Citation Nr: 1805526 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 12-35 507 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a right knee disability. 2. Entitlement to service connection for a right knee disability. 3. Whether new and material evidence has been submitted to reopen a claim for service connection for a low back disability. 4. Entitlement to service connection for a low back disability. 5. Whether new and material evidence has been submitted to reopen a claim for service connection for pseudofolliculitis barbae. 6. Entitlement to service connection for pseudofolliculitis barbae. 7. Whether new and material evidence has been submitted to reopen the claim for service connection for residuals of reconstructive right foot surgery. 8. Entitlement to service connection for residuals of reconstructive right foot surgery. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S.Wainaina, Associate Counsel INTRODUCTION The Veteran had active service in the United States Navy from July 2000 to October 2002. This matter comes before the Board of Veteran's Appeals (Board) from a December 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The case is currently under the jurisdiction of the RO in Baltimore, Maryland. The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2017. A copy of the transcript has been associated with the claims file. The appeal of the matters of service connection for right knee condition, low back condition, pseudofolliculitis barbae, and residuals of reconstructive right foot surgery are being reopened based on new and material evidence. The reopened claims are remanded to the Agency of Original Jurisdiction. VA will notify the appellant if additional action is required on his part. FINDINGS OF FACTS 1. In a July 2003 unappealed rating decision, the RO denied service connection for right knee disability, low back disability, pseudofolliculitis barbae and residuals of reconstructive right foot surgery. 2. Evidence submitted subsequent to the July 2003 rating decision relates to unestablished facts necessary to substantiate the claims and raises a reasonable possibility of substantiating the claims of service connection for right knee disability, low back disability, pseudofolliculitis barbae and residuals of reconstructive right foot surgery. CONCLUSIONS OF LAW 1. The July 2003 rating decision denying the claim for service connection for a right knee disability is final based on the evidence then of record. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2017). 2. New and material evidence since the July 2003 rating decision has been submitted to allow the reopening of the claim for service connection for a right knee disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The July 2003 rating decision denying the claim for service connection for a low back disability is final based on the evidence then of record. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2017). 4. New and material evidence since the July 2003 rating decision has been submitted to allow the reopening of the claim for service connection for a low back disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 5. The July 2003 rating decision denying the claim for service connection for pseudofolliculitis barbae is final based on the evidence then of record. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2017). 6. New and material evidence since the July 2003 rating decision has been submitted to allow the reopening of the claim for service connection for pseudofolliculitis barbae. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 7. The July 2003 rating decision denying the claim for service connection for residuals from reconstructive right foot surgery is final based on the evidence then of record. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2017). 8. New and material evidence since the July 2003 rating decision has been submitted to allow the reopening of the claim for service connection for residuals from reconstructive right foot surgery. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition, as identified in 38 C.F.R. § 3.309(a), noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1990). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Reopening a Claim on the Basis of New and Material Evidence Service connection for right knee disability, low back disability, pseudofolliculitis barbae and residuals of reconstructive right foot injury was previously denied by the RO in a July 2003 rating decision. The Veteran was notified thereof by letter dated later than month. He did not appeal the determinations. In September 2010, he filed a claim seeking service connection. In such cases, it must first be determined whether new and material evidence has been received such that the claims may now be reopened. 38 U.S.C. §§ 5108, 7105; Manio v. Derwinski, 1 Vet. App. 140 (1991). The Board has the jurisdictional responsibility to determine whether new and material evidence has been received to reopen the claims, irrespective of what the RO determined. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)). If the Board finds that no such evidence has been offered, the analysis must end, and what the RO may have determined in this regard is irrelevant. Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the veteran's previously and finally denied claims). If, however, new and material evidence has been submitted since the prior final denial of the claims, then they must be reopened and the former dispositions reconsidered. 38 U.S.C. § 5108. In considering whether a claim should be reopened, the Board performs a two-step analysis. The first step is to determine whether the evidence secured since the last final disallowance of the claim is "new and material." See 38 U.S.C. § 5108. According to VA regulation, "new" evidence means existing evidence not previously submitted to agency decision makers. "Material" evidence means 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 cannot be cumulative or 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). Second, if VA determines the evidence is new and material, it may then proceed to evaluate the merits of the claim on the basis of all the evidence of record, but only after ensuring the duty to assist has been fulfilled. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins v. West, 12 Vet. App. 209 (1999)), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000). This second step becomes applicable only when the preceding step is satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). In determining whether evidence is new and material, the credibility of the evidence is generally to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). This presumption only applies when determining whether the evidence is new and material. It does not apply when determining the credibility and weight of the evidence as it relates to the merits of the claim. Essentially, the presumption of credibility "dissolves" once the claim is reopened and decided on the merits. See also Duran v. Brown, 7 Vet. App. 216 (1994) (indicating "Justus does not require the Secretary [of VA] to consider the patently incredible to be credible" or assertions beyond the competence of the person making them). Right knee disability Evidence prior to the July 2003 rating decision includes a June 2002 service treatment record where knee pain was noted to be due a motor vehicle accident. Evidence of record subsequent to the July 2003 rating decision includes testimony from the Veteran at the March 2017 Board hearing during which he testified he was receiving treatment from a private physician for a right knee condition. This evidence is not cumulative of the evidence already in the record. Also, this evidence relates to an unestablished fact necessary to substantiate the claim (i.e., the presence of a current right knee disability) and raises the possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Accordingly, new and material evidence has been received and the claim is reopened. Low back disability Evidence prior to the July 2003 rating decision includes a service treatment record in September 2001 that notes that the Veteran sought treatment for back pain. The Veteran was given Motrin for his back pain. Evidence of record subsequent to the July 2003 rating decision includes testimony from the Veteran in a March 2017 hearing during which the Veteran testified that his low back still hurts and it's getting harder for him to stand. This evidence is not cumulative of the evidence already in the record. This evidence relates to an unestablished fact necessary to substantiate a claim (i.e., the presence of a current low back disability) and raises the possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Accordingly, new and material evidence has been received and the claim is reopened. Pseudofolliculitis Barbae Evidence prior to the July 2003 rating decision includes a service treatment record dated June 2001, that notes that the Veteran was treated for facial hair irritation. Mild pseudofolliculitis barbae was diagnosed. In the separation examination, it was noted that the Veteran did not have a skin condition. Evidence of the record subsequent to the July 2003 rating decision includes testimony from the Veteran in a March 2017 Board hearing during which Veteran testified that he could not shave because of his pseudofolliculitis barbae condition. He further stated that the only way to manage the pseudofolliculitis barbae is not to shave. This evidence is not cumulative of the evidence that is already of record. This evidence relates to unestablished fact necessary to substantiate a claim (i.e., the presence of pseudofolliculitis barbae disability) and raises the possibility of substantiating the claim.. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Accordingly, new and material evidence has been received and the claim is reopened. Residuals of reconstructive surgery of the right foot Evidence prior to the July 2003 rating decision includes evidence of the Veteran having foot surgery for a right flat foot in service. Evidence of record subsequent to the July 2003 rating decision includes a positive nexus statement from Dr. E.M. dated in March 2017. In this statement, the physician indicated that the Veteran does have a congenital foot deformity, which required surgical intervention during service. The physician also indicated that the Veteran continued to have residual symptoms for which the Veteran continues to receive treatment. This evidence is not cumulative of the evidence already in the record. Also this evidence relates to an unestablished fact necessary to substantiate the claim (i.e., evidence of a current foot disability), and raises a reasonable opportunity to substantiate the claim See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Accordingly, new and material evidence has been received and the claim is reopened. ORDER The petition to reopen the claim of service connection for a right knee disability is granted. To this extent, the appeal is allowed. The petition to reopen the claim of service connection for low back disability is granted. To this extent, the appeal is allowed. The petition to reopen the claim of service connection for pseudofolliculitis barbae is granted. To this extent, the appeal is allowed. The petition to reopen the claim of service connection for residuals of reconstructive right foot surgery is granted. To this extent, the appeal is allowed. REMAND The appeal has been reopened and additional development is required. The Board finds that VA examinations are necessary to determine the etiology of the Veteran's right knee, low back, and PFB disorders and to determine whether he has residuals of reconstructive right foot surgery in service. The Veteran was involved in a motor vehicle accident according to the September 2001 service treatment record. The treatment record indicates that the Veteran was treated at RMH Hospital in Harrisonburg Virginia, and released. RMH Hospital treatment records are not of record. The Board is of the opinion that appropriate attempts are necessary to obtain these records prior to the final adjudication of the Veteran's claims. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA and non-VA treatment records. 2. Make appropriate efforts to obtain the clinical record of the Veteran's hospitalization as a result of a motor vehicle accident from RMH Medical Center in Harrisonburg, Virginia, including by requesting any available clinical records in the possession of the National Personnel Records Center. 3. Following completion of the above, the Veteran should be scheduled for a VA medical examination from an examiner of appropriate medical expertise to determine the etiology of any current right knee disability, low back disability and right foot disability. The claims file should be made available to the examiner for review of the case. The examiner is asked to review pertinent documents in the claims file and note that this case review took place. a.) The examiner is asked to provide an opinion as to whether it is at least likely as not (50 percent or greater probability) that the Veteran's right knee disability is of service onset or otherwise related to service. b.) The examiner is asked to provide an opinion as to whether it is at least likely as not (50 percent or greater probability) that the Veteran's low back disability is of service onset or otherwise related to service. c.) The examiner is asked to provide an opinion as to whether it is at least likely as not (50 percent or greater probability) that the Veteran has any residual disability as result of his reconstructive right foot surgery during service apart from the already service-connected pes planus. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence is so evenly divided that in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. Schedule the Veteran for a VA medical examination from an examiner of appropriate medical expertise to determine the etiology of his pseudofollicultis barbae disability. The claims file should be made available to the examiner for review of the case. The examiner is asked to review pertinent documents in the claims file and note that this case review took place. The examiner should indicate whether there is a current diagnosis of pseudofolliculitis barbae. The examiner is asked to provide an opinion as to whether it is at least likely as not (50 percent or greater probability) that the Veteran's pseudofolliculitis barbae (if diagnosed) is of service onset or otherwise related to service. When rendering this opinion, the examiner is to consider and comment on the clinical significance of the Veteran's inservice treatment and shaving profile for pseudofolliculitis barbae. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence is so evenly divided that in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 5. Then, readjudicate the remaining claim on appeal. If the matter is not resolved to the Veteran's satisfaction, furnish the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond before the case is returned to the Board. 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 (2012). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs