Citation Nr: 1334734	
Decision Date: 10/30/13    Archive Date: 11/06/13

DOCKET NO.  09-08 480	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas

THE ISSUES

1.  Whether there is new and material evidence to reopen a previously denied claim of entitlement to service connection for bilateral heel spurs.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for right foot disability.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran-Appellant


ATTORNEY FOR THE BOARD

C. Kedem, Counsel


INTRODUCTION

The Veteran served on active duty (AD) from February 1973 to January 1976 and had subsequent periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) from March 1983 to February 2003 in the Army Reserves.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a July 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The RO previously had considered and denied the claim of entitlement to service connection for bilateral heel spurs in a January 2004 rating decision, which since, in the absence of an appeal, had became a final and binding determination based on the evidence then of record.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103 (2013).  In the July 2007 rating decision at issue, also January 2009 statement of the case (SOC) and September 2013 supplemental SOC (SSOC), the RO concluded there was not the required new and material evidence since that earlier decision that would permit reopening this claim.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.  A previously decided claim that since has become a final and binding determination may not be reopened in the absence of new and material evidence.  The United States Court of Appeals for Veterans Claims (Court/CAVC) has held that, regardless of what the RO determined regarding whether there is new and material evidence, so, too, must the Board make this threshold preliminary determination before proceeding further because this initial determination affects the Board's jurisdiction to readjudicate the claim on its underlying merits, meaning on a de novo basis.  Barnett v. Brown, 8 Vet. App. 1 (1995) (citing 38 U.S.C. §§ 5108, 7104(b)), aff'd, 83 F.3d 1380 (Fed. Cir. 1996).  If there is not this required new and material evidence to reopen the claim, whatever the RO may have determined in this regard is irrelevant because further consideration of the claim by the Board is neither required nor permitted.

In support of his claims, the Veteran testified at a hearing at the RO in October 2011 before the undersigned Veterans Law Judge (VLJ) of the Board (Travel Board hearing).  Relevant to that proceeding, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ chairing a hearing fulfill two duties to comply with this VA regulation.  These duties consist of:  (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked.  Here, during the hearing, the presiding VLJ explained the basis of the prior determination denying this and the other claims and discussed the elements of the claims that were lacking to substantiate entitlement to the claimed benefits.  In addition, the VLJ sought to identify any pertinent evidence not then currently of record that might have been overlooked or was outstanding that might tend to substantiate the claims.  Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or otherwise identified any prejudice in the conducting of that hearing.  To the contrary, the hearing focused on the evidence needed to substantiate the claims.  As such, the Board finds that, consistent with Bryant, the presiding VLJ complied with the duties set forth in § 3.103(c)(2).

Also, following the hearing, the Board held the record open an additional 30 days, so until November 27, 2011, to allow the Veteran time to obtain and submit additional supporting evidence.  He did not submit any additional evidence, however, either within this time allotted or even since.  He also did not request more time, such as by filing a motion for an extension.  See Haney v. Nicholson, 20 Vet. App. 301 (2006) (When a VLJ at a hearing exercises discretion to leave the record open for the appellant to submit evidence pursuant to 38 C.F.R. § 20.709, the VLJ must set a deadline as to how long the record will remain open, and if such deadline is not set at the hearing, fair process requires the Board to subsequently set a deadline by which the record will close and notify the appellant of that deadline before the claim can be adjudicated).  The Board therefore proceeded to consider this appeal.


In April 2012, the Board issued a decision denying several other claims that also were on appeal.  However, the Board instead remanded the remaining claims to the RO via the Appeals Management Center (AMC) for further development.

In May 2013, the Board decided one of the remaining claims - denying entitlement to service connection for bilateral hearing loss.  But the Board again remanded the claims for service connection for right foot disability and tinnitus, and concerning the petition to reopen the claim for service connection for bilateral heel spurs.

In this decision the Board is deciding the claims for service connection for tinnitus and determining whether there is new and material evidence to reopen the claim for service connection for bilateral heel spurs.  However, the Board is yet again remanding the claim of entitlement to service connection for right foot disability for still further development and consideration.  As just as previously, the remand of this claim to the RO will be via the AMC.


FINDINGS OF FACT

1.  It is not shown the Veteran's tinnitus is the result of his active military service.

2.  An unappealed January 2004 rating decision denied service connection for bilateral heel spurs because there was no competent and credible evidence then of record indicating this disability was related to the Veteran's service.

3.  The additional evidence received since that January 2004 decision is cumulative or redundant of evidence considered in that decision, does not relate to unestablished facts necessary to substantiate this claim, and does not raise a reasonable possibility of substantiating this claim.



CONCLUSIONS OF LAW

1.  The Veteran's tinnitus was not incurred in or aggravated by his active military service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).

2.  The January 2004 rating decision denying service connection for bilateral heel spurs is a final and binding determination based on the evidence then of record.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2013). 

3.  And there is not new and material evidence since that decision to reopen this claim.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

As provided by the VCAA, VA has duties to notify and assist a claimant in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).


Ideally, this notice should be provided before an initial unfavorable decision on the claim by the RO as the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

Also, in Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that this notice should address all elements of the claim:  (1) Veteran status, (2) existence of a disability, (3) relationship between the disability and service, but also the "downstream" (4) disability rating and (5) effective date in the eventuality that service connection is granted.

As well, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court clarified VA's duty to notify in the context of petitions to reopen previously denied claims.  With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish entitlement to the underlying benefit being sought.  To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and provide the claimant a notice letter describing what evidence would be necessary to substantiate those elements required to establish entitlement to service connection that were found insufficient in the previous denial.  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.  VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006).

To this end, in an August 2005 letter the RO advised the Veteran of the evidence necessary to substantiate a claim of entitlement to service connection, also apprised him of the evidence he was to provide, and of that which VA would obtain for him.  He subsequently was advised of the type of information mandated in Kent by way of a letter dated in October 2005, and in a May 2006 letter he was advised regarding the assignment of "downstream" disability ratings and effective dates to comply with the mandates of Dingess.  All of those notices preceded the initial adjudication of his claims in July 2007, so were in the preferred sequence.

Regarding the additional duty to assist the Veteran in the development of a claim, this duty includes assisting him in the procurement of relevant records, whether from service or since, so including service treatment records (STRs) and post-service VA and private treatment records, as well as providing an examination for a medical opinion when necessary to decide a claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudicing the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO has obtained his STRs from his periods of ACDUTRA and INACDUTRA.  Also in the file are his private medical records and VA medical examination reports.  The STRs from his period of AD are missing, but he was duly advised of their absence and given an opportunity to provide any STRs in his personal possession.  38 C.F.R. § 3.159(c)(2) and (e)(1).

The law provides that when, through no fault of the Veteran, records under the control of the Government are unavailable, the obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened.  See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992).  
To this end, VA must advise the Veteran of his right to support his claim and try and compensate for this missing evidence by submitting alternate sources of evidence, including service medical or personnel statements, or lay evidence such as "buddy" affidavits or statements.  Id.; see also 38 C.F.R. § 3.159(e).  See, too, Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that this heightened duty also includes the obligation to search for alternative records, such as by having the Veteran complete and return VA Form 13055 allowing for the search for evidence from the National Archives and Records Administration (NARA) or for extracts or other evidence from the Surgeon General's Office (SGO)).


The Board must also point out, however, that the O'Hare precedent does not raise a presumption that the missing medical records, if available for consideration, necessarily would support the claim.  That is to say, missing STRs do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim.  The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened.  See Russo v. Brown, 9 Vet. App. 46 (1996).  The case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when a claimant's medical records have been lost or destroyed.  See Ussery v. Brown, 8 Vet. App. 64 (1995).  Thus, missing STRs, alone, while indeed unfortunate, do not obviate the need for the Veteran to still have competent and credible evidence supporting his claim for service connection by suggesting a correlation between his claimed condition and his military service.  See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore, 1 Vet. App. at 406 and O'Hare, 1 Vet. App. at 367).

The Veteran was given opportunity to present evidence and argument supporting his claims during (and even after) his October 2011 hearing before the undersigned VLJ of the Board.  He also was provided VA compensation examinations concerning his claims.  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The examinations and opinions obtained in this appeal are adequate in toto because they are based on a review of the pertinent evidence of record, so the relevant history, also consider the Veteran's statements and physical examination of him, and the findings indicated are fully substantiated.


Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise suggest, the existence of any additional evidence that is necessary for a fair adjudication of the claims that has not been obtained and that is obtainable.  Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claims.  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).

Standard of Review

After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record.  38 U.S.C.A. § 7104(a) (West 2002).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of a matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in Veteran's favor).  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Preliminary Matter

As already acknowledged, the Veteran's STRs are mostly missing - particularly as concerning his AD service, though not also his ACDUTRA and INACDUTRA service.  In June 2007, the RO made a formal finding regarding their unavailability.  And as also already explained, when service records are missing, there is a heightened obligation to assist the appellant in the development of the claim, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule.  Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)).  But, again, the case law does not however lower the legal standard for proving a claim for service connection, just instead increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran.  Russo v. Brown, 9 Vet. App. 46 (1996).

Governing Statutes, Regulations and Cases

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service in the line of duty.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, or this is legitimately questionable, then generally a showing of continuity of symptoms after service is required to support the claim.  38 C.F.R. § 3.303(b).  Showing continuity of symptomatology is an alternative means of showing the disease or injury in service was chronic, i.e., permanent, to in turn link the currently claimed disability to service.

But 38 C.F.R. § 3.303(b) is only applicable to the "chronic diseases" specifically enumerated in 38 C.F.R. § 3.309(a).  See generally Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  These specific diseases, which include arthritis, also may be presumed to have been incurred in service if manifested to the required minimum compensable degree of at least 10-percent disabling within the initial post-service year.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).

So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

The term "active military, naval, or air service" includes AD and any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury, though not also disease, incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training.  38 U.S.C.A. §§ 101(21), (22), (24), 106; 38 C.F.R. § 3.6(a), (d).  See also Brooks v. Brown, 5 Vet. App. 484, 485 (1993).  VA's General Counsel has interpreted that it was the intention of Congress when it defined "active service" in 38 U.S.C.A. § 101(24) to exclude INACDUTRA during which a member was disabled or died due to nontraumatic incurrence or aggravation of a disease process.  VAOPGCPREC 86-90.

Reserve and National Guard service generally means ACDUTRA and INACDUTRA.  ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505.  38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c).  Basically, this refers to the two weeks of annual training, sometimes referred to as "summer camp," which each Reservist or National Guardsman must perform each year.  It can also refer to the Reservist's or Guardsman's initial period of training.

INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505.  38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d).  Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year and is sometimes referred to as "weekend warrior" training.  These drills are deemed to be part-time training.


Generally, an individual who has only Reserve or National Guard service (ACDUTRA or INACDUTRA with no AD) is not a Veteran as legally defined.  In the service-connection context, for example, this means that the presumption of soundness upon entry into service and the presumptive service connection provisions of 38 C.F.R. § 3.307, applicable to AD, would not apply to ACDUTRA or INACDUTRA.  38 U.S.C.A. §§ 1111, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.  Thus, service connection on a presumptive basis is not available where the only service performed is ACDUTRA or INACDUTRA.  See Smith v. Shinseki, 24 Vet. App. 40 (2010) and Biggins v. Derwinski, 1 Vet. App. 474, 476-78 (1991).

So to establish status as a "Veteran" based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA.  38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995).  The mere fact that a claimant has established status as a "Veteran" for other periods of service (e.g., the Veteran's prior period of AD) does not obviate the need to establish that he is also a "Veteran" for purposes of the period of ACDUTRA where the claim for benefits is premised on that period of ACDUTRA.  Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998).

Similarly, in order for him to achieve "Veteran" status and be eligible for service connection for disability claimed during his inactive service, the record must establish that he was disabled from an injury (but not disease) incurred or aggravated during INACDUTRA.  See Id.; Paulson, 7 Vet. App. at 470.

Establishing entitlement to direct service connection generally requires having:  (1) competent and credible evidence confirming the existence of the claimed disability or, at the very least, showing the Veteran has had it at some point since the filing of the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation between the disease or injury in service and the presently claimed disability - which is the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Aside from direct and presumptive service connection, service connection also may be granted on a secondary basis for disability that is proximately due, the result of, or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a) and (b) (2013).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  Harder v. Brown, 5 Vet. App. 183, 187 (1993).

To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) a nexus between the current disability and the service-connected disability.  Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995).

The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine whether the evidence is "credible", or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must additionally determine whether it is also credible).  Only if the evidence is both competent and credible does it ultimately have probative value.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).  The third and final step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).


Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).

Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:  (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

In certain instances, lay evidence has been found competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).

On the other hand, laypersons equally have been found not competent in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).  See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).


When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).  See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation).

Competent medical evidence, as opposed to lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").  As fact finder, when considering whether lay evidence is satisfactory, the Board may not only consider internal inconsistency of statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, but also the Veteran's demeanor when testifying at a hearing when he has testified.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).

In ultimately rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  To this end, the Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id., at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

In deciding these claims, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in exhaustive detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).


Tinnitus

The Veteran asserts that his tinnitus stems from being repeatedly exposed to excessively loud noise during his weapons qualification training while on AD, ACDUTRA, and INACDUTRA.

In May 2012 he was afforded a VA audiologic examination.  Although bilateral (left and right ear) sensorineural hearing loss was diagnosed, the examiner opined that it was unrelated to the Veteran's service and provided explanatory rationale for that unfavorable opinion.  The Board consequently subsequently denied the claim of entitlement to service connection for bilateral hearing loss in a May 2013 decision.

That VA compensation examiner also diagnosed tinnitus, but he indicated the tinnitus was a symptom associated with the Veteran's hearing loss.  The examiner therefore concluded the tinnitus, like the hearing loss, was not associated with noise exposure during the Veteran's service.  She explained, "not threshold in reserves, post-military work in a chemical plant as operator, no specific event linked to onset, they come and go."

Although, as mentioned, the Board denied the claim for hearing loss in May 2013, the Board instead remanded the claim of entitlement to service connection for tinnitus for further development.  The Board noted the Veteran's account of noise exposure from weapons training during his long history of AD, ACDUTRA, and INACDUTRA.  The Board found that the May 2012 VA compensation examiner did not properly take into account the Veteran's reported history of such noise exposure during his service, therefore requiring supplemental comment on this determinative issue of causation.

In an August 2013 addendum, the VA audiologist that performed the May 2012 VA audiologic examination pointed out that the available STRs showed normal thresholds that did not suggest significant shifts and indicated the thresholds were flat, a configuration that was inconsistent with noise-induced shifting.  The Veteran had asserted that weapons fire had caused his hearing loss but could not detail any particular event linked to onset.  So the VA compensation examiner concluded, as there was no shifting in thresholds during the reserves where the Veteran reported that he did more firing than on AD, it was less likely that any shifting would have occurred when he was a weapons clerk while on AD.  With no shifting, no specific event (i.e., an explosion or accident, or single event) linked to onset, normal thresholds measured post AD while in the reserves, it was not likely that his current hearing loss was due to military noise exposure.  The examiner indicated that, "with all the same rationale, with no shifting and no event linked to onset, the same noise is less likely as not the cause of [the Veteran's] tinnitus."

Tinnitus is "a noise in the ear, such as ringing, buzzing, roaring, or clicking.  It is usually subjective in type."  See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (DORLAND'S) 1956 (31st ed. 2007).  See also YT v. Brown, 9 Vet. App. 195, 196 (1996); Kelly v. Brown, 7 Vet. App. 471 (1995) (citing DORLAND'S 1725 (27th ed. 1988)).  Due to the subjective nature of the disorder, the Veteran, as a layman, is competent to attest to its presence.  Falzone v. Brown, 8 Vet. App. 398, 403 (1995).  In other words, tinnitus is amenable to lay observation and diagnosis.  Charles v. Principi, 16 Vet. App. 370 (2002).  The Board also finds no reason to question his credibility regarding its existence.  So there is no disputing he has this claimed condition.  See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998) (in adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence); see also Jefferson v. Principi, 271 F.3d 1072, 1076 (Fed. Cir. 2001) (recognizing the Board's inherent fact-finding ability).

But there still has to be attribution of this condition to his military service and, in particular, to the noise trauma in service he cites as the source or cause of this condition.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").  And it is in this equally critical respect that the evidence is far less favorable to his claim.


While he is capable of providing competent evidence regarding the presence of tinnitus, he is not competent to provide competent evidence regarding its etiology.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), a complex matter such as the origins of tinnitus fall outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).  Because he is incompetent to provide a probative opinion regarding the etiology of his tinnitus, the Board cannot rely on his assertions that it is the result of his noise exposure in service.

The only competent opinions regarding the origins of the Veteran's tinnitus are those of the VA audiologist who performed the May 2012 VA compensation examination and who authored the August 2013 addendum.  According to her, the Veteran's tinnitus is related to his hearing loss, so, like his hearing loss, unrelated to his military service.  Service connection for tinnitus cannot be granted on a secondary basis because the underlying disability, namely, the hearing loss, is not a service-connected disability.  See again 38 C.F.R. § 3.310(a) and (b).

According to the August 2013 addendum, which took into account the Veteran's history of noise exposure during his AD, ACDUTRA, and INACDUTRA service, his tinnitus is unrelated to any period of service - so including to any noise exposure experienced during those periods of service.  The August 2013 medical opinion is fully reasoned and, most importantly, contains the required explanatory rationale, which is where most of the probative value of a medical opinion is derived.  See Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  This unfavorable medical opinion is uncontroverted, so the Veteran's claim of entitlement to service connection for his tinnitus must be denied because the preponderance of the evidence is unfavorable, in turn meaning there is no reasonable doubt that would allow, instead, the granting of this claim.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.


Whether there is New and Material Evidence to Reopen the Claim for Bilateral Heel Spurs

A decision of the RO becomes final and binding and not subject to revision on the same factual basis unless a Notice of Disagreement (NOD) is filed within one year of the notice of the decision.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.201, 20.302, 20.1103.  If a claim has been previously denied and that decision became final and binding, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim.  38 U.S.C.A. §§ 5108, 7105(c); see also Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).

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).

In determining whether evidence is "new and material," the credibility of the new evidence must be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992); Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium); but see also Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible").  The Board also does not have to blindly accept as true assertions that are beyond the competence of the person making them.

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).  In Shade, the Court stated that, when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Id. at 118.  Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim.  In other words, the Court indicated that the post-VCAA version of 38 C.F.R. § 3.156(a) establishes a low threshold for reopening a claim, one that does not require that a claimant submit a medical opinion to reopen a claim.  Rather, if there is newly submitted evidence of current disability that in connection with the prior evidence, raises a reasonable possibility of substantiating the claim, and the element of a nexus could be established by providing a VA examination, the claim may be reopened.  This then triggers VA's duty to assist in providing the claimant with a VA examination.

The Veteran's claim of entitlement to service connection for bilateral heel spurs was last considered and denied by the RO in a January 2004 rating decision.  He was properly notified of that decision by way of a letter dated in February 2004, but he did not appeal.  Hence, that decision is final and binding on him based on the evidence then of record.  See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103.

That January 2004 rating decision denied this claim because there was no evidence etiologically linking his claimed bilateral heel spurs to his military service.

The evidence of record at the time of that January 2004 rating decision did not include his AD STRs.  The evidence did include records showing Reiter's syndrome, right foot dorsal exostosis, a profile due to dorsal right foot exostiosis, and evidence of right foot surgery to remove bone spurs in approximately 2000.


That January 2004 rating decision marks the starting point for determining whether there is the required new and material evidence to reopen this claim.  See Evans v. Brown, 9 Vet. App. 273, 283 (1996) (indicating VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final and binding disallowance of the claim on any basis, so irrespective of whether that denial was on the underlying merits or, instead, a prior petition to reopen the claim).

The additional potentially relevant evidence received since January 2004 includes a March 1983 report of medical history wherein the Veteran denied foot problems, a March 1983 physical examination report reflecting normal feet, a November 1987 medical history report in which he again expressly denied foot problems, a November 1987 medical examination report indicating normal feet, a February 1993 report of medical history in which he yet again denied foot trouble, and a February 1993 examination report indicating normal plantar arches and not mentioning heel spurs.

Also, in May 2012, he was afforded a VA compensation examination of his feet.  As to the right foot, the examiner indicated a diagnosis of symptomatic dorsal osteophytes of the mid foot.  The Veteran reported that he had been placed on profile in his reserves unit due to the osteophytes and that he had undergone surgery for right foot osteophytes in 2000.  Other evidence in the claims file, as mentioned, corroborates this history of a physical profile and of right foot surgery.  The examiner observed scars secondary to the right foot surgery.  The Veteran told the examiner that he recalled no injury to the right foot, and that it merely started to bother him over time.  An X-ray of the right foot showed arthritis.  There were degenerative changes in the right ankle, as well.  The examiner indicated that he had reviewed the pertinent records in the claims file.  But he determined the right foot disability was unrelated to the Veteran's service because there was no evidence of treatment or complaint regarding the right foot while on AD, and no history of injury while on AD, ACDUTRA, or INACDUTRA.  As well, the examiner observed that the available reports of medical history of record and corresponding physical examination reports completed during periods of ACDUTRA and INACDUTRA revealed no complaints or findings regarding the right foot.  Further, the examiner explained that running was not shown to cause arthritis of one foot and not the other.

In June 2013, the Veteran was afforded another VA orthopedic examination.  The diagnosis was bone spurs initially diagnosed in 1999.  The Veteran reported that, in his recollection, he had had this condition since 1996 when he developed a bone spur of the right foot.  He did not recall an injury to the right foot.  He instead reiterated that it merely began bothering him over time.  He had right foot surgery in 1999 or thereabouts because of the bone spurs.  Apparently, he since had had additional right foot surgery in May 2013, also on account of bone spurs and some tendon damage.  An X-ray of his right foot indicated no acute fracture or dislocation.  There were post-surgical changes versus degenerative changes at the dorsal aspect of the second and third tarsometatarsal joints of the right foot.  There was moderate calcaneal enthesopathy with possible plantar fasciitis.  The examiner, however, like the prior examiner, opined that the right foot disability was unrelated to the Veteran's service and unlikely caused by physical exertion or training or repetitive trauma.

First, in explanation, the examiner noted the Veteran had denied trauma, and he was not treated for any foot-related complaints in service or while in the reserves.  The examiner indicated that, one year prior to the onset of joint pain, the Veteran was diagnosed with Reiter's syndrome.  The examiner opined that the bone spur was most likely due to the Reiter's syndrome because the medical literature linked enthesopathy to the development of bone spurs.  The examiner went on to explain that systemic arthritis, such as that from Reiter's syndrome, caused inflammation along the attachment points of tendons and that this phenomenon was called ensethopathy.  According to the examiner, the heel was a common spot for ensethopathy.  Reiter's syndrome was not caused by any physical stressor like exercise.  The onset of the right foot condition and Reiter's syndrome were, according to the examiner, not likely due to injury.  The examiner also observed that Reiter's syndrome had asymmetrical involvement, which explained why one foot was implicated in the Veteran's case.

This additional evidence, especially in combination with the evidence previously of record, is not new and material to this claim.  Specifically, this newly-associated evidence does not suggest the presence of bilateral heel spurs that are a consequence of injury or disease incurred or aggravated during this claimant's AD and ACDUTRA service, or the product of injury during his INACDUTRA service.  Indeed, to the contrary, this additional evidence tends to completely disassociate this claimed disability with all terms of his service.  In any event, his claimed disability is the result of Reiter's syndrome, which has been finally denied in a January 2004 rating decision, and the Board declined to reopen that claim in an April 2012 decision.  The Board's decision subsumed the RO's and, since not appealed, is itself a final and binding determination.  See 38 C.F.R. §§ 20.1100, 20.1104 (2013).  There is no disability other than the finally denied Reiter's syndrome that is said to be the cause of the Veteran's claimed bilateral heel spurs.  The newly-associated evidence, therefore, does not relate to unestablished facts necessary to substantiate this claim (in that there is no present disability that is distinct from one that has been finally denied).  And a present disability is a prerequisite to the granting of a claim for service connection, although the Veteran need only establish the presence of the claimed disability at some point since the filing of his claim, even if now resolved.  The most fundamental requirement for any claim for service connection is that the Veteran must have proof he has the condition claimed.  See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see, too, McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim).


Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in actual disability.  Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998).  A current disability means a disability shown by competent and credible evidence to exist.  Chelte v. Brown, 10 Vet. App. 268 (1997).

Because the heel spurs have been etiologically linked to the Reiter's syndrome, and since there is a final and binding determination denying service connection for the Reiter's syndrome, the additional evidence since the RO's denial of these claims does not raise a reasonable possibility of substantiating them.  Thus, this claim for bilateral heel spurs cannot be reopened.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.

In so concluding, the Board realizes that, under 38 C.F.R. § 3.156(c), if VA receives or associates with the Veteran's file relevant official service department records that existed and had not been associated with the file when VA first decided the claim, VA will reconsider the claim, notwithstanding the previously denied claim, so without the requirement of having to submit new and material evidence to reopen the claim.  In other words, the prior decision is not final and binding.  See Vigil v. Peake, 22 Vet. App. 63 (2008) (indicating unit records provided to the RO by Center for Unit Records Research (CURR) or Joint Services Records Research Center (JSRRC) constituted official service department records of the type contemplated by 38 C.F.R. § 3.156(c), thus requiring de novo review or reconsideration of the claim, rather than as a petition to reopen the claim).  This exception is inapplicable here, however, because the service department records received after the final and binding January 2004 rating decision are not relevant to this claim, as they do not note or concern any heel spurs.



ORDER

The claim of entitlement to service connection for tinnitus is denied.

The petition to reopen the claim of entitlement to service connection for bilateral heel spurs also is denied.


REMAND

Further development is still required concerning the remaining claim on appeal, for service connection for right foot disability other than heel spurs and Reiter's syndrome.

As already alluded to, the Veteran attributes his right foot disability, regardless of the particular diagnosis, to the physical training and activities he did during his service.

In May 2012, he was afforded a VA examination of his feet.  As to his right foot, the examiner indicated a diagnosis of symptomatic dorsal osteophytes of the mid foot.  The Veteran reported that he had been placed on profile in his reserves unit due to the osteophytes and that he had undergone surgery for right foot osteophytes in 2000.  There is other evidence in the file confirming this history of a physical profile and of right foot surgery.  The examiner observed scars secondary to the right foot surgery.  The Veteran told the examiner that he recalled no injury to the right foot, rather, the right foot merely had started bothering him over time.  An X-ray of this foot showed arthritis.  There were degenerative changes in the right ankle, as well.  The examiner indicated that he had reviewed the pertinent records in the claims file, and he opined that the right foot disability was unrelated to this Appellant's service because there was no evidence of treatment or complaint regarding the right foot while on AD, and no history of injury while on AD, ACDUTRA, or INACDUTRA.  As well, the examiner observed that the available reports of medical history and corresponding physical examination reports completed during periods of ACDUTRA and INACDUTRA revealed no complaints or findings regarding the right foot.  Further, the examiner explained that running was not shown to cause arthritis of one foot and not the other.

In June 2013, the Veteran was afforded another VA orthopedic examination.  The diagnosis was bone spurs initially diagnosed in 1999.  The Veteran maintained that, in his recollection, he had had this condition since 1996 when he developed a bone spur of his right foot.  He did not recall an injury to his right foot, however, reiterating instead that it merely had begun bothering him over time.  He had undergone right foot surgery in 1999 or thereabouts because of the bone spur.  Apparently, he since had undergone additional right foot surgery in May 2013, also due to bone spurs and some tendon damage.  An X-ray of the right foot indicated no acute fracture or dislocation.  There were postsurgical changes versus degenerative changes at the dorsal aspect of the second and third tarsometatarsal joints of the right foot.  There was moderate calcaneal enthesopathy with possible plantar fasciitis.  The examiner concluded the right foot disability was unrelated to this claimant's service and was not likely caused by physical exertion or training or repetitive trauma.

First, in explanation, the examiner pointed out that the Veteran had denied trauma, and he was not treated for any foot-related complaints in service or the reserves.  The examiner indicated that, one year prior to the onset of joint pain, the Veteran was diagnosed with Reiter's syndrome.  The examiner opined that the bone spur was most likely due to the Veteran's Reiter's syndrome because the medical literature linked the enthesopathy to the development of bone spurs.  The examiner explained that systemic arthritis, such as that from Reiter's syndrome, caused inflammation along the attachment points of tendons and that this phenomenon was called ensethopathy.  The heel was a common spot for ensethopathy according to the examiner.  Reiter's syndrome was not caused by any physical stressor like exercise.  The onset of the right foot condition and Reiter's syndrome were, according to the examiner, not likely due to injury.  The examiner also noted that Reiter's syndrome had asymmetrical involvement, which explained why one foot was implicated in the Veteran's case.

To the extent the Veteran has right foot osteophytes, service connection for that disability already has been denied.  As well, service connection for Reiter's syndrome already has been denied.  The enthesopathy has been associated with the Reiter's syndrome.  However, the latest radiologic evidence shows the Veteran also might have plantar fasciitis and arthritis of his right foot.  He is claiming entitlement to service connection for right foot disability in general.  He has not limited his pursuit of service connection to right foot osteophytes or to right foot manifestations only associated with Reiter's syndrome.  He cannot be expected, as a lay person, to be able to provide the precise diagnosis of his claimed right foot disability.  In Brokowski v. Shenseki, the Court determined that "[a] claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symptoms of the disability."  Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009).  In Clemons v. Shinseki, the Court explained that, when determining the scope of a claim, the Board must consider "the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that the Secretary obtains in support of that claim."  Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam).  In both Brokowski and Clemons, the Court recognized the need to consider the Veteran's claim in the context of his reported symptoms, not just on the basis of specific diagnoses or how a condition is labeled.  See, too, Robinson v. Nicholson, 21 Vet. App. 545, 552 (2008) (the Board is required to consider all issues raised either by the claimant or the evidence of record).  Consequently, a medical opinion is still needed regarding whether the Veteran has right foot plantar fasciitis and/or arthritis and, if confirmed he does, regarding the etiology of these other disorders - including especially in terms of whether they are related to or the result of his active military service.


Accordingly, this remaining claim is REMANDED for the following additional development and consideration:

1.  Schedule another VA compensation examination of the Veteran's right foot, this time however for a diagnosis of all extant right foot disabilities other than heel spurs/osteophytes and manifestations resulting from Reiter's syndrome.  In particular, the examiner should determine whether the Veteran has right foot plantar fasciitis and arthritis.  And with respect to each right foot disability diagnosed, the examiner must opine regarding the likelihood (very likely, as likely as not, or unlikely) that it is related or attributable to this claimant's service, including especially to the particular type of activity - namely, physical training, etc., - this claimant cites as the source or cause of this present-day disability.

*To reiterate, the medical nexus opinions obtained thus far only have concerned the heel spurs/osteophytes and manifestations of Reiter's syndrome, concluding they are not the result of the Veteran's military service.  So additional comment is not needed concerning their etiologies, only instead regarding the additional right foot disability suggested (plantar fasciitis and arthritis).

In conjunction with the examination, the examiner must review all pertinent documents in the claims file and obtain a thorough history from the Veteran.  See Dalton v. Nicholson, 21 Vet. App. 23 (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied, instead, on the absence of evidence in the STRs to provide a negative opinion). 

It is most essential the examiner discuss the underlying rationale of the opinion, whether favorable or unfavorable to the claim, if necessary citing to specific evidence in the file supporting conclusions.  If the examiner cannot respond without resorting to mere speculation, then discuss why a definitive response is not possible.

2.  Then readjudicate this remaining claim for right foot disability other than heel spurs/osteophytes and manifestations of Reiter's syndrome in light of this and all other additional evidence.  So this readjudication must consider additionally whether service connection is warranted for plantar fasciitis and arthritis.  If this claim continues to be denied, send the Veteran and his representative an SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this remaining claim.

The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding.  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 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 Supp. 2012).



______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs