Citation Nr: 19152003 Decision Date: 07/03/19 Archive Date: 07/03/19 DOCKET NO. 18-34 429 DATE: July 3, 2019 ORDER New and material evidence having been received, the claim of service connection for a lumbar spine disorder is reopened; the appeal is granted to this extent only. A compensable rating for a right hand strain with healed fracture, 5th metacarpal is denied. REMANDED Service connection for a low back disorder is remanded. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In final decisions issued in November 2007 and January 2009, the regional office (RO) denied service connection for degenerative disc disease (DDD) of the lumbar spine. 2. Since then, in September 2018, the Veteran submitted lay statements from friends regarding the onset of her symptoms of low back pain in 1990 and her symptoms since that time. 3. The Veteran is in receipt of the highest schedular rating for a disability manifested by limited range of motion of the little finger, and there is no functional limitation of other fingers or the hand itself. CONCLUSIONS OF LAW 1. The January 2009 rating decision denying service connection for DDD of the lumbar spine is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a lumbar spine disorder, to include DDD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for a compensable rating for a right hand strain with healed fracture, 5th metacarpal have not been met. 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5230. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1982 to August 1987. The case is on appeal from a February 2017 rating decision. Therein the regional office (RO) granted service connection for PTSD and assigned a 30 percent rating. Subsequently, the RO increased the Veteran’s PTSD rating to 50 percent in a May 2018 rating decision. However, as this does not represent a full grant of the benefit sought, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In the February 2017 rating decision, the RO also denied service connection for scars of the right-hand finger and scalp. However, service connection was granted in a February 2018 rating decision. These claims are no longer on appeal. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). As the Veteran has pursued other claims during the pendency of this appeal, additional evidence was added to the claims file by VA since the issuance of the statement of the case. However, except for her PTSD rating, the evidence added to the claims file by VA is either pertinent solely to claims not before the Board or repetitive of that already of record. Thus, a remand of the claims decided herein for RO consideration of the evidence is not necessary. See 38 C.F.R. § 20.1304(c). As explained below, the additional evidence VA added to the claims file indicates that the Veteran’s PTSD might make her employment marginal or her unable to maintain gainful employment. Therefore, the issue of entitlement to TDIU is part and parcel of the rating claims now before the Board. Rice v. Shinseki, 22 Vet. App. 447 (2009). 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). New and Material Evidence 1. Whether a claim of service connection for a lumbar spine disorder, to include DDD, should be reopened. By a November 2007 rating decision, a claim of service connection for low back pain was denied. A subsequent rating decision issued in January 2009 confirmed and continued the denial of service connection for DDD of the lumbar spine. Notice was issued to the Veteran within the same month of each rating determination. No new evidence or notice of disagreement was received by VA within one year of the issuance of the November 2007 or January 2009 rating decision. Because the Veteran did not appeal, the rating decisions are final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that new and material evidence has been submitted so that the previously denied claim of service connection for a lumbar spine disorder, to include DDD, is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Specifically, the Veteran has submitted lay statements from her friends detailing back pain that she has experienced since the 1990s. She also submitted a statement in which she explained that in the first years after service she self-medicated with alcohol and marijuana because she did not trust VA. Presuming the credibility of the newly submitted evidence, the claim for service connection for a lumbar spine disorder is reopened. Increased Ratings Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. For musculoskeletal disabilities, functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant 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. §§ 4.10, 4.40, 4.45. The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the 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. Furthermore, the intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints 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. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability. 2. Entitlement to a compensable rating for a right hand strain with healed fracture, 5th metacarpal The Veteran claims that her current noncompensable rating does not reflect the severity of her right hand disability. The disability is currently rated under 38 C.F.R. § 4.71a, DC 5230 which provides for a noncompensable rating for any limitation in the range of motion of a ring or little finger. In September 2016, the Veteran was afforded a VA examination of her right hand strain. Recurrent hand strain manifested by stiffness with grip and intermittent throbbing with weather changes was noted. The Veteran is right-handed. No flare-ups of symptoms were reported. All range of motion in the right hand was noted as normal without gap between the pad of the thumb and fingers. Pain over the mid to distal 5th right metacarpal was noted on finger flexion and finger extension. No further reduction was noted on repetitive use. Expected pain on repetition was noted. There was an absence of loss of muscle strength and ankylosis. The Veteran is currently in receipt of the highest rating for her 5th metacarpal disability under DC 5230. There is no indication or symptomatology in other fingers or the hand itself. Further there is no ankylosis of the little finger affected. Rather, the Veteran has pain with repeated use of the finger. As she is in receipt of the highest rating for a disability of the little finger, the Board finds that a compensable rating for her right-hand disability is not warranted. See Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). (Continued on the next page) REASONS FOR REMAND 1. Service connection for a low back disorder. A remand is necessary so that a new medical opinion can be obtained in light of the evidence submitted by the Veteran since VA last adjudicated her claim. In November 2016, a VA examiner opined that the Veteran’s lumbar spine disorder was less likely than not related to service, given the 15-year gap between service and her first treatment for low back pain. Rather, to connect her current back pain to a racquetball injury during service would be mere speculation. Since November 2016, the Veteran has stated that she did not seek treatment in the first years after service because she did not trust VA. Further, she reported self-medicating with alcohol and marijuana. In September 2018, her friends Ms. [Redacted] and Ms. [Redacted] as well as her spouse note her low back symptoms during the early 1990s. Her spouse also noted her pain beginning during service. The Veteran has been diagnosed with DDD of the lumbar spine. Arthritic disorders are considered chronic in nature. 38 C.F.R. § 3.309(a). For chronic disorders, VA is to consider service connection based on continuity of symptomatology. 38 C.F.R. § 3.303(b). As an examiner has not had the opportunity to review these statements, the Board will remand so that a medical examiner can consider these statements. 2. Entitlement to an initial rating in excess of 50 percent for PTSD. 3. Entitlement to TDIU. The Veteran claims that her 50 percent rating for PTSD does not accurately reflect the severity of her symptoms. In June 2019, an April 2019 VA treatment record was added to file, in which it is noted that the Veteran’s PTSD symptoms had recently worsened. Specifically, certain male coworkers trigger memories of her trauma. As this is an allegation of worsening indicating potential interference with employability, the Board finds that a remand for a new PTSD examination is necessary. Snuffer v. Gober, 10 Vet. App. 400 (1997). Further, the April 2019 VA treatment record raises the possibility that the Veteran’s PTSD and other disabilities is interfering with her work such that she is unable to maintain gainful employment. Therefore, a remand is necessary to obtain more information from the Veteran about her current employment. The matter is REMANDED for the following action: 1. Request that the Veteran provide information about her employment by completing VA Form 21-8940 or other appropriate VA form. 2. After requesting such information and allowing time for a response, afford the Veteran a VA examination to determine the severity of her PTSD. 3. After completing directive 1, obtain a medical opinion regarding the etiology of the Veteran’s low back disorders. Whether to conduct an examination is left to the discretion of the examiner. Specifically, the examiner should opine whether: It is at least as likely as not that the Veteran’s low back disorder (diagnosed as DDD of the lumbar spine) is related to service or onset within a year after separation of service. A complete rationale should be provided for any opinion rendered. In supporting an opinion, the examiner should consider the lay statements of Ms. [Redacted], Ms. [Redacted], and the Veteran’s husband regarding the onset of symptoms. Further, the examiner should consider the Veteran’s explanation for why she did not seek treatment immediately after service. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. George The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.