Citation Nr: 19106903 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 17-16 774 DATE: January 29, 2019 ORDER The application to reopen the claim for entitlement to service connection for lower back pain is granted. The application to reopen the claim for entitlement to service connection for broken right ankle is granted. The application to reopen the claim for entitlement to service connection for residuals of a head injury is granted. Entitlement to an initial 10 percent rating, but no higher, for fracture right first digit is granted, subject to controlling regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for lower back pain is remanded. Entitlement to service connection for broken right ankle is remanded. Entitlement to service connection for residuals of a head injury is denied. FINDINGS OF FACT 1. In a November 2014 rating decision, the RO denied service connection for lower back pain, broken right ankle, and head injury. Although the Veteran was notified of the RO’s decision and his appellate rights in a November 2014 letter, he did not perfect an appeal within the applicable time period, nor was new and material evidence received within one year of issuance of that decision. 2. The evidence received since the final November 2014 rating decision denying service connection for lower back pain, broken right ankle, and residuals of head injury relates to an unestablished fact necessary to substantiate the claims and raises a reasonable possibility of substantiating the claim of entitlement to service connection for lower back pain, broken right ankle, and head injury. 3. The Veteran’s fracture right first digit disability was manifested by painful motion, with no gap between the thumb pad and the fingers, and no ankylosis. CONCLUSIONS OF LAW 1. The November 2014 rating decision denying service connection for lower back pain, broken right ankle, and head injury is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). 2. New and material evidence has been received to warrant reopening the claims of service connection for lower back pain, broken right ankle, and head injury. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. 3. The criteria for an initial rating of 10 percent, but not higher, for fracture right first digit have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5228. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1974 to August 1977. This matter came to the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which continued the noncompensable rating for fracture right first digit. The RO reopened the claims for entitlement to service connection for broken right ankle and head injury, and denied the claims on the merits. The RO also denied reopening the claim for entitlement to service connection for lower back pain. The Veteran disagreed with the RO’s determination, and a Statement of the Case was issued addressing the matter in March 2017. The Veteran perfected a timely appeal in March 2017. The Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the RO granted or denied an application to reopen. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 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). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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). 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 submitted 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 Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. As set forth above, in a November 2014 rating decision, the RO denied entitlement to service connection for lower back pain, broken right ankle, and head injury. The RO determined that such conditions were not shown in service, nor related to military service. The Veteran was notified of his appellate rights in a November 2014 letter. He did not appeal the RO’s determination and no new and material evidence was received within a year of the issuance of the rating decision. He does not contend otherwise. Thus, the RO’s November 2014 rating decision is final and not subject to revision on the same factual basis. 38 U.S.C. § 7105(c); 38. C.F.R. §§ 3.104, 20.302, 20.1103. In this appeal, the Veteran seeks to reopen his claims of service connection for lower back pain, broken right ankle, and head injury. As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108 38 C.F.R. § 3.156. Thus, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final rating decision in November 2014. That evidence includes a March 2016 statement from the Veteran, indicating that in December 1974 or early January 1975, his ankle was broken in an accident. He stated that the bone was set and a cast put on at what was then, Albemarie Hospital in Elizabeth City, North Carolina. The Veteran noted that he reported at Fort Bragg in January 1975 with the broken ankle and on crutches. The Veteran also reported that while Stationed at Fort Bragg between the years of 1975 and 1977, he was injured in an automobile accident. He stated that he was thrown from the vehicle and received head and back injuries. Given the basis for the prior denial of the claims, and presuming the credibility of this evidence, the Board finds that this additional evidence relates to unestablished facts necessary to substantiate the claims of service connection for lower back pain, broken right ankle, and residuals of a head injury, and raises a reasonable possibility of substantiating the claims. Reopening of the claims is therefore warranted. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where the Veteran is appealing the initial assignment of a disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Fracture Right First Digit The Veteran contends that he is entitled to an initial compensable rating for his fracture right first digit. The Veteran’s disability has been rated as noncompensable under 38 C.F.R. § 4.71a, Diagnostic Code 5228. Under this provision, a noncompensable disability rating is assigned for limitation of motion of the thumb with 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 disability rating is assigned for 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 20 percent disability rating is assigned for a gap of more than two inches (5.1 cm) between the thumb and fingers, with the thumb attempting to oppose the fingers. 38 C.F.R. § 4.71a, Diagnostic Code 5228. An October 2014 VA examination report indicates that the Veteran reported symptoms of pain and swelling of the hand. He reported flare-ups of pain with grasping. There was no limitation of motion or evidence of painful motion of the right thumb. The Veteran performed repetitive use testing with no additional limitation. He demonstrated less movement than normal in both hands. There was no gap between the thumb pad and the fingers. The Veteran performed repetitive-use testing with no additional limitation. The examiner determined that his right thumb disability impacted his ability to work, due to pain and limitation of grip of the right hand. The examiner noted that the Veteran, however, had limited range of both hands. A May 2016 VA examination report indicates that the Veteran reported symptoms of swelling, stiffness, and joint lock-up. He stated that his right-hand flare-ups were worse in the mornings, and throughout the day, and he just had to deal with it. He reported a loss of strength and grip. He had flexion range of motion in the right thumb in his metacarpophalangeal (MTP) joint of 0 to 90 degrees, and in his IP joint of 0 to 80 degrees. There was evidence of pain on the base of thumb with finger flexion and extension, which did not result in functional loss. The Veteran performed repetitive-use testing with no additional functional loss or range of motion. There was no pain, weakness, fatigability or incoordination with repeated use over time. The examiner determined that pain, weakness, fatigability or incoordination did not significantly limit functional ability with flare-ups. There was no gap between the pad of the thumb and the fingers. There was no evidence of pain with use of right hand. The examiner concluded that there was no impact on the Veteran’s ability to work. Based on the above findings and resolving reasonable doubt in favor of the Veteran, the Board finds that a rating of 10 percent for the entirety of the appeal period for the Veteran’s fracture right first digit, based on painful motion, is warranted. While the VA examiners found that there was no gap between the thumb pad and the fingers, the examinations and the Veteran’s lay statements reflect that he experienced pain on motion. Under 38 C.F.R. § 4.59, painful joints due to healed injury, such as the case here, are entitled to at least the minimal compensable rating for the joint. As such, a rating of 10 percent, which is specifically contemplated by Diagnostic Code 5228, is warranted. See Sowers v. McDonald, 27 Vet. App. 472, 480 (2016); Petitti v. McDonald, 27 Vet. App. 415, 428-29 (2015) (a compensable rating is warranted for joint pain pursuant to 38 C.F.R. § 4.59 for orthopedic disabilities rated under diagnostic codes containing a 10 percent rating, and the criteria for such a rating can be satisfied with lay and other non-medical evidence). The Court recently held 38 C.F.R. § 4.59 creates range of motion testing requirements with which VA must comply. Correia v. McDonald, 28 Vet. App. 158 (2016). 38 C.F.R. § 4.59 provides, “The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.” The above discussed VA examinations did not include testing for pain on both active and passive motion, as well as weight-bearing and nonweight-bearing. To the extent that Correia would apply to range of motion testing of the thumb, the Board finds that the failure to comply with its holding is harmless in this case. Under Diagnostic Code 5228, limitation of motion of thumb is assessed based on the gap between thumb pad and the fingers, with the thumb attempting to oppose the fingers. While the May 2016 VA examiner noted that the Veteran’s right thumb was outside of normal range, the evidence shows that at no point during the appeal period, the Veteran had any gap between his thumb pad and the fingers. As there is no indication that Correia-compliant testing could result in a rating higher than 10 percent under Diagnostic Code 5228, a remand for compliance with Correia is not required. In addition, the VA examiners did not find, and the Veteran did not contend, that his thumb was ankylosed. As such, Diagnostic Code 5224 is not for application. For the reasons above, the criteria for an initial rating of 10 percent, but not higher, is warranted. As the preponderance of the evidence is against any higher schedular rating, the benefit of the doubt doctrine is not for application. 38 C.F.R. § 4.3. The Board has considered the Veteran’s initial rating claim and decided entitlement based on the evidence. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). REASONS FOR REMAND 1. Broken Right Ankle, Lower Back Pain, and Residuals of Head Injury The Veteran seeks service connection for broken right ankle and lower back pain. In support of his claim, the Veteran submitted a March 2016 statement in which he reported that in December 1974 or early January 1975, his ankle was broken in an accident. He stated that the bone was set and a cast put on at what was then, Albemarie Hospital in Elizabeth City, North Carolina. The Veteran noted that he reported at Fort Bragg in January 1975 with the broken ankle and on crutches. The Veteran also reported that while Stationed at Fort Bragg between the years of 1975 and 1977, he was injured in an automobile accident. He indicated that he was thrown from the vehicle and suffered a back injury. The Veteran’s STRs are negative of complaints, treatment or diagnosis of right ankle and back disabilities. Personnel records reflect that the Veteran was given a violation of Article 134, Uniform Code of Military Justice for a vehicle accident in August 1975. A November 2016 VA clinical record shows that the Veteran the Veteran complained of arthralgias and chronic low back pain. He reported a low back injury due to a motor vehicle accident during his military service. He also reported that he broke both ankles while on active duty, due to motor vehicle accidents. The clinician noted a diagnosis of arthralgias, likely osteoarthritis. In addition, the Veteran indicated in his March 2017 substantive appeal (VA Form 9) that the incidents he described had occurred more than 40 years ago in service, when he was a young man, and that he did not complain then but “the pain is here today.” The above reflects that the Veteran has persistent or recurrent symptoms of disability that may be associated with service, but the Veteran has not been afforded a VA examination in conjunction with his right ankle, lower back pain, and head injury residual claims. The Veteran should therefore be scheduled for a VA examination and an etiological opinion should be obtained as to whether any current disabilities are related to in-service injuries. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes that the Federal Circuit has recently indicated in Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018) that pain need not be diagnosed as connected to a current underlying condition to function as an impairment and pain alone can be considered a disability under 38 U.S.C. § 1110 if it causes impairment in earning capacity. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any right ankle, low back, or head disability. The claims file, including a copy of this remand should be reviewed by the examiner. The examiner is to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any right ankle, low back, or head disability had its onset during service or is otherwise related to military service. The examiner should specifically consider the injuries to the right ankle, low back, and head described by the Veteran and note that the Veteran is competent to describe such injuries even in the absence of documentary evidence of such. In addition, the examiner should note that disability may exist even in the absence of a specific diagnosis, and that pain can constitute disability if it causes impairment in earning capacity. (Continued on the next page)   A complete rationale should accompany any opinion provided. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Walker, Associate Counsel