Citation Nr: 1601365	
Decision Date: 01/13/16    Archive Date: 01/21/16

DOCKET NO.  12-11 131	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUES

1.  Whether new and material evidence has been presented to reopen the claim of service connection for a back disability and if so whether the reopened claim should be granted.

2.  Entitlement to a rating for bilateral pes planus in excess of 10 percent prior to August 21, 2012, and in excess of 30 percent thereafter.

3.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Kenneth L. LaVan, Attorney at Law

WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Joshua Castillo, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1970 to July 1972.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2010 rating decision of the Des Moines, Iowa, Regional Office (RO) of the Department of Veterans Affairs (VA). 
 
In November 2013, the Veteran appeared at a hearing before a decision review officer and the Veteran appeared at a hearing before the undersigned in February 2015.
 
In November 2013, the RO increased the disability rating for bilateral pes planus to 30 percent effective August 21, 2012.  As the increase did not satisfy the appeal in full, the issue remains on appeal.  See AB v. Brown, 6 Vet. App. 35 (1993).

By the decision below, the previously denied claim for service connection for a back disability is reopened.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1.  In a decision of January 1977, the RO denied the claim of service connection for a back disability for lack of a current disability; the Veteran was notified of the decision and of his appellate rights but he did not appeal. 

2.  In a decision of November 2002, the RO found that new and material evidence had not been received to reopen claim for service connection a back disability; the Veteran was notified of the decision and of his appellate rights but he did not appeal. 

3.  The additional evidence received since the RO's decision in November 2002 is not redundant or cumulative evidence previously considered and it relates to unestablished facts necessary to substantiate the claim for service connection for a back disability.


CONCLUSIONS OF LAW

1.  The November 2002 RO decision, which denied the Veteran's claim of service connection for a back disability, is final.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2015).

2.  New and material evidence has been presented to reopen the claim of entitlement to service connection a back disability.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed.  38 U.S.C.A. §§ 7104(b), 7105(c) (West 2014).  An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.  Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  38 C.F.R. § 3.156(b) (2015).

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). 

The United States Court of Appeals for Veterans Claims (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); see also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance).

For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993).

In a decision of January 1977, the RO denied the claim of service connection for a back disability for lack of a current disability; the Veteran was notified of the decision and of his appellate rights but he did not appeal.

In a decision of November 2002, the RO found that new and material evidence had not been received to reopen claim for service connection a back disability; the Veteran was notified of the decision and of his appellate rights but he did not appeal.

The evidence of record at the time of the November 2002 rating decision included the Veteran's service treatment records; VA and private treatment records; and a VA medical opinion, which relates the Veteran's current pain to his reported in-service injury.

The evidence added to the record since the prior denial includes treatment records from the University of Iowa Hospital, which show moderate to severe degenerative of the spine with multilevel disc disease, and a letter from his treating physician, Dr. Nisly, wherein she opines that the there is a strong correlation between the Veteran's back problems and his service-connected foot disability.  See University of Iowa Hospital (April 9, 2010; October 14, 2010).

Evidence showing that the Veteran's has a current back disability and that it may be due to his service-connected foot disability were elements of entitlement to service connection that the RO found were not met in November 2002.  The Board finds that records from University of Iowa Hospital and Dr. Nisly's opinion are new and material as they are not cumulative or redundant of the evidence previously of record, and they relate to previously unestablished elements of entitlement to service connection for a back disability.  Accordingly, reopening of the claim is in order.  The reopened claim is addressed further in the remand section.


ORDER

The claim of entitlement to service connection for a back disability is reopened; to this limited extent, the appeal of this issue is granted.

REMAND

Records

During the February 2015 hearing, the Veteran testified that Dr. Nisly treated his foot problems from 2000 to 2010, until she referred him to Dr. Scholz, who treated him from 2010 to 2013.  The Veteran also reported that Dr. Scholz provided written opinions in November 2010 and September 2011, which relate the Veteran's service-connected pes planus to a tendon disability.  The claims file, however, only contains treatment notes from Dr. Scholz, dated April 23, 2012, and Dr. Nisly, dated April 9, 2010.  Upon remand, the AOJ is to obtain complete treatment records and request that the Veteran provide copies of Dr. Scholz's November 2010 and September 2011 written opinions.

Foot Disability

During the February 2015 hearing, the Veteran also testified that his service-connected foot disability had worsened since his last VA examination in June 2013.  In the June 2013 VA examination report, the examiner opined that the Veteran's feet limited his ability to work to the extent that he could only stand during 25 to 30 percent of a workday.  In February 2015, the Veteran testified that his foot disability limits his ability to walk more than 20 feet, even with a walker and gait belt, and results in functional loss tantamount to loss of use of the feet.  As the evidence suggests a material change in the disability, reexamination is warranted under 38 C.F.R. § 3.327 (2015).

Back Disability

The evidence of record suggests that the Veteran's current back disability may be related to service or a service-connected disability.  The claims file is replete with complaints of back problems in and since service.  The Veteran reports that he has experienced constant back pain since his feet began bothering him in service and that in-service injuries in January 1971 and August 1971 permanently exacerbated the pain.  In September 2002, a VA examiner opined that the Veteran's current back disability stems from the reported in-service injuries.  In April 2010, the Veteran's treating physician, Dr. Nisly, opined that there is a strong correlation between his foot and back problems.  See University of Iowa Hospital (April 9, 2010).  In June 2010, a VA examiner concluded that the etiology of the Veteran's back disability is purely speculative; however, he opined that it is less likely as not that the Veteran's service-connected foot disability did not cause his back disability and most likely related to age or post-service injuries.  The examiner did not address the favorable opinions of Dr. Nisly or Dr. Scholz.  Accordingly, additional medical development is needed.  See Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994) (the Board may not simply adopt a medical examiner's opinion that fails to discuss favorable evidence of record).

The Veteran's claim for TDIU is also remanded, as it is inextricably intertwined with his claim for a higher rating for a foot disability.

Accordingly, the case is REMANDED for the following actions:

1.  Contact the Veteran and request authorization and consent to release information to VA from Iowa City Rehabilitation Center, Dr. Scholz, Dr. Nisly, any other private doctor who has treated the Veteran's foot disability since December 2013.  

In addition, request a release for, or that the Veteran provide, copies of Dr. Scholz's November 2010 and September 2011 written opinions, which he identified during the February 2015 hearing.

2.  Then, schedule the Veteran for a VA examination by an appropriate medical professional.  The examiner is to identify the current severity of the Veteran's service-connected foot disability.  The examiner is to review the entire claims file.  The examination report must include a complete rationale for all opinions expressed.
The examiner is to address how the Veteran's pes planus affects other parts of his body, including tendons of the feet and his ability to ambulate.

The examiner is to elicit information regarding the Veteran's education, training, and work history.  The examiner is to report how the Veteran's pes planus impacts his ability to work.

3.  After the development in 1 has been completed, schedule the Veteran for a VA examination by an appropriate medical professional.  The examiner must review the entire claims file.   

The examiner is to diagnose any current back disability.

If arthritis is diagnosed, the examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the record contains a combination of manifestations sufficient to identify arthritis in service, and sufficient observation to establish chronicity at that time.  If the back problems noted during service are not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, the examiner is to provide an opinion as to whether the Veteran's competent, credible report of back pain in and since service sufficiently establishes that his current arthritis is related to service.  If not, the examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed disability is related to the Veteran's active service, or is caused by or aggravated by his service-connected foot disability.   

The term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms.  If aggravation is found, the examiner must attempt to determine a baseline level of severity of back disability prior to aggravation by the foot disability.

The examiner is to address the Veteran's competent, credible report of back pain in and since service as well as the favorable opinions of the September 2002 VA examiner, Dr. Nisly, and Dr. Scholz.

The examination report must include a complete rationale for all opinions expressed.

4.  Finally, after conducting any other development deemed necessary, readjudicate the appeal.  If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board.  

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).


______________________________________________
S. HENEKS
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs