Citation Nr: 1333221 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 11-15 405 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been submitted sufficient to reopen a claim seeking entitlement to service connection for residuals of bilateral ankle sprains. 2. Whether new and material evidence has been submitted sufficient to reopen a claim seeking entitlement to service connection for a right knee disorder and, if so, whether service connection is warranted. 3. Whether new and material evidence has been submitted sufficient to reopen a claim seeking entitlement to service connection for bilateral pes planus and, if so, whether service connection is warranted. 4. Entitlement to service connection for bilateral plantar fasciitis. 5. Entitlement to service connection for chronic obstructive sleep apnea, to include secondary to a service-connected heart disability. ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from October 1971 to October 1975 and again in the Army from July 1977 to July 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal from September 2009 and July 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The RO reopened the right knee and bilateral pes planus claims and denied them on the merits. In contrast, the RO declined reopening the bilateral ankles claim finding no new and material evidence had been submitted. Regardless of the RO's actions, the Board is required to consider whether new and material evidence has been received warranting the reopening of the previously denied claim. See Barnete v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also 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 the veteran's previously and finally denied claims). Thus, the issues on appeal have been characterized as shown above. The Board notes that the Veteran also has pending appeals seeking increased ratings for a left knee disability, a left elbow disability, and a right foot disability along with pending appeals seeking entitlement to a total disability rating for individual unemployability (TDIU) and seeking entitlement to service connection for a low back disorder and a disorder manifested by cold symptoms. These issues, which were certified to the Board separate from the current appeal, are addressed in a separate Board decision. The merits of the claims seeking service connection for a right knee disability, sleep apnea, bilateral pes planus, and bilateral plantar fasciitis 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. The VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. In a November 1993 rating decision, the RO denied entitlement to service connection for bilateral ankle disabilities; the Veteran was notified of this decision and of his appeal rights, but he did not appeal it to the Board. 2. In a May 2003 rating decision, the RO again denied entitlement to service connection for bilateral ankle disabilities, finding no new and material evidence had been submitted; the Veteran was notified of this decision and of his appeal rights, but did not appeal it to the Board. 3. Evidence received since the May 2003 rating decision does not relate, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claims; is cumulative and redundant of the evidence of record at the time of the last prior final denial of the claims sought to be reopened; and does not raise a reasonable possibility of substantiating the claim for service connection for bilateral ankle disabilities. 4. In an unappealed rating decision issued in December 2007, service connection was denied for a right knee disability and bilateral pes planus. 5. Evidence that is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim was received less than one year after the December 2007 rating decision. 6. In an unappealed rating decision issued in March 2009, service connection was denied for a right knee disability and bilateral pes planus. 7. Evidence that is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim was received less than one year after the March 2009 rating decision. CONCLUSIONS OF LAW 1. The November 1993 and May 2003 rating decisions denying service connection for bilateral ankle disabilities are final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2013). 2. Evidence received since the May 2003 rating decision is not new and material, and the bilateral ankle claims are not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 3. New and material evidence has been submitted to reopen the claim for service connection for a right knee disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 4. New and material evidence has been submitted to reopen the claim for service connection for bilateral pes planus. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Additionally, in March 2006, the Court held that because the terms "new" and "material" in a new and material evidence claim have specific, technical meanings that are not commonly known to VA claimants, when providing the notice required by the VCAA, it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of the evidence that must be presented. To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006). With regard to the bilateral ankles claim, the record reflects that the Veteran was provided all required notice in a pre-adjudication letter mailed in May 2008. With regard to the right knee and pes planus claims, the claims are being reopened here. Thus, any deficiencies in notice are non-prejudicial. The Veteran's service treatment records, private treatment records, and VA outpatient treatment records have been obtained. The Veteran has not identified any additional, existing evidence that could be obtained to substantiate the claims. The Board is also unaware of any such evidence. The Veteran was provided a VA examination with respect to his bilateral ankles in April 2012. The examination report reflects that in addition to examining the Veteran, the examiner reviewed the Veteran's pertinent history and properly supported the conclusion rendered. Therefore, the Board has determined that the examination report is adequate for adjudication purposes. Therefore, the Board is also satisfied that VA has satisfied its duty to assist the Veteran. Accordingly, the Board will address the merits of the claims. New and Material Evidence Legal Criteria Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). An 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. