Citation Nr: 1428034 Decision Date: 06/20/14 Archive Date: 06/26/14 DOCKET NO. 11-01 769 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right knee condition as secondary to bilateral plantar fasciitis. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee condition as secondary to bilateral plantar fasciitis. 3. Entitlement to service connection for a right knee condition as secondary to bilateral plantar fasciitis. 4. Entitlement to service connection for a left knee condition as secondary to bilateral plantar fasciitis. 5. Entitlement to service connection for a low back condition as secondary to bilateral plantar fasciitis. 6. Entitlement to service connection for a right hip condition as secondary to bilateral plantar fasciitis. 7. Entitlement to service connection for a left hip condition as secondary to bilateral plantar fasciitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Chad Johnson, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to May 1972, December 1990 to July 1991, October 1993 to February 1994, and March 2003 to February 2004. This appeal comes to the Board of Veterans' Appeals (Board) from an August 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The issue(s) of entitlement to service connection for bilateral knee and low back conditions as secondary to bilateral plantar fasciitis are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An April 2006 RO decision denied entitlement to service connection for bilateral knee disabilities as secondary to plantar fasciitis. The Veteran did not appeal that decision or submit new and material evidence within the one year appeal period. 2. Evidence received since the April 2006 RO decision that was not previously of record and not cumulative or redundant of evidence already of record, relates to a previously unestablished fact necessary to substantiate the claims of entitlement to service connection for bilateral knee disabilities as secondary to plantar fasciitis and raises a reasonable possibility of substantiating the claims. 3. The Veteran does not have a current bilateral hip disability. CONCLUSIONS OF LAW 1. The April 2006 RO decision denying entitlement to service connection for bilateral knee disabilities as secondary to plantar fasciitis is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2013). 2. New and material evidence sufficient to reopen the previously denied claims of entitlement to service connection for bilateral knee disabilities as secondary to plantar fasciitis has been added to the record. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 3. The criteria for service connection for a right hip disability have not been met. 38 U.S.C.A. § 1110, 1131 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.310 (2013). 4. The criteria for service connection for a left hip disability have not been met. 38 U.S.C.A. § 1110, 1131 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). The RO provided initial notice regarding the Veteran's claim of service connection for bilateral knee disabilities as secondary to plantar fasciitis in January 2006. Thereafter, the RO provided notice regarding the necessity of new and material evidence to reopen the Veteran's claim regarding bilateral knee conditions in a letter sent to the Veteran in March 2010. The March 2010 notice letter also provided notice to the Veteran regarding her claims of entitlement to service connection for low back and bilateral hip conditions. Although this notice covered the general requirements for a service connection claim, it did not specifically address the Veteran's claimed theory of secondary service connection. The Board notes that this is harmless error, as the Veteran was previously provided notice regarding what was required to substantiate a claim of secondary service connection in January 2006, in connection with her claim of a bilateral knee condition; thus, she already had actual knowledge of the requirements to prove her additional claims on a secondary basis. Regarding the duty to assist, the RO has obtained the Veteran's service treatment records, VA treatment records, and private treatment records and associated them with the claims file. The Veteran was afforded a VA examination in February 2011 concerning the claimed disabilities. The Board finds the examination and resulting opinion are adequate as to the issue decided herein. The examiner considered the Veteran's relevant medical history, including the claims file, provided a sufficiently detailed description of the claimed disability, and provided a rationale to support the opinion provided. Neither the Veteran nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required and appellate review may proceed without prejudice to the Veteran. II. New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105(c) (West 2002). However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108 (2013). New evidence is defined as existing evidence not previously submitted to agency decisionmakers, while material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a) (2013). 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. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran's claims of entitlement to service connection for bilateral knee conditions secondary to bilateral plantar fasciitis were denied in an April 2006 RO decision. She did not file a timely appeal or submit any new and material evidence within the one year appeal period; therefore, the April 2006 RO decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103 (2013). Since the prior final April 2006 RO decision, the Veteran was afforded a VA examination regarding the claimed bilateral knee conditions in February 2011. Moreover, since the prior final decision, the Veteran was granted service connection for bilateral plantar fasciitis in November 2011. This evidence is new and material as it was not of record at the time of the last decision and it relates to a material element of the claim for service connection secondary to bilateral plantar fasciitis. As the information submitted since the last final decision constitutes new and material evidence, the claims of entitlement to service connection for bilateral knee conditions secondary to bilateral plantar fasciitis must be reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. III. Service Connection - Bilateral Hip Conditions Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303(a) (2013). "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"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be established on a secondary basis for a disability which is "proximately due to or the result of a service-connected disease or injury". 38 C.F.R. § 3.310(a) (2013). Establishing service connection on a secondary basis requires evidence sufficient to show the following: (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id.; 38 C.F.R. § 3.310(b) (2013). The Veteran claims entitlement to service connection for bilateral hip conditions as secondary to her service-connected plantar fasciitis disability. The Veteran was granted service connection for a bilateral plantar fasciitis disability in a November 2011 RO decision, effective March 22, 2010. In March 2010, she filed the instant claim for service connection for a bilateral hip condition, as secondary to plantar fasciitis. As an initial matter, the Board notes that the Veteran and her representative have not raised a theory of direct service connection for the claimed bilateral hip disability. Service treatment records are negative for history, complaints, or abnormal findings indicative of the presence of a bilateral hip condition or recurrent symptoms of this disorder. Post-service VA treatment records likewise do not document any treatment or diagnosis of a bilateral hip condition. The Veteran does not allege recurrent or continuous symptoms of a bilateral hip condition during service and since service discharge. The Board finds there is no competent and credible lay or medical evidence that establishes that a bilateral hip condition first manifested in service or is otherwise etiologically related to an event or incident in service to warrant service connection on a direct basis. Upon VA examination in February 2011, the Veteran denied any hip pain or complaints in and around the hip joint, groin, posterior, or the trochanteric areas of the hip. The examiner noted that there was no disease of the hips. Further, there was no functional impairment of the hip motion inducing any symptoms of pain. The Veteran displayed full, painless range of motion of the hips, without tenderness upon palpation. The examiner noted that there was no evidence for hip functional impairment and thus, there could be no relationship between the claimed bilateral hip condition and the Veteran's plantar fasciitis. The Court of Appeals for Veterans Claims (Court) has held that Congress specifically limited entitlement to service connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Without competent evidence of a diagnosed disability, service connection for the disorder cannot be awarded. See id.; see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding that a grant of service connection requires that there be a showing of disability at the time of the claim, as opposed to sometime in the distant past). The Veteran is not shown by the competent evidence of record to have a bilateral hip disability at any time during the pendency of the appeal. The Veteran is competent to report observable symptoms, see Layno v. Brown, 6 Vet. App. 465, 470 (1994); however, she is not competent to diagnose a bilateral hip disability as such a disability is not readily observable and requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Moreover, the Board notes that at the February 2011 VA examination, the Veteran specifically denied pain or complaints regarding her hips and the examiner found there was no disease of the Veteran's hips. Therefore, the evidence weighs against the claim that the Veteran has a bilateral hip disability. As the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the claim of service connection for a bilateral hip disability is denied. ORDER New and material evidence having been received, to this extent only, the claim to reopen service connection for a bilateral knee disability is granted. Entitlement to service connection for a right hip condition, to include as secondary to bilateral plantar fasciitis, is denied. Entitlement to service connection for a left hip condition, to include as secondary to bilateral plantar fasciitis, is denied. REMAND A remand is necessary to obtain adequate supplemental medical opinions regarding the Veteran's claims of entitlement to service connection for bilateral knee and low back conditions as secondary to service-connected bilateral plantar fasciitis. I. Bilateral Knee Conditions The February 2011 VA examiner diagnosed the following knee conditions: bilateral patellofemoral syndrome, Baker's cyst of the left knee, medial meniscus (posterior horn) tear of the left knee, cartilaginous defects of the medial, tibial, and femoral compartments of the left knee, and moderately severe osteoarthritis of the left knee. The examiner ultimately rendered an opinion that the Veteran's bilateral knee condition is less likely as not caused by or aggravated by the Veteran's service connected plantar fasciitis. While this opinion addresses both causation and aggravation as required under a secondary theory of service connection, the Board finds that the opinion is of little probative value because the VA examiner did not explain the reasons for his conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). As such, a remand is required to obtain an adequate supplemental opinion supported by a clear rationale. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). II. Low Back Condition The February 2011 VA examiner also diagnosed chronic low back strain which he opined was less likely than not caused by the Veteran's plantar fasciitis, based upon the Veteran's subjective and objective medical history and the findings of the examination. The opinion on this issue focused solely on causation and failed to properly address whether the Veteran's service-connected bilateral plantar fasciitis aggravates his low back condition. Such consideration is required under a theory of secondary service connection claimed by the Veteran. Therefore, the Board finds the February examination to be inadequate; upon remand a supplemental opinion addressing potential aggravation must be obtained. See Barr, 21 Vet. App. at 312. Finally, while on remand, appropriate efforts must be made to obtain any records, whether VA or private, identified and authorized for release by the Veteran. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA or private treatment records identified and authorized for release by the Veteran, and associate such records with the claims file. If no records are obtained, obtain a negative response and associate such response with the claims file. 2. After the above development, return the claims folder to the February 2011 VA examiner, or if he is unavailable, to another equally qualified examiner for review of the claims file. Any additional examination or testing of the Veteran may be conducted, if deemed necessary by the examiner. The examiner must provide adequate supplemental opinions, including a complete rationale for any and all conclusions reached, as to the following questions: a. Is it as least as likely as not (a 50 percent probability or greater) that the Veteran's low back disability is caused by or aggravated by the Veteran's service-connected bilateral plantar fasciitis disability? b. Is it as least as likely as not (a 50 percent probability or greater) that the Veteran's left knee disability is caused by or aggravated by the Veteran's service-connected bilateral plantar fasciitis disability? c. Is it as least as likely as not (a 50 percent probability or greater) that the Veteran's right knee disability is caused by or aggravated by the Veteran's service-connected bilateral plantar fasciitis disability? If the examiner finds that it is as least as likely as not (a 50 percent probability or greater) that any of the above conditions has been aggravated by the Veteran's service-connected bilateral plantar fasciitis disability, the examiner must also provide an opinion as to the baseline level of severity of the condition prior to any such aggravation. The term "aggravated" as used above refers to a permanent worsening of the underlying condition beyond the natural progression of the disease, as contrasted with temporary or intermittent flare-ups of symptomatology which resolve with return to baseline level of disability. 3. Readjudicate the remaining issues on appeal. If any benefit sought on appeal remains denied, the Veteran and her representative should be furnished an appropriate supplemental statement of the case (SSOC) and afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration as appropriate. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs