Citation Nr: 18140497 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 16-55 398 DATE: October 3, 2018 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for bursitis of the right knee. The appeal is granted to that extent only. New and material evidence has been received to reopen the claim of entitlement to service connection for Haglund's deformity of bilateral heels. The appeal is granted to that extent only. New and material evidence has been received to reopen the claim of entitlement to service connection for lower back condition. The appeal is granted to that extent only. New and material evidence has been received to reopen the claim of entitlement to service connection for acid reflux. The appeal is granted to that extent only. New and material evidence has been received to reopen the claim of entitlement for bilateral callus condition of the feet. The appeal is granted to that extent only. New and material evidence has been received to reopen the claim of entitlement to service connection for pseudofolliculitis. The appeal is granted to that extent only. REMANDED Entitlement to service connection for residuals of a right hand injury is remanded. Entitlement to service connection for bursitis of the right knee is remanded. Entitlement to service connection for Haglund's deformity of the bilateral heels is remanded. Entitlement to service connection for a left hip condition is remanded. Entitlement to service connection for a right hip condition is remanded. Entitlement to service connection for a left knee injury is remanded. Entitlement to service connection for bilateral flat feet is remanded. Entitlement to service connection for a lower back condition is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for acid reflux is remanded. Entitlement to service connection for a bilateral callus condition of the feet is remanded. Entitlement to service connection for pseudofolliculitis is remanded. FINDINGS OF FACT 1. By an April 2011 rating decision, the Veteran’s claim of entitlement to service connection for bursitis of the right knee was denied. 2. Additional evidence has been received which is not cumulative or redundant of the evidence of record at the time of the April 2011 rating decision and relates to an unestablished fact necessary to substantiate the claim for service connection for bursitis of the right knee. 3. By an April 2011 rating decision, the Veteran’s claim of entitlement to service connection for Haglund’s deformity of the bilateral heels was denied. 4. Additional evidence has been received which is not cumulative or redundant of the evidence of record at the time of the April 2011 rating decision and relates to an unestablished fact necessary to substantiate the claim for service connection for Haglund’s deformity of the bilateral heels. 5. By an April 2011 rating decision, the Veteran’s claim of entitlement to service connection for a lower back condition was denied. 6. Additional evidence has been received which is not cumulative or redundant of the evidence of record at the time of the April 2011 rating decision and relates to an unestablished fact necessary to substantiate the claim for service connection for a lower back condition. 7. By an April 2011 rating decision, the Veteran’s claim of entitlement to service connection for acid reflux was denied. 8. Additional evidence has been received which is not cumulative or redundant of the evidence of record at the time of the April 2011 rating decision and relates to an unestablished fact necessary to substantiate the claim for service connection for acid reflux. 9. By an April 2011 rating decision, the Veteran’s claim of entitlement to service connection for a bilateral callus condition of the feet was denied. 10. Additional evidence has been received which is not cumulative or redundant of the evidence of record at the time of the April 2011 rating decision and relates to an unestablished fact necessary to substantiate the claim for service connection for a bilateral callus condition of the feet. 11. By an April 2011 rating decision, the Veteran’s claim of entitlement to service connection for pseudofolliculitis was denied. 12. Additional evidence has been received which is not cumulative or redundant of the evidence of record at the time of the April 2011 rating decision and relates to an unestablished fact necessary to substantiate the claim for service connection for pseudofolliculitis. CONCLUSIONS OF LAW 1. The April 2011 rating decision denying service connection for bursitis of the right knee is final. 38 U.S.C. §§ 7104 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for bursitis of the right knee, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The April 2011 rating decision denying service connection for Haglund’s deformity of the bilateral heels is final. 38 U.S.C. §§ 7104 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 4. New and material evidence has been received to reopen the claim of entitlement to service connection for Haglund’s deformity of the bilateral heels, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. The April 2011 rating decision denying service connection for a lower back condition is final. 38 U.S.C. §§ 7104 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 6. New and material evidence has been received to reopen the claim of entitlement to service connection for a lower back condition, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 7. The April 2011 rating decision denying service connection for acid reflux is final. 38 U.S.C. §§ 7104 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 8. New and material evidence has been received to reopen the claim of entitlement to service connection for acid reflux, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 9. The April 2011 rating decision denying service connection for a bilateral callus condition of the feet is final. 38 U.S.C. §§ 7104 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 10. New and material evidence has been received to reopen the claim of entitlement to service connection for a bilateral callus condition of the feet, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 11. The April 2011 rating decision denying service connection for pseudofolliculitis is final. 38 U.S.C. §§ 7104 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 12. New and material evidence has been received to reopen the claim of entitlement to service connection for pseudofolliculitis, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from December 1975 to December 1978. In July 2018, the Veteran testified at a Board hearing. The transcript is of record. I. New and Material Evidence A claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is 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.” Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In the April 2011 rating decision, the Veteran’s claim for service connection for Haglund’s deformity of the bilateral heels, bursitis of the right knee, bilateral callus condition of the feet, and pseudofolliculitis was denied based on the finding that the Veteran did not have a current diagnosis. The April 2011 decision also denied the Veteran’s claims for service connection for acid reflux and lower back condition based on the finding that they did not incur in, nor were caused by service. At the time of that decision the pertinent evidence of record included the Veteran’s service treatment records, VA and private treatment records and VA examination dated April 21, 2011. The evidence received since the April 2011 rating decision includes the Veteran’s credible testimony regarding his in-service injury of being hit by a truck that resulted in his lower back condition. The Veteran also testified that his symptoms due to Haglund’s deformity, calluses, acid reflux, pain in the right knee, and bumps from shaving started in service and have been present ever since. This evidence is new and material as it provides evidence that the Veteran’s claimed conditions incurred in service and that these conditions have persisted ever since. The evidence pertains to unsubstantiated facts that are necessary to substantiate the claim. Therefore, the claim is reopened. REASONS FOR REMAND VA has a duty to make reasonable efforts to assist Veterans in securing evidence necessary to substantiate their claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). The record indicates that the Veteran receives disability payments from the Social Security Administration (SSA). However, there are no Social Security applications, decisions, or medical records associated with an SSA claim in the record. As such, any records from Social Security should be obtained as they may contain evidence necessary for the Veteran to substantiate his claim. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Regarding the Veteran’s claim for entitlement to service connection for lower back injury, the Veteran testified that he was hit by a truck during service, which resulted in his back injury. This incident is separate from the July 1978 truck injury notated in the Veteran’s service treatment records. The Veteran testified that, due to the injury sustained to his back, he was on bed rest for approximately five days; however, the Veteran’s service treatment records do not contain any reports pertaining to this incident. As this evidence suggests a nexus between the Veteran’s current back pain and active service, the AOJ should attempt to obtain any records of the reported incident. The matters are REMANDED for the following action: 1. Obtain updated VA and/or private treatment records. If such records are unavailable, the Veteran’s claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Obtain from SSA all records pertaining to the Veteran's claim for disability benefits, if any, including copies of all medical records considered in deciding any claim. 3. Request that the Joint Services Records Research Center or any other appropriate repository or agency provide any information that may corroborate the claimed in-service lower back injury, including, but not limited to, unit diaries, serious incident reports, or sick reports. The research should cover the period of January 1, 1978, to December 31, 1978. 4. Upon completion of the above directives, complete any other necessary development after review of any additionally received records, to include additional VA examinations if warranted. (Continued on the next page)   5. Finally, readjudicate the appeals. If any benefit sought on appeal remains denied, issue a supplemental statement of the case and return the case to the Board. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. A. Prinsen, Associate Counsel