Citation Nr: 18141085 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-03 856A DATE: October 9, 2018 ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for left foot tendonitis. New and material evidence has been received to reopen a claim of entitlement to service connection for a right knee disorder. New and material evidence has been received to reopen a claim of entitlement to service connection for a back disorder (claimed as chest/back pain and back strain). New and material evidence has been received to reopen a claim of entitlement to service connection for neck disorder (claimed as neck strain and cervical spine pain). New and material evidence has been received to reopen a claim of entitlement to service connection for bilateral pes planus. New and material evidence has been received to reopen a claim of entitlement to service connection for metatarsalgia. New and material evidence has been received to reopen a claim of entitlement to service connection for a trapezius disorder (claimed as back and neck trapezius strain and a right shoulder disorder). New and material evidence has been received to reopen a claim of entitlement to service connection for thoracic outlet syndrome. REMANDED A rating in excess of 30 percent for asthma is remanded. A rating in excess of 30 percent for migraines is remanded. An initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Service connection for right knee, neck, back, trapezius, thoracic outlet syndrome, bilateral pes planus, metatarsalgia and left foot disorders are remanded. FINDINGS OF FACT 1. By a November 2006 rating decision, the RO denied the Veteran’s claims for service connection for left foot tendonitis, a right knee disorder, a back disorder, a neck disorder, bilateral pes planus, metatarsalgia, a trapezius disorder and thoracic outlet syndrome; she was advised of the RO’s decision, and of her appellate rights. 2. The Veteran did not initiate an appeal of the RO’s decision within one year; nor was new and material evidence received within a year. 3. Additional evidence received since the RO’s November 2006 decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claims for service connection specified above, and raises a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The RO’s November 2006 rating decision which denied service connection for left foot tendonitis, a right knee disorder, a back disorder, a neck disorder, bilateral pes planus, metatarsalgia, a trapezius disorder and thoracic outlet syndrome, is final. 38 U.S.C. §§ 7105 (West 2002); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2006). 2. New and material evidence has been received to reopen the Veteran’s claims for service connection for left foot tendonitis, a right knee disorder, a back disorder, a neck disorder, bilateral pes planus, metatarsalgia, a trapezius disorder and thoracic outlet syndrome. 38 U.S.C. §§ 1110, 5108 (West 2002); 38 C.F.R. §§ 3.303, 3.156 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1998 to June 2006. These matters are before the Board of Veterans’ Appeals (Board) on appeal from November 2013 and December 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence Left Foot Tendonitis, Right Knee Disorder, Back Disorder, Neck Disorder, Metatarsalgia, Trapezius Disorder and Thoracic Outlet Syndrome In the November 2006 rating decision, the RO denied service connection for left foot tendonitis, a right knee disorder, a back disorder, a neck disorder, metatarsalgia, a trapezius disorder and thoracic outlet syndrome, on the basis that there was no current diagnosis. Evidence received since the time of the RO’s November 2006 rating decision includes private and VA medical records indicating diagnoses or symptomatology relating to such disorders. Here, such evidence is not cumulative or redundant of the evidence of record at the time of that decision. It also relates to an unestablished fact necessary to substantiate the claims for service connection. Furthermore, as the Veteran’s service records document symptoms or injuries relating to her claimed disorders, the current medical evidence reflective of such disorders triggers VA’s duty to provide a medical examination. As per Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), this obligation to provide a medical examination raises a reasonable possibility of substantiating the Veteran’s claims. Accordingly, the claims are reopened. Bilateral Pes Planus In the November 2006 rating decision, the RO denied service connection for bilateral pes planus, on the basis that such was found to have pre-existed service and was not shown to be aggravated therein. Evidence received since the time of the RO’s November 2006 rating decision includes a December 2014 Foot DBQ which indicates that the Veteran began empiercing foot problems during boot camp. The Board notes that the Veteran’s pes planus was noted at service entrance, therefore the presumption of soundness does not apply. The Board must therefore determine if there was any worsening of the disability during service, and, then, whether this constitutes an increase, permanent in nature, in the disability. Here, an opinion regarding whether the Veteran’s claimed bilateral pes planus was aggravated by service has not been obtained. As the December 2014 DBQ suggests an increase in disability in service, the Board finds that such triggers VA’s duty to provide a medical examination. As per Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), this obligation to provide a medical examination raises a reasonable possibility of substantiating the Veteran’s claim. Accordingly, the claim is reopened. REASONS FOR REMAND Increased Ratings for Asthma, Migraines and PTSD The Veteran, through her representative, has alleged a worsening of the above disorders since her last VA examinations. The Board notes that the Veteran was last afforded a VA examination for asthma in October 2013, and, for her migraines and PTSD, in June 2015. Accordingly, the Board finds that VA examinations are warranted to assess the current severity of such disorders. Additionally, with respect to the Veteran’s PTSD claim, there are missing treatment records from the Vet Center, as indicated by the January 2016 letter stating that the Veteran received eleven counseling sessions at the Raleigh, North Carolina, Vet Center, from October 2014 through September 2015. Regarding the Veteran’s migraine claim, it also appears that the RO did not consider the June 2015 VA examination, as such was not referenced in the December 2015 Statement of the Case. Service Connection for Right Knee Since the issuance of the statement of the case (SOC) in December 2015, additional medical evidence has been added to the Veteran’s electronic claims file, to include a November 2017 medical opinion regarding the etiology of the Veteran’s right knee disorder. However, the RO has not issued a supplemental statement of the case (SSOC) since the receipt of this additional evidence. The duty to readjudicate based upon VA-developed records cannot be waived without potential prejudice to the Veteran. Disabled Am. Veterans v. Sec’y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) (“Together [sections] 511(a) and 7104(a) dictate that the Board acts on behalf of the Secretary in making the ultimate decision on claims and provides ‘one review on appeal to the Secretary’ of a question ‘subject to decision by the Secretary’ under [section] 511(a).”). Therefore, a remand is required. Service Connection for a Neck, Back and Trapezius Disorder The Board notes the overlapping areas claimed by the Veteran, namely, the back disorder, claimed as chest/back pain and back strain, the neck disorder, claimed as neck strain and cervical spine pain, and the trapezius disorder, claimed as back and neck trapezius strain and a right shoulder disorder. Here, a VA examination, which clearly delineates any diagnoses pertaining to the Veteran’s claimed disorders, and opinions on their etiology, is required to provide clarity and adequately address the Veteran’s claimed disorders. In this regard, while a December 2013 VA examination and opinion was obtained regarding the Veteran’s neck and back, the examiner concluded that an opinion could not be provided without resort to mere speculation, given the Veteran’s intervening automobile accidents since her initial in-service injury. Accordingly, the Board finds that a comprehensive VA examination and opinion is necessary. Additionally, regarding the Veteran’s claimed trapezius disorder, the Board notes that, in the December 2013 rating decision, a VA medical opinion, from Dr. S.E., Ph.D., dated October 29, 2013, was referenced in the discussion of the Veteran’s claimed trapezius disorder. Such opinion does not appear to be included in the Veteran’s electronic claims file. Accordingly, on remand, such evidence should be incorporated. Thoracic Outlet Syndrome A March 2012 private treatment record reflects that the Veteran has a diagnosis of thoracic outlet syndrome. As she has claimed that such was due to her in-service automobile accident, the Board finds that a VA examination and opinion is necessary. Bilateral Pes Planus, Metatarsalgia and Left Foot Tendonitis Clarification is needed regarding the diagnoses and etiology of Veteran’s claimed foot disorders. The Board notes that, though the December 2014 Foot DBQ only indicated a diagnosis of pes planus for the right foot, such examination also indicates multiple symptoms and functional impairment pertaining to both feet, such that further development is necessary. Furthermore, as discussed above, an opinion regarding whether the Veteran’s claimed bilateral pes planus was aggravated by service has is necessary. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records, to specifically include those from the Raleigh, North Carolina, Vet Center, dated from October 2014 through September 2015. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A (b)(2) and 38 C.F.R. § 3.159 (e). 2. Associate with the record the VA medical opinion, from Dr. S.E., Ph.D., dated October 29, 2013, and referenced in the December 2013 Rating Decision. 3. Schedule the Veteran for a VA examination to determine the current severity of her asthma. The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. A complete rationale is required for any opinions expressed. 4. Schedule the Veteran for a VA examination to determine the current severity of her migraines. The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. A complete rationale is required for any opinions expressed. 5. Schedule the Veteran for a VA examination to determine the current severity of her PTSD. The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. A complete rationale is required for any opinions expressed. 6. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of her back disorder, claimed as chest/back pain and back strain, the neck disorder, claimed as neck strain and cervical spine pain, and the trapezius disorder, claimed as back and neck trapezius strain and a right shoulder disorder. All diagnoses should be clearly indicated. For each diagnosis, the examiner is asked to address the following: Whether the disorder is at least as likely as not etiologically related to or had its onset during the Veteran’s period of service, to include her in-service automobile accident? The examination report should include a complete rationale for all opinions expressed. 7. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of her thoracic outlet syndrome. For each diagnosis, the examiner is asked to address the following: Whether the disorder is at least as likely as not etiologically related to or had its onset during the Veteran’s period of service, to include her in-service automobile accident? The examination report should include a complete rationale for all opinions expressed. 8. Schedule the Veteran for a VA foot examination with an appropriate clinician to determine the nature and etiology of any diagnosed foot disorder, claimed as bilateral pes planus, metatarsalgia and left foot tendonitis. All diagnoses should be clearly indicated. For bilateral pes planus, the examiner should provide an opinion regarding whether there is clear and unmistakable evidence that such disorder DID NOT increase in severity beyond its natural progression during service (i.e., the disorder was not aggravated by service). In providing answers to the above inquiry, the examiner should be advised that aggravation means a chronic worsening of the underlying condition, as opposed to a temporary flare-up of symptoms. For all other diagnoses, the examiner is asked to address the following: Whether the disorder is at least as likely as not etiologically related to or had its onset during the Veteran’s period of service? The examination report should include a complete rationale for all opinions expressed. 9. Readjudicate the issues on appeal. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.Z., Counsel