disability is remanded. Entitlement to an evaluation in excess of 10 percent for right knee disability is remanded. Entitlement to an evaluation in excess of 10 percent for left knee disability is remanded. Entitlement to service connection for bilateral flat feet/pes planus is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for high blood pressure is remanded. Entitlement to service connection for erectile dysfunction is remanded. FINDINGS OF FACT 1. The Veteran’s right hand scar is not painful or unstable. The Veteran’s right hand disability reflects reduced range of motion, but without pain on examination or arthritis. 2. A September 2004 rating decision denied entitlement to service connection for bilateral flat feet/pes planus. The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of the notice of that rating decision. 3. Some of the evidence received since September 2004, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for bilateral flat feet/pes planus. 4. A January 2014 rating decision denied entitlement to service connection for sleep apnea. The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of the notice of that rating decision. 5. Some of the evidence received since January 2014, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for sleep apnea. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for right hand disability has not been satisfied at any time during the appeal period. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5216 to 5230, 38 C.F.R. § 4.118, Diagnostic Codes 7801-7804 (2017). 2. The September 2004 rating decision, which denied the Veteran’s claim of entitlement to service connection for bilateral flat feet/pes planus, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2017). 3. The evidence received since the September 2004 rating decision is new and material, and the claim of entitlement to service connection for bilateral flat feet/pes planus is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 4. The January 2014 rating decision, which denied the Veteran’s claim of entitlement to service connection for sleep apnea, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2017). 5. The evidence received since the January 2014 rating decision is new and material, and the claim of entitlement to service connection for sleep apnea is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1987 to January 1993. This matter comes before the Board of Veterans’ Appeals (Board) from multiple rating decisions of multiple Department of Veterans Affairs (VA) Regional Offices (RO). The Veteran received a hearing before the undersigned Veterans Law Judge at the RO in July 2012. The appeal was last remanded by the Board for further development in January 2013. Entitlement to Initial Compensable Rating for Right Hand Scar Disability ratings are assigned in accordance with the VA’s Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. The assignment of a particular Diagnostic Code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating factors for a disability of the musculoskeletal system include functional loss due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). For rating purposes, handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. 3 8 C.F.R. § 4.69. Ankylosis or limitation of motion of single or multiple digits of the hand is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5216 to 5230. The preamble to 38 C.F.R. § 4.71a, Diagnostic Codes 5216 to 5230, number (4) states that for evaluation of ankylosis of the thumb, (i) if both the carpometacarpal and interphalangeal joints are ankylosed, and either is in extension or full flexion, or there is rotation or angulation of the bone, evaluate as amputation at the metacarpophalangeal joint or through proximal phalanx; (ii) if both the carpometacarpal and interphalangeal joints are ankylosed, evaluate as unfavorable ankylosis, even if each joint is individually fixed in a favorable position; (iii) if only the carpometacarpal or interphalangeal joint is ankylosed, and there is a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to opposed the fingers, evaluated as unfavorable ankylosis; (iv) if only the carpometacarpal or interphalangeal joint is ankylosed and there is a gap of two inches (5.1 cm.) or less between the thumb pad and the fingers, with the thumb attempting to oppose the fingers, evaluate as favorable ankylosis. Diagnostic Code 5224, for ankylosis of the thumb, provides a 10 percent rating for favorable ankylosis of the thumb (both minor and major), and a 20 percent rating for unfavorable ankylosis of the thumb (both minor and major). The attached Note indicates that the VA should also 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. Diagnostic Code 5228, for limitation of motion of the thumb, provides a maximum 20 percent rating (both major and minor) for limitation of motion with 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. Analysis The Veteran contends he is entitled to an initial compensable rating for a disability of the right hand. In the January 2013 Board decision, the Board noted that the Veteran testified his right hand disability consisted of more than just a scar, and the Veteran reported cramping, swelling, and periodic soreness of the hand, and reported that a VA doctor told him he had arthritis in the hand. The Veteran reported in a September 2016 Statement in Support of Claim that he experiences pain and swelling to his right wrist. The Veteran was afforded a VA examination for his right hand in June 2016. The examiner reported the Veteran’s scar was neither painful or unstable. Imaging reflected no abnormal findings, including any type of arthritis. Weakness and limited range of motion was noted on examination, with the Veteran’s grip strength in his right hand assessed as 4/5. There were no other impairments of the right hand observed, including no swelling. No pain was noted on examination. No gap between the pad of the thumb and the fingers was observed, and no gap between the finger and proximal transverse crease of the hand on the maximal finger flexion was observed. The Veteran’s right hand disability does not warrant a compensable rating under any Diagnostic Code. Testing did not reflect the Veteran experienced pain or had arthritis of the right hand. The range of motion testing did reflect limitations and weakness, but they did not reflect ankylosis or the severity of impairment required for a compensable rating under any of the pertinent Diagnostic Codes. The examiner marked that there was no gap between the thumb pad and the fingers post-range of motion testing. Thus, a compensable rating is not available under 38 C.F.R. § 4.71a, Diagnostic Codes 5216 to 5230 The Board has considered whether separate evaluations are warranted based on the Veteran’s right hand scar. However, the scar was not of a size to warrant a separate compensable rating, and the scar itself was not unstable or painful. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7804. Reopening: Service Connection for Sleep Apnea and Bilateral Flat Feet/Pes Planus In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to VA. 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In a June 2018 Appeal to the Board, the Veteran contends that his bilateral flat feet/pes planus was secondarily caused by service-connected disabilities of his neck and lower back, which resulted in weight gain. The Veteran also reports he experienced a foot injury during his tour in Korea in 1990 to 1991. The Veteran contends that his sleep apnea was secondarily caused by his excessive weight gain due to being unable to exercise due to his service-connected disabilities of his neck and lower back. The prior decisions did not consider that the Veteran’s bilateral flat feet/pes planus and sleep apnea service connection claims could potentially be secondarily caused by weight gain due to service-connected neck and back disabilities. The Board finds that when considered by itself or in connection with evidence previously assembled, including ongoing treatment records, the new evidence relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for bilateral flat feet/pes planus and sleep apnea. Therefore, as the Board finds the new evidence is material, the Veteran’s claim must be reopened. REASONS FOR REMAND The Board notes that since the September 2016 Statement of the Case (SOC), additional evidence relevant to the claims for increased ratings for the Veteran’s service-connected lumbar spine, cervical spine, right knee, and left knee disabilities has been obtained, including December 2017 C&P examinations of the Veteran’s cervical spine, thoracolumbar spine, and knees. However, the Agency of Original Jurisdiction (AOJ) has not issued a Supplemental Statement of the Case (SSOC) to the Veteran. The Board notes that in January 2014, the Veteran filed a Notice of Disagreement (NOD) regarding service connection for erectile dysfunction and high blood pressure. No subsequent action has been taken in response to the Veteran’s NOD, and the RO did not supply the Veteran with a statement of the Case (SOC) in reference to his erectile dysfunction and high blood pressure claims. Where an NOD has been timely filed with regard to an issue, and an SOC has not been issued, the Board must remand the claim to the AOJ so that an SOC may be issued. Manlincon v. West, 12 Vet. App. 238 (1999). Thus, on remand, the AOJ must issue an SOC for the Veteran’s claim of entitlement to service connection for erectile dysfunction and high blood pressure so as to provide the Veteran the opportunity to perfect and appeal. 38 U.S.C. § 7105; 38 C.F.R. §19.26; see Manlincon, 12 Vet. App. at 238. Additionally, the Board notes that the Veteran should be afforded VA examinations to determine the etiology of his bilateral flat feet/pes planus and sleep apnea, which the Veteran contends are related to excessive weight gain caused by his service-connected disabilities. The matters are REMANDED for the following action: 1. The AOJ should contact the Veteran and his representative and request their assistance in identifying any outstanding relevant records. The AOJ should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran’s claims file. 2. After associating all identified relevant records with the Veteran’s claim file, the AOJ should afford the Veteran new examinations of his bilateral flat feet/pes planus and sleep apnea to determine whether these disabilities are related to his military service to include as secondary to his service-connected disabilities. The AOJ should ensure that the VA examiner/s reviews the pertinent treatment records and opines whether is at least as likely as not that each diagnosed disability was (1) incurred during service or otherwise caused by an incident in service (2) aggravated beyond its normal progression by such incidents, or (3) caused or aggravated beyond its normal progression by another service-connected disability, including the cervical and lumbar spine disabilities. The VA examiner should opine if there is an etiological relationship between the Veteran’s service-connected disabilities and his weight gain, and if there is an etiological relationship between the Veteran’s excessive weight and his bilateral flat feet/pes planus and sleep apnea. The rationale for all opinions expressed should be provided. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching his or her conclusions. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Issue an SOC regarding the issue of entitlement to service connection for erectile dysfunction and high blood pressure and advise the Veteran of the procedural requirements to continue an appeal of those issues. If, and only if, a substantive appeal is timely filed, the issues should be certified to the Board. 4. After completing the above action and any other necessary development, the remaining outstanding claims must be readjudicated. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate SSOC and afford them   an adequate opportunity to respond, the appeal must be returned to the Board for appellate consideration. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Keogh, Associate Counsel