Citation Nr: 1800602 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 13-32 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a bunion with hallux valgus of the right first metatarsal. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a bunion with hallux valgus of the left first metatarsal. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Timbers, Associate Counsel INTRODUCTION The Veteran served as a member of the Army National Guard, with active duty training ("ADT") from May 1982 through September 1982, and from March 1987 through April 1987. This appeal comes to the Board of Veterans' Appeals ("Board") from numerous rating decisions issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in North Little Rock, Arkansas (hereinafter Agency of Original Jurisdiction ("AOJ")). In a June 1991 rating decision, the Veteran's claim for entitlement to service connection for postoperative residuals of bunions with hallux valgus of the first metatarsals of each foot was denied. In denying the Veteran's claim, the AOJ found that the bilateral foot disability existed prior to the Veteran's ADT and was not aggravated by any period of ADT. The Veteran did not appeal this rating decision, and it became final. 38 U.S.C. §§ 5108, 7105(c) (West 2012); 38 C.F.R. §§ 3.104(a), 20.302(a)(2017). Thereafter, in March 1996, the Veteran requested to have her claim for entitlement to service connection for a bilateral foot disability reopened. In an August 1996 rating decision, the AOJ denied the Veteran's request, finding that while she had submitted new medical evidence, this evidence was not "material" as it did not present a reasonable possibility of substantiating the Veteran's claim. The Veteran appealed this August 1996 denial. However, in a February 2000 Board decision, the August 1996 rating decision was affirmed and the Board denied the Veteran's request to reopen her claim for entitlement to service connection. The Veteran did not appeal the Board's decision and the February 2000 denial became final. 38 U.S.C. §§ 7104(b), 7266 (West 2012); 38 C.F.R. §§ 3.156, 3.160(d), 20.1100 (2017). The Veteran has additionally sought entitlement to service connection under 38 U.S.C. § 1151 for bilateral bunions with hallux valgus. This claim was initially denied in a July 1997 Rating Decision. The Veteran timely appealed this denial, in a July 1997 notice of disagreement. In a November 1997 Statement of the Case, the AOJ continued to deny the Veteran's claim. It does not appear that the Veteran perfected this appeal to the Board. The Board further observes that the Veteran has previously sought to reopen her claim for entitlement to service connection under 38 U.S.C. § 1151 for bilateral bunions with hallux valgus based on the submission of new and material evidence. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. However, these claims have uniformly been denied by the AOJ. See e.g. Rating Decisions, dated August 2003, September 2006, and July 2010. Thus, as noted above, the Veteran has previously sought entitlement to service connection for the bilateral foot disability, based on a claim of aggravation and under 38 U.S.C. § 1151. The instant appeal was certified to the Board as a request to reopen a claim of entitlement to service connection for a bilateral bunions with hallux valgus of the first metatarsal, under 38 U.S.C. § 1151. However, during her August 2017 testimony before the undersigned Veterans Law Judge, the Veteran clarified that she desired to reopen her previously denied claim based on the theory of aggravation, and not under 38 U.S.C. § 1151. As such, the issues on appeal have been reclassified as shown on the title page of this decision. This appeal was processed using Virtual VA and the Veterans Benefits Management System ("VBMS"). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is required before the Board may make a determination on the merits of the Veteran's appeal. Specifically, the Board finds that a remand is required in order to afford the Veteran a VA examination which fully addresses the etiology of her bilateral bunions with hallux valgus of the first metatarsal. As noted above, the Veteran has previously applied for entitlement to service connection for this bilateral foot disability. The AOJ had previously denied the Veteran's claim because the evidence indicated that the Veteran entered ADT with a pre-existing disability of bunions on both the right and left foot. See e.g. April 1991 Rating Decision. As these disabilities existed prior to service, the AOJ found that they were not incurred in the Veteran's ADT. Furthermore, the AOJ found that the overall evidence of record did not indicate that the Veteran's ADT caused a permanent worsening of her bilateral foot disability. The AOJ made this determination without affording the Veteran a VA examination. Thereafter, the Veteran submitted an application for entitlement to service connection, under 38 U.S.C. § 1151 for bilateral bunions with hallux valgus. This claim was initially denied in a July 1997 Rating Decision. The evidence considered at the time the claim was denied included a January 1997 VA examination and medical opinion. Notably, the examiner found the Veteran had a history of bunions prior to service which eventually required surgical intervention in 1987. No opinion was rendered as to whether the Veteran's bunions were aggravated by her ADT, to include aggravation from her uniform boots. Generally, no presumptions (including the presumptions of soundness, aggravation, or for presumptive diseases) attach to periods of ADT unless "veteran" status is attained during those periods. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). As to the presumption of soundness, it does not apply to a claimant who had only ADT service and who is not otherwise a veteran. Id. Even for appellant who have achieved "veteran" status through a prior period of active service and now claim a disability incurred only during a later period of ADT, the presumption of soundness applies only when the appellant has been "examined, accepted, and enrolled for service" and where that examination revealed no "defects, infirmities, or disorders." Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010). In other words, there must be an entrance examination prior to the period of ADT in which the appellant claims the disease or injury occurred; otherwise, the presumption of soundness does not attach. Id. at 45-46. Moreover, if the appellant has not achieved "veteran" status through a prior period of service, then the presumption of soundness does not attach to a period of ADT, no matter if an examination occurred prior to the period of ADT. Id. With respect to a claim for aggravation of a preexisting condition during a period of ADT, in order for a appellant to establish "veteran" status, the appellant must demonstrate both elements of aggravation - (1) that the preexisting disability permanent worsened in service, and (2) that such worsening was beyond the natural progression of the disease (i.e., such worsening was caused by service). Donnellan v. Shinseki, 24 Vet. App. 167, 174 (2010). In such instances, the appellant is not entitled to the easier presumption of aggravation standard. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). The standard of proof for the appellant is the "benefit of the doubt" standard; thus, the appellant must only show that there is an approximate balance of positive and negative evidence to prevail on this matter. Donnellan, 24 Vet. App. at 174. There is no shifting burden to VA as there is when the presumptions of soundness and aggravation apply. Donnellan, 24 Vet. App. at 175. With this in mind, the Board observes that no medical opinion has been obtained which directly discusses the issue of whether the Veteran's bilateral foot disability was aggravated by her ADT. As such, the Board finds that a remand is required in order to obtain a medical opinion which addresses whether the Veteran's bilateral foot disability was permanently aggravated by her ADT, in particular the wearing of her dress boots. In granting this opportunity, the Board does not make any determination or ruling on the issue of whether the Veteran has submitted sufficient evidence to reopen her previously denied claim. See Booth v. Brown, 8 Vet. App. 109 (1995)(holding that the Board may develop for a VA examination report and VA treatment records even prior to reopening). Accordingly, the case is REMANDED for the following action: 1. The AOJ should schedule the Veteran for the appropriate VA joints examination to assess the etiology and severity of her bilateral foot disability. Access to the VBMS and Virtual VA claims file must be made available to the VA examiner for review. Based upon a review of the entirety of the claims file, the history presented by the Veteran, and the examination results, the examiner is requested to provide an opinion as to the following question: Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran's bilateral bunions with hallux valgus of the first metatarsals were aggravated by her ADT, to include the wearing of her military boots? Governing regulations provide that service connection is permissible on a secondary basis if a claimed disability is proximately due, the result of, or aggravated by a service-connected disability. See 38 C.F.R. § 3.310. The term aggravation is defined as a chronic and permanent worsening of the underlying condition beyond its natural progression versus just a temporary or intermittent flare-up of symptoms. If the examiner determines there has been aggravation, he or she should try and quantify the amount of additional disability the Veteran had, above and beyond that he had prior to the aggravation. The examiner must provide a complete rationale for all opinions expressed. As part of the rationale, the examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. After completing the above development, the AOJ should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. See Stegall v. West, 11 Vet. App. 268 (1998). 3. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the claims on appeal. If the benefit sought is not granted, issue a Supplemental Statement of the Case ("SSOC") and allow the Veteran and her representative an opportunity to respond. 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. §§ 5109B, 7112 (West 2012). _________________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).