Citation Nr: 1752714 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 11-28 616 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence exist to reopen a claim of service connection for a low back disability, or a bilateral foot disability (claimed as ingrown toenails). 2. Entitlement to service connection for a lumbar back disability, also claimed as a low back disability (hereinafter, a thoracolumbar spine disability). 3. Entitlement to service connection for a bilateral foot disability (claimed as ingrown toenails). REPRESENTATION Veteran represented by: Virginia A. Girard-Brady ATTORNEY FOR THE BOARD R. I. Sims, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1978 to March 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas that denied reopening of the Veteran's previous claims. In July 2009, appeal jurisdiction transferred from the RO in Houston, Texas to the RO in Waco, Texas. This appeal has previously been before the Board, most recently in November 2016, when it was remanded for a hearing before a Veterans Law Judge. Subsequent to the remand, the Veteran, through his representative, withdrew his request for a hearing. The Board finds that its remand instructions have been substantially complied with, and the Board will proceed in adjudicating the Veteran's claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The issue of reopening a claim for service connection for asthma has been raised by the record in a December 2014 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (7). The issues of a bilateral foot disability (claimed as ingrown toenails) is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Service connection for a bilateral foot disability (claimed as ingrown toenails) was previously denied in a May 2003 rating decision. The Veteran was informed of the decision, including his right to appeal, but did not appeal the denial, or submit new evidence within a year of the decision. 2. Evidence submitted since the May 2003 rating decision denying service connection for a bilateral foot disability (claimed as ingrown toenails) includes evidence that relates to an unestablished fact necessary to substantiate the claim, is not cumulative and redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim for service connection. 3. Service connection for a thoracolumbar spine disability was previously denied in a June 2007 rating decision. The Veteran was informed of the decision, including his right to appeal, but did not appeal, or submit new evidence within a year of the decision. 4. Evidence submitted since the June 2007 rating decision denying service connection for a thoracolumbar spine disability includes evidence that relates to an unestablished fact necessary to substantiate the claim, is not cumulative and redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim for service connection. 5. The evidence shows that the Veteran's current back disability is the result of a post-service back injury. CONCLUSIONS OF LAW 1. The May 2003 rating decision denying a bilateral foot disability is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2002). 2. The June 2007 rating decision denying a thoracolumbar spine disability is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2006). 3. New and material evidence has been received to reopen a claim of service connection for a thoracolumbar spine disability and a bilateral foot disability (claimed as ingrown toenails). 38 U.S.C. §§ 5103, 5103A, 5107, 5108, 7105 (2012); 38 C.F.R. § 3.156(a), 3.159, 20.1103 (2017). 4. Criteria for service connection for a low back disability have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist. Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. With respect to the duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records, VA treatment records, and private treatment records have been obtained, to the extent available. Additionally, the Veteran was offered the opportunity to testify before a Veterans Law Judge, but withdrew his hearing request in September 2017. The Board acknowledges that the Veteran has not been provided with a VA examination in this case, however, in this case the record contains sufficient information to make a decision on the claim. Moreover, the Federal Circuit Court of Appeals (Federal Circuit) has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. See McLendon v. Nicholson, 20 Vet. App.79, 81 (2006). The record in this case is negative for any indication, other than the Veteran's own assertion, that the his current back disability is the result of his military service. As such, this conclusory lay statement, which as will be discussed is undermined by his own statements on other occasions, is insufficient to trigger VA's duty to provide an examination with an opinion. See Waters, 601 F.3d 1274. The Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, that the record includes adequate, competent evidence to allow the Board to decide this matter, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. II. New and Material Evidence The Veteran is seeking to reopen his previously denied claims for a thoracolumbar spine disability and a bilateral foot disability (claimed as ingrown toenails). Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). An exception to the general rule allows for reopening where new and material evidence exists. 38 U.S.C.A. § 5108; Shade v. Shinseki, 24 Vet. App. 110 (2010). New evidence is defined as evidence not previously submitted to agency decision-makers. 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. 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 evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board will first address the Veteran's claim for service connection for a bilateral foot disability (claimed as ingrown toenails). The Veteran filed an initial claim for service connection for bilateral ingrown toenails in August 2002. The claim was denied by a May 2003 rating decision. The Veteran was notified of such decision, but neither filed a notice of disagreement, nor submitted any new and material evidence within the one year appeal period, and that decision became final. In June 2009, the Veteran submitted correspondence indicating a desire to reopen his claim of service connection for a bilateral foot disability (claimed as ingrown toenails). The evidence of record at the time of the May 2003 rating decision included the application for service connection, and service treatment records from November 1979 to September 1981, indicating in-service treatment for ingrown toenails. Pertinent evidence received since the May 2003 include VA treatment records indicating the Veteran has onychomycosis (toenail fungal infection). The Veteran also added a statement indicating what had happened to his toes after dropping a heavy piece of equipment on them in service. The Board finds that the evidence submitted since the May 2003 decision is new as it had not been previously considered. This evidence is also material as it relates to the basis of the prior final denial. The previous claim was denied because there was insufficient evidence to support the existence of a current bilateral foot disability (claimed as ingrown toenails). The new treatment records include a diagnosis sufficient to warrant obtaining a VA examination to determine whether the Veteran has a current bilateral foot disability. As such, the previously denied claim for service connection for a bilateral foot disability (claimed as ingrown toenails) is reopened. The Board will next address the Veteran's claim for service connection for a thoracolumbar spine disability. The Veteran filed to reopen a previously denied claim for service connection for a lumbar back injury in December 2006. The claim was denied in a June 2007 rating decision. The Veteran was notified of such decision, but neither filed a notice of disagreement, nor submit any new and material evidence within the one year appeal period, and that decision became final. In June 2009, the Veteran submitted correspondence indicating a desire to reopen his claim for a thoracolumbar spine disability. The evidence of record at the time of the June 2007 rating decision included private treatment records from July 1999 to May 2005 and VA treatment records from January 2003 to April 2007. These records indicate that the Veteran received treatment for chronic back pain since 1999 after a civilian work-related incident resulted in herniation of three lumbar discs. Pertinent evidence received since the June 2007 rating decision includes statements from the Veteran dated June 2009, May 2010, and February 2017, asserting that he had experienced lower back pain continually since service, that was aggravated by the 1999 accident. The Board finds that the evidence submitted since the June 2007 decision is new as it had not been previously considered. This evidence is also material as it relates to the basis of the prior final denial. The previous claim was denied because there was insufficient evidence to support the existence of a nexus between an in-service injury and the current thoracolumbar spine disability. The Veteran's statements addressed symptoms that could support the existence of a nexus between his in-service injury and his current disability. For the limited purpose of reopening the claim, the Board will presume this statement to be credible. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). When that is done, the Veteran's statements constitute new and material evidence which raises a reasonable possibility of substantiating the Veteran's claim. As such, the previously denied claim for service connection for a thoracolumbar spine disability is reopened. Accordingly, new and material evidence does exist to reopen previously denied claims of entitlement to service connection for a thoracolumbar spine disability and a bilateral foot disability (claimed as ingrown toenails). III. Service Connection As previously stated, the Veteran filed a claim for service connection for a lumbar back injury in December 2006. In support of his claim, the Veteran asserted that he received treatment at the El Paso VA Health Care Center (VAHCC) since May 1998. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131. Service connection can be established by evidence that shows "(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." 38 C.F.R. § 3.310(a) (2016); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The nexus requirement, in pertinent part, can be established through objective medical evidence; the application of statutory presumptions for chronic diseases like arthritis, when manifested to a compensable degree within a year of separation from service; or based on a continuity of symptomatology. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service treatment records indicate treatment for mid-thoracic pain, which the Veteran experienced after lifting kitchen equipment in November 1979. X-rays at the time indicated no fracture or subluxation. Private and VA treatment records indicate the Veteran has current diagnoses for post laminectomy syndrome, lumbosacral neuritis NOS, and spondylosis. The Board finds that the Veteran's treatment records are sufficient to support a finding that he experienced an in-service injury and has a current disability of the thoracolumbar spine. Therefore, the remaining determination is whether a nexus exist between the in-service injury and current disability. Generally, the Veteran's treatment records from January 1999 to April 2007 indicate that he had received treatment for chronic back pain since 1999 after a civilian work-related incident resulted in herniation of three lumbar discs. Private treatment records from 1999 indicate treatment for a lumbar sprain. The Veteran reported occasional lower back pain while in the service, but nothing recent. The Veteran reported that while at work in May 1999 he was carrying several buckets of paint and an air compressor when he developed lower back pain. Treatment records note that the Veteran "reiterated once again today that he had no previous significant back problems prior to May 21, 1999," the date of his workplace injury. VA treatment records from January 2003 indicate that the Veteran received treatment for chronic back pain after a civilian work-related incident resulted in herniation of three lumbar discs. The Veteran reported experiencing chronic back pain and muscle spasms since 1999. The record notes the Veteran had a laminectomy in 2000, an L4-L5 fusion in February 2002, and was currently under pain clinic management. In 2004, private treatment records indicate the Veteran had a spinal cord stimulator unit implanted in his back with leads placed at the thoracic spine and T12. VA treatment records from 2007 indicate the Veteran underwent a spinal fusion in 1999 and had a TENS unit implanted for pain control. The Veteran was also noted to have an unsteady gait and to ambulate with a cane for stability. The Veteran submitted several statements in support of his claim for service connection. In June 2009, the Veteran provided details about how he injured his lower back in service. Specifically, the Veteran reported he that he injured his back transferring kitchen equipment from a truck, and asserted that since that time his low back and 4 toes on his feet were permanently damaged. The Veteran went on to state that he has a L4 and L5 fusion and that he was implanted with a spine unit to address pain management, which must be replaced every six years. In May 2010, the Veteran provided information about the treatment he received after injuring his back and feet. Specifically, the Veteran received x-rays, Ibuprofen, and was instructed to use ice for the swelling and pain in his back. Additionally, the Veteran stated his lower back always causes him pain. In a February 2017 statement, the Veteran stated that because of his back injury he has to constantly watch his weight, has to use a walker because he has problems standing and sitting for long periods of time. Additionally, he reported having to get a neuro-stimulator implanted, his L4-5 fused, and spinal cartilage removed. The Board has considered whether the record contains evidence establishing the nexus element. Neither the Veteran's report of symptoms, nor the objective medical evidence demonstrate a nexus between the Veteran's in service thoracic pain and his current thoracolumbar spine disability. The Veteran is competent to report symptoms such a back pain as they are capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, in adjudicating this claim, the Board must assess not only competency of the Veteran's statements, but also their credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board does not find the Veteran's written statements about experiencing back pain since service credible. Credibility is an adjudicative, not a medical determination. The Board has "the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In this case, the Veteran's statements demonstrate significant inconsistencies. The record includes no confirmation of the Veteran's statements. Notably, on more than one occasion, the medical records indicate that the Veteran reported experiencing chronic back pain only since 1999, more than a decade after his discharge from service. Medical records also indicate that the Veteran denied significant back pain prior to 1999 and that his current thoracolumbar spine disability has at all times been associated with a 1999 civilian workplace injury. The Board acknowledges that the Veteran did receive medical treatment in 1998, however this treatment was related to sinus problems and a sebaceous cyst on his right back, not the thoracolumbar spine. The nature of initial treatment and the time between active service and initial treatment after separation from service weigh heavily against finding there is a nexus between the two. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition now raised). Further, the treatment providers of record have not indicated a connection between his current disability and his military service. There is an absence of competent and credible evidence indicating that the Veteran's current thoracolumbar spine disability is related to his military service. After review of the lay and medical evidence of record, the Board finds that the criteria for service connection have not been met, and the Veteran's claim is denied. ORDER Service connection for a thoracolumbar spine disability is denied. REMAND The Veteran filed a claim for service connection for bilateral ingrown toenails. The Veteran reported that while in service he dropped heavy kitchen equipment on four of his toes. After this incident, the Veteran states his nails grew inverted, which caused him pain while in the service, and continue to cause him pain. The Veteran's service treatment records indicate treatment for ingrown toenails. Additionally, VA treatment records indicate that the Veteran reported toenail removal six times, the last time in 1984, while in active service. The evidence of record indicates that in January 2003, the Veteran was assessed with onychomycosis. As recently as February 2017, the Veteran reported that he must constantly attend to his toenails and that after each removal they have grown back thicker. A VA examination is needed to determine if the Veteran experiences a current disability of the bilateral feet, and if so, whether such disability is related to his military service. Accordingly, the case is REMANDED for the following action: 1. Obtain a VA examination. The examiner should describe any impairment in the Veteran's bilateral feet, to include onychomycosis, and should indicate whether it is at least as likely as not (50 percent or greater) that the Veteran has a bilateral food disability as a result of any in-service injury (to include the Veteran dropping a heavy piece of machinery on his toes), incurrence, or disease. The examiner should specifically address whether the Veteran currently experiences chronic ingrown toenails or onychomycosis, and if either condition is related to his military service. 2. Then readjudicate the appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate time for response. 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. §§ 5109B, 7112 (2012). ______________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs