Citation Nr: 1510346 Decision Date: 03/12/15 Archive Date: 03/24/15 DOCKET NO. 12-26 511 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for residuals of a right foot fracture, and if so, whether service connection for residuals of a right foot fracture, to include arthritis, functional loss, and broken toes, is warranted. 2. Whether new and material evidence has been received to reopen a claim for service connection for residuals of a left foot fracture, and if so, whether service connection for residuals of a left foot fracture, to include arthritis, functional loss, and broken toes, is warranted. 3. Whether new and material evidence has been received to reopen a claim for service connection for posttraumatic stress disorder (PTSD), and if so, whether service connection for a psychiatric disorder, to include PTSD, anxiety, and depression is warranted. 4. Entitlement to service connection for hyperkeratosis tissue, claimed as secondary to broken toes. 5. Entitlement to service connection for pes planus (collapse of medial arch). 6. Entitlement to service connection for residuals of a left ankle injury. 7. Entitlement to service connection for a right ankle disability. REPRESENTATION Appellant represented by: Robert Norris, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1979 to February 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In June 2014, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In conjunction with the hearing, the Veteran submitted new evidence, accompanied by a waiver of RO consideration. 38 C.F.R. § 20.1304. The Board notes the July 2012 statement of the case had multiple issues that essentially address residuals of injury to the feet. As indicated to the Veteran and his attorney during the hearing, the Board has combined several of the issues pertaining to the feet, for simplification. The issues, as amended, are listed on the cover page. The claims for service connection are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A November 2006 rating decision denied service connection for PTSD and declined to reopen claims for service connection for residuals of right and left foot fractures. The Veteran did not appeal that decision and no new and material evidence was received within one year of the decision; the decision is final. 2. The evidence submitted since the prior final denial relates to unestablished facts and raises a reasonable possibility of substantiating the claims for service connection for a psychiatric disability and residuals of right and left foot fractures. CONCLUSIONS OF LAW 1. New and material evidence has been submitted, and the Veteran's claim of entitlement to service connection for a psychiatric disability is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014). 2. New and material evidence has been submitted, and the Veteran's claim of entitlement to service connection for residuals of a right foot fracture is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014). 3. New and material evidence has been submitted, and the Veteran's claim of entitlement to service connection for residuals of a left foot fracture is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In a November 2006 rating decision the RO denied the Veteran's claim for service connection for PTSD because there was no current diagnosis of PTSD and no verified stressor. The same rating decision also declined to reopen claims for service connection for residuals of right and left foot fractures (previously denied on the merits in a March 2003 rating decision), finding that new and material evidence had not been submitted. Specifically, the RO found that there was no current diagnosis of right and left foot disabilities. That November 2006 decision became final because no notice of disagreement or new and material evidence was submitted within one year of the date on which notice of the decision was issued. See 38 C.F.R. § 20.1103 (2014); see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, 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 (West 2014). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative, nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Since the prior final denial, new evidence has been added to the claims file that is material to the Veteran's psychiatric and foot claims. Specifically, VA treatment records dated in December 2010 show a diagnosis of "DEPRESSION/PTSD." Additionally, VA treatment notes dated in September 2011 show ongoing complaints of foot pain and an appointment for foot imaging. The Board also notes that a recently-associated VA treatment record dated in September 1997 shows a podiatry assessment of "DJD" [degenerative joint disease]. When presumed credible, the new evidence establishes current psychiatric disability and the possibility of current foot disabilities. Thus, the evidence is also material. Accordingly, the Board finds that the Veteran has submitted new and material evidence sufficient to warrant reopening his claim for service connection for a PTSD and residuals of right and left foot fractures. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. ORDER The claim for service connection for a psychiatric disability is reopened, and to that extent only, the appeal is granted. The claim for service connection for residuals of a right foot fracture is reopened, and to that extent only, the appeal is granted. The claim for service connection for residuals of a left foot fracture is reopened, and to that extent only, the appeal is granted. REMAND Having reopened the claims for service connection for PTSD and residuals of right and left foot fractures, the Board finds that remand is necessary for further development prior to adjudication of those claims, as well as the other service connection claims on appeal. The Veteran has submitted evidence that he was awarded disability benefits from the Social Security Administration (SSA) in July 2011 due, in part, to his psychiatric disability and arthritis. The award letter also makes reference to his claimed bilateral foot and ankle disabilities. Therefore, SSA records should be requested on remand. Additionally, any outstanding VA treatment notes should be requested. The Veteran testified in July 2014 that he receives ongoing treatment; however, no records dating after January 2012 have been obtained. Additionally, the statement of the case included reference to "electronic review" of VA treatment records from the Chicago VA Medical Center (VAMC) for the period from April 12, 1999 to February 17, 2006 and September 5, 1997 to May 8, 2009; "electronic review" of treatment records from VAMC Birmingham from April 26, 2009 to January 25, 2012; and "electronic review" of VA treatment records from VAMC Jackson from September 11, 2007 and November 5, 2007. However, it does not appear that these records were included in the paper claims file or electronic claims file. Such records should be associated with the claim file to permit Board review. In October 1979, during service, the Veteran reported that he went to the Emergency Room (ER) after his right foot was run over by a car. An attempt to obtain the ER hospital record should be made on remand. Finally, the Board finds that the Veteran should be afforded VA examinations relating to his psychiatric, foot claims, and for the claim for hyperkeratosis of the feet. As discussed in the decision above, current treatment records show complaints related to the foot pain as well as anxiety and depression. Service treatment records also evidence foot and psychiatric complaints. Regarding the feet, service treatment records show that the Veteran was seen in service in October 1979 for right foot pain after a "car ran over foot." Then, in December 1979, he reported right and left foot problems, again noting a car ran over his right foot. While the left foot problems at that time appear to relate to dry skin and calluses, he reported pain in the right foot with extension into the phalanges, and there appears to be an assessment of "arthritis joint." He also reported a history of foot trouble on his separation examination. Regarding the psychiatric claim, service treatment and personnel records show that the Veteran received ongoing counseling related to attitude, job performance, and drug problems. He also self-referred to the mental health clinic and reported on his separation examination a history of nervousness. Based on the foregoing, the Board finds that the Veteran should be afforded VA examinations and opinions prior to adjudication of his claims. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, the case is REMANDED for the following action: 1. Request the service hospital record for the Veteran's reported emergency room visit in October 1979 for his right foot through official sources. If no records are available, the Veteran should be notified of such and a determination as to whether further efforts to obtain such records would be futile should be made. 2. Ask the Veteran to provide the name and address of any provider who has treated him for his psychiatric or foot problems since service. After securing the necessary releases, any relevant records identified should be requested. If any records are unavailable, the claims file should be annotated to reflect such and the Veteran and his representative should be notified of such. 3. Associate all VA treatment records not currently in the claims file with the paper or electronic claims file, to include the records mentioned as being electronically reviewed in the 2012 statement of the case. If any records are unavailable, the claims file should be annotated to reflect such and the Veteran and his representative should be notified of such. 4. Request from the SSA records pertaining to the Veteran's disability claim, to include records pertaining to his July 2011 award of disability benefits. 5. After the above development is completed to the extent possible, schedule the Veteran for VA foot and ankle examination. The claims file must be reviewed by the examiner in conjunction with the examinations. All tests deemed necessary should be conducted, to include x-rays, and the results reported in detail. Following review of the claims file and examination of the Veteran, the examiner should provide a diagnose for any current foot and ankle disabilities and provide opinions as to whether it is at least as likely as not (50 percent probability or greater) that any current foot or ankle disability, to include flat foot, arose in service or is otherwise related to service, to include a car running over the Veteran's right foot and treatment for right foot pain in October 1979 and December 1979, and his self-report of foot problems at discharge. The examiner should explain the rationale for the opinions provided. 6. Schedule the Veteran for a VA PTSD examination. The claims file must be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. Following review of the claims file and examination of the Veteran, the examiner should provide the diagnosis for current psychiatric disability. If PTSD is diagnosed, the examiner should identify the stressor upon which the diagnosis is based. For all other psychiatric disabilities diagnosed (other than personality disorders) the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current disability arose in service or is otherwise related to service. In rendering the opinion, the examiner should discuss the significance of the mental health visit in service as well as the Chaplain's Evaluation in February 1980. The rationale for any opinion expressed should be set forth. 7. Schedule the Veteran for a VA skin examination, to address whether a skin condition of the Veteran's feet is related to service. The claims file must be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. Following review of the claims file and examination of the Veteran, the examiner should provide a diagnosis for any current skin condition of the feet, and provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current skin condition of the feet arose in service or is related to service, to include the findings of calluses with dry skin and athlete's foot in service. The rationale for any opinion expressed should be set forth. 8. After completing the requested actions, and any additional action deemed warranted, the AOJ should readjudicate the claims on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or 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 2014). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs