Citation Nr: 1306171 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 09-48 254 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a low back disorder, and, if so, whether service connection for a low back disorder is warranted. 2. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a bilateral foot disorder and, if so, whether service connection for a bilateral foot disorder is warranted. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1989 to June 1993, with additional service in the National Guard. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In March 2011, the Veteran testified before the undersigned Acting Veterans Law Judge concerning his claim of service connection for a low back disorder. A copy of the transcript has been associated with the claims file. In this decision, the Board is reopening the claim of entitlement to service connection for low back disorder. However, the issue of entitlement to service connection on the merits is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. In a rating decision issued in January 2006, the RO denied reopening the Veteran's claim of entitlement to service connection for a bilateral foot disorder on the basis that new and material evidence had not been submitted. The RO also denied the Veteran's claim of entitlement to service connection for a back disorder. 2. The Veteran filed a timely notice of disagreement in February 2006, and the RO issued a statement of the case in March 2007. However, the Veteran did not file a substantive appeal (VA Form 9, or equivalent) to perfect his appeal. 3. The Veteran did not submit any additional evidence in the appeal period following the January 2006 rating decision. 4. The evidence added to the record since the final January 2006 denial concerning the claim of entitlement to service connection for a low back disorder is new and raises a reasonable possibility of substantiating the Veteran's claim. 5. The evidence added to the record since the final January 2006 rating decision concerning the claim of entitlement to service connection for a bilateral foot disorder is either cumulative or redundant of evidence previously considered, does not relate to an unestablished fact necessary to substantiate this claim, and does not raise a reasonable possibility of substantiating this claim. CONCLUSIONS OF LAW 1. The January 2006 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. New and material evidence has been received in order to reopen the claim of entitlement to service connection for a low back disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. New and material evidence has not been received in order to reopen the claim of entitlement to service connection for a bilateral foot disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA Duties to Notify and Assist As the Board's decision to reopen the Veteran's claim concerning his low back disorder is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. Consideration of the merits of this claim only is deferred pending additional development consistent with the VCAA. However, concerning the claim for a bilateral foot disorder, the provisions of the VCAA implementing regulations do apply. Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. The RO notified the Veteran in April 2008 of the evidence and information necessary to substantiate his claim, as well as his and VA's respective responsibilities in obtaining such evidence and information. This notice also advised the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra, prior to the November 2008 rating decision currently on appeal, the preferred sequence. An April 2008 letter also notified him of the deficiencies in the evidence when his claim for a bilateral foot disorder was previously considered and denied, so he would have the opportunity to submit additional evidence and/or argument in response addressing these prior evidentiary shortcomings. Kent v. Nicholson, 20 Vet. App. 1 (2006). See also VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006), wherein VA's Office of General Counsel issued informal guidance interpreting Kent as requiring the notice to specifically identify the kind of evidence that would overcome the prior deficiency rather than simply stating the evidence must relate to the stated basis of the prior denial. Relevant to the duty to assist, the Veteran's service treatment records as well as post-service VA treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained, relevant to these claims. The Board notes that the Veteran did not undergo a VA examination germane to the claim of entitlement to service connection for a bilateral foot disorder, but also finds that such an examination is not required. Absent the submission of the type of evidence to satisfy the new-and-material-evidence requirement for reopening this claim, VA is not obligated to schedule him for a VA compensation examination for a medical nexus opinion concerning any potential relationship between a bilateral foot disorder and his military service. 38 C.F.R. § 3.159(c)(4)(C)(iii). The Veteran was also afforded a hearing before the undersigned Acting Veterans Law Judge (AVLJ) in March 2011. However, he indicated prior the hearing, and is also documented in the hearing transcript, that he would not be presenting any oral argument in support of bilateral foot claim. Therefore, the requirements as set forth in Bryant v. Shinseki, 23 Vet. App. 488 (2010) and 38 C.F.R. § 3.103(c)(2) (2012), are not for application. The Board notes that the evidence already of record is adequate to allow resolution of the appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Claims to Reopen The Veteran contends that his low back disorder began during his service in the National Guard, as a result of moving heavy items. Additionally, he claims that his bilateral foot disorder is the result of his service in Korea where he suffered frost-bite like symptoms. Therefore, he claims that service connection is warranted for these disorders. However, in order to consider the merits of the Veteran's claims for service connection, the Board must first determine if new and material evidence has been received to reopen these claims of entitlement to service connection. For the reasons explained below, the Board finds that new and material evidence has been submitted to reopen the claim pertaining to the low back disorder only. Concerning the Veteran's low back disorder, in January 2006, the RO denied entitlement to service connection for a low back disorder on the basis that although the Veteran was treated for a low back strain in-service, the evidence did not show there was a connection, i.e., a nexus, between the in-service diagnosis and a current disability. The RO considered the Veteran's service treatment records (STRs), private treatment records, and VA treatment records. This January 2006 rating decision also denied reopening the Veteran's claim of entitlement to service connection for a bilateral foot disorder on the basis that new and material evidence had not been received since an October 2002 Board decision, previously denying this claim. The Veteran was advised of the decision and his appellate rights, and he filed a timely notice of disagreement in February 2006. The RO issued him a supplemental statement of the case in September 2006, but he did not perfect his appeal by filing a VA Form 9. With respect to the finality of the January 2006 decision, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011) (holding that VA must evaluate submissions received during the relevant appeal period and determine whether they contain new evidence relevant to a pending claim); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011) (holding that if new and material evidence is received before an appeal period has expired, a rating decision does not become final). In the instant case, following the issuance of the March 2007 statement of the case, the Veteran did not submit any evidence until March 2008, in connection with his petition to reopen the claim concerning his low back disorder. Since this was outside the appeal period for the January 2006 rating decision, the January 2006 rating decision is final. 38 U.S.C.A. § 7105(c)(West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Changes to the definition of new and material evidence as set forth in 38 C.F.R. § 3.156(a) were made in 2001 and apply to claims to reopen received on or after August 29, 2001. See 66 Fed. Reg. 45,620 (August 29, 2001). As the Veteran filed his application to reopen his claims of entitlement to service connection for low back and bilateral foot disorders in March and April 2008, respectively, the definition of new and material evidence effective August 29, 2001, found at 38 C.F.R. § 3.156(a), applies in this case. New evidence means existing 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). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board must also make the threshold preliminary determination on whether new and material evidence has been submitted before proceeding further because this initial determination affects the Board's jurisdiction to adjudicate this claim on its underlying merits, i.e., on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C.A. §§ 5108, 7105(c)); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen previously and finally denied claims); VAOPGCPREC 05-92 (March 4, 1992). See also Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). First, concerning the Veteran's claim to reopen the bilateral foot disorder, the November 2008 rating decision currently on appeal denied this claim because there was no evidence the Veteran suffers from a chronic foot disorder that is attributable to his military serve. The Board notes the Veteran has attempted to establish service connection for this disorder several times in the past. Specifically, his February 1996 claim generally described foot treatment, but did not identify a disorder. The April 1996 rating decision determined the Veteran's treatment was for a fungal disorder of the feet, and denied service connection because there was no evidence of a fungal disorder in service. Thereafter, an April 1998 rating decision denied reopening the Veteran's claim for a bilateral foot disorder. This rating decision noted the Veteran has additional diagnoses of mild hallux valgus and excision of corns. The Veteran's service treatment records also indicated he suffered from bilateral pes planus, as noted on his entrance examination in June 1989. However, the RO determined that the pes planus was not aggravated by the Veteran's military service and there was no indication the Veteran's additional diagnoses of hallux valgus and excision of corns had their inception during service. The Veteran perfected an appeal of this claim to the Board. In October 2002, the Board denied reopening the Veteran's claim of entitlement to service connection for a bilateral foot disorder and considered all theories and diagnoses thus far considered. Specifically, the Board noted the evidence at the time of the April 1996 rating decision included the service treatment records, which showed no fungal infection of the feet or bilateral foot disorder during service and a November 1994 private medical record from Dr. Dowling indicating that the Veteran had a fungal infection of the right foot for the previous two weeks with pain between his toes. The Veteran also submitted statements claiming that he had bilateral foot trouble (with complaints of toe soreness and numbness) secondary to cold weather exposure while on training missions in Korea. Additionally, VA treatment records dated in June 1996 and June 2001 indicated impressions of tinea pedis, and from January to May 1997 showing mild or minimal hallux valgus and surgical removal of corns. The Board determined the evidence was new, in the sense that it was not before the RO at the time of the April 1996 decision. However, it denied reopening the Veteran's claim because these medical records did not provide probative evidence as to the etiology of the bilateral foot symptomatology, or a link between the current disorder and an injury or disease in active service. The Veteran did not appeal this claim to the Court of Appeals for Veterans Claims. In August 2005, the Veteran again attempted to reopen this claim. He submitted VA treatment records showing diagnoses for various bilateral foot disorders, and copies of the November 1994 private treatment record from Dr. Dowling, showing a fungal infection of the right foot for the previous two weeks, with pain between his toes. In the January 2006 rating decision, the RO again denied reopening this claim on the basis the Veteran had not presented evidence showing a chronic disability associated with his feet that was incurred in or aggravated by his military service. The Veteran filed a timely notice of disagreement but did not perfect this appeal to the Board, following the issuance of the March 2007 statement of the case. The Board notes that the Veteran has essentially been trying to claim entitlement to service connection for a bilateral foot disorder, to include multiple diagnoses, over the course of several years. See generally Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) (claims based upon distinctly and properly diagnosed diseases or injuries cannot be considered the same claim). The distinction between a new claim and a claim to reopen is whether the evidence presented truly amounts to a new claim "based upon distinctly diagnosed diseases or injuries" or whether it is evidence tending to substantiate an element of a previously and finally adjudicated matter. Velez v. Shinseki, 23 Vet. App. 199 (2009). In this instance, the Board finds that the evidence of record includes no new diagnoses for a foot disorder that were not previously considered and denied in the 2002 Board decision and subsequent attempt to reopen in 2005. As such, the Board finds this is the same claim as previously raised. In April 2008, the Veteran again attempted to reopen his claim of entitlement to service connection for a bilateral foot disorder, on the basis he has been receiving continuous treatment. The November 2008 rating decision, currently on appeal, considered the Veteran's service treatment records, VA treatment records, the November 1994 private treatment records from Dr. Dowling, and the Veteran's own statements of receiving continuous treatment for a fungal disorder, due to cold exposure while stationed in Korea. However, it was determined that this evidence still does not indicate any current foot disorder is attributable to his military service. Since the prior final January 2006 rating decision, concerning only the claim of entitlement to service connection for a bilateral foot disorder, the Veteran has not submitted any evidence in support of reopening his claim. In fact, aside from the Veteran's personal statements that he has a bilateral fungal disorder on the feet due to his service in Korea (allegations previously made by the Veteran and considered by VA), he has only submitted evidence pertaining to the claim to reopen his back disorder, discussed below. The additional VA treatment records, dated through May 2009, simply continue to show the Veteran has diagnosed bilateral foot disorders, which has never been the point of contention. This evidence is simply cumulative of evidence already of record. The Board also notes the Veteran declined to present oral testimony in support of this claim at the March 2011 travel Board hearing. Accordingly, there is no new and material evidence to reopen the claim of entitlement to service connection for a bilateral foot disorder and the petition must be denied. 38 C.F.R. § 3.156. Furthermore, in the absence of new and material evidence, the benefit-of-the-doubt rule does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Turning next to the Veteran's remaining claim of entitlement to service connection for a back disorder, the RO denied reopening this claim because the RO found there was no evidence that the Veteran's current back problems are the result of an August 1999 in-service injury. In the January 2006 decision, the RO considered the Veteran's service treatment records, including a copy of an August 1999 line of duty determination showing a strain in service, and the Veteran's private treatment records from Dr. Dowling, dated from October 1998 to October 2001. Service connection was denied because there was no indication a current back disorder is attributable to the in-service strain. Since the January 2006 rating decision, the Veteran submitted an October 2007 statement from his private physician, Dr. Dowling, showing a long history of back pain; a statement from Dr. Yakin, also concerning his low back claim; two lay statements in support of the low back claim; the Veteran's own March 2011 travel Board hearing testimony concerning his back; and, VA treatment records dated through May 2009, showing continued complaints of back pain. Specifically, the October 2007 statement from Dr. Dowling notes the Veteran's "long history" of back pain and treatment for this disorder. Further, the VA treatment records also show the Veteran has consistently described back pain and sought treatment for this disorder since the August 1999 incident. His March 2011 travel Board hearing testimony also shows that the Veteran has consistently alleged experiencing symptoms associated with his low back disorder, i.e., pain, since the August 1999 incident. An April 2011 opinion from Dr. Yakin states the Veteran's herniated disc is not attributable to his military service, since it would have resolved since the incident. However, Dr. Yakin does not address whether the Veteran has any other low back disorders, including a low back strain, in providing this opinion. Finally, the Veteran submitted two lay statements attesting to his continuous complaints of and treatment for a low back disorder since his National Guard service and the August 1999 in-service injury. The Board notes that continuous symptoms, not necessarily continuous treatment for a disorder, is the essence of continuity of symptomatology contemplated by 38 C.F.R. § 3.303(b) and the holding in Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). See also Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); (indicating the Board cannot make categorical exclusions of competency of lay evidence, such as in this circumstance; rather, there has to be discussion of the reasons and bases for rejecting the lay evidence). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of showing chronicity (i.e., permanency) of disease or injury in service to in turn link current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Therefore, since the prior final denial in January 2006, the Board finds that new evidence has been received which tends to substantiate an unestablished fact necessary to substantiate the underlying claims, i.e., evidence of a current back disorder and evidence addressing the relationship between the current back disorder and the Veteran's military service. Consequently, the newly received evidence raises a reasonable possibility of substantiating the Veteran's claim. Accordingly, the claim of entitlement to service connection for a low back disorder is reopened. ORDER The petition to reopen the claim for service connection for a bilateral foot disorder is denied. New and material evidence having been received, the service connection claim for a low back disorder is reopened. To this extent only, the appeal is granted. REMAND Before addressing the Veteran's service connection claim for a low back disorder on the merits, the Board finds that additional development of the evidence is required. Therefore, the case is remanded to the AOJ for the action discussed herein. VA's duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. Here, the Board finds that a VA compensation examination is necessary to decide the claim. As noted above, the Veteran's claim was previously denied on the basis that there is no evidence supporting his assertion that he currently suffers from a low back disorder attributable to the August 1999 in service low back strain. The evidence received since the January 2006 prior rating decision indicates he has at least received continuous treatment for back pain. A statement from Dr. Dowling, dated in October 2007, diagnosed lumbosacral strain, but does not provide any indication as to the etiology of this disorder. Furthermore, the Veteran has submitted a private medical statement from Dr. Yarkin diagnosis the Veteran with a herniated disc, but states that this is mild in nature and would not have been related to the August 1999 in-service injury. Dr. Yarkin, however, does not address the prior diagnosis of lumbosacral strain or the Veteran's complaints of continuous pain. Therefore, the evidence of record brings into question whether there is a current low back disability, which is the result of a disease or injury in service. In accordance with the holding in McLendon, the Veteran must be afforded a VA examination. Accordingly, the case is REMANDED for the following action: 1. The AMC must obtain any outstanding VA treatment records dated from May 2009 to the present. Any response received should be memorialized in the Veteran's VA claims file. 2. The AMC must also contact the Veteran to determine whether he has received any additional private treatment for his back disorder, and if so, take steps necessary to obtain these records. Any response received should be memorialized in the Veteran's VA claims file. 3. After obtaining any available VA and private treatment records, the Veteran should be scheduled for a VA examination to first identify any and all currently diagnosed back disorders. Then, for any diagnosed back disorder, the examiner is asked to determine the likely nature and etiology of each disorder. The VA examiner should thoroughly review the Veteran's claims file and a complete copy of this REMAND in conjunction with the Veteran's examination and note this has been accomplished in the VA examination report. The VA examiner should state whether it is at least as likely as not that the Veteran has a currently diagnosed back disorder that is the result a disease or injury in service. In responding to this question, the VA examiner should address the Veteran's August 1999 in-service low back strain. The VA examiner should remain mindful that, in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the United States Court of Appeals for the Federal Circuit addressed lay evidence as potentially competent to support the presence of a disability, during service and since, even where not corroborated by contemporaneous medical evidence such as treatment records. See also Dalton v. Nicholson, 21 Vet. App. 23 (2007), wherein the Court determined an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and, instead, relied on the absence of evidence in the Veteran's STRs to provide a negative opinion. Accordingly, the examiner must discuss the rationale of the opinion, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record, including the Veteran's competent and credible lay testimony regarding experiencing back pain since service. 4. Thereafter, the AMC must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. Thereafter, readjudicate the claim for service connection for a back disorder on a de novo basis, in light of the additional evidence. If this claim is not granted to the Veteran's satisfaction, he should be issued a supplemental statement of the case and given an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ M.N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs