Citation Nr: 1418620 Decision Date: 04/28/14 Archive Date: 05/06/14 DOCKET NO. 10-32 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence was received to reopen a claim for service connection for rheumatoid arthritis. 2. Whether new and material evidence was received to reopen a claim for service connection for plantar fasciitis. 3. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran served on active duty from May 1990 to July 1990, from September 1990 to July 1991, and from October 2004 to January 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from October 2008 and February 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran was afforded a hearing before the Board in October 2012 and the transcript is of record. The Veteran was advised in a March 2014 letter, however, that the Veterans Law Judge who conducted that hearing is no longer employed by the Board. In March 2014 the Veteran declined the offer for another hearing. A claim for entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is part of an increased rating issue when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The evidence of record indicates that the Veteran is currently employed. As such, the issue of entitlement to a TDIU is not raised by the record at this time. The issue of entitlement to an initial rating in excess of 50 percent for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An October 2008 rating decision denied, in pertinent part, service connection for rheumatoid arthritis and bilateral plantar fasciitis. 2. Evidence received subsequent to the October 2008 RO decision does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for rheumatoid arthritis. 3. Evidence received subsequent to the October 2008 RO decision does, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for bilateral plantar fasciitis. 4. A private podiatrist has essentially indicated that the Veteran's preexisting plantar fasciitis was chronically worsened by his active service. CONCLUSIONS OF LAW 1. The October 2008 RO decision that denied the Veteran's claims of entitlement to service connection for rheumatoid arthritis and bilateral plantar fasciitis is final. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 20.1103 (2013). 2. Evidence received since the October 2008 rating decision is not new and material, and the Veteran's claim of entitlement to service connection for rheumatoid arthritis is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 3. Evidence received since the October 2008 rating decision is new and material, and the Veteran's claims of entitlement to service connection for bilateral plantar fasciitis is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 4. Bilateral plantar fasciitis preexisted active service and was aggravated by active service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1153, 5107 (West 2002 & Supp. 2013); 38 C.F.R. 38 C.F.R. §§ 3.303, 3.304, 3.306(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the favorable decision to reopen and grant the Veteran's claim of service connection for bilateral plantar fasciitis, any deficiency as to VA's duties to notify and assist, as to that issue is rendered moot. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Duty to Notify Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via a letter dated in November 2009 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. The November 2009 VCAA letter contained the information required by Kent v. Nicholson, 20 Vet. App. 1 (2006), regarding reopening a claim. VCAA notice was completed prior to the initial AOJ adjudication of the claim. Pelegrini. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of the claim such that the essential fairness of the adjudication is not affected. Duty to Assist The Veteran's service treatment records are associated with the claims file, as are VA and private medical records. No other outstanding records have been identified that have not otherwise been obtained. In regard to service connection claims, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. In this case, the Veteran's claim is a claim to reopen and, therefore, VA's responsibility extends to requesting evidence from any new source identified by the Veteran, and if that evidence is not new and material, the claim is not reopened, and VA has no further duties to the Veteran with respect to that particular claim. VA does not have a duty to provide the Veteran a VA examination if the claim is not reopened. 38 U.S.C.A. § 5103A(f); 38 C.F.R. § 3.159(c)(4)(C)(iii). During the October 2012 Board hearing, to assist the Veteran, the VLJ asked questions to determine whether any physicians had linked his disability to his military service. Further, the VLJ also asked questions to help direct the Veteran's testimony concerning the length of time he had noticed the various symptoms. These actions fulfilled the duties in Bryant v. Shinseki, 23 Vet. App. 488 (2010), and the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the hearing. As such, the Board finds that, consistent with Bryant, the Board complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claim. Laws and Regulations Pursuant to 38 U.S.C.A. § 7104 and 38 C.F.R. § 3.105, a final decision by the Board may not thereafter be reopened and allowed, in the absence of clear and unmistakable error (CUE), except as provided by 38 U.S.C.A. § 5108, which indicates that "[i]f new and material evidence is presented or secured with respect to a claim, which has been disallowed, the [VA] shall reopen the claim and review the former disposition of the claim." Therefore, once a Board decision becomes final under section 7104, in the absence of CUE, and absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C.A. §§ 5108, 7104; 38 C.F.R. § 3.105. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. Material evidence means existing evidence that, by itself or when considered with the 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). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court of Appeals for Veterans Claims (Court) indicated that new and material evidence could be found where the new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Rheumatoid arthritis An October 2008 RO decision denied, in pertinent part, service connection for rheumatoid arthritis. The October 2008 RO decision noted that the record did not reveal that the Veteran had been diagnosed with rheumatoid arthritis. The additional medical evidence submitted since October 2008 does not show that the Veteran has a current diagnosis of rheumatoid arthritis. An April 2011 VA examination noted that testing was negative for a rheumatoid factor, and X-rays of the knees were negative. The examiner specifically noted that the Veteran has not been diagnosed with "gouty" or arthritis of the knees. The existence of a current disability is the cornerstone of a claim for VA disability compensation. In the absence of proof of a present disability there can be no valid claim. Brammer V. Derwinski, 3 Vet. App. 223, 225 (1992). While the Veteran's private physician in July 2010 noted that the Veteran had knee joint pain, it is important to note that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. Principi, 239 F. 3d 1356 (2001). In sum, the newly received evidence does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim. Accordingly, the evidence received since the denial of the claim in October 2008 is not new and material, and reopening of service connection for the disability of rheumatoid arthritis is not warranted. The Board has been mindful of the "benefit-of-the-doubt" rule, but, in this case, there is not such an approximate balance of the positive and negative evidence to permit a favorable determination. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Bilateral plantar fasciitis An October 2008 rating decision denied a claim for service connection for bilateral plantar fasciitis. The October 2008 RO decision that denied the Veteran's claim of entitlement to service connection for bilateral plantar fasciitis is final. In a May 2012 letter, the Veteran's private podiatrist indicated that the Veteran's plantar fasciitis had been aggravated by his active service from 2004 to 2006. The Board finds that the May 2012 letter pertains to an unestablished fact necessary to substantiate the claim (a link to service), and it, together with the medical records that document chronic plantar fasciitis, raises a reasonable possibility of substantiating the claim. As such, the Board finds that new and material evidence has been received to reopen the plantar fasciitis claim. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Hickson v. West, 12 Vet. App. 247, 253 (1999). VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. See 38 U.S.C.A. § 1111. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the veteran later complains was not detected. The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." 38 C.F.R. § 3.304(b). The law further provides that, if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service incurrence for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case, the provisions of 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306 apply, and the burden falls on the veteran to establish aggravation. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If a presumption of aggravation under section 1153 arises, due to an increase in a disability in service, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417; Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). Bilateral plantar fasciitis was noted on an April 2002 service examination and thus preexisted the Veteran's period of active service that began in October 2004. As plantar fasciitis was demonstrated on examination for induction into service, and the presumption of soundness on induction does not attach as to plantar fasciitis. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). As plantar fasciitis was noted upon entry into service, the burden falls on the Veteran to establish aggravation. Jensen. A review of the Veteran's service medical records does show that the Veteran sought treatment on numerous occasions for his plantar fasciitis symptoms during his October 2004 to January 2006 period of service. A review of the service treatment records taken in the context of the May 2012 letter from the private podiatrist does not allow the Board to find that the increase in plantar fasciitis was due to the natural progress of the disease, and appears far more likely to be related to the rigors of service. 38 U.S.C.A. § 1153; 11; 38 C.F.R. § 3.306. The Board notes that the May 2012 private podiatrist's opinion is uncontradicted. In this regard, while in April 2011 the Veteran underwent a VA examination that was to address the medical matters raised by this appeal, the April 2011 VA examiner did not state whether the Veteran's plantar fasciitis had been aggravated (worsened) by his service. Resolving any doubt that may exist in this case in the Veteran's favor, the Board finds that the competent evidence is at least in equipoise as to whether the Veteran's bilateral plantar fasciitis was chronically worsened during service. As such, service connection for bilateral plantar fasciitis on the basis of aggravation is warranted. ORDER New and material evidence was not received and, therefore, the request to reopen the claim of entitlement to service connection for rheumatoid arthritis is denied. Service connection for bilateral plantar fasciitis, on the basis of aggravation of a preexisting disability, is granted. REMAND As for the issue of entitlement to an initial rating in excess of 50 percent for PTSD, the Board notes the Veteran's claims file contains a July 2013 VA PTSD examination that has not been addressed in a supplemental statement of the case, and the RO's initial review of this evidence (as well as VA records in the Veteran's Virtual VA file) has not been waived. As such, the Board finds that the PTSD initial rating issue should be remanded to the AOJ for review and reconsideration. Accordingly, the case is REMANDED for the following action: 1. RO/AMC should request all VA medical records (not already of record) dated subsequent to November 20, 2013, and associate them with the claims file. 2. The RO/AMC should then, based on all the evidence of record, readjudicate the PTSD initial rating issue on appeal. If the benefit sought is not granted in full, a supplemental statement of the case should be issued, the Veteran and his representative should be afforded the appropriate period to respond, and the case should thereafter be returned to the Board for further appellate review, if in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs