Citation Nr: 1802022 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 10-20 527 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right foot disorder. 2. Entitlement to service connection for a right foot disorder. 3. Entitlement to service connection for a right shoulder disorder. 4. Entitlement to a compensable evaluation for bilateral hearing loss. 5. Entitlement to an evaluation in excess of 10 percent for degenerative joint disease of the left foot and right elbow. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Flamini, Counsel INTRODUCTION The Veteran served on active duty from May 1971 to September 1996. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, dated in September 2008 and April 2015. The Board acknowledges that an October 2015 rating decision denied the Veteran's claims of entitlement to a higher evaluation for impingement syndrome and bursitis of the left shoulder, as well as service connection for degenerative disc disease of the cervical spine. Although the Veteran filed a timely notice of disagreement in response to this rating decision in December 2015, the RO has not yet issued a statement of the case. However, in February 2016, the RO acknowledged receipt of the Veteran's notice of disagreement. As such, this situation is distinguished from Manlicon v. West, 12 Vet. App. 238 (1999), where a notice of disagreement had not been recognized. As the information of record shows that the notice of disagreement has been recognized, Manlicon is not applicable in this case. As Manlicon is not applicable, the Board declines to remand the above-mentioned issues adjudicated in October 2015 for the issuance of a statement of the case and instead refers the RO to issue a statement of the case. The issues of entitlement to service connection for a right foot condition and right shoulder condition, as well as entitlement to higher evaluations for bilateral hearing loss and degenerative joint disease of the left foot and right elbow are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's claim of entitlement to service connection for right foot trouble was denied in a November 1996 rating decision that was not appealed, nor was any new and material evidence submitted within the appeal period. 2. Evidence received since the final November 1996 rating decision is new and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a right foot disorder. CONCLUSIONS OF LAW 1. The November 1996 rating decision which denied the Veteran's claim of entitlement to service connection for right foot trouble is final. 38 U.S.C.A. § 7105(c) (West 1991), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1996); currently, 38 U.S.C.A. § 7105(c) (West 2014), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. Evidence received since the final November 1996 rating decision is new and material; the criteria to reopen the claim of service connection for a right foot disorder have been met. 38 U.S.C.A. § 7105(c) (West 1991), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1996); currently, 38 U.S.C.A. § 7105(c) (West 2014), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this decision, the Board grants the Veteran's petition to reopen his claim for service connection for a right foot disorder, which constitutes a complete grant of the Veteran's claim decided herein. Therefore, no discussion of VA's duty to notify or assist is necessary. The Veteran seeks to reopen a previously denied claim of entitlement to service connection for a right foot disorder. As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When an appellant seeks to reopen a final decision, the first inquiry is whether the evidence presented or secured after the last disallowance is "new and material." Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. 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 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). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In order for evidence to be sufficient to reopen a previously denied claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312, 314 (1990). The Court has held that there is a very low threshold for reopening claims, stating that the requirements in the regulations that the evidence "raises a reasonable possibility of substantiating the claim" should be read as enabling reopening rather than precluding it. Shade v Shinseki, 24 Vet. App. 110, 118 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask 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. Regardless of the RO's determination, that is, whether it reopened a claim for service connection or not, the Board is not bound by that determination as to whether the claim should be reopened, and must consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Here, entitlement to service connection for "right foot trouble" was initially denied in a November 1996 rating decision on the basis that there were no objective findings of a disabling condition of the right foot. Although the Veteran was notified of this rating decision and his appellate rights, he did not appeal. Additionally, new and material evidence in support of the claim was not received within the appeal period. As such, the November 1996 rating decision became final. 38 U.S.C.A. § 7105(c) (West 1991), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1996); currently, 38 U.S.C.A. § 7105(c) (West 2014), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). Since the last final denial of the Veteran's claim in November 1996, a May 2017 VA examination diagnosed the Veteran as having hallux valgus, plantar fasciitis, and degenerative arthritis of the right foot. Significantly, the Veteran and his representative have suggested that his current right foot symptomatology was either caused or aggravated by his service-connected degenerative joint disease of the left foot. This evidence is new, in that it was not previously of record at the time of the November 1996 rating decision. Furthermore, this evidence is material because it show current diagnoses of right foot disabilities and presents an alternative theory of entitlement. As this evidence goes to the previously unestablished elements for service connection, the Board finds that new and material evidence has been received. Shade, 24 Vet. App. at 117. Therefore, the Veteran's claim of entitlement to service connection for a right foot disorder is reopened and further addressed in the Remand section below. ORDER As new and material evidence has been received, the claim of entitlement to service connection for a right foot disorder is reopened and, to that extent, the appeal is granted. REMAND The Veteran seeks entitlement to service connection for a right foot condition and right shoulder condition, as well as entitlement to higher evaluations for bilateral hearing loss and degenerative joint disease of the left foot and right elbow. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. With respect to the issue of entitlement to service connection for a right foot disorder, the Board notes that the Veteran is already service connected for degenerative joint disease of the left foot. The Veteran has asserted that he developed a right foot disability secondary to his service-connected left foot disability. The Veteran was most recently provided with a VA foot conditions examination in May 2017, at which time he was diagnosed as having hallux valgus, plantar fasciitis, and degenerative arthritis of the bilateral feet. Curiously, the VA opinion concluded that bilateral plantar fasciitis was at least as likely as not incurred in or caused by an in-service injury, event or illness because service treatment records diagnosed plantar fasciitis of both feet and "post-separation medical records support the chronicity of bilateral plantar fasciitis." However, the May 2017 VA report did not provide an opinion as to whether the Veteran's diagnosed hallux valgus and/or arthritis of the right foot were aggravated by his service-connected left foot degenerative joint disease. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (indicating that findings of "not due to," "not caused by," and "not related to" a service-connected disability are insufficient to address the question of aggravation under § 3.310(b)). Before awarding service connection for any disability of the right foot, the Board must have a complete picture of all the Veteran's various right foot disabilities and their probable etiologies. Accordingly, on remand, an adequate opinion must be obtained. The Board further notes that a supplemental statement of the case was not issued subsequent to the May 2017 VA examination report. The Board acknowledges that 38 U.S.C.A. § 7105(e) provides an automatic waiver of initial AOJ review if a veteran or his or her representative submits evidence to the AOJ or the Board with or after submission of a substantive appeal. This provision is applicable to cases where the substantive appeal was filed on or after February 2, 2013. 38 U.S.C.A. § 7105(e) (West 2014); see VA Fast Letter 14-02 (May 2, 2014). Currently, VA does not interpret section 7105(e) as extending to evidence that was not submitted by the Veteran, such as evidence gathered by VA pursuant to the duty to assist. Therefore, if evidence was developed by VA, the Board will not assume that the Veteran has knowingly and voluntarily waived AOJ consideration of such evidence. Here, the May 2017 VA examination reports which were not addressed in the October 2015 supplemental statement of the case were developed by VA. In other words, they were not submitted by the Veteran or his representative. Moreover, the Veteran's substantive appeal was filed in May 2010. Therefore, 38 U.S.C.A. § 7105(e) is not for application, and waiver of initial AOJ review of the additional evidence as to those issues is not automatic. Similarly, with respect to the issue of entitlement to service connection for a right shoulder disorder, the Veteran claims that this disability was caused or aggravated by his service-connected impingement syndrome and bursitis of the left shoulder. Although a July 2011 VA examination report concluded that the Veteran's diagnosed right shoulder bursitis was less likely as not caused by or a result of his service-connected impingement syndrome and bursitis of the left shoulder, the Board finds that this opinion is also inadequate because it did not address the issue of aggravation. See El Amin, supra. Accordingly, on remand, an adequate opinion must be obtained. Finally, with respect to the issues of entitlement to higher evaluations for bilateral hearing loss and degenerative joint disease of the left foot and right elbow, the Veteran was last provided VA examinations with respect to these disabilities in June 2013 (right elbow) and April 2015 (hearing loss). Since then, the Veteran has indicated that these disabilities have worsened in severity. The Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. 38 C.F.R. § 3.327; Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with an appropriate VA examination to determine the likely etiologies of his diagnosed hallux valgus and arthritis of the right foot. The claims file must be made available to the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Based on a review of the evidence of record, the clinical examination results, and with consideration of the Veteran's statements, the examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed hallux valgus and arthritis of the right foot were caused or aggravated by his service-connected left foot degenerative joint disease or any other service-connected disability. Aggravation is defined as a worsening beyond the natural progression of the disability. A complete rationale must be provided for any opinion offered. The examiner should note that a finding that a disability is "not due to," "not caused by," and "not related to" a service-connected disability is insufficient to address the question of aggravation. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). 2. Provide the Veteran with an appropriate VA examination to determine the likely etiology of his diagnosed right shoulder bursitis. The claims file must be made available to the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Based on a review of the evidence of record, the clinical examination results, and with consideration of the Veteran's statements, the examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed right shoulder bursitis was caused or aggravated by his service-connected impingement syndrome and bursitis of the left shoulder or any other service-connected disability. Aggravation is defined as a worsening beyond the natural progression of the disability. A complete rationale must be provided for any opinion offered. The examiner should note that a finding that a disability is "not due to," "not caused by," and "not related to" a service-connected disability is insufficient to address the question of aggravation. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). 3. Schedule the Veteran for a VA audiology examination to determine the current severity of his service-connected bilateral hearing loss disability. Copies of all pertinent records must be made available to the VA examiner for review. The examiner must specifically discuss any functional effect of the Veteran's hearing loss upon his occupational capacity and daily activities and should indicate if the functional effects of hearing loss have remained constant or have changed during the period on appeal. 4. Schedule a VA examination to determine the current severity of the Veteran's service connected degenerative joint disease of the left foot and right elbow. The claims file, including a copy of this remand, must be provided to the examiner in conjunction with the examination. The examination report should include a detailed review of the Veteran's history and current complaints, as well as a comprehensive clinical evaluation and any and all indicated diagnostic testing deemed necessary. Such examination should include detailed range of motion studies of the left foot and right elbow, and the examiner should determine whether there is any additional functional loss (i.e., additional loss of motion) of the left foot and/or right elbow due to pain or flare-ups of pain supported by adequate objective findings, or additional loss of motion due to weakness on movement, excess fatigability, incoordination, or any other relevant symptom or sign. Any additional limitation of motion should be expressed in degrees. Range of motion testing must be conducted on active and passive motion, and on weight-bearing and without weight bearing. If any requested range of motion testing is not feasible, such should be explained as to why. 5. After completing the above development, and any other development deemed necessary, readjudicate the issues on appeal in light of the additional evidence associated with the record since the issuance of the October 2015 statements of the case as to the issues being remanded. If any benefit sought remains denied, then provide a supplemental statement of the case to the Veteran and his representative and return the appeal to the Board for appellate review. 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 2014). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs