Citation Nr: 21000691 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-01 485 DATE: January 6, 2021 ORDER New and material evidence has been received, and the previously denied claim for service connection for posttraumatic stress disorder (PTSD) is reopened. Entitlement to a disability rating in excess of 10 percent for service-connected fracture of right (major) fifth metacarpal with traumatic arthritis and fusion is denied. REMANDED Entitlement to service connection for a psychiatric disorder, to include PTSD, is remanded. Entitlement to a permanent and total rating for purposes of nonservice-connected disability pension benefits prior to September 26, 2016 is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The RO denied service connection for PTSD in a May 2006 rating decision. The Veteran did not appeal that decision or submit new and material evidence within one year of its issuance, and it is final. 2. Some of the new evidence received subsequent to May 2006 in support of the Veteran’s claim for service connection for PTSD is material. 3. The Veteran’s service-connected fracture of right (major) fifth metacarpal with traumatic arthritis and fusion is not productive of either arthritis involving two or more major joints or two or more minor joint groups or a disability picture consistent with amputation of the right fifth finger with metarcarpal resection (more than one-half the bone lost). CONCLUSIONS OF LAW 1. The May 2006 rating decision that denied entitlement to service connection for PTSD is final. 38 U.S.C. § 7105(b), (c); 38 C.F.R. § 3.160(d), 20.201, 20.302. 2. New and material evidence has been received and the Veteran’s claim for entitlement to service connection for PTSD is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The criteria for a disability rating in excess of 10 percent for service-connected fracture of right (major) fifth metacarpal with traumatic arthritis and fusion are not met. 38 U.S.C. §§ 1155, 5103, 5103A and 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59 and 4.71a, Diagnostic Code 5010, 5156, 5227, 5230. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active military service from October 1971 to August 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from Department of Veterans Affairs (VA) Regional Office (RO)’s rating decisions issued in August 2015 and February 2016. The Veteran testified at a Board virtual hearing held before the undersigned Veterans Law Judge in August 2020. The transcript of this hearing is associated with the claims file. 1. Whether new and material evidence has been received to reopen a claim for service connection for PTSD The Veteran’s claim for service connection for PTSD was previously denied by the RO in a rating decision issued in May 2006. Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision. The decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c). Furthermore, if new and material evidence was received during an applicable appellate period following an RO decision (1 year for a rating decision and 60 days for a SOC) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009). Thus, under 38 C.F.R. § 3.156(b), “VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim.” Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). “[N]ew and material evidence” under 38 C.F.R. § 3.156(b) has the same meaning as “new and material evidence” as defined in 38 C.F.R. § 3.156(a). See Young, 22 Vet. App. at 468. In the present case, the Veteran did not disagree with the RO’s denial of service connection for PTSD in the May 2006 rating decision. Furthermore, he did not submit new and material evidence within one year of the issuance of the May 2006 decision. Therefore, the May 2006 decision denying service connection for PTSD is final. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a claimant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). “New” evidence is defined as evidence not previously submitted to agency decision makers. “Material” evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claims sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. The evidence received subsequent to the last final decision is presumed credible for the purposes of reopening a claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Warren v. Brown, 6 Vet. App. 4 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Furthermore, when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. At the time of the May 2006 decision, the evidence considered did not establish that the Veteran had a diagnosis of PTSD related to his military service. Furthermore, the Veteran had failed to submit a requested PTSD Questionnaire or any other statement as to what in-service stressor(s) he claimed his PTSD was related. Medical evidence received since May 2006 establishes the Veteran has been diagnosed with PTSD by his VA mental health providers, as well as by a private independent medical provider. See July 2005 VA mental health consultation note received in July 2015 and private provider reports dated in December 2016 and January 2020. In addition, the Veteran submitted a stressor statement in May 2015. See VA Form 21-0781, Statement in Support of Claim for PTSD. As this new evidence relates directly to the elements not previously established, it is material to reopen the Veteran’s claim for service connection for PTSD as it could reasonably result in substantiation of the claim. Accordingly, the Board finds that the evidence received after May 2006 is new and material and serves to reopen the claim for service connection for PTSD. However, the Board cannot, at this point, adjudicate the reopened claim, as further assistance to the Veteran is required to comply with VA’s duty to notify and assist him in developing his claim. This is detailed in the REMAND below. 2. Entitlement to a disability rating in excess of 10 percent for service-connected fracture of right (major) fifth metacarpal with traumatic arthritis and fusion Service connection for traumatic arthritis of the right fifth metacarpal was initially established in a September 1977 rating decision and evaluated as 10 percent disabling under Diagnostic Code 5010. The Veteran underwent a surgical fusion of the right fifth metacarpal in February 1981 and, in an April 1981 rating decision, a temporary total rating for convalescence was awarded from the date of surgery to April 1, 1981 when the disability rating of 10 percent was again reassigned. At this time, the characterization of this disability was changed to fracture of fifth metacarpal with traumatic arthritis and fusion, right (major), and his disability has continued to be evaluated as 10 percent disabling since April 1981. The Veteran seeks a higher rating than 10 percent for his service-connected right fifth finger disability. He contends that a higher rating is warranted because he has pain and swelling of the right hand on repetitive use. See August 2020 Board hearing testimony. The Veteran’s right fifth finger disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5010, for traumatic arthritis, which directs the evaluator to use the rating criteria in Diagnostic Code 5003. Under Diagnostic Code 5003, arthritis established by X-ray findings is rated on the basis of limitation of motion of the affected joint or joints. When however, the limited motion of the specific joint or joints involved would be noncompensable under the appropriate diagnostic codes, a 10 percent rating is assigned for each involved major joint or group of minor joints affected by limitation of motion, to be combined, not added, under diagnostic code 5003. 38 C.F.R. § 4.71a, Diagnostic Codes 5003 (degenerative arthritis) and 5010 (traumatic arthritis). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, however, arthritis is rated as 10 percent disabling when shown by X-ray evidence of the involvement of two or more major joints or two or more minor joint groups, or as 20 percent disabling when show by X-ray evidence of the involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Id. 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.”). For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. 38 C.F.R. § 4.45(f). 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.” 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 10 percent for the Veteran’s right fifth finger disability. The evidence of record shows that the Veteran is right-handed. The Board acknowledges the Veteran’s lay reports of symptoms of pain and stiffness at the right fifth metacarpal head, especially with repetitive use, but he did not report having functional loss or impairment at the February 2016 VA examination. Moreover, the VA examiner failed to identify any functional loss or impairment resulting from the Veteran’s right fifth finger disability including with repetitive use over time and flare-ups. In fact, the examiner stated there was no pain, weakness, fatigability or incoordination that significantly limited the Veteran’s functional ability with repeated use over time or with flare-ups. Moreover, the examiner did not find that the Veteran’s right fifth finger disability impacted his ability to perform occupational tasks stating he could do light physical activity if he so chooses given that he is independent in his activities of daily living and incidental activities of daily living, is able to drive, can tend to his farm on which he raises cows and grows vegetables and is active with three teenagers at home. Therefore, the degree of additional limitation reflected by the statement that the Veteran has increased stiffness with overuse of the right hand would not result in symptoms more nearly approximating the next higher rating criteria (i.e., two or more major joints or minor joint groups affected with occasional incapacitating exacerbations). X-ray evidence does not indicate any involvement of the major joints or any other minor joint groups. The Board has considered whether any other Diagnostic Codes related to disabilities of the fingers and hand would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. Diagnostic Code 5230, which evaluates limitation of motion of the little finger, does not provide for a compensable rating. Neither does Diagnostic Code 5227 for evaluation of ankylosis (unfavorable or favorable) of the little finger. Furthermore, Diagnostic Code 5215, which evaluates limitation of motion of the wrist does not provide for a rating higher than 10 percent. Diagnostic Code 5214 provides for a higher rating where there is ankylosis of the wrist, but the evidence does not establish that the Veteran has limitation of motion of the wrist much less ankylosis. Finally, the Board has also considered whether rating for amputation of the little finger is warranted under Diagnostic Code 5156. However, the evidence does not establish that the Veteran would be better off with an amputation and prosthetic device. Additional references to the Veteran’s disability are presented in additional evidence of record beyond the most detailed pertinent evidence discussed by the Board in this decision. The additional evidence of record does not present findings concerning the Veteran’s disability that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for a rating in excess of 10 percent for his right fifth finger disability. 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 service connection for psychiatric disorder, to include PTSD is remanded. The Veteran has claimed service connection for PTSD. However, medical evidence indicates he also has diagnoses of anxiety disorder, depression not otherwise specified and major depressive disorder. Therefore, construing the claim liberally, the Board finds that it should be characterized as one for service connection for a psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The issue is thus restated on the title page of this decision. In the present case, the medical evidence shows the Veteran has had a diagnosis of PTSD since 2005. The Veteran has also submitted reports from a private provider who opined that the Veteran has PTSD that is related to his military service. However, generally, service connection for PTSD requires more than a diagnosis and a nexus opinion relating PTSD to service. It also requires a verified stressor. Except for the circumstances outlined in 38 C.F.R. § 3.304(f)(1)-(4) (relating to in-service diagnosis of PTSD; combat; fear of hostile military or terrorist activity; and POWs), a veteran’s lay statements alone cannot establish the occurrence of a stressor. This claim was denied by the RO because it found the Veteran’s stressor statement did not provide the minimum information necessary to seek corroboration with the U.S. Army and Joint Services Records Research Center (JSRRC). The Veteran was advised of this finding and asked to provide a more detailed stressor statement in a July 2015 duty to assist letter, but he failed to respond. The Veteran submitted a PTSD questionnaire in May 2015 in which he appeared to set forth two stressors two service members who died and one who was injured in a non-battle incidents. However, it appears he only reported the details of one person’s death (service member crushed by pole). He reported that the stressors happened while serving in Diego Garcia (an island in the Indian Ocean) from 1972 to 1973. At his August 2020 hearing, an attempt was made to obtain clarification, but his testimony is not clear as to whether these three individuals were killed and/or injured in the same incident or different incidents. Moreover, the Veteran was unable to provide a more specific timeframe (within two months) of when the stressful events occurred. However, his post-service medical records indicate he reported witnessed multiple people (up to five or six) killed from various accidents during his time at Diego Garcia. They also contain the Veteran’s reports of other in-service stressors while he served in Diego Garcia (e.g., racial tensions, seeing dead bodies in the water, given the most difficult and dangerous tasks), but none of these statements are specific enough to provide adequate information to perform a search for verification because they do not indicate any specific event that happened that may have been recorded and, therefore, could be verified. Thus, remand is needed to obtain a more detailed stressor statement from the Veteran as to all the in-service stressful events he claims caused his PTSD such that verification can be attempted. The Veteran also appears to assert that he has PTSD as the result of fear of hostile military or terrorist activity. In reports based on independent psychological evaluations conducted by Dr. L. in December 2016 and January 2020, the Veteran was noted to have reported fear of Soviet activity around Diego Garcia (Soviet MIGs flying over the island and Soviet submarines pinging the area with sonar) with the Veteran stating that “there was a constant sense of impending violence and death from potential Soviet attacks, accidents, and the racial and drug strife of the early to mid-1970s.” As to a timeframe for the reported stressors, the Veteran has reported that the events happened during his first period of service in Diego Garcia although he has stated he does not remember any specific timeframe. A thorough review of his service records (both medical and personnel) indicates he was first in Diego Garcia from approximately November 1972 to February 1973. Where a period of time identified by the Veteran is longer than the two-month period required by the JSRRC, “the duty to assist require[s] VA to submit multiple 60-day record searches” where the period identified is not unreasonably long. Gagne v. McDonald, 27 Vet. App. 397, 404 (2015). Therefore, multiple requests to the JSRRC should be made, if necessary, to verify the Veteran’s claimed stressors. Thereafter, a VA examination is needed to determine whether the Veteran has a psychiatric disorder related to his military service, specifically a verified in-service stressor or fear of hostile miliary or terrorist activity (if clarified by Veteran he is claiming). The examiner should be advised of what, if any, claimed in-service stressor(s) has been verified and that any diagnosis of PTSD must relate only to the verified stressor(s). However, for any psychiatric disorder other than PTSD that is diagnosed, the examiner should provide an etiology opinion is to whether such disorder is related to his military service. 2. TDIU is remanded. As the Veteran has contended that he is unemployable because of his claimed PTSD as well as his service-connected right (major) fracture of the fifth metacarpal, the claim for TDIU based on the combined effects of his service-connected disabilities is inextricably intertwined with his claim for service connection for a psychiatric disorder because the resolution of that claim will affect the outcome of the TDIU claim. Since the Board is remanding the Veteran’s claim for service connection for a psychiatric disorder, it would be premature to render a decision on this overall TDIU claim. 3. Entitlement to a permanent and total rating for purposes of nonservice-connected disability pension benefits prior to September 26, 2016 is remanded. The Veteran filed a new claim for VA pension benefits in September 2015. As an initial matter, the Board notes that the Veteran has filed for VA pension benefits before, which claims were denied and not appealed. However, as new and material evidence is not required to reopen a pension case, the Board may proceed with the merits of the matter. See Abernathy v. Principi, 3 Vet. App. 461, 464 (1992). Furthermore, the Veteran’s claim for pension benefits has been denied on the basis that he is not permanently and totally disabled because the evidence does not establish that he is unable to obtain and sustain a substantially gainful occupation. However, in the statement of the case (SOC), the RO limited the Veteran’s claim to the period prior than September 26, 2016 as he turned 65 years old on that date thereby negating the need to show permanent and total disability. Moreover, as to entitlement to pension benefits as of September 26, 2016, the record indicates the RO is still developing evidence of the Veteran’s income and net worth and has not rendered a decision yet as to whether pension benefits are warranted on that basis. Therefore, it would be premature for the Board to issue a decision for the period after September 26, 2016. Hence, the Board has also limited the issue on appeal to entitlement to a permanent and total rating prior to September 26, 2016. Since the Board is remanding the Veteran’s PTSD and TDIU claims for further development and, if a favorable outcome may affect the outcome of this claim, the Board finds that the claim for non-service-connected disability pension benefits is inextricably intertwined with the other issues on appeal. Therefore, remand of this claim is warranted pending the additional development requested on the other claims. The matters are REMANDED for the following action: 1. Contact the Veteran and advise him that a more detailed statement of his reported in-service stressors is needed. He should be advised that he needs to provide a detailed description of each stressful in-service incident/event that he contends has caused his PTSD as well as a two-month timeframe of when the incident/event took place, if possible. The Veteran should also be asked to clarify whether he contends that he has PTSD as a result of fear of hostile military or terrorist activity based on his service in Diego Garcia. 2. Thereafter, attempt to verify the Veteran’s claimed PTSD stressors with the JSRRC and/or any other appropriate facility. Specifically, the Veteran claimed that he experienced multiple stressors while stationed at Diego Garcia from 1972 to 1973 (service records show from approximately November 1972 to February 1973). If multiple requests are required to obtain all the information sought, they should be made. All attempts at verification must be documented in the claims file. If it is determined that there is still a lack of information to seek stressor verification, a formal finding should be issued and placed in the claims file. 3. When all attempts to verify the Veteran’s claimed in-service stressors has been accomplished, schedule the Veteran for a VA examination, if feasible, with an appropriate clinician to determine the nature and etiology of any present Axis I psychiatric disorders. If an in-person examination is not feasible, an appropriate medical opinion should still be obtained. The examiner should review the claims file. The examiner should be advised of what, if any, claimed in-service PTSD stressors have been independently verified. Based on the examination and/or review of the record, the examiner should diagnose all Axis I psychiatric disorders currently present or that have been present since May 2015 when the Veteran filed his current claim for service connection. If a diagnosis of PTSD is made according to the diagnostic criteria in the DSM-5, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran’s PTSD resulted from the verified in-service stressor(s). If a diagnosis of PTSD is not warranted, then the examiner should provide a detailed explanation of what criterion or criteria for a diagnosis under the DSM-5 is not present to support a diagnosis of PTSD. The examiner should opine whether the presently diagnosed psychiatric disorder is a continuation of the Veteran’s previously diagnosed PTSD by his treating VA mental health professionals and Dr. L. or it represents a separate and distinct disorder from the previously diagnosed PTSD. For any diagnosis of a psychiatric disorder other than PTSD, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that such diagnosed psychiatric disorder is related to any injury, disease or event incurred during the Veteran’s active military service to include the reported incidents or events of the Veteran’s service while stationed at Diego Garcia from 1972 to 1973 (e.g., racial tensions, seeing dead bodies in the water, witnessing multiple deaths and injuries, stress and fear related to being assigned the most dangerous and difficult tasks, Soviet activity, etc.). In rendering any medical opinion, the examiner must take into consideration the Veteran’s report of onset and continuity of symptoms, as well as past history of treatment. 4. After all the above development has been accomplished, adjudicate the Veteran’s TDIU claim with consideration of whether he is capable of more than marginal employment due to service-connected disabilities. (Continued on the next page)   5. After all additional development has been accomplished regarding the Veteran’s claims of unemployability, readjudicate whether the Veteran has a permanent and total disability for purposes of entitlement to VA nonservice-connected disability pension benefits for the period from when the Veteran filed his present claim in September 2015 to September 2016 when he turned 65 years old. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.M. Kreitlow 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.