Citation Nr: 0005329 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 97-04 502 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUES Whether new and material evidence has been submitted to reopen a claim for service connection for migraine headaches. Entitlement to service connection for a right knee disorder. Entitlement to service connection for a left knee disorder. Entitlement to a higher rating for flat feet, initially assigned a 30 percent evaluation, effective from March 1996. Entitlement to an increased (compensable) evaluation for a fracture of the little toe of the left foot. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Richard V. Chamberlain, Counsel INTRODUCTION The veteran had active service from August 1972 to December 1975. A September 1994 RO rating decision denied service connection for migraine headaches. The veteran was notified of this determination in September 1994 and he did not appeal. In 1996, the veteran submitted an application requesting reopening of the claim for service connection for migraine headaches, and he submitted claims for service connection right and left knee disorders, and flat feet, and for an increased (compensable) evaluation for fracture of the little toe of the left foot. This appeal comes to the Board of Veterans' Appeals (Board) from a September 1996 RO rating decision that denied service connection for migraine headaches, determined that the veteran had not submitted evidence of well-grounded claims for service connection for right and left knee disorders, granted service connection for flat feet and assigned a 30 percent evaluation for this condition, effective from March 1996, and denied an increased (compensable) evaluation for fracture of the little toe of the left foot. The issues of service connection for right and left knee disorders will be addressed in the remand portion of this decision. FINDINGS OF FACT 1. By an unappealed September 1994 RO rating decision, service connection for migraine headaches was denied. 2. Evidence received subsequent to the September 1994 RO rating decision is of such significance that it must be considered in order to fairly decide the merits of the claim. 3. The veteran has not submitted competent (medical) evidence linking his current headaches to an incident of service or competent evidence showing worsening of his preservice headache condition in service. 4. The flat feet are manifested primarily by pain and pes planus that produce severe functional impairment; marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation that is not improved with orthopedic shoes or appliances that produce more than severe functional impairment are not found. 5. The fracture of the little toe of the left foot is manifested by complaints of pain without objective clinical evidence of moderate disability. CONCLUSIONS OF LAW 1. The unappealed September 1994 RO rating decision, denying service connection for migraine headaches, is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.302, 20.1103 (1999). 2. New and material evidence has been received to reopen the claim for service connection for migraine headaches. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 3. The claim for service connection for migraine headaches is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). 4. The criteria for a higher rating for flat feet, initially assigned a 30 percent evaluation, effective from March 1996, are not met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Code 5276 (1999). 5. The criteria for an increased (compensable) evaluation for residuals of fracture of the little toe of the left foot are not met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.7, 4.31, 4.40, 4.45, 4.71a, Code 5284 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Whether New and Material Evidence has been Submitted to Reopen a Claim for Service Connection for Migraine Headaches In order to establish service connection for a disability, the evidence must demonstrate the presence of it and that it resulted from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). A veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed in sound condition except for defect noted when examined and accepted for service. Clear and unmistakable evidence that the disability manifested in service existed before service will rebut the presumption. 38 U.S.C.A. §§ 1111, 1137. A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(a),(b) (1998). A veteran seeking service connection by aggravation is not entitled to presumption of aggravation in service, where there was temporary worsening of symptoms, but the condition itself did not worsen. Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). In the case of any veteran who engaged in combat with the enemy in active service with a military, naval or air organization of the United States during a period of war, campaign or expedition, the VA Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, condition or hardship of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reason for granting or denying service-connection in each case shall be recorded in full 38 U.S.C.A. § 1154(b) (West 1991). In this case, the evidence does not show that the veteran engaged in combat while in service, and the provisions of this regulation are not for application. The September 1994 RO rating decision denied service connection for migraine headaches, the veteran was notified of this determination, and he did not appeal. Since the veteran did not appeal the September 1994 RO rating decision, denying service connection for migraine headaches, it is final with the exception that he may later reopen the claim if new and material evidence is submitted. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.156(a), 3.160(d), 20.1103. The question now presented is whether new and material evidence has been submitted since the September 1994 RO rating to permit reopening of the claim. Manio v. Derwinski, 1 Vet. App. 140 (1991). For evidence to be deemed new, it must not be cumulative or redundant; to be material, it must bear directly and substantially upon the specific matter under consideration (here, whether the veteran had migraine headaches prior to service, and if he did, whether the migraine headaches increased in severity during service or whether the veteran's current headaches had their onset in service). For evidence to be new and material it must be of such significance that, alone or with the other evidence of record, it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). Following the Federal Circuit's decision in Hodge, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, the Court) had the opportunity to discuss the relationship between determinations of new and material evidence to reopen and those of well-groundedness. Elkins v. West, 12 Vet. App. 209 (1999). The Court also noted that, in rejecting the Colvin reasonable-possibility-of-outcome-change test, Hodge effectively decoupled the existing relationship under the Court's case law between determinations of well- groundedness and of new and material evidence to reopen. Prior to Hodge, no opinion of the Court ever suggested that evidence that was sufficient to reopen might not be sufficient to well ground a claim. Moray v. Brown, 5 Vet. App. 211, 214 (1993) (quoting Gober v. Derwinski, 2 Vet. App. 470, 472 (1992)) (new and material evidence "is, by its nature, well[]grounded"); Robinette v. Brown, 8 Vet. App. 69, 76 (1995) (a lower evidentiary threshold is applicable to determining whether a claim is well-grounded); Edenfield v. Brown, 8 Vet. App. 384, 390 (1995) (the difference, if any, between the evidence necessary to present a well-grounded ("plausible") claim and that needed to satisfy the third new-and-material evidence requirement ("reasonable possibility") is slight). Consequently, if upon remand the Board determines that new and material evidence has been presented, it next must determine, as part of its "review [of] the former disposition of the claim" under section 5108, whether the veteran's claim, as then reopened, is well- grounded in terms of all the evidence in support of the claim, generally presuming the credibility of that evidence. In this regard, the Court noted that, as outlined in Winters v. West, 12 Vet. App. (1999), issued by the Court concurrently with the Elkins opinion, if the Court on review of all the evidence of record in support of the claim were to determine that the veteran's underlying claim was not well- grounded, the Court would not remand for the Board to apply 38 C.F.R. § 3.156(a) and Hodge because the failure to apply the regulation under such circumstance would not be prejudicial to the veteran. The evidence of record at the time of the September 1994 RO rating decision consisted of statements from the veteran, and VA and service medical records. The veteran's statements were to the effect that he had migraine headaches that began in service. The service medical records showed that the veteran was treated for a preservice muscle contraction type headaches. A report of the veteran's VA medical examination in August 1994 noted a history of headaches since service and revealed that he had mixed migraine-tension type headaches. The evidence received since the September 1994 RO rating decision consists of additional statements and testimony of the veteran to the effect that he has migraine headaches that had their onset in service. This evidence is redundant of evidence of record in September 1994, and not new. 38 C.F.R. § 3.156(a). The evidence received since September 1994 also includes a report of the veteran's VA medical examination in July 1996 that notes a history of headaches since service and shows the presence of tension/vascular headaches with possible "cericogenic" component. This evidence indicates that the veteran's current headache condition may be due to various causes, including incidents of service. This evidence is so significant that it must be considered in order to fairly decide the claim for service connection for migraine headaches. Hodge, 155 F. 3d 1356. Under the circumstances, the Board finds that new and material evidence has been submitted to reopen the claim for service connection for migraine headaches. The veteran asserts that he was not provided with the laws and regulations concerning the criteria of new and material evidence to reopen a previous denied claim that has become final, and that he was denied due process. In view of the Board's favorable determination on this matter, as discussed above, the Board finds that there was no prejudice to the veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The threshold question now to be answered in this case is whether the veteran has presented evidence of a well-grounded claim for service connection for migraine headaches; that is, evidence which shows that this claim is plausible, meritorious on its own, or capable of substantiation. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). If he has not presented such a claim, his appeal must, as a matter of law, be denied, and there is no duty on the VA to assist him further in the development of the claim. Murphy at 81. The Court has also stated that a claim must be accompanied by supporting evidence; an allegation is not enough. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). In a claim of service connection, this generally means that evidence must be presented which in some fashion links a current disability to a period of military service, or as secondary to a disability which has already been service- connected. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.310 (1999); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). "In order for a claim to be well-grounded, there must be competent evidence of current disability (a medical diagnosis) ...; of incurrence or aggravation of a disease or injury in service (lay or medical testimony), ...; and of a nexus between the inservice injury or disease and the current disability (medical evidence)." Caluza v. Brown, 7 Vet. App. 498 (1995). The Board does not find that the veteran's claim for service connection for migraine headaches is well-grounded. While he has submitted evidence showing the presence of a chronic headache condition, there is no medical evidence that causally links this condition to an incident of service or evidence showing that his preservice headache condition increased in severity during service. Hence, there is no competent evidence to support his claim for service connection for migraine headaches. Caluza, 7 Vet. App. 498. The veteran testified to the effect that his current headache condition is due to a head injury in basic training and other statements from him are to the effect that he has migraine headaches that had their onset in service, but there is no medical evidence of a headache condition in service other than his preservice headache condition. His lay statements are not sufficient to support his claim for service connection for migraine headaches based on medical causation. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In this case, there is no competent (medical) evidence linking his current headache condition to an incident of service, and there is no competent evidence showing that his preservice headache condition increased in severity in service. Hence, the claim for service connection for migraine headaches is not plausible, and it is denied as not well-grounded. II. Entitlement to a Higher Rating for Flat Feet, Initially Assigned a 30 Percent Evaluation, Effective from March 1996 A. Factual Background VA medical records show that the veteran was treated and evaluated for various conditions in the 1990's. The more salient medical reports with regard to his claim for a higher rating for flat feet are discussed in the following paragraphs. The veteran underwent a VA examination of his feet in June 1996. He complained of painful feet. His standing posture was okay. He squatted poorly, Supination and pronation were okay. He rose on his toes and heels okay. There was marked pes planus. He had an occasional limp when walking. There were no secondary skin or vascular changes. The diagnosis was symptomatic pes planus with associated valgus deformity. The veteran underwent a VA examination of his feet in December 1996. He complained of painful feet. There was severe pes planus. His standing posture was okay. Squatting posture was 50 percent of normal. Supination and pronation were okay, and he could stand on his heels and toes okay. The examiner concluded that the pes planus was severe and produced moderate functional impairment. The veteran testified at a hearing in January 1997. His testimony was to the effect that he had pain on the bottom of his feet. B. Legal Analysis The veteran's claim for a higher rating for flat feet, initially assigned a 30 percent evaluation, effective from March 1996, is well-grounded, meaning it is plausible. The Board finds that all relevant evidence has been obtained with regard to the claim and that no further assistance to the veteran is required to comply with VA's duty to assist him. 38 U.S.C.A. § 5107(a) (West 1991). In general, disability evaluations are assigned by applying a schedule of ratings (rating schedule) which represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155. Although the regulations require that, in evaluating a given disability, that disability be viewed in relation to its whole recorded history, 38 C.F.R. § 4.1, 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 which is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Also, 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. An evaluation of the level of disability present must also include consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45. A 30 percent evaluation is warranted for severe bilateral acquired flatfoot (pes planus) manifested by marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use of the feet, indications of swelling on use of the feet, and characteristic callosities. A 50 percent rating is warranted for pronounced bilateral acquired flatfoot manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendo achillis on manipulation which is not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Code 5276. The reports of the veteran's VA medical examinations in 1996 and his testimony reveal that he has flat feet are manifested by pain. The reports of the medical examinations indicate that the pes planus is severe and produces moderate impairment, but the evidence does not reveal marked pronation, extreme tenderness of the plantar surfaces of the feet, and marked inward displacement and severe spasm of the teno achillis on manipulation that is not improved by orthopedic shoes or appliances. The overall evidence does not support more than a 30 percent evaluation for the veteran's flat feet under diagnostic code 5276. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, the Court), held that in evaluating a service- connected disability, the Board must consider functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. Here, the only reported functional impairment is loss of squatting posture. The evidence does not show that the veteran's flat feet produces more than severe functional impairment and it appears that the 30 percent rating under Diagnostic Code 5276 best represents the veteran's disability picture. The preponderance of the evidence is against the claim for a higher rating for flat feet, initially assigned a 30 percent evaluation, effective from March 1996. Nor does the evidence show manifestations of the disorder warranting a higher rating for this condition for a specific period or a "staged rating" at any time since the effective date of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). III. Entitlement to an Increased (Compensable) Evaluation for Fracture of the Little Toe of the Left Foot A. Factual Background Service medical records show that an X-ray of the veteran left foot in July 1975 showed a probable fracture of undertermined age of the base of the 5th metatarsal. There was also a bone island in the left calcaneus. The September 1994 RO rating decision granted service connection for fracture of the little toe of the left foot. A zero percent rating was assigned for this condition, effective from March 1994. VA medical reports show that the veteran was treated and evaluated for various conditions in the 1990's. These reports, including reports of various VA orthopedic and medical examinations of the veteran's feet, do not show symptoms of the little toe disability of the left foot. The veteran testified at a hearing in January 1997. His testimony was to the effect that he had pain with pressure on the little toe of the left foot and that cold weather affected this toe. He stated that he had not received any treatment for this condition. B. Legal Analysis The veteran's claim for an increased (compensable) evaluation for the fracture of the little toe of his left foot is well- grounded, meaning it is plausible. The Board finds that all relevant evidence has been obtained with regard to the claim and that no further assistance to him is required to comply with VA's duty to assist him. 38 U.S.C.A. § 5107(a). Moderate residuals of foot injuries warrant a 10 percent evaluation. A 20 percent rating requires moderately severe residuals. Severe residuals of foot injuries warrant a 30 percent evaluation. A 40 percent evaluation requires that the residuals be so severe as to result in actual loss of use of the foot. 38 C.F.R. § 4.71a, Code 5284. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (1999). The medical evidence does not show objective clinical evidence of residuals due to fracture of the little toe of the left foot. While the veteran testified to the effect that he had occasional pain with pressure on this toe and that cold weather affected the toe, there is no objective clinical findings to corroborate this evidence. After consideration of all the evidence, including the veteran's testimony, the Board finds that the fracture of the little toe of the left foot is manifested by complaints of pain and that the evidence does not show objective evidence of moderate residuals of a foot injury to support the assignment of a 10 percent rating for this condition under diagnostic code 5284 with consideration of the provisions of 38 C.F.R. §§ 4.40 and 4.45. The preponderance of the evidence is against the claim for a compensable evaluation for this condition, and the claim is denied. Since the preponderance of the evidence is against the claims for a higher rating for flat feet and a compensable evaluation for the fracture of the little toe of the left foot, the benefit of the doubt doctrine is not for application with regard to these claims. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence having been received, the application to reopen the claim for service connection for migraine headaches is granted; the claim for service connection for migraine headaches is denied as not well- grounded. A higher rating for flat feet, initially assigned a 30 percent evaluation, effective from March 1996, is denied. An increased (compensable) evaluation for fracture of the little toe of the left foot is denied. REMAND With regard to the claims for service connection for right and left knee disabilities, the record contains a report of the veteran's VA medical examination of the knees in December 1997. The report of this examination is pertinent to the veteran's claim for service connection for right and left knee disabilities and was not considered by the RO with regard to these claims. Nor does the record show that the veteran or his representative has waived initial consideration of this evidence by the RO. Due process requires that the RO consider this evidence and provide the veteran and his representative with an appropriate supplemental statement of the case. 38 C.F.R. § 20.1304(c) (1999). In view of the above, the case is REMANDED to the RO for the following actions: 1. The RO should review the veteran's claims for service connection for right and left knee disabilities. This review should consider all evidence received since the issuance of the previous supplemental statement of the case. 2. If action remains adverse to the veteran, an appropriate supplemental statement of the case should be sent to the veteran and his representative. They should be afforded an opportunity to respond to the supplemental statement of the case before the file is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. K. J. ALIBRANDO Acting Member, Board of Veterans' Appeals