Citation Nr: 1333965 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-13 883 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for glaucoma. 2. Entitlement to service connection for pes planus of the left foot. 3. Entitlement to an initial disability rating in excess of 10 percent for pes planus of the right foot. 4. Entitlement to an initial disability rating in excess of 10 percent for pseudofolliculitis barbae. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1974 to October 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which reopened and denied the Veteran's claim for service connection for glaucoma; a September 2009 rating decision from the Little Rock RO, which granted service connection for pseudofolliculitis barbae (PFB), assigning an initial 10 percent evaluation effective April 2, 1999; and a November 2009 rating decision from the Little Rock RO, which granted service connection for right foot pes planus, assigning an initial 10 percent effective August 21, 2008, and denied service connection for left foot pes planus. In August 2008, October 2009, and April 2010, the Veteran submitted notices of disagreement (NODs) with the denials of service connection for glaucoma and left foot pes planus and the initial evaluations assigned for right foot pes planus and PFB. He subsequently perfected his appeals in March 2010, December 2010, and February 2012. The Board notes that the Veteran submitted an NOD with the effective date assigned for the grant of service connection for right foot pes planus in February 2010. The RO granted an earlier effective date of August 31, 2007 in a March 2010 rating decision and issued a statement of the case. However, the Veteran did not perfect an appeal for this issue. Rather, in an April 2010, he expressly indicated that he wished to withdraw this appeal. As such, this issue is not before the Board. In August 2012, the Veteran presented sworn testimony during a Travel Board hearing in Little Rock, Arkansas, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. To establish jurisdiction over the issue of entitlement to service connection for glaucoma, the Board must first consider whether new and material evidence has been received to reopen the claim. See 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013). The Board must proceed in this fashion regardless of the RO's actions. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92. As discussed fully under the analysis section, new and material evidence has been received sufficient to reopen the claim for service connection for glaucoma. As the Veteran is challenging the disability rating assigned for his right foot pes planus, and the record raises assertions that he is unemployable at least in part due to this service-connected disability, the determination as to whether he is entitled to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is part and parcel of the determination of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). While the Board has jurisdiction over this matter, the claim for TDIU is remanded to the RO for further development, as discussed more fully below. The issues of entitlement to service connection for glaucoma, increased initial ratings for pes planus of the right foot and PFB, and TDIU 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. VA will notify the Veteran if further action on his part is required. FINDINGS OF FACT 1. In rating decision dated in November 1998, the Veteran's claim of entitlement to service connection for glaucoma was denied on the basis that there was no evidence of glaucoma in service or linking the Veteran's glaucoma to service; although the Veteran submitted a notice of disagreement, he did not perfect an appeal for this claim. 2. Evidence submitted subsequent to the RO's November 1998 decision bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim of entitlement to service connection for glaucoma. 3. The Veteran's currently diagnosed pes planus of the left foot is the result of his military service. CONCLUSIONS OF LAW 1. The November 1998 decision denying service connection for glaucoma is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.104(a), 20.1103 (2013). 2. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for glaucoma has been submitted. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156(a) (2013). 3. Pes planus of the left foot was caused or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's application to reopen his previously denied claim for service connection for glaucoma and his claim for service connection for pes planus of the left foot, this application and claim are being granted, as is discussed in detail below. As such, the Board finds that any error related to the VCAA is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claims A. New and Material Evidence The initial issue before the Board is whether new and material evidence has been received sufficient to reopen the Veteran's previously denied claim of entitlement to service connection for glaucoma. After a review of the evidence of record, the Board finds that new and material evidence has been submitted with regard to this claim. Where service connection for a disability has been denied in a final decision, a subsequent claim for service connection for that disability may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. As noted above, the Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett, supra. If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. See Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Id. at 1384; see also Butler v. Brown, 9 Vet. App. 167, 171 (1996). New evidence means 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. See 38 C.F.R. § 3.156(a) (2013). According to the United States Court of Appeals for Veterans Claims (Court), the pertinent VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). "[T]he determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim, in the final sentence of 38 C.F.R. § 3.156(a), does not create a third element in the reopening process but is a component of the question of what is new and material evidence, rather than a separate determination to be made if evidence is new and material." See Shade v. Shinseki, 24 Vet. App. 110 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). The Court further explained in Shade that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element. The newly presented evidence need not be probative of all the elements required to award the claim, just probative of each element (or at least one element) that was a specified basis for the last disallowance of the claim. See Evans, supra at 283; see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant the claim). The Veteran previously sought service connection for glaucoma. He filed his original claim of entitlement to service connection in January 1998. A November 1998 rating decision from the VA RO in North Little Rock, Arkansas denied the Veteran's glaucoma claim on the basis that the evidence did not establish an in-service injury or a medical nexus between the Veteran's service and his currently diagnosed glaucoma. At the time of the November 1998 rating decision, statements from the Veteran, service treatment records, and a May 1998 VA examination were considered. The Veteran did file an NOD as to the denial of service connection, but did not perfect an appeal after the RO issued a statement of the case in April 1999. The November 1998 RO decision is the last final denial of this claim. The new evidence submitted since the November 1998 denial consists of additional statements from the Veteran and his friends and family, VA treatment records, and a July 2009 VA examination. Notably, new statements from the Veteran indicate that he experienced headaches and vision problems in service that he believes were early symptoms of his early glaucoma. Additionally, he claims that he got "Magic Shave" in his eyes in service which he alternatively claims could have caused his glaucoma. Finally, he has indicated that he was diagnosed with glaucoma within a year of separation from service. See Veteran statement, June 2012. These statements suggest that the Veteran had in-service symptoms of an eye problem and a possible diagnosis shortly after service. As noted above, these statements must be presumed credible at this juncture. See Justus, supra. Accordingly, the Board concludes that these statements satisfy the low threshold requirement for new and material evidence. See Shade, supra. The claim for service connection for glaucoma is reopened. B. Service Connection The Veteran alleges that he currently suffers from pes planus of the left foot that is a result of his active military service. Therefore, he believes service connection is warranted. The Board notes that he has already been granted service connection for pes planus of the right foot based on the same contentions. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Essentially, in order to establish service connection for a disability, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The medical evidence reveals that the Veteran has been diagnosed with pes planus of the bilateral feet. Notably, an August 2009 VA examiner diagnosed him with mild pes planus bilaterally. As such, the first element of Hickson is met for pes planus of the left foot. The Veteran's service treatment records are negative for any findings of pes planus of the left foot. However, he complains of left foot pain in service, despite the lack of documentation. Additionally, the August 2009 VA examiner concluded that it was as likely as not that the Veteran had left foot pes planus in service even though it was not noted. The examiner explained that, without the Veteran expressing any left foot complaints, the examining physician likely did not closely examine his left foot for pes planus. In light of the examiner's opinion and the Veteran's reports of in-service left foot pain, the Board finds that in-service complaints can be conceded and the second element of Hickson is also met. With respect to the remaining element (a medical nexus), the August 2009 VA examiner concluded that the Veteran at least as likely as not had mild asymptomatic pes planus in service, despite the lack of in-service complaints for the left foot. Additionally, an August 2011 VA examiner specifically addressed whether the Veteran's left foot pes planus was related to his military service. The August 2011 examiner concluded that it was likely that the Veteran had the same pes planus condition in his left foot in service as he did in his right foot. Although the Veteran's left foot pes planus was apparently asymptomatic at the time of his military service, the examiner essentially concluded that it was the same condition as the Veteran is already service connected for in the right foot. As the examiner concluded that the Veteran's right and left pes planus were both likely present in service, the Board sees no reason that service connection should be granted for only the right foot. Thus, affording the Veteran the full benefit of the doubt, the Board finds that the August 2011 VA examiner's opinion supports a finding of service connection for pes planus of the left foot. The Board notes that the Veteran has been afforded other VA foot examinations, including in November 2011 and July 2012 VA. However, the Board has not found these examinations/opinions to be sufficiently probative negative evidence to outweigh the August 2011 positive VA opinion. As the claim is being granted, the Board deems any further conversation of any contradictory medical evidence irrelevant. In light of the August 2011 positive VA opinion linking the Veteran's military service and his left foot pes planus and the lack of sufficiently probative medical evidence to contradict this, the Board finds that the medical evidence in this case is, at minimum, in equipoise regarding the question of whether the Veteran's current pes planus of the left foot is related to his active duty. As such, the benefit-of-the-doubt will be conferred in the Veteran's favor and his claim for service connection for pes planus of the left foot is granted. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER As new and material evidence has been received with regard to the previously denied claim of entitlement to service connection for glaucoma, to this extent only, the appeal is granted. Entitlement to service connection for pes planus of the left foot is granted. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the readjudication of his reopened claim of entitlement to service connection for glaucoma, his claim for increased initial ratings for pes planus of the right foot and PFB, and his claim for TDIU. Initially, a review of the Veteran's electronic and paper claims file reveals that several pieces of new evidence have been associated since the most recent supplemental statement of the case in April 2012. Specifically, several VA treatment records address his bilateral feet, PFB, and glaucoma and a July 2012 VA examination addressed his bilateral feet. It does not appear that the RO has readjudicated any of the Veteran's claims on appeal following the addition of this new evidence. Although this new evidence is pertinent to the Veteran's claims for increased ratings for PFB and right foot pes planus and his reopened claim for service connection for glaucoma, there is no supplemental statement of the case to indicate that it has been reviewed by the Agency of Original Jurisdiction (AOJ). In these circumstances, the law requires that the Board return the appeal to the AOJ for initial consideration of the new evidence. See Disabled American Veterans, et al. v. Secretary of Veterans Affairs (DAV), 327 F.3d 1339 (Fed. Cir. 2003); 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1304(c) (2013). Additionally, the Board notes that the Veteran has submitted a release of information for multiple providers in Chicago who he claims treated his glaucoma, including Dr. L. M., Mode Optical, and Dr. R. D. See VA Form 21-4142, June 2012. The RO has not attempted to obtain these records. On remand, the AMC should attempt to obtain these records. The Veteran has also indicated that he had treatment for his glaucoma in Chicago in the 1970s. It is unclear whether he is referring to VA or private treatment. See BVA hearing transcript, June 2012. VA has an obligation under the VCAA to associate all relevant records in VA's possession with the claims file of a veteran. See 38 C.F.R. § 3.159 (2013). On remand, the AMC should also attempt to clarify whether this is VA treatment and obtain any outstanding VA treatment records. As noted above, the Veteran has claimed that he is unemployed, at least in part, due to his service-connected pes planus. He also claims that his unemployment is related to his now service-connected left foot pes planus and his glaucoma, which has been remanded for additional development herein. As the readjudication of the claims for an increased initial rating for right foot pes planus and service connection for glaucoma and the implementation of the Board's grant of service connection for left foot pes planus may affect his claim for TDIU, these issues are inextricably intertwined. As such, the claims for service connection for glaucoma and an increased initial rating for pes planus of the right foot must be readjudicated and the Board's grant of service connection for pes planus of the left foot must be implemented prior to the readjudication of the TDIU claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Holland v. Brown, 6 Vet. App. 443 (1994); Henderson v. West, 12 Vet. App. 11 (1998). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records relating to the Veteran's disabilities on appeal from the Chicago VAMC, Little Rock VAMC, Memphis VAMC, and any other VA facilities identified by the Veteran. The Board is particularly interested in any records relating to treatment for glaucoma or the eyes in the 1970s at the Chicago VAMC. 2. Attempt to obtain records from the private providers mentioned in the Veteran's June 2012 VA Form 21-4142, including Dr. L. M., Mode Optical, and Dr. R. D., and associate them with the claims file. Obtain a new release of information from the Veteran as necessary. All attempts to obtain such records should be documented in the claims file. 3. Review the all evidence added to the Veteran's electronic and paper claims file since the April 2012 supplemental statement of the case and complete any additional development deemed necessary, including scheduling any appropriate VA examinations. 4. After completing the above actions, the Veteran's claims of entitlement to service connection for glaucoma and for increased initial ratings for pes planus of the right foot and PFB should be readjudicated. Thereafter, and following the implementation of the Board's above grant of service connection for pes planus of the left foot, readjudicate the claim for TDIU. If any of the claims remains denied, a supplemental statement of the case should be provided to the Veteran. After he has had an adequate opportunity to respond, all issue(s) properly on appeal should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the rating of the claim on the evidence of record if it is an original claim or denial if it is a claim to reopen or for increase. See 38 C.F.R. § 3.655(b) (2013). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2013). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs