Citation Nr: 1808850 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 13-25 149A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an effective date prior to January 28, 2011, for the award of service connection and an initial 10 percent rating for Achilles tendonitis of the right heel. 2. Entitlement to an initial rating in excess of 10 percent for Achilles tendonitis of the right heel. 3. Entitlement to an initial rating in excess of 50 percent prior to December 8, 2017, and in excess of 70 percent thereafter for residuals of a total right hip replacement. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. M. Celli, Counsel INTRODUCTION The Veteran served on active duty from August 1952 to May 1954. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in June 2011 and June 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the record on appeal. At such time, the Veteran waived Agency of Original Jurisdiction (AOJ) of the evidence received since the AOJ's last adjudication of the issues. 38 C.F.R. § 20.1304(c) (2017). Therefore, the Board may properly consider such evidence. Furthermore, while the Veteran underwent a subsequent VA examination as to the severity of his right hip disability in December 2017 and additional VA treatment records dated from July 2017 through December 2017 were associated with the record, as the AOJ considered such evidence in the adjudication of such claim in a December 2017 rating decision, the Board finds no prejudice in proceeding with a decision on such matter at this time. Furthermore, such newly received evidence contains duplicative information or is irrelevant to the remaining issues on appeal, there is likewise no prejudice to the Veteran in proceeding with a decision on such matters at this time. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. In March 1956, VA received the Veteran's original claim for service connection for a right heel condition, and in a June 1956 final rating decision, the AOJ denied service connection for a right heel condition. 2. In August 1977, VA received an application to reopen the previously denied claim of entitlement to service connection for a right heel condition, and, in a December 1977 final rating decision, the AOJ denied the application to reopen such claim. 3. The evidence does not rebut the presumption of regularity that VA properly discharged its official duties when providing the Veteran with notice of the December 1977 rating decision. 4. The Veteran did not file a formal or informal claim to reopen his previously denied claim for service connection for a right heel condition after issuance of the final December 1977 rating decision prior to the receipt of his informal claim on January 28, 2011. 5. Throughout the pendency of the appeal, the Veteran's service-connected Achilles tendonitis of the right heel more nearly approximates no more than a moderate foot injury, to include discomfort and difficulty walking for long distances. 6. Throughout the pendency of the appeal, the Veteran's service-connected total right hip replacement is manifested by markedly severe residuals of weakness, pain, and limitation of motion, but does not require the use of crutches. CONCLUSIONS OF LAW 1. The June 1956 rating decision that denied service connection for service connection for a right heel condition is final. 38 U.S.C. § 709 (1952) [38 U.S.C. § 7105(c) (2012)]; Veterans Regulation No. 2(a), Part II, Par. III; Department of Veterans Affairs Regulation 1008 [38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017)]. 2. The December 1977 rating decision that denied an application to reopen the previously denied claim of entitlement to service connection for a right heel condition is final. 38 U.S.C. § 4005(c) (1976) [38 U.S.C. § 7105(c) (2012)]; 38 C.F.R. §§ 3.104, 19.118, 19.153 (1977) [38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017)]. 3. The criteria for an effective date prior to January 28, 2011, for the award of service connection and an initial 10 percent rating for Achilles tendonitis of the right heel have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. § 3.400 (2017). 4. The criteria for an initial rating in excess of 10 percent for Achilles tendonitis of the right heel have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5012-5284 (2017). 5. The criteria for an initial rating of 70 percent for residuals of a right total hip replacement have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5054 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Neither the Veteran nor his representative has alleged any deficiency with respect to VA's duties to notify or assist. See Scott, supra (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."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Earlier Effective Date The Veteran is seeking an effective date prior to January 28, 2011, for the award of service connection and an initial 10 percent rating for Achilles tendonitis of the right heel, which was granted in the April 2013 rating decision. Specifically, he asserts that the effective date should be the date of his August 1977 claim for service connection. At the October 2017 hearing, he claimed that he did not receive notice of the December 1977 rating decision; thus, he was unable to appeal the denial. Generally, the effective date of an award based on a claim reopened after final adjudication "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110(a). Specifically, under 38 C.F.R. § 3.400(q)(1)(ii), the effective date based on new and material evidence other than service department records received after the final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is later. Under 38 C.F.R. § 3.400(r), the effective date based on a reopened claim is the date of receipt of the claim or the date entitlement arose, whichever is later. Sears v. Principi, 16 Vet. App. 244 (2002); Melton v. West, 13 Vet. App. 442 (2000). Prior to March 24, 2015, any communication or action indicating intent to apply for one or more benefits under the laws administered by VA, was considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a). Preliminarily, the Board acknowledges that the finality of any previous decision can be vitiated by a finding of clear and unmistakable (CUE) in that decision (see Routen v. West, 142 F.3d 1434, 1438 (Fed. Cir. 1998) (listing CUE as one of three exceptions to the rules regarding finality and effective dates). However, the Board finds no such claim has been raised here. A CUE claim requires some degree of specificity not only as to what the alleged error is, but-unless it is the kind of error that, if true, would constitute CUE on its face-persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. See Phillips v. Brown, 10 Vet. App. 25, 31 (1997). Furthermore, the analysis of a CUE claim focuses on a prior unappealed regional office decision in the context of three factors, the first of which applies to this specific claim: either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips at 27. In the instant case, while the Veteran asserts that VA was "clearly wrong to deny the benefit", he bases this argument on "gross errors in handling the examination and making an erroneous diagnosis". As this assertion pertains only to how the facts were weighed or evaluated, the Board finds that the Veteran has not alleged CUE in either of the final rating decisions. The Veteran initially filed a claim for service connection for right heel disorder in March 1956. Service connection for such claimed disorder was denied in a June 1956 rating decision and the Veteran was provided with notice of such denial; however, he did not file a notice of disagreement within one year of the June 1956 rating decision. Further, no new and material evidence was received within one year of such decision, and no relevant service department records have been received since the issuance of such decision. Therefore, the June 1956 decision is final. 38 U.S.C. § 709 (1952) [38 U.S.C. § 7105(c) (2012)]; Veterans Regulation No. 2(a), Part II, Par. III; Department of Veterans Affairs Regulation 1008 [38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017)]. Thereafter, in August 1977, VA received an application to reopen the previously denied claim of entitlement to service connection for a right heel condition, and, in a December 1977 rating decision, the AOJ denied the application to reopen such claim. In this regard, the Veteran argues that he did not receive notice of the December 1977 rating decision, and as such, he did not have the ability to timely file a notice of disagreement. Upon review, the Board finds the presumption of regularity applies in this case, which holds that government officials are presumed to have properly discharged their official duties. Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992) (quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)). Unless rebutted by clear evidence to the contrary, VA is entitled to the benefit of this presumption. Id. Here, while the actual notification letter for the December 1977 rating decision is not on file, there are two separate documents that indicate that the rating decision was promulgated with notice to the Veteran (VA Forms 21-6798 & 20-822a), which were sent to the Veteran's address on file. Furthermore, it appears that the December 1977 decision awarded a 10 percent rating for a skin disorder of the groin, which must have been promulgated in order for the Veteran to receive his disability check, and the record includes an August 1978 authorization to disclose the award to the State of New York, Division of Civil Service. As such, the Board finds the Veteran has not presented clear evidence sufficient to rebut the presumption of regularity, and any assertion by the Veteran that he did not receive notice of the December 1977 decision is deemed not credible. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Caluza v. Brown, 7 Vet. App. 66 (1998). Furthermore, no new and material evidence was received within one year of such decision, and no relevant service department records have been received since the issuance of such decision. Therefore, the December 1977 decision is final. 38 U.S.C. § 4005(c) (1976) [38 U.S.C. § 7105(c) (2012)]; 38 C.F.R. §§ 3.104, 19.118, 19.153 (1977) [38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017)]. Thereafter, VA received the Veteran's most recent application to reopen his claim for service connection in January 2011, and the AOJ granted the benefit with an effective date of January 28, 2011, the date of receipt. Here, the Board finds that there is no document of record that can be construed as a formal or informal claim for service connection for right heel disorder that was received after the issuance of the final December 1977 rating decision and prior to the receipt of his informal claim on January 28, 2011. Furthermore, the Veteran does not assert that he filed a timely formal or informal claim following the December 1977 rating decision. Based on the analysis above and after reviewing the totality of the evidence, an effective date prior to January 28, 2011, for the award of service connection and an initial 10 percent rating for Achilles tendonitis of the right heel is not warranted. Rather, the effective date assigned by the AOJ was proper as such is the date of receipt of the Veteran's informal claim to reopen after the issuance of the final December 1977 rating decision. See 38 C.F.R. § 3.400(r). Therefore, there is no doubt to be resolved and the appeal must be denied. III. Increased Rating Claims Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). Achilles Tendonitis of the Right Heel The Veteran's service-connected Achilles tendonitis of the right heel is rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5012-5284. Under Diagnostic Code 5284, a 10 percent rating is provided for a "moderate" foot injury. A 20 percent rating is provided for a "moderately severe" foot injury. A 30 percent evaluation is provided for a "severe" foot injury. The Note to Diagnostic Code 5284 indicates that a maximum 40 percent rating will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a. The words "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. 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. Upon review, the Board finds the evidence, to include the clinical records, examination findings, and the Veteran's personal reports of his symptoms, does not establish entitlement to an initial rating in excess of 10 percent for the Veteran's service-connected right heel disability at any time during the pendency of the appeal. First, an October 2012 X-ray report did not reveal any acute osseous abnormality or significant degenerative joint disease. Second, the January 2015 VA examination report shows the Veteran's functional loss only involved the avoidance of prolonged standing and walking. Additionally, upon flare-ups, the Veteran only experienced increased pain, resulting in decreased use and weightbearing. In this regard, the VA examiner reported that the Veteran's right heel disability was moderate in severity. Similarly, VA treatment records show the Veteran's right heel affected the way he walked in that he listed to the right and walked with a hitch. Additionally, during the pendency of the appeal, the Veteran mainly reported that his right heel affected walking long distances over one half of a mile. On VA examination in February 2013, he stated that he had pain in his heel and difficulty walking about one half of a mile, and in April 2013, he reported moderate pain and discomfort in service that currently continued to a lesser extent. The January 2015 VA examination report shows the Veteran reported ongoing pain that radiated to the posterior ankle and worsened with prolonged standing or walking. He experienced flare-ups with increased pain and decreased use and weight bearing. In a letter received in June 2015, the Veteran asserted that his right heel disability should have been given a moderately severe evaluation, and in a September 2015 letter, he stated that he had increasing pain, disability, and weakness. However, the Board finds significant the Veteran's testimony at the October 2017 Board hearing that he did not suffer from actually severe pain; according to the Veteran, it was more of a discomfort and an impairment in walking and steadiness. He stated his discomfort had worsened over the last few years but that it was only a "little bit more than mild discomfort" in his foot. As such, the Board acknowledges the Veteran's competent lay statements describing his symptoms and their effects on his daily life and occupation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, even with consideration of the Veteran's personal statements, the Board finds the preponderance of the evidence does not demonstrate the Veteran's Achilles tendonitis of the right heel was more severe in nature as to warrant a higher disability rating. Here, the Board finds the Veteran's impairment from his right heel disability is adequately compensated by the 10 percent disability rating assigned for a moderate foot disability throughout the appeal period. 38 C.F.R. § 4.71a, Diagnostic Code 5284. Residuals of a Total Right Hip Replacement Pertinent to the Veteran's service-connected right hip disability, the normal range of motion of the hip is extension to zero degrees and flexion to 125 degrees, and abduction from zero degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5054 provides a 30 percent minimum rating following prosthetic replacement of the head of the femur or of the acetabulum, a 50 percent rating for moderately severe residuals of weakness, pain, or limitation of motion, and a 70 percent rating for markedly severe residuals of weakness, pain, or limitation of motion. A 90 percent rating for painful motion or weakness such as to require the use of crutches. Prior to December 7, 2017, the Veteran's residuals, total right hip replacement are rated as 50 percent disabling, and they are rated as 70 percent disabling thereafter. Here, the Board finds the Veteran's right hip disability meets the criteria for an initial rating of 70 percent throughout the appeal period. In particular, the Board affords significant probative value to the similarities of the Veteran's symptoms found on the VA examinations conducted during the appeal period in May 2015, April 2017, and December 2017, and one VA examiner found the Veteran had markedly severe residual weakness, pain, or limitation of motion following the procedure. For example, the Veteran's range of motion was continually limited in flexion, abduction, adduction, and external and internal rotation, with very similar limitation in degrees. Moreover, all VA examiners reported the Veteran had pain with movement and determined that pain, fatigue, and weakness affected the Veteran's functional ability. The Veteran relied on a cane, and VA treatment records and examination noted his steady, limping gait. In addition, the Veteran testified that he experienced flare-ups a few times a week that could last a few days and that he had fallen as a result of his right hip disability. However, the evidence does not demonstrate that the Veteran's painful motion or weakness required the use of crutches. Rather, VA treatment records, VA examination reports, and the Veteran's own testimony reflect the use of a cane throughout the appeal period. Here, the Board has considered the Veteran's competent lay statements describing his symptoms and their effects on his daily life and occupation, and in light of the rating criteria, finds an initial rating of 70 percent, but no higher, is warranted throughout the pendency of the appeal. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board further notes that, as a result of the Veteran's total hip replacement, he has surgical scars; however, as such are not symptomatic or of a size so as to warrant a compensable rating, the Board finds that a separate rating for such scars is not warranted. Conclusion Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to such claim. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In sum, the Board finds that an initial rating in excess of 10 percent for the Veteran's Achilles tendonitis of the right heel is not warranted. Additionally, an initial rating in excess of 70 percent, but no higher, for his residuals of a total right hip replacement has been awarded herein. In denying higher ratings, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER An effective date prior to January 28, 2011, for the award of service connection and an initial 10 percent rating for Achilles tendonitis of the right heel is denied. An initial rating in excess of 10 percent for Achilles tendonitis of the right heel is denied. An initial rating of 70 percent, but no higher, for residuals of a total right hip replacement is granted, subject to the laws and regulations governing payment of monetary benefits. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs