Citation Nr: 1805281 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 14-15 459 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a low back disability. 2. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for asthma. 3. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for bilateral pes planus. 4. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a right knee disability. 5. Entitlement to service connection for a right shoulder disability. 6. Entitlement to service connection for a left shoulder disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and M.W. ATTORNEY FOR THE BOARD M. Moore, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army National Guard from July 1986 to November 1986 with additional unverified periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In April 2017, the Veteran presented sworn during a video conference hearing in Oakland, California, which was chaired by the undersigned. A transcript of the hearing has been associated with the Veteran's claims file. The Veteran's claims for service connection for lower back pain, asthma, bilateral pes planus, and a chronic right knee condition were originally denied in an October 2008 rating decision. The RO determined there was no evidence of an event, disease, or injury during a period of active duty, ACDUTRA, or INACDUTRA. The Veteran did not file a notice of disagreement or submit new evidence within one year of the October 2008 rating decision. The October 2008 rating decision became final and is the last prior denial of these claims. Since the October 2008 final decision, the Board finds that the Veteran submitted new and material evidence for the low back, asthma, flat feet, and right knee claims. Specifically, she and M.W. testified at her hearing about symptoms of these claimed disabilities she experienced while on active duty or ACDUTRA. She also submitted an April 2017 letter from her private physician noting that her back, right knee, and flat feet disabilities may have been aggravated by her military service. As this new evidence tends to show in-service onset or aggravation, the Board will reopen these claims. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant the claim). The issues of service connection for a low back disability (reopened), asthma (reopened), pes planus (reopened), a right knee disability (reopened), a right shoulder disability, and a left shoulder disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action on her part is required. FINDINGS OF FACT 1. In a rating decision dated in October 2008, the RO denied a claim for service connection for lower back pain on the basis that there was no evidence of an in-service event or injury; the Veteran did not file a notice of disagreement or submit new evidence within one year of this denial. 2. Evidence submitted subsequent to the October 2008 rating decision bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim of entitlement to service connection for a low back disability. 3. In a rating decision dated in October 2008, the RO denied a claim for service connection for asthma on the basis that there was no evidence of an in-service event or injury; the Veteran did not file a notice of disagreement or submit new evidence within one year of this denial. 4. Evidence submitted subsequent to the October 2008 rating decision bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim of entitlement to service connection for asthma. 5. In a rating decision dated in October 2008, the RO denied a claim for service connection for bilateral pes planus on the basis that there was no evidence of an in-service event or injury; the Veteran did not file a notice of disagreement or submit new evidence within one year of this denial. 6. Evidence submitted subsequent to the October 2008 rating decision bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral pes planus. 7. In a rating decision dated in October 2008, the RO denied a claim for service connection for a chronic right knee condition on the basis that there was no evidence of an in-service event or injury; the Veteran did not file a notice of disagreement or submit new evidence within one year of this denial. 8. Evidence submitted subsequent to the October 2008 rating decision bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim of entitlement to service connection for a right knee disability. CONCLUSIONS OF LAW 1. The October 2008 rating decision denying the claim for service connection for lower back pain is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 20.1103 (2017). 2. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for a low back disability has been submitted. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The October 2008 rating decision denying the claim for service connection for asthma is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 20.1103 (2017). 4. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for asthma has been submitted. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 5. The October 2008 rating decision denying the claim for service connection for bilateral pes planus is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 20.1103 (2017). 6. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for bilateral pes planus has been submitted. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 7. The October 2008 rating decision denying the claim for service connection for a chronic right knee condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 20.1103 (2017). 8. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for a right knee disability has been submitted. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). ORDER As new and material evidence sufficient to reopen the previously denied claim for service connection for lower back pain has been received, the application to reopen is granted. As new and material evidence sufficient to reopen the previously denied claim for service connection for asthma has been received, the application to reopen is granted. As new and material evidence sufficient to reopen the previously denied claim for service connection for bilateral pes planus has been received, the application to reopen is granted. As new and material evidence sufficient to reopen the previously denied claim for service connection for a chronic right knee condition has been received, the application to reopen is granted. REMAND Although the Board regrets the delay, remand is necessary to ensure that there is a complete record on which to decide the Veteran's claims. Initially, the Board notes that there is some question of the dates of the Veteran's ACDUTRA and INACDUTRA service. While the AOJ was previously unable to verify these dates, it is not clear that they took all appropriate actions to do so. Therefore, the case must be remanded to verify all periods of ACDUTRA and INACDUTRA. Additionally, the Veteran has not been afforded VA examinations or opinions for any of her claims on appeal, despite medical evidence of current diagnoses, reported in-service complaints, and her argument that her current claimed disabilities are related to her in-service complaints. All of the claims on appeal must be remanded for VA examinations and opinions. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). As the case is being remanded, the Board will take the opportunity to obtain any outstanding VA treatment records. Accordingly, the case is REMANDED for the following actions: 1. Attempt to verify through official sources periods of ACDUTRA and INACDUTRA performed by the Veteran while serving in the National Guard. All attempts to verify these dates must be documented in the claims file. If the AOJ is unable to verify the Veteran's periods of ACDUTRA and INACDUTRA, she and her representative must be informed of such. 2. Obtain and associate with the claims file any outstanding VA treatment records from the Oakland VA Medical Center and any other VA facility identified by the Veteran. All attempts to obtain these records should be documented in the claims file. 3. Thereafter, schedule the Veteran for VA examination(s) with an appropriate examiner(s) to address the nature and etiology of his claimed low back disability, asthma, pes planus, right knee disability, and bilateral shoulder disabilities. The examiner(s) must review pertinent documents in the Veteran's claims file in conjunction with the examination(s). This must be noted in the examination report(s). With regard to the low back and right knee, the examiner must state whether it is at least as likely as not (a 50 percent probability or greater) that any of the Veteran's current low back or right knee disorders (including arthritis) had its onset in service or was otherwise etiologically related to active service. In providing this opinion, the examiner must specifically address the complaints of in-service back and right knee pain. With regard to asthma, the examiner must state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's currently diagnosed asthma had its onset in service or was otherwise etiologically related to active service. In providing this opinion, the examiner must specifically address the in-service asthma attacks. With regard to bilateral pes planus, the examiner should assume that first degree pes planus preexisted her first period of active service. With that in mind, the examiner should state whether (1) there is clear and unmistakable (obvious, manifest, or undebatable) evidence that the preexisting pes planus increased in severity during that period of active service, and (2) there is clear and unmistakable (obvious, manifest, or undebatable) evidence that the preexisting pes planus was not aggravated beyond the natural progression of the condition. The examiner should specifically address the Veteran's contentions of worsening foot pain while wearing boots in service. With regard to the bilateral shoulders, the examiner should answer the following questions: a. Is there is clear and unmistakable (obvious, manifest, or undebatable) evidence that the Veteran had a right or left shoulder disability that pre-existed her active duty service? The examiner must specifically discuss the Veteran's normal enlistment examination report with complaints of shoulder pain. b. If it is determined that a right or left shoulder disorder clearly and unmistakably preexisted service, is there is clear and unmistakable (obvious, manifest, or undebatable) evidence that the preexisting disorder(s) was not aggravated beyond the natural progression of the condition? c. If there is insufficient evidence showing that a right or left shoulder disorder preexisted service (i.e., a lack of clear and unmistakable evidence), is it is as likely as not (a 50 percent probability or greater) that the Veteran's currently diagnosed right or left shoulder disorder was caused or aggravated by her active service? Rationale for all requested opinions shall be provided. If the examiner(s) cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner(s) shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. After completing the above actions, the Veteran's claims should be readjudicated. If any of the claims remain denied, a supplemental statement of the case should be provided to the Veteran and her representative. After they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See 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 United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs