Citation Nr: 20021348 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 18-01 281 DATE: March 25, 2020 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for headaches and the claim is reopened; to this extent only is the appeal granted. Entitlement to an effective date prior to April 2, 1992, for the award of service connection for fracture, right (major) fifth metacarpal head is dismissed. Entitlement to an effective date prior to February 12, 1994, for the award of a 20 percent evaluation for lumbosacral strain with scar and history of herniated disc and discectomy is dismissed. Entitlement to a compensable evaluation for fracture, right (major) fifth metacarpal head is denied. Entitlement to an evaluation in excess of 20 percent for lumbosacral strain with scar and history of herniated disc and discectomy is denied. REMANDED Entitlement to an effective date prior to May 2, 2014, for the award of a 100 percent evaluation for service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for a hernia is remanded. Entitlement to service connection for headaches is remanded. FINDINGS OF FACT 1. In a June 1994, rating decision, the RO denied the claim of entitlement to service connection for headaches, no new and material evidence was received within the appeal period and the Veteran did not disagree with that determination. 2. The evidence received since the June 1994 decision is new and material and raises a reasonable possibility of substantiating the claim of entitlement to service connection for headaches. 3. In an April 1992 rating decision, VA granted service connection for fracture, right (major) fifth metacarpal head, with an effective date of April 2, 1992, which is the date following the day of the Veteran’s discharge from service, and the Veteran did not appeal the effective date of the award assigned at that time. 4. In a June 1994 rating decision, VA granted entitlement to a 20 percent evaluation for lumbosacral strain, effective February 12, 1994, and the Veteran did not appeal the effective date of the award of an increased evaluation. 5. Throughout the applicable period the residuals of the fractured right 5th metacarpal fracture did not result in pain or functional impairment. 6. Throughout the applicable period the lumbosacral strain did not manifest by forward flexion to 30 degrees or less or ankylosis to any extent and did not require bedrest prescribed by a physician. CONCLUSIONS OF LAW 1. Since the June 1994 rating decision new and material evidence to reopen the claim for service connection of headaches has been received and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Entitlement to an effective date prior to April 2, 1992, for the award of service connection for fracture, right (major) fifth metacarpal head is denied. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 3. Entitlement to an effective date prior to February 12, 1994, for the award of a 20 percent evaluation for lumbosacral strain with scar and history of herniated disc and discectomy is denied. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 4. Entitlement to a compensable evaluation for fracture, right (major) fifth metacarpal head is denied. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.59, 4.7, 4.59, 4.71a, Diagnostic Code 5230. 5. Entitlement to an evaluation in excess of 20 percent for lumbosacral strain with scar and history of herniated disc and discectomy is denied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71a, 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5235-5243 REASONS AND BASES FOR FINDING AND CONCLUSIONS 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for headaches. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. §§ 5108, 7103, 7104, 7105; 38 C.F.R. §§ 3.156, 20.1100. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 sustaining the claim. 38 C.F.R. § 3.156(a). New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof. See Shade v. Shinseki, 24 Vet. App. 110, 120, (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. The only exception would be where evidence presented is inherently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). For evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to evaluate the merits of the claim based on all evidence of record, but only after ensuring that the duty to assist the Veteran in developing the facts necessary for his claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C. § 5103A (eliminates the concept of a well-grounded claim). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). In an unappealed and final rating decision dated and mailed in June 1994, the RO denied the Veteran’s claim of entitlement to service connection for headaches. The RO denied the claim on the grounds that the evidence did not establish a diagnosis. New and material evidence has been received. VA medical records document several reports of headaches, including a report of headaches aggravated by medications taken to treat the Veteran’s service-connected PTSD. See July 9, 2002, VA Psychiatry Note. Accordingly, the claim is reopened. To this extent only is the appeal granted. 2. Entitlement to an effective date prior to April 2, 1992, for the award of service connection for fracture, right (major) fifth metacarpal head is denied. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. A previous determination which is final and binding will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a). A written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result will constitute a notice of disagreement (NOD). While special wording is not required, the NOD must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. 38 C.F.R. § 20.201. The Veteran is now advancing a claim for an effective date prior to April 2, 1992, for the award of service connection for fracture, right (major) fifth metacarpal head. See June 2015 Notice of Disagreement (NOD). The Court has determined that when an effective date on appeal was assigned in a final unappealed rating decision, a claimant cannot attempt to overcome the finality of that prior rating decision by raising a freestanding claim for an earlier effective date. Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). Rather, the only way to overcome the finality of a final decision in an attempt to gain an earlier effective date is by a request for revision of that final RO decision based on CUE. Id. CUE has not been plead here. In an April 1992 rating decision, the Agency of Original Jurisdiction (AOJ) awarded service connection for fracture of the right (major) 5th metacarpal head, with a non-compensable evaluation, effective April 2, 1992, the day following the Veteran’s discharge. The Veteran did not appeal the April 1992 determination by filing a Notice of Disagreement (NOD). Although VA adjudicated this claim in May 2006 and April 2015, a non-compensable evaluation was continued. The Veteran was notified of the April 1992 decision and did not file a NOD with respect thereto. Thus, the decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. Because the Veteran is now pursuing a freestanding claim for an earlier effective date for the award of service connection, the claim for an earlier effective date must be dismissed. See Rudd, 20 Vet. App. at 300. In closing, the Board that the day following discharge is the earliest possible date for the award of service connection. Regardless, the Board is required to dismiss a freestanding claim such as this. 3. Entitlement to an effective date prior to February 12, 1994, for the award of a 20 percent evaluation for lumbosacral strain with scar and history of herniated disc and discectomy is denied. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. A previous determination which is final and binding will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a). A written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result will constitute a notice of disagreement (NOD). While special wording is not required, the NOD must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. 38 C.F.R. § 20.201. The Veteran is now advancing a claim for an effective date prior to February 12, 1994, for the award of a 20 percent evaluation for service-connected disability of the lumbar spine. See June 2015 Notice of Disagreement (NOD). The Court has determined that when an effective date on appeal was assigned in a final unappealed rating decision, a claimant cannot attempt to overcome the finality of that prior rating decision by raising a freestanding claim for an earlier effective date. Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). Rather, the only way to overcome the finality of a final decision in an attempt to gain an earlier effective date is by a request for revision of that final RO decision based on CUE. Id. CUE has not been plead here. In a June 1994 rating decision, the AOJ awarded a 20 percent evaluation for the service-connected low back disability, effective February 12, 1994, the day of a VA record disclosing an ascertainable increase in the disability. The Veteran did not appeal the June 1994 determination by filing a NOD. Although VA adjudicated this claim in May 2006 and April 2015, a 20 percent disability evaluation was continued in each case. The Veteran was notified of the June 1994 decision and did not file a NOD with respect thereto. Thus, the decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. Because the Veteran is now pursuing a freestanding claim for an earlier effective date for the award of an increased evaluation, the claim for an earlier effective date must be dismissed. See Rudd, 20 Vet. App. at 300. 4. Entitlement to a compensable evaluation for fracture, right (major) fifth metacarpal head is denied. 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 rating codes identify the various disabilities. 38 C.F.R. Part 4. 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. The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. Notwithstanding the above, VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Where entitlement to compensation has already 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). In addition, an appeal from the initial assignment of a disability rating requires consideration of the entire time period involved and contemplates “staged ratings” where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). However, “staged ratings” are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). A 10 percent evaluation is assigned for amputation of the little finger without metacarpal resection, at the PIP joint or proximal thereto. A 20 percent evaluation is assigned for amputation of the little finger with metacarpal resection (more than one-half the bone lost) 38 C.F.R. § 4.71a, Diagnostic Code 5156. A maximum 10 percent evaluation is provided for favorable ankylosis of the ring and little fingers. 38 C.F.R. § 4.71a, Diagnostic Code 5223. A noncompensable evaluation is also assigned for unfavorable or favorable ankylosis of the ring or little finger 38 C.F.R. § 4.71a, Diagnostic Code 5227. A note to this provision indicates that VA can 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. Id. Diagnostic Code 5230 provides for evaluation of limitation of motion of either the ring or little finger. Under this provision, any limitation of motion of the ring or little finger is assigned a zero percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5230. Under Diagnostic Codes 5227 and 5230, maximum non-compensable ratings are warranted for ankylosis (favorable or unfavorable) and limitation of motion of the little finger, respectively. Here, the January 2015 VA examination shows no objective evidence of pain on active or passive range of motion, there was no functional impairment and the objective examination findings were normal. Range of motion was full, there was no history of flare-ups and there was no objective evidence of pain following repetitive use. There was no pain to palpation. The examination of the right 5th metacarpal was grossly normal. The appellant is receiving the maximum schedular evaluation permitted under 38 C.F.R. § 4.71a, Diagnostic Codes 5227 and 5230, despite it being non-compensable. The Board notes that 38 C.F.R. § 4.59 reflects that it is the intention of the rating schedule to recognize actually painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Because the Veteran’s residuals of the right 5th metacarpal fracture does not exhibit pain, limited motion or any other type of functional impairment, under 38 C.F.R. § 4.59 the Veteran is not entitled to a minimum compensable evaluation for painful motion of the little finger. 5. Entitlement to an evaluation in excess of 20 percent for lumbosacral strain with scar and history of herniated disc and discectomy is denied. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. [Include any other relevant Note(s).] When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). 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). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the service-connected low back disability. The disability has not manifested by limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. On VA examination in January 2015 the Veteran’s range of motion in the lumbar spine was normal, and there was no evidence of pain on movement or in weight bearing. Repetitive use resulted in no additional limitation of function or motion. Examination showed muscle spasm and localized tenderness, not resulting in abnormal gait or abnormal spinal contour. There was no guarding. Muscle strength was 5/5 and there was no atrophy. Reflexes were normal and there were no associated neurologic abnormalities. The disability did not affect the Veteran’s ability to work. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for the Veteran’s lumbosacral strain. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to an effective date prior to May 2, 2014, for the award of a 100 percent evaluation for service-connected PTSD is remanded. 2. Entitlement to service connection for a hernia is remanded. VA has verified that the Veteran served on active duty in the United States Army from March 1987 to April 1992. See DD Form 214, Certificate of Release or Discharge from Active Duty. However, the Veteran’s personnel records reflect that following this verified period of active duty, the Veteran immediately enlisted in the Texas Army National Guard. See DA Form 21. VA has not obtained any records related to the Veteran’s service in the National Guard. The matter is remanded to verify the nature of the Veteran’s service in the Texas Army National Guard and obtain any records related to this service. Active military, naval, or air service includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 C.F.R. § 3.6(a). VA is under a duty to make as many requests as are necessary to obtain records in the custody of a Federal department or agency. 38 C.F.R. § 3.159 (c)(2). Accordingly, the matter is remanded. 3. Entitlement to service connection for headaches is remanded. As noted above, the Board has reopened the claim of entitlement to service-connection for headaches. The question of whether to reopen a claim is consistent with the necessity of obtaining a VA examination to decide a claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As such, a VA examination is necessary to decide this claim. The matters are REMANDED for the following action: 1. Verify the Veteran’s periods of active service, active duty for training, and inactive duty for training with respect to his National Guard service in the Texas Army National Guard through all appropriate sources. Reports of retirement points do not contain the necessary information in this regard. Any negative search results should be noted in the record and communicated to the Veteran pursuant to 38 C.F.R. § 3.159(e). 2. Obtain any service records not currently associated with the claims file, including any personnel and treatment records associated with the Veteran’s Texas Army National Guard duty, and associate them with the claims file. Any negative search results should be noted in the record and communicated to the Veteran pursuant to 38 C.F.R. § 3.159(e). 3. After the development directed in paragraphs 1 and 2 has been completed to the extent possible, schedule the Veteran for a VA examination to address the nature and etiology of his claimed headaches. The examiner must obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination. The examiner must address the following questions: a) Is it at least as likely as not (50 percent probability or greater) that headaches were incurred during service or are otherwise etiologically related to service? b) If the examiner finds that it is less likely than not that the Veteran has headaches that are etiologically related to service, is it at least as likely as not (50 percent probability or greater) that any medications that he takes for his PTSD cause headaches? c) If the examiner finds that it is less likely than not that the Veteran has headaches that are etiologically related to any such medications, is it at least as likely as not (50 percent probability or greater) that any medications that he takes for his PTSD aggravate vertigo? The physician is advised that the term “as likely as not” does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. All opinions must be accompanied by a discussion of the underlying reasons for the conclusions. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph R. Keselyak, Counsel 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.