Citation Nr: 1323888 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 05-27 717 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for athlete's foot. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for anemia. 4. Entitlement to service connection for sinusitis. 5. Entitlement to service connection for bilateral foot condition. 6. Entitlement to service connection for bilateral knee condition. 7. Entitlement to service connection for a lumbar spine disability. 8. Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and her spouse ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from April 1984 to November 1984 and from September 1990 to June 1991, including service in Southwest Asia (Saudi Arabia) from November 1990 to May 1991, with additional periods of service in the Army National Guard. This matter has come before the Board of Veterans' Appeals (Board) on appeal from December 2004, and June 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. The RO's December 2004 rating decision denied service connection for status post lumbar laminotomy, cervical spine myofascial pain, hypertension, and residuals of a muscle injury. It also denied the Veteran's attempts to reopen previously denied claims of service connection for a skin condition and athlete's foot. The RO's June 2009 rating decision denied service connection for bilateral foot condition and arthritis of the bilateral knees. The Veteran was granted service connection for migraines in a June 2012 rating decision. This represents a full grant of the benefits sought with regard to the issue of headaches/migraines. Thus, that claim is no longer before the Board. In May 2008, the Board reopened the issue of entitlement to service connection for a skin disorder and remanded the underlying claim. The Board's decision also remanded the remaining claims seeking entitlement to service connection for lumbar spine disorder, cervical spine disorder, hypertension, and residuals of muscle injury, and the claim to reopen the issue of entitlement to service connection for athlete's foot for further development. During the pendency of the appeal, the Veteran was granted service connection for fibromyalgia and eczema. See June 2012 and October 2010 rating decisions. These decisions represent full grants of the benefit sought with regard to the issue of muscle injury and skin disorder. Thus, those issues are no longer before the Board. The Veteran testified at a video conference hearing before the undersigned Acting Veterans Law Judge in September 2012. A transcript of the hearing is associated with the claims file. This appeal was processed in part by using the Virtual VA paperless claims processing system. The documents contained in this system, including the hearing transcript, were reviewed in conjunction with this appeal. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The issues of entitlement to service connection for hypertension, anemia, sinusitis, bilateral foot condition, bilateral knee condition, a lumbar spine disability, and a cervical spine disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In an unappealed January 2001 rating decision, the Veteran's claim to reopen the issue of entitlement to service connection for athlete's foot was denied. Since the January 2001 rating decision, evidence has been received which is both new and material to this issue. 2. The Veteran's current athlete's foot can not be reasonably disassociated from her military service. CONCLUSIONS OF LAW 1. Since the January 2001 rating decision, new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for athlete's foot. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 2. Athlete's foot began in service. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board awards service connection for athlete's foot which represents a complete grant of the benefit sought on appeal. As such, no discussion of VA's duty to notify and assist is necessary. Since the most recent denial in January 2001, the Veteran has submitted additional records including a May 1998 service treatment record. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c). The Board notes that this service treatment record existed at the time of both the January 2001 and April 1999 rating decisions, which denied the Veteran's claim to reopen the issue. Prior to May 1998, the last final denial of the Veteran's claim for athlete's foot was a December 1992 rating decision denying the claim on the merits. Thus, the question of new and material evidence will focus on the unappealed December 1992 rating decision. The Veteran was originally denied service connection for athlete's foot in a September 1992 rating decision. VA then received the Veteran's service treatment records from her National Guard service and issued a December 1992 rating decision reflecting these additional records. The Veteran did not appeal this rating decision and so it became final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.202, 20.302(b), 20.1103. Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. All evidence submitted by or on behalf of a claimant since the most recent final denial must be reviewed to determine whether the claim should be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and the phrase "raises a reasonable possibility of substantiating the claim" is "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). At the time of the December 1992 rating decision, the evidence of record did not include evidence of an in-service onset of athlete's foot. Evidence received since the last prior denial includes lay evidence of the Veteran's continued symptoms and the May 1998 service treatment record mentioned above. Moreover, the May 1998 service treatment record shows that this dermatology consultation was given in response to a November 1992 request that noted the Veteran's complaints of chronic foot rash since her service in the Persian Gulf. As such, new and material evidence has been received that relates to unestablished facts and may provide a reasonable possibility of substantiating the claim. See Shade, 24 Vet. App. 110. Accordingly, the Board concludes that the criteria for reopening the Veteran's claim of service connection for athlete's foot have been satisfied. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. In order to establish service connection, the facts, as shown by evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. §§ 1110 , 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). Direct service connection requires competent and credible evidence of a current disability; competent and credible evidence of an in-service occurrence or aggravation of a disease or injury; and a nexus between the in-service injury and the Veteran's current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Alternately, service connection may be granted upon a finding of continuity of symptomatology, not necessarily continuity of treatment, between a current disorder and service. 38 C.F.R. § 3.303(b); see also Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). A layperson is competent to report on the onset and continuity of observable symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). During the pendency of the appeal, the Veteran has reported skin discoloration and peeling on her feet. See e.g., February 2004 statement, October 2004 VA treatment record. A July 2009 VA treatment record notes the Veteran's symptoms and determined that it was most likely tinea pedis (athlete's foot). Thus, the current disability requirement of a service connection claim has been met here. The Veteran has consistently reported an in-service onset of athlete's foot. The Board finds that she is competent to observe the symptoms of athlete's foot and that her lay statements regarding this condition are credible. Therefore the in-service occurrence requirement of a service connection claim has been met. The August 1992 VA examiner diagnosed the Veteran with chronic tinea pedis and referred to the Veteran's reports of recurrent outbreaks since her active duty service in Saudi Arabia. Since that time, the treatment records and lay statements corroborate the Veteran's complaints of recurring bouts of tinea pedis. Thus continuity of symptomatology is established and the benefit sought on appeal is accordingly granted. ORDER Service connection for athlete's foot is granted. REMAND Deployment Records A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Where the remand orders of the Board were not complied with, the Board itself errs in failing to ensure compliance. In such situations, the Board must again remand the case for compliance with the remand orders. The May 2008 remand instructions asked that the Veteran's complete service medical records and complete service personnel records, including those related to her service from September 20, 1990 to June 27, 1991, be obtained and associates with the file. The record indicates that a records request form was completed, but there is no evidence of a response received. While some of the Veteran's service treatment records are contained in the claims file, there is a notable absence of records from her deployment in the Persian Gulf from November 1990 to May 1991. Dental records dated May 30, 1991, reference a demobilization examination. A full demobilization examination is not of record, but there is an undated one-page "Southwest Asia Demobilization/Redeployment Medical Evaluation" that contains a blood pressure reading, height, weight, pulse, and the Veteran's answers to six health questions including her negative response to the question "What diseases or injuries did you have while in the Southwest Asia Region?" The Veteran is seeking service connection for multiple joint injuries that she relates to a motor vehicle accident during her deployment, for which she reports receiving treatment. Thus records from this period showing the extent of her injuries and the associated treatment is necessary to aid examiners in determining whether the Veteran's current joint complaints are related to this injury. The Board notes that the Veteran provided the date of this accident as January 16, 1991, in conjunction with an earlier claim for posttraumatic stress disorder. Examinations The duty to assist requires that a VA medical examination be provided or medical opinion obtained if there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) otherwise insufficient competent medical evidence of record to make a decision on the claim. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the record shows treatment for possible sinusitis during the Veteran's first period of active duty service (May 1984) and current sinus complaints. The Veteran has provided lay evidence that her sinus complaints date back to her service. The existing medical opinion (February 2012) addresses only chronicity of sinusitis and a relationship between the Veteran's current complaints and her Gulf War service. The record does not contain an opinion on whether there is a causal relationship between the Veteran's current complaints and her documented in-service complaints in May 1984. Thus an opinion is necessary. Similarly, the Veteran has provided evidence of recurrent foot, knee, lumbar spine, and cervical spine symptoms. Likewise, she has provided lay evidence on an in-service motor vehicle accident and repetitive injuries due to walking long distances in boots and heavy lifted, which she associates with the onset of these symptoms. The Veteran has also submitted a February 2013 private opinion relating her current back pain to her reported in-service motor vehicle accident, for which she reported receiving treatment in-service and returning to duty. Absent records of this accident, the probative value of this opinion cannot be determined. Additionally, the Board notes that the Veteran was injured in a March 1996 motor vehicle accident post-service. This opinion does not reflect a review of either the claimed in-service treatment. Furthermore, despite being issued by a physician in the same facility as the Veteran sought treatment for her back symptoms following the March 1996 motor vehicle accident, no reference is made to this or the Veteran's other reported post-service injuries contained in that facilities treatment records. Thus, this opinion is not sufficient and a medical examination and opinion are necessary. The Board notes that the Veteran's claims are complicated by her service connected fibromyalgia in that the pain associated from that disability may be indistinguishable from the pain associated with these claimed disabilities. Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Records Center (NPRC) in St. Louis, Missouri, the service department, or other appropriate source, with a request for the Veteran's entire service personnel and treatment records, including those related to her service from September 20, 1990 to June 27, 1991. Efforts must be undertaken to secure and associate with the record all necessary documentation to corroborate the Veteran's claim to have been in a motor vehicle accident during her service in Saudi Arabia. If any pertinent record is not available, or if the search for the records yields negative results, the RO must specifically document the attempts that were made to locate them. The RO must also explain in a written unavailability memorandum why further attempts to locate or obtain any government records would be futile, which must be associated with the Veteran's claims file. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Thereafter, schedule the Veteran for a VA medical examination to determine the nature and etiology of any current sinus condition. The claims file, including the additional records contained in the Virtual VA paperless claims file, must be reviewed in conjunction with the examination. All indicated tests and studies should be conducted. Specifically, the VA examiner should address the following questions: a. Does the Veteran currently have a sinus disability? b. If so, is it at least as likely as not (50 percent probability or more) that any such current sinus disability had its onset in service, had its onset in the year immediately following any period of service, or is otherwise the result of a disease or injury in service? The examiner should provide all examination findings, along with the complete rationale for each opinion expressed and conclusion reached. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so much be provided. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. 3. After completion of paragraph 1, schedule the Veteran for an orthopedic examination or examinations to determining the nature and etiology of her claimed bilateral foot, bilateral knee, lumbar spine, and cervical spine disorders. The claims file, including the additional records contained in the Virtual VA paperless claims file, must be reviewed in conjunction with the examination. All indicated tests and studies should be conducted. Specifically, the VA examiner should address the following questions: a. Does the Veteran currently have a bilateral foot disability (other than athlete's foot and fibromyalgia symptoms in the feet)? If so, is it at least as likely as not (50 percent probability or more) that any such current bilateral foot disability had its onset in service, had its onset in the year immediately following any period of service, or is otherwise the result of a disease or injury in service? b. Does the Veteran currently have a bilateral knee disability (other than fibromyalgia symptoms in the knees)? If so, is it at least as likely as not (50 percent probability or more) that any such current bilateral knee disability had its onset in service, had its onset in the year immediately following any period of service, or is otherwise the result of a disease or injury in service? c. Does the Veteran currently have a lumbar spine disability (other than fibromyalgia symptoms)? If so, is it at least as likely as not (50 percent probability or more) that any such current lumbar spine disability had its onset in service, had its onset in the year immediately following any period of service, or is otherwise the result of a disease or injury in service? d. Does the Veteran currently have a cervical spine disability (other than fibromyalgia symptoms in the knees)? If so, is it at least as likely as not (50 percent probability or more) that any such current cervical spine disability had its onset in service, had its onset in the year immediately following any period of service, or is otherwise the result of a disease or injury in service? In providing the above opinions, the examiner is also directed to review the treatment records related to the Veteran's post-service motor vehicle accident in March 1996. The examiner should provide all examination findings, along with the complete rationale for each opinion expressed and conclusion reached. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so much be provided. 4. Thereafter, review the claims file and readjudicate the Veteran's claims. If any of the benefits sought on appeal remain denied, the Veteran and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ WILLIAM YATES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs