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

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." ================== ---------------------------------------------------- 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) 9