Citation Nr: 21063583 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 19-26 098A DATE: October 14, 2021 ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for a right ankle disability and to that extent only, the appeal is granted. Entitlement to a rating higher than 10 percent for residuals of a left third finger metacarpal fracture is denied. REMANDED Entitlement to service connection for a right ankle disability is remanded. Entitlement to a rating higher than 50 percent prior to November 27, 2018, and higher than 70 percent as of November 27, 2018, for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a rating higher than 20 percent for trichiasis with chronic conjunctivitis is remanded. Entitlement to a rating higher than 0 percent for bilateral hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Service connection for a right ankle disability was denied in an April 2012 Agency of Original Jurisdiction (AOJ) rating decision and the Veteran did not perfect an appeal or submit new and material evidence within one year. 2. The evidence received since the April 2012 rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. The Veteran's left third finger disability has manifested with a gap of one inch or more between the fingertip and the proximal transverse crease of the palm, and the Veteran experienced painful motion, flare ups, and functional impairment. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim of entitlement to service connection for a right ankle disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for a rating in excess of 10 percent for a left third finger disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.69, 4.71a Diagnostic Code 5229. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1987 to December 1995, September 2007 to September 2008, and July 2009 to May 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. VA rating decisions and Board decisions that are not timely appealed are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1103. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as 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). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of a claim has been fulfilled. 38 U.S.C. § 5108; Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999). The claim to reopen does not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened. Shade v. Shinseki, 24 Vet. App 110 (2010). For the purpose of establishing whether new evidence is material, the credibility of the new evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right ankle disability Service connection for a right ankle disability and low back pain was denied in an April 2012 AOJ decision. The record included service medical records, which contained a notation of a right ankle pain. The AOJ concluded that evidence of record did not show a connection between any current right ankle disability and service. Evidence associated with the claims file since the April 2012 AOJ decision includes additional lay statements, VA medical records, and the October 2013 VA examination. In particular, October 2013 VA examination report show a current diagnosis for a degenerative joint disease, and the Veteran related the disability to events of service. This evidence relates to an unestablished fact necessary to substantiate the claim, and is neither cumulative nor redundant. The credibility of the newly submitted evidence is presumed in determining whether or not to reopen a claim. Justus v. Principi, 3 Vet. App. 510 (1992). As the diagnoses are presumed to be credible for the limited purpose of attempting to reopen a previously denied claim, this evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Accordingly, the additional evidence is also material. As new and material evidence has been received, the claims for service connection for a right ankle disability is reopened. Although the evidence discussed above is adequate for the limited purpose of reopening the claims, that does not make it sufficient to allow the grant of the benefits sought. As discussed below, the claim is remanded for development. Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. That does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). 2. Entitlement to a rating higher than 10 percent for residuals of a left third finger metacarpal fracture The Veteran's left long finger disability is rated 10 percent. The Veteran reports painful motion, flare ups, and functional impairment. The Veteran is right hand dominant. Under Diagnostic Code 5229, a 10 percent rating is assigned for limitation of motion of an index or long finder with a gap of one inch or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or with extension limited by more than 30 degrees. A 0 percent rating is assigned with a gap of less than one inch between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and; extension is limited by no more than 30 degrees. 38 C.F.R. § 4.71a. At a May 2012 VA hand and finger examination, the Veteran reported flare-ups every one to two months for a few hours. The flare-ups resulted in severe pain, which limited lifting heavy objects. Range of motion testing was normal. There was no gap between long finger and the proximal transverse crease of the palm. There was no objective evidence of pain or limitation of motion after repetitive use testing. At an October 2013 VA examination, the Veteran did not report any flare-ups, but stated the fingers curled when he showered. Range of motion testing was normal. There was no gap between the long finger and the proximal transverse crease of the palm. There was no objective evidence of pain or limitation of motion after repetitive use testing. The examiner noted no functional loss or additional limitation in range of motion. Muscle strength testing was 5/5, and there was no ankylosis. Diagnostic testing showed arthritis in the left hand and wrist. At a May 2015 VA examination, the Veteran reported flare-ups with increased pain, stiffness, and difficulty grasping. The flare-ups usually lasted two to three days and caused difficulty using the left hand. There was a gap between the thumb pad and fingers of one to two inches, with painful motion at 1 inch. There was a gap between the long finger and the proximal transverse crease of the palm of 1 inch, with painful motion at 1 inch. Extension was limited by no more than 30 degrees with painful motion beginning at more than 30 degrees. There was no additional loss of function or range of motion after repetitive-use testing. The Veteran had functional loss with less movement than normal and pain on movement. Hand grip strength was 5/5. There was no ankylosis. At a February 2019 VA examination, the Veteran reported that the hand hurt if he tried to lift anything heavy or put any pressure on the left hand. There were no flare-ups on the right hand. Maximum extension of the left long finger was to 0 degrees for the MCP, 0 degrees for the PIP, and 0 degrees for the DIP. Maximum flexion of the left finger was to 90 degrees for the MCP, 100 degrees for the PIP, and 70 degrees for the DIP. There was no gap between the pad of the thumb and the fingers, or between the finger and proximal transverse crease of the hand on maximal finger flexion. Although there was no pain on examination, there was objective evidence of tenderness on palpation. Repetitive-use testing did not result in additional loss of function or range of motion. The examiner found the examination neither medically consistent or inconsistent with the Veteran's statements regarding flare-ups. There was no additional loss of function or range of motion for flare-ups. Hand grip strength was 5/5. There was no muscle atrophy or ankylosis. The examiner also found that there was no objective evidence of pain on passive range of motion testing and no objective evidence of pain when the joint was used in nonweight-bearing. At a July 2019 VA examination, the Veteran reported daily flare-ups that lasted one day. They were brought on by heavy lifting, driving, or typing. He treated the pain with pain relievers. The Veteran experienced functional loss with the inability to lift more than 15 pounds due to pain and discomfort. Maximum extension of the left long finger was to 0 degrees for the MCP, 0 degrees for the PIP, and 0 degrees for the DIP. Maximum flexion of the left finger was to 50 degrees for the MCP, 100 degrees for the PIP, and 70 degrees for the DIP. There was no gap between the pad of the thumb and the fingers. There was no gap between the finger and proximal transverse crease of the hand on maximal finger flexion. There was pain on examination that caused functional loss and there was pain with use of finger flexion, extension, and opposition with thumb. There was no objective evidence of tenderness on palpation. There was additional loss of function or range of motion after repetitive-use testing with pain and lack of endurance. On observed repeated use, maximum flexion of the left finger was to 45 degrees for the MCP, 45 degrees for the PIP, and 45 degrees for the DIP. On repeated use over time, maximum flexion of the left finger was to 40 degrees for the MCP, 40 degrees for the PIP, and 40 degrees for the DIP. Hand grip strength was 5/5. There was no muscle atrophy or ankylosis. The examiner also found that there was objective evidence of pain on passive range of motion testing and objective evidence of pain when the joint was used in nonweight-bearing. The Board finds that the preponderance of the evidence shows that the Veteran's left finger disability more nearly approximates a 10 percent rating which is the highest schedular rating for the disability. Thus, a rating in excess of 10 percent is not warranted. The Board has considered whether rating using another diagnostic code would be appropriate. However, the medical and lay evidence do not indicate that the Veteran's has ankylosis, a disability tantamount to ankylosis, any limitation of motion on the thumb, involvement of more than one digit, or any type of amputation. 38 C.F.R. § 4.71a, Diagnostic Codes 5216-5228, 5230. Further, the Veteran's condition and symptoms are covered under Diagnostic Code 5229, and the Veteran is currently assigned the maximum rating allowed by that diagnostic code. Diagnostic Code 5229 is the appropriate diagnostic code for rating the Veteran's left finger disability as the disability is specifically listed. Copeland v. McDonald, 27 Vet. App. 333 (2015). The Board has also considered a rating based on degenerative arthritis. Although there is X-ray evidence of arthritis to warrant consideration of a compensable rating under Diagnostic Codes 5003 or 5010, the Veteran's left finger disability would still only warrant a 10 percent rating. Ratings based on arthritis cannot be combined with ratings assigned for limitation of motion of the same joint. As the left finger disability is compensated based on limited motion, a separate rating for painful motion is not appropriate and would not result in a higher rating. Accordingly, the Board finds that the preponderance of the evidence is against the claim. Therefore, a rating in excess of 10 percent for left finger disability is not warranted and the claim is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a right ankle disability is remanded. The Veteran contends that he injured the right ankle during service. A July 1990 service medical record showed right ankle pain after a motor vehicle accident. The post-service treatment records show complaints of low back pain. The October 2013 VA examiner found the right ankle disability was less likely than not incurred in or caused by service. The examiner explained there was no objective evidence of trauma or injury in the service records. In addition, the examiner stated that the ankle disability may be attributed to the Veteran's age. There was no rationale provided for the opinion. As the October 2013 examiner's opinion did not consider the Veteran's statements of in-service injuries or provide sufficient rationale for attributing the ankle disability to the Veteran's age, the Board finds the opinion incomplete. On remand, the Veteran should be provided a VA examination to assess the nature and etiology of any right ankle disability. 2. Entitlement to a rating higher than 0 percent for bilateral hearing loss is remanded. The Veteran was most recently examined in February 2019. Since then, the Veteran has reported worsening symptoms. Specifically, in a September 2019 statement, the Veteran indicating worsening hearing with muffled speech and sounds, and difficulty understanding words, especially against background noise or in a crowd. Because of the indication of worsening, the Board finds it necessary to remand this matter to provide the Veteran an opportunity for a more contemporary VA examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). 3. Entitlement to a rating higher than 20 percent for trichiasis with chronic conjunctivitis is remanded. A review of the record shows there are outstanding VA medical records. A March 2019 VA record indicates visual field testing was performed and the results were placed in the VistA imaging. However, those records have not been associated with the record. Further, VA records show additional visual field testing has been conducted, and these results have not been associated with the record. On remand, all VistA records related to the Veteran's eyes should be associated with the record. In addition, the Board finds the February 2019 VA examination incomplete. At the February 2019 VA examination, the Veteran was diagnosed with dry eye syndrome. In the remarks section, the examiner noted there were no signs of trichiasis or chronic conjunctivitis. Although there was no change in diagnosis, the condition was quiescent. The Board notes that VA treatment records indicate glaucomatous visual field defects, and the Veteran is glaucoma suspect, as shown in March 2019 VA treatment records. However, the February 2019 VA examination did not report any glaucoma findings. When VA provides an examination, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board finds the February 2019 examination incomplete as the glaucoma section was incomplete. In addition, there are outstanding VA treatment records. Therefore, remand is warranted. 4. Entitlement to increased ratings for PTSD is remanded. The Veteran attended a VA psychiatric examination in November 2018. Since then, the Veteran has reported worsening symptoms. Specifically, in a September 2019 statement, the Veteran indicated worsening with problems concentrating, and increased irritability, startle response, and anger. Because of the indication of worsening, the Board finds it necessary to remand this matter to provide the Veteran an opportunity for a more contemporary VA examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The claim for TDIU is inextricably intertwined with the claims for service connection and increased ratings. Where a claim is inextricably intertwined with another claim, the claims must be adjudicated together. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, further consideration of the claim for a TDIU must be deferred. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. All separately-filed records related to the Veteran's eyes, to include those in VISTA Imaging, must be obtained for review, to specifically include March 2019 visual field testing and subsequent visual field testing. All attempts to locate records must be documented in the claims file. 2. Then, schedule the Veteran for a VA orthopedic examination to determine the nature and etiology of any right ankle disability. The examiner must review the claims file and should note that review in the report. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. The examiner should diagnose all right ankle disabilities. The examiner should opine whether it is at least as likely as not (50 percent probability or greater) that any right ankle disability is related to service or had its onset during active service or is related to any injury, disease, or event in service. The examiner must also consider and discuss the Veteran's right ankle pain related to a July 1990 motor vehicle accident. A complete rationale is requested for all opinions provided. 3. Schedule the Veteran for a VA audiology examination to determine the current level of severity of hearing impairment. The examiner must review the claims file and should note that review in the report. The examiner should elicit from the Veteran all complaints associated with the hearing loss disability, to include any associated functional impairment. Audiometric testing and speech discrimination testing should be performed, including the Maryland CNC test. If test results are considered invalid or an inaccurate depiction of the severity of the Veteran's hearing loss, that conclusion should be explained in detail why valid and reliable audiometric data could not be obtained. The examiner should discuss the occupational impairment caused by hearing loss. 4. Schedule the Veteran for a VA eye examination to determine the current severity of service-connected eye disabilities. The examiner must review the claims file and should note that review in the report. All studies or tests deemed necessary should be performed. The examiner should state all examination findings and describe the nature and severity of all manifestations of the eye disabilities, with rationale for the comments and opinions expressed. The examiner should elicit information about the nature of the eye disabilities and all symptoms or manifestations of the disabilities when present, even if not present at the time of the examination. The examiner should comment on whether the symptoms or diagnoses are attributable to the service-connected eye disability, to specifically include dry eye syndrome and glaucoma. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain why that is so. 5. Schedule the Veteran for a VA psychiatric examination to ascertain the current severity of PTSD. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should opine as to the levels of occupational and social impairment caused by the service-connected psychiatric disability and should describe the frequency and severity of symptoms resulting in those levels of impairment. The examiner should opine as to the impact of the psychiatric disability on the Veteran's vocational pursuits. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the combined effects of the service-connected disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Kass, 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.