Veteranclaims’s Blog

October 27, 2011

Single Judge Application, Symptomatology, Not Treatment, C.F.R. 3.303(b), Savage, 10 Vet.App. at 496

Filed under: Uncategorized — veteranclaims @ 1:56 pm

Excerpt from decision below:
“38 C.F.R. § 3.303(b). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was “noted” during service; (2) there is postservice evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr, 21 Vet.App. at 307 (citing Savage v. Gober, 10 Vet.App. 488, 495-96 (1997)). “[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage, 10 Vet.App. at 496.
In this case, there is evidence pertaining to all three elements. There was a condition, plantar foot pain, noted in service. There is ample evidence of continuing foot pain and the 2008 VA examiner indicates that the appellant’s present plantar fasciitis may explain the continuing postservice foot pain. As the Secretary concedes, the evidence produced in development of the bilateral foot disorder complaint reveals a condition that is within the scope of the filed claim, which the Board must consider. See Clemons v. Shinseki, 23 Vet.App. 1 (2009). Thus, the Court will remand the bilateral foot condition claim for development of the plantar fasciitis issue.”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-2106
GREGORY B. SMITH, APPELLANT,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before DAVIS, Judge.

MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

DAVIS, Judge: U.S. Armyveteran GregoryB. Smith appeals through counsel
from a March
15, 2010, Board of Veterans’Appeals (Board) decision that, among other
things, found that new and
material evidence had not been submitted to reopen a previouslydenied
claim for pes planus; denied
claims for service connection benefits for (1) a bilateral foot disorder,
status post removal of
ganglion cysts and (2) a bilateral knee disorder claimed as secondary to
the pes planus condition;
and denied increased disability ratings for (1) residuals of fractures of
the right fourth and fifth
metacarpals for the period from June 23, 2003, to September 4, 2008, and (
2) a scar on the left hand
resulting from surgical removal of a ganglion cyst.1
For the following reasons, the Court will affirm
in part and set aside in part the Board’s March 2010 decision and remand
four matters for further
proceedings consistent with this decision.
The Board also denied a claim for disability benefits for a condition
manifested by bilateral leg weakness and
a disability rating in excess of 10% for residuals of the right hand
fracture from September 5, 2008. The appellant
explicitly abandoned these issues on appeal and the Court will give them
no consideration. See Bowling v. Principi,
15 Vet.App. 1, 16 (2001); Green v. Brown, 10 Vet.App. 111, 115 (1997). The
Board also remanded a PTSD issue for
further development and referred an issue with respect to a disability
rating and effective date assigned for extensor
tendinitis of the left wrist. The Court has no jurisdiction over those
matters because they are not the subject of a final
Board decision. See Hampton v. Gober, 10 Vet.App. 481, 483 (1991); Link v.
West, 12 Vet.App. 39, 47 (1998).
1

I. ANALYSIS
A. Bilateral Pes Planus (Flat Feet)
The appellant had active duty service from January 19, 1984, to March 15,
1989. His
induction examination contained a notation indicating “[p]es [p]lanus, Mod
. [moderate],
asymptomatic.” Record (R.) at 1820. As the Board acknowledged, “[s]ervice
treatment records show
that he received treatment for pain in his feet on numerous occasions due
to various causes and at
times was placed on temporary limited duty profiles.” R. at 10. Notably,
one document reported:
“B/L [bilateral] arch pain [and] plantar foot pain.” R. at 2152. A
previous Board decision noted that
“neither a report of examination prior to separation, nor a report of
medical history filled out prior to
separation [is] contained in the claims folder.” R. at 622.
In June 2003 the appellant filed a claim that sought benefits for a ”
bilateral foot condition.”
R. at 2269. The regional office (RO) developed this claim as “bilateral
pes planus and athritis,” but
denied the claim in January2004 on the basis that “service medical records (
SMRs) . . . failed to show
evidence of worsening of [the] pes planus and are negative for any
clinical findings, treatment or
diagnosis of arthritis.” R. at 2179-80. On appeal, a 2007 Board decision
found that the medical
evidence of record “preponderate[d] against a finding that the veteran’s
bilateal pes planus that
preexisted service was permanently worsened therein; or that arthritis of
the feet was diagnosed
within one year after separation from service.” R. at 615. This decision
became final.
After receiving a statement in support of the claim on January 17, 2008,
the RO sent notice
letters with regard to the pes planus claim and provided a VA medical
examination in June of that
year. Apparently, the RO reopened the claim but denied it on the merits,
on the basis that “the
evidence still does not show that [the] bilateral pes planus either [was]
incurred in or was aggravated
by military service.” R. at 216. In the decision here on appeal, however,
the Board found that the
evidence submitted since the last prior denial “does not raise a
reasonable possibilityof substantiating
the claim for service connection for bilateral pes planus,” and concluded
that new and material
evidence had not been submitted to reopen the claim. R. at 6-7.
1. Adequacy of VA Medical Examination
The appellant first argues that the June 2008 VA medical examination, on
which the Board
principally relied, was inadequate for failure to opine on whether his pes
planus had been aggravated
2

during service. “[O]nce the Secretary undertakes the effort to provide an
examination . . . he must
provide an adequate one or, at a minimum, notify the claimant why one will
not or cannot be
provided.” Barr v. Nicholson, 21 Vet.App. 303, 311 (2007). A medical
examination is adequate
“where it is based upon consideration of the veteran’s prior medical
historyand examinations and also
describes the disability, if any, in sufficient detail so that the Board’s
‘evaluation of the claimed
disability will be a fully informed one.'” Stefl v. Nicholson, 21 Vet.App.
123, 123 (2007) (quoting
Ardison v. Brown, 6 Vet.App. 405, 407 (1994)). The report must contain
clear conclusions and
supporting data, as well as “a reasoned medical explanation” connecting
the data and conclusions.
Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008).
The adequacyof a medicalexamination is a factual determination reviewed
under the “clearly
erroneous” standard of review. See Nolen v. Gober, 14 Vet.App. 184 (2000).
A finding is clearly
erroneous when, although there is evidence to support it, the reviewing
court on the entire evidence
is left with the definite and firm conviction that a mistake has been
committed. Gilbert v. Derwinski,
1 Vet.App. 49, 52 (1990). The Court agrees with the appellant that the
2008 VA examination report
was inadequate, for at least two distinct reasons.
i. Appropriate Classification of Congenital Condition
First, the June 2008 report failed to provide the Board with a description
of the appellant’s
condition sufficient to allow the Board to make an informed classification
of the appellant’s pes
planus disability and nothing in the record before the Court remedies that
deficiency. In its 2007
decision, the Board referred to a May 2006 VA examination report and
stated: “the VA examiner
diagnosed congenital pes planus.” R. at 623. This examination report is
not contained in the record
before the Court, but accepting the Board’s characterization of its
content, the report stated only that
the condition was congenital.
As the Court has noted, “the mere fact that a condition is the result of a
congenital cause does
not necessarily mean that the condition itself manifested before service
or that it was not aggravated
by service.” Quirin v. Shinseki, 22 Vet.App. 390, 394 (2009). The Court
went on to discuss the
difference between congenital diseases, to which the presumptions of
soundness and aggravation
attach, and congenital defects, to which these presumptions do not apply.
See 38 C.F.R. § 3.303(c)
(2011) (“Congenital or developmental defects . . . are not diseaes or
injuries within the meaning of
3

of applicable legislation.”). The Court noted that a General Counsel
opinion on the subject
distinguishes the two classes of disabilities on the basis that “‘a defect
differs from a disease in that
the former is “more or less stationary in nature” while the latter is ”
capable of improving or
deteriorating.”‘” Quirin, 22 Vet.App. at 394 (quoting VA Gen. Coun. Prec.
82-90 (July 18, 1990)).
The Court further noted that “any worsening–any change at all–might
demonstrate that the condition
is a disease, in that VA considers defects to be ‘more or less’ static and
immutable.” Id. at 395. The
Court recommended that the Board obtain medical opinions to assist in the
process of properly
classifying the congenital conditions.
Without such an appropriate classification, the Board is not in a position
to determine which
party has the burden of proof and what standard of proof applies. If the
appellant’s pes planus is a
preexisting congenital disease, the appellant must first show that the
disability increased during
service and the Secretary must then prove, by clear and unmistakable
evidence, that the increase was
due to the “natural progress of the disease.” Wagner v. Principi, 370 F.3d
1089 (Fed. Cir. 2004). On
the other hand, if the condition is a congenital defect, the appellant
would have the burden of
establishing all the elements of an aggravation claim, under the equipoise
standard of 38 U.S.C.
§ 5107(b), without benefit of the presumption. See G.C. Prec. 82-90 at 3
(“[M]any [congenital]
defects can be subject to superimposed disease or injury . . . [in which
case] service-connection may
indeed be warranted for the resultant disability.”).
The Board must also include in its decision a written statement of the
reasons or bases for its
findings and conclusions on all material issues of fact and law presented
on the record. That
statement must be adequate to enable an appellant to understand the
precise basis for the Board’s
decision and to facilitate informed review in this Court. See 38 U.S.C. §
7104(d)(1); Allday v. Brown,
7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57.
The 2008 VA examination report was inadequate to support the Board’s
reasoning on the
classification of the appellant’s pes planus. In the decision here on
appeal, the Board apparently
concluded that the appellant’s pes planus was a congenital defect. The
Board stated:
The evidence of record received since January 2007, specifically the June
2008 VA
examination report, does not reflect the congenital bilateral pes planus
increased in
severity due to his time in service. A congenital defect is not an injury
or disease for
VA compensation puposes. . . There was no showing of superimposed
pathology at
4

thetime ofthe[2007] Boarddecisionandnoneshowninevidencereceivedsincethen.
R. at 12 (citation omitted). The Board offered no explanation for its
apparent conclusion that the
appellant’s pes planus was a congenital defect, as opposed to a congenital
disease. There is no
discussion of this matter in the June 2008 medical examination report and
the Board does not discuss
any medical evidence elsewhere in the record that would support such a
conclusion. Therefore, it is
an inappropriate medical conclusion on the part of the Board. See Colvin v.
Derwinski, 1 Vet.App.
171 (1991).
ii. Lack of Evidence on Aggravation
Second, the Court agrees with the appellant that the 2008 VA medical
examination report
contained no discussion whether there was a worsening of the appellant’s
pes planus in service, much
less an increase in disability. The report stated only that the
appellant’s “[p]es planus (bilaterally) is
at least as likely as not (50/50 probability) the same as seen in military
service.” R. at 257. This
statement pertains to a nexus requirement. The opinion says nothing about
the critical question,
which is whether the appellant’s pes planus worsened to the point of an
increased disability during
his service. The examination is therefore inadequate for failure to
describe the disability in sufficient
detail to inform the Board as to the salient issue. Having undertaken to
provide a medical
examination, the report must be adequate. See Barr, supra.
In sum, the Board erred in relying on the June 2008 VA examination report
and the Board’s
statement of reasons or bases is inadequate. The Court will set aside the
Board’s finding that new and
material evidence was not submitted to reopen the claim for benefits for
pes planus and remand the
issue for the Board to obtain additional medical evidence and provide a
revised statement of reasons
or bases. The Secretary further concedes, and the Court agrees, that the
claims for benefits for
bilateral knee disorders are inextricably intertwined with the pes planus
claim. Accordingly, the
Court will set aside the Board’s findings on these matters and remand them
also.
2. Adequacy of VCAA Notice
The appellant further argues that the VA notice letters on which the Board
relied failed to
satisfy the requirements of the Veterans Claims Assistance Act of 2000 (
VCAA), Pub. L. No. 106-
475, § 3(a), 114 Stat. 2096 (codified in part at 38 U.S.C. § 5103(a)).
Specifically, he argues that the
5

letter pertaining to the pes planus condition inaccurately described the
reason for the 2007 Board
denial and, consequently, the issue to which his evidence must be directed.
This Court has indicated that VCAA notice must be tailored to the nature
of the claim. See
Kent v. Nicholson, 20 Vet.App. 1 (2006). In the case of a claim to reopen,
the Secretary must “look
at the bases for the denial in the prior decision and . . . [provide] a
notice letter that describes what
evidence would be necessary to substantiate that element or elements
required to establish service
connection that were found insufficient in the previous denial.” Id. at 10.
The Secretary concedes that “the June 2007 notice letter (the only one
addressing new and
material evidence) misinformed the Appellant of the prior basis for denial,
rendering it inadequate.”
Secretary’s Brief at 5. The Court agrees with the concession. The VCAA
notice letter mentioned only
the reason for the previous denial of service connection for arthritis; it
said nothing about the reason
for the denial of service connection for bilateral pes planus.
Because the Board declined to reopen the claim based on a lack of new and
material evidence
directed to an increase in disability, the Court is unable to conclude
that the error did not prejudice
the appellant. See 38 U.S.C. § 7261(b)(2) (directing Court to take due
account of the rule of
prejudicial error). He correctly argues that had the notice been correctly
given he could have sought
and obtained a medical opinion that addressed the issue of in-service
aggravation. Therefore, the
Court must remand the issue of new and material evidence to reopen the
claim for benefits for pes
planus for this reason as well.
B. Bilateral Foot Disorder
The appellant further argues that the Board erred in finding that ”
theexaminer did not find any
objective evidence of a current disability” with regard to the claim for
benefits for a bilateral foot
disorder. R. at 15. The June 2008 examiner’s report acknowledges that the
SMRs contain a record
of removal of ganglion cysts in service. The examiner diagnosed “[p]lantar
fasciitis right foot” (R.
at 240), and noted complaints of pain in both feet. The examiner further
opined: “Bilateral feet s/p
[status post] removal of ganglion cyst (no residuals) is the same as seen
in military service but does
not account for his current feet pain since the cyst was removed in
service . . . . The veteran’s plantar
fasciitis is not caused by or a result of military experience.” R. at 257.
As a rationale for his opinion,
the examiner elaborated as follows:
6

After surgical removal of the ganglion cyst[s] they did not re-occur. The
veteran
currently has no ganglion cyst and therefore [they] cannot be the cause of
his foot
pain . . . The veteran’s plantar fasciitis was not noted in the medical
records in service
and therefore is not caused by or a result of military service.
Id. The examiner’s rationale is sufficient to establish that the
appellant’s present foot condition is not
linked to the in-service treatment for ganglion cysts.
As noted previously, however, the SMRs do contain evidence of in-service
plantar foot pain
(see R. at 2152), and thus may support service connection by continuity of
symptomatology. See
38 C.F.R. § 3.303(b). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was “noted” during service; (2) there is postservice evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr, 21 Vet.App. at 307 (citing Savage v. Gober, 10 Vet.App. 488, 495-96 (1997)).“[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage, 10 Vet.App. at 496. In this case, there is evidence pertaining to all three elements. There was a condition, plantar foot pain, noted in service. There is ample evidence of continuing foot pain and the 2008 VA examiner indicates that the appellant’s present plantar fasciitis may explain the continuing postservice foot pain. As the Secretary concedes, the evidence produced in development of the bilateral foot disorder complaint reveals a condition that is within the scope of the filed claim, which the Board must consider. See Clemons v. Shinseki, 23 Vet.App. 1 (2009). Thus, the Court will remand the bilateral foot condition claim for development of the plantar fasciitis issue.

C. Residuals of Right Hand Fracture
The appellant further argues that the Board erred in failing to assess the
effect of reported
flareups in his right hand, which allegedlylimit his abilityto grasp tools
and perform certain activities
such as fishing. This asserted error pertains to the rating period from
June 23, 2003, to September
4, 2008. Although the Board acknowledged the reported flareups, it stated: ”
The VA examiner,
however, reported that repeated motions of the hand and fingers had no
effect on the Veteran’s range
of motion, fatigability, weakness, endurance or incoordination.” R. at 24.
As the appellant argues and the Secretary concedes, the Board conflated
the concepts of
flareups with the effects of repetitive motion on the day of the
examination. That the examiner
7

observed no range of motion effects does not account for the reported
flareups in the absence of
evidence that the examination was conducted during such a flareup. The
Court has indicated that
certain conditions subject to flareups must be assessed during a period of
flareup. See Ardison v.
Brown, 6 Vet.App. 405, 408 (1994). The Secretary has essentially conceded
the applicability of this
decision to the facts of this case. Accordingly, the Court will set aside
the Board’s findings with
respect to the disability rating for the right hand in the period from
June 23, 2003, to September 4,
2008, and remand this matter for further consideration.

D. Scar on Left Hand
As the Board noted, the rating criteria for scars was amended during the
pendency of the
apepllant’s claim for benefits for residuals of his in-service hand
surgery to remove a ganglion cyst.
The appellant argues that the Board further erred in failing to apply the
current provisions of
38 C.F.R. § 4.118, Diagnostic Code (DC) 7800 in rating the effects of the
scar on his left hand. This
DC provides for a minimum 10% rating for disfigurement of the head, face,
or neck if a scar is
present having a width “at least one-quarter inch (0.6 cm.) wide at widest
part.” 38 C.F.R. § 4.118,
DC 7800 (2011). In his reply brief, he intimates that a veteran previously
rated under DC 7805 can,
under the revised provisions of § 4.118, request review under DC 7800.
See Appellant’s Reply Brief
at 5.
The Secretary reiterates the Board’s analysis that “although a claimant
may request
consideration under the amended criteria, the Veteran has not requested
such consideration.” R. at
25. The appellant responds that there is no need to make such a formal
request for a pending claim
and that the revised criteria are applicable under Karnas v. Derwinski, 1
Vet.App. 308 (1991),
overruled in part by Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).
Without resolvingthat issue, the Court notes that it is entirelyunclear
how the appellant might
obtain a higher rating for a scar on his hand by application of a DC
directed to disfigurement of the
head, face, or neck. Neither the previous version nor the present version
of DC 7805, under which
the appellant was rated, contain any indication that the provisions of DC
7800 might apply to a rating
of scars on the hand. Therefore, the Court concludes that the appellant
has not carried his burden of
demonstrating error and pleading with some particularity the allegation of
error so that the Court is
able to review and assess the validity of the appellant’s arguments. See
Coker v. Nicholson, 19
8

Vet.App. 439, 442 (2006), rev’d on other grounds sub nom. Coker v. Peake,
310 F. App’x 371 (Fed.
Cir. 2008) (per curiam order); Hilkert v. West, 12 Vet.App. 145, 151 (1999
) (en banc). The Court will
therefore affirm the Board’s findings with respect to the disability
rating for the left hand.

II. CONCLUSION
Based on the foregoing, the Court AFFIRMS the March 15, 2010, Board
determination with
respect to disability rating for the scar on the appellant’s left hand,
SETS ASIDE the determinations
finding that new and material evidence had not been submitted to reopen
the claim for benefits for
bilateral pes planus, denying service connection for bilateral knee
disorders, denying service
connection for bilateral foot disorders, and denying a compensable
disability rating for residuals of
fractures of right fourth and fifth metacarpals. The Court REMANDS these
four set aside matters for
further proceedings consistent with this opinion.
On remand, the appellant will be free to submit additional evidence and
argument in support
of his claims for benefits in the remanded matters, and the Board is
required to consider any such
evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). A
final Board decision
following the remand herein ordered will constitute a new decision that,
if adverse, may be appealed
to this Court upon the filing of a new Notice of Appeal with the Court not
later than 120 days after
the date on which notice of the Board’s new final decision is mailed to
the appellant. Marsh v. West,
11 Vet.App. 468, 472 (1998).
DATED: October 24, 2011
Copies to:
Davis J. Lowenstein, Esq.
VA General Counsel (027)
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