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decision-makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase, "raises a reasonable possibility of substantiating the claim," as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which, "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010); see also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Residuals of Bilateral Ankle Sprains In November 1993, the RO denied service connection for residuals of bilateral ankle sprains finding no evidence of current diagnoses. The Veteran was notified of the decision and his appellate rights, but did not file a notice of disagreement with the decision. Rather, the Veteran filed a new claim in December 2002, which was once again denied in a May 2003 rating decision, finding no new and material evidence had been submitted. The Veteran was notified of the decision and his appellate rights, but did not file a notice of disagreement with the decision At the time of the May 2003 last, final denial, the record contained the Veteran's service treatment records, which confirm "probable ligamentous strain" of the right ankle in February 1987 and other sporadic complaints of foot/ankle pain, but with no abnormality noted on separation. Also of record were post-service VA and private treatment records from 1993 to 2003, which show sporadic complaints of ankle/foot pain, but no actual diagnosis related to the ankles. Evidence received since the May 2003 denial includes additional VA outpatient and private treatment records from 2003 to 2012 and additional statements from the Veteran. Of particular significance, the new evidence includes a March 2012 private treatment record indicating bilateral ankle pain "secondary to" his flat feet with significant hyperpronation. The March 2012 private physician did not diagnose the Veteran with any current ankle disability. Rather, the physician merely noted bilateral ankle "pain." The record also contains an April 2012 VA examination, which further confirms no current diagnosis of the bilateral ankles. The additional VA outpatient treatment records since 2003 merely indicate a pertinent medical history of bilateral ankle pain. None of the new evidence indicates the Veteran actually has a current bilateral ankle diagnosis or had a bilateral ankle diagnosis during any period of his appeal. The Veteran's statements, moreover, merely indicate ongoing pain. None of the evidence added to the record suggests that the Veteran has a current diagnosis. Therefore, the evidence is not new and material. Accordingly, reopening of the claim for service connection for residuals of bilateral ankle sprains is not warranted. Right Knee and Bilateral Pes Planus The Veteran's claims for service connection for a right knee disorder and bilateral pes planus were denied in a December 2007 rating decision. At that time, the RO denied the right knee claim finding no nexus to service, and denied the bilateral pes planus claim finding the condition pre-existed service and was not aggravated therein. The Veteran did not appeal, rather he asked for "reconsideration" in April 2008 including a private opinion dated January 2008 where a private physician opined the Veteran's knee pain is "certainly related" to in-service complaints of knee pain and stiffness as well as the left knee meniscal tear in 1985. The new evidence was received prior to the expiration of the appeal period, and therefore, is considered part of the original claim. See 38 C.F.R. § 3.156(b). The new evidence was considered and the claims were again denied in a March 2009 rating decision. The Veteran again did not appeal, but rather asked for "reconsideration" in a June 2009 statement. At that time, he also submitted an April 2009 private opinion indicating his current complaints of bilateral knee pain and plantar fasciitis. The new evidence was received prior to the expiration of the appeal period, and therefore, is considered part of the original claim. Id. The claims were once again considered and denied in a September 2009 rating decision. The Veteran specifically and timely appealed this rating decision. In light of the January 2008 and April 2009 private opinions submitted, which were not cumulative or redundant of the evidence previously of record, and related to an unestablished fact necessary to substantiate the claims, the evidence is new and material and reopening of the claims is in order. ORDER The Board having determined that new and material evidence has not been received, reopening of the claim for service connection for residuals of bilateral ankle sprains is denied. New and material evidence has been submitted sufficient to reopen a claim seeking entitlement to service connection for a right knee disorder; the claim is reopened, and the appeal is granted to this extent only. New and material evidence has been submitted sufficient to reopen a claim seeking entitlement to service connection for bilateral pes planus; the claim is reopened, and the appeal is granted to this extent only. REMAND The Veteran claims entitlement to service connection for a right knee disorder, sleep apnea, bilateral pes planus, and bilateral fasciitis under a variety of theories. He claims direct service connection indicating the physical demands of active duty caused his problems with his right knee and bilateral feet. In the alternative, he believes his service-connected disabilities caused or aggravated his current disorders. Specifically, with regard to sleep apnea, he believes his service-connected heart disability caused or aggravated his sleep apnea. With regard to his right knee and bilateral feet, he believes in-service injuries, to include his service-connected left knee injury, caused or aggravated his current right knee and bilateral foot disorders. Any disorder that is proximately caused or aggravated by a service-connected disability shall be service-connected. 38 C.F.R. § 3.310 (2013). His service treatment records confirm sporadic complaints of feet pain and right knee pain. While the Veteran was never diagnosed with sleep apnea during his military service, his records confirm sporadic complaints of shortness of breath, upper respiratory infections, and the need to sleep with two pillows. In August 1985, the Veteran indicated he was regularly exposed to steel, painted surfaces, brass, and gas in performance of welding duties, which left him short of breath. Chest x-rays and pulmonary function tests were always within normal limits. With regard to the right knee, service treatment records indicate sporadic complaints of right knee pain in February 1983, for example, and January 1985. The Veteran had extensive treatment and surgery for his left knee, but in contrast, the Veteran was never diagnosed with a right knee disability during his military service. With regard to the both feet, it is well documented that he was treated for and diagnosed with Morton's neuroma of the right foot, which is already a service-connected disability. Additionally, the Veteran was treated for pain on the top of his foot in November 1979 due to his boots being too tight. In March 1981, he complained of pain in the arches of his feet. He was also treated for left foot pain in June 1985. Also of significance, the Veteran's November 1976 enlistment examination (for his second period of duty) indicates asymptomatic bilateral pes planus. Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable (obvious or manifest) evidence demonstrates that the injury or disease (1) existed before acceptance and enrollment and (2) was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. Here, the Veteran's November 1976 military entrance examination notes one bilateral foot abnormality: asymptomatic pes planus. With regard to that one bilateral foot condition, and only that one bilateral foot condition, the Veteran is not entitled to the presumption of soundness. With regard to any and all other foot conditions the Veteran has been diagnosed with since November 1976, however, the presumption of soundness attaches. If a pre-existing disorder is noted upon entry into service (i.e., tinea cruris of the buttocks), the Veteran cannot bring a claim for service connection for that disorder, but he may bring a claim for service-connected aggravation of that disorder. See Jensen v. Brown, 19 F.3d 1413 (Fed. Cir. 1994). Post-service treatment records indicate treatment for right knee degenerative joint disease, severe bilateral pes planus, plantar fasciitis, heel spur, calcaneal spurs, and sleep apnea. In support of his claims, the Veteran has submitted numerous private opinions. In January 2008, for example, the Veteran's private physician opined that the Veteran's current bilateral knee pains are "certainly related" to his in-service complaints and left knee meniscal tear. In June 2008, the Veteran's private physician opined that "it is possible" that the Veteran's sleep apnea may be related to his heart disability. For service connection claims, the duty to assist also include providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. With regard to service connection claims, the Court held in the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), 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 Veteran has never been afforded a VA examination for any of these claims. In light of the medical evidence, service treatment records, and ambiguities in this case, VA examinations are indicated. The VA must also take this opportunity to obtain recent VA outpatient and private treatment records from October 2012 to the present. Accordingly, the case is REMANDED for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims, to include any VA or non-VA facilities at which he received treatment for the disorders at issue since October 2012. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO and any VA facilities identified must provide a negative response if no records are available. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. After the above records are obtained, to the extent available, schedule the Veteran for a VA podiatry examination to determine the current nature and likely etiology of any and all bilateral foot conditions found (aside from Morton's neuroma of the right foot, which is already service-connected). The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. The examiner's attention is specifically directed to the Veteran's November 1976 enlistment examination noting asymptomatic pes planus, in-service treatment for bilateral foot pain, to include arch pain in November 1979 and March 1981, and post-service treatment records indicating treatment for severe bilateral pes planus, plantar fasciitis, heel spurs, and calcaneal spurs. The examiner should conduct a thorough examination and provide a diagnosis for each and every bilateral foot condition found (aside from Morton's neuroma of the right foot, which is already service-connected). Based on examination findings and a review of the record, the examiner must answer the following questions: (a) As to bilateral pes planus, is it at least as likely as not (50 percent probability) that the bilateral pes planus that pre-existed entrance into service was aggravated to a permanent degree during service beyond that which would have been expected given the normal progression of the disability? (b) As to any other bilateral foot condition found (aside from Morton's neuroma): i. Is it at least as likely as not (50 percent probability) that the Veteran's bilateral foot diagnosis had its onset in service in light of in-service treatment and duties? ii. Or, in the alternative, is it at least as likely as not that the Veteran's bilateral foot diagnosis (or diagnoses) was (were) caused or aggravated by any service-connected disability, to include his service-connected left knee disability? The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After the above records are obtained, to the extent available, schedule the Veteran for a VA orthopedic examination to determine the current nature and likely etiology of any right knee condition found. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. The examiner's attention is specifically directed to service treatment records indicating complaints of right knee pain and detailing the Veteran's left knee injury; post-service treatment records; and the January 2008 private opinion indicating a relationship between in-service injury and current right knee degenerative joint disease. The examiner should conduct a thorough examination and provide a diagnosis for any right knee condition. Based on examination findings and a review of the record, the examiner must answer the following questions: (a) Is it at least as likely as not (50 percent probability) that any found right knee diagnosis had its onset in service in light of in-service treatment and duties? (b) Or, in the alternative, is it at least as likely as not that the Veteran's right knee diagnosis (or diagnoses) was (were) caused or aggravated by any service-connected disability, to include his service-connected left knee disability? The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. After the above records are obtained, to the extent available, schedule the Veteran for an appropriate VA examination to determine the likely etiology of the Veteran's chronic obstructive sleep apnea. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. The examiner's attention is specifically directed to service treatment records indicating complaints of shortness of breath, URI, exposure to chemicals, and in-service PFTs; post-service treatment records; and the June 2008 private opinion indicating a relationship between his sleep apnea and his service-connected heart disability. The examiner should conduct a thorough examination and provide a diagnosis for any right knee condition. Based on examination findings and a review of the record, the examiner must answer the following questions: (a) Is it at least as likely as not (50 percent probability) that the Veteran's sleep apnea is directly related to service in light of in-service treatment and duties? (b) Or, in the alternative, is it at least as likely as not that the Veteran's sleep apnea was caused or aggravated by any service-connected disability, to include his service-connected heart disability? The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 5. The RO must notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for an examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The 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 2002). ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs