Citation Nr: 18142891 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 18-43 156 DATE: ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a bilateral foot disability (claimed as arthritis), to include as secondary to service-connected cervical spine disability. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a skin disability, to include as secondary to herbicide exposure. 3. Entitlement to service connection for a skin disability, to include as secondary to herbicide exposure. 4. October 17, 2018Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD. 5. Entitlement to an increased disability rating for coronary artery disease, status post myocardial infarction with angioplasty, currently rated at 30 percent.   ORDER As new and material evidence has not been received, the claim to reopen service connection for a bilateral foot disability (claimed as arthritis) is denied. New and material evidence having been received, the claim of entitlement to service connection for a skin disability, to include as secondary to herbicide exposure, is reopened. REMANDED Entitlement to service connection for a skin disability, to include as secondary to herbicide exposure, is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD, is remanded. Entitlement to an increased disability rating for coronary artery disease, status post myocardial infarction with angioplasty, currently rated at 30 percent, is remanded. FINDINGS OF FACT 1. In an unappealed July 2007 rating decision, the RO denied service connection for a bilateral foot disability, claimed as arthritis. Medical evidence received subsequent to the July 2007 rating decision, while chronologically new, is cumulative and redundant of the evidence at the time of the July 2007 rating decision and, even assuming their credibility, do not raise a reasonable possibility of substantiating the claim for service connection for entitlement to service connection for a bilateral foot disability, claimed as arthritis. 2. A May 2018 VA examination, while new, is not material to the claim to reopen service connection for a bilateral foot disability, claimed as arthritis, as the examiner provided a negative nexus opinion. 3. In an unappealed July 2007 rating decision, the RO denied service connection for a skin disability, to include as secondary to herbicide exposure. Medical evidence received subsequent to the July 2007 rating decision is neither cumulative nor redundant of the evidence at the time of the July 2007 rating decision and assuming its credibility raises a reasonable possibility of substantiating the claim for service connection for entitlement to service connection for a skin disability, to include as secondary to herbicide exposure. CONCLUSIONS OF LAW 1. The July 2007 rating decision declining to reopen a claim of service connection for a bilateral foot disability, claimed as arthritis, is final. The medical evidence, including a May 2018 VA examination, received for service connection subsequent to the July 2007 rating decision is not new and material to reopen service connection for a a bilateral foot disability, claimed as arthritis. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156 (1), 3.303, 20.1105 (2017). 2. The July 2007 rating decision denying service connection for bilateral hearing loss is final. The testimonial evidence received for service connection subsequent to the July 2007 rating decision is new and material to reopen the claim for entitlement to service connection for a skin disability, to include as secondary to herbicide exposure. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156 (1), 3.303, 20.1105 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1963 to October 1975. These matters come before the Board of Veterans’ Appeals (Board) on appeal from April 2015 and August 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes that jurisdiction of these matters has since transferred to the RO in Chicago, Illinois. The Board notes that service connection for degenerative arthritis of the lumbar spine was granted in a July 2018 rating decision and, as such, is no longer in appellate status. The Board further notes that the matter of entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities was granted in October 2018 and, as such, is no longer in appellate status. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). As to the matters of whether new and material evidence have been received to reopen claims of entitlement to service connection for bilateral foot and skin disabilities, the Veteran has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See, Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See, Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). In February 2017, the Veteran’s representative submitted a document titled Argument and Evidence in Support of Appeals in which she made an informal claim for an increased disability rating for the Veteran’s service-connected multiple callosities of the bilateral feet, but styled the claim as an “Increased Disability Rating for Bilateral Foot Condition” and argued that the current Diagnostic Code (DC) of 7819 (Benign skin neoplasms) is inappropriate and that using DC 5276 (Flatfoot, acquired) or DC 5284 (Foot injuries, other) would be more appropriate. In a July 2018 Statement of the Case (SOC), whether new and material evidence had been received to reopen the claim of service connection for bilateral foot condition (also claimed as arthritis) was listed as an issue, but not entitlement to an increased rating for a bilateral foot condition. In her August 2018 substantive appeal to the Board, the Veteran’s counsel argued that the RO failed to recognize that the Veteran was service connected for “multiple callosities, both feet” and that there was an “expressly raised legal argument for an increased disability rating” for the bilateral foot condition, citing her February 2017 brief. The Board further notes that the RO has yet to adjudicate this issue. Therefore, the Board does not have jurisdiction over the Veteran’s claim for an increased rating for multiple callosities of the bilateral feet, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2017).   New and Material Evidence to Reopen Previously Denied Claims In an unappealed July 2007 rating decision, the RO denied service connection for a skin disability, to include as secondary to herbicide exposure. Additionally, the RO denied service connection for a bilateral foot condition, to include as secondary to service-connected cervical spine disability. In a July 2018 Statement of the Case, the RO reopened these matters and denied them on their merits after a de novo review. Regardless of the RO's actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See, Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)). See also, Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the issue before proceeding to adjudicate the underlying merits of the claim. If the Board finds that no new and material evidence has been provided, that is where the analysis must end. Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C. §§ 7105 (c), (d)(3); 38 C.F.R. § 20.1103. A previously denied claim may be reopened by the submission of new and material evidence. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156. New evidence is defined as 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 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). The Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Moreover, the Court of Appeals for Veterans Claims ("Court") explained this standard is intended to be a low threshold. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a bilateral foot disability, claimed as arthritis. As discussed above, the Veteran’s counsel submitted a February 2017 document in which she asserted that the issue of service connection for a bilateral foot disability should be a claim for an increased disability rating for the Veteran’s service-connected multiple callosities of the bilateral feet, but styled the claim as an “Increased Disability Rating for Bilateral Foot Condition”. The Board notes that in an unappealed July 2007 rating decision, service connection for a bilateral foot condition, claimed as “arthritis” in the January 2007 informal claim, was denied. In his fully developed claim form received in November 2014, the Veteran made a claim for “Foot Problems, Reopened”. This claim to reopen was subsequently denied in an April 2015 rating decision. In a Notice of Disagreement (NOD) received in April 2016, service connection for a “bilateral foot condition (arthritis)” was noted as one of the issues by the Veteran’s counsel. A subsequent Statement of the Case (SOC) lists the issue as whether new and material evidence has been received to reopen a claim of entitlement to service connection for a bilateral foot disability, claimed as arthritis. As such, this is the correct issue before the Board. An April 2014 VA treatment record notes the Veteran reported pain in the plantar area of his feet. Upon examination, bilateral pes planus, bilateral hallux limitus and bilateral hammer toes were noted. The Board notes that while these documents are new, in that they have not previously been submitted, they are not material as they do not address a requirement of service connection that was previously denied. Specifically, these do not provide a nexus linking the Veteran’s claimed bilateral foot disability to his service. The Veteran was afforded a VA foot conditions examination in May 2018. A diagnosis of bilateral pes planus from 2005 was noted. It was noted that the Veteran is service connected for bilateral plantar keratosis and that he periodically develops pain and goes to podiatry for debridement and orthotics. The examiner opined that the Veteran’s pes planus, hammer toes and degenerative arthritis are less likely than not caused by his bilateral plantar keratoses, noting that pes planus is a familial condition that is likely exacerbated by the aging process and that arthritis is due to normal aging. The examiner further noted that hammertoes are due to intrinsic muscle imbalance. Here, while the May 2018 VA examination report is new, it is not material to the claim. Notably, the VA examiner provided a negative nexus opinion regarding the Veteran's bilateral foot disability. As new and material evidence has not been received, the benefit-of-the-doubt doctrine is not for application. See, Annoni v. Brown, 5 Vet. App. 463, 467 (1993) (benefit-of-the-doubt doctrine is doctrine is not applicable to applications to reopen unless the threshold burden of submitting new and material evidence has been met). 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a skin disability, to include as secondary to herbicide exposure A July 2010 VA treatment record notes the Veteran reported longstanding, chronic dryness of his hands. The Veteran reported "some exposure to chemicals". The Veteran was referred to dermatology. A July 2010 VA dermatology consult notes the Veteran reported a rash on his hands and feet for a period of months. Upon examination, scaly plaques were noted on the Veteran's hands and diffuse scale were noted on his feet. The Veteran's toenails were noted as yellow and thickened. Eczematous dermatitis, tinea pedis and onychomycosis were noted. The Board finds that this medical evidence was not previously submitted to VA before the July 2007 rating decision and is therefore “new” evidence. The evidence received subsequent to the July 2007 rating decision is a medical examination diagnosing a current left thumb disability. The Board finds that, assuming its credibility for purposes of deciding whether to reopen the claim, this medical evidence of record constitutes new and material evidence to reopen the claim for service connection for a left thumb disability. This new evidence addresses a requirement of service connection that was previously denied; a currently diagnosed chronic disability. Therefore, this new evidence is material and the Veteran’s claim for service connection for a skin condition, to include as secondary to herbicide exposure is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD, is remanded. The Board cannot make a fully-informed decision on the issue of obstructive sleep apnea because no VA examiner has opined whether the Veteran’s sleep apnea is related to his military service, to include as secondary to service-connected PTSD. As such, a remand for a VA examination is required. 2. Entitlement to service connection for a skin disability, to include as secondary to herbicide exposure is remanded. The Veteran was afforded a VA skin diseases examination in May 2018. Diagnoses of eczema, onychomycosis and tinea pedis from 2018 were noted. The examiner opined that the Veteran’s skin disability is less likely than not due to the Veteran’s service, noting that the diagnosed conditions were not noted in service. When VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, the examiner relied on a lack of in-service documentation and did not discuss the July 2010 VA treatment records indicating the Veteran’s skin disabilities were “chronic”. Furthermore, the examiner did not opine as to whether the diagnosed conditions are related to exposure to herbicide. As such, remand for a new VA examination is required. 3. Entitlement to an increased disability rating for coronary artery disease, status post myocardial infarction with angioplasty, currently rated at 30 percent is remanded. The Veteran contends that he is entitled to a 100 percent disability rating for service-connected coronary artery disease, status post myocardial infarction with angioplasty. The Veteran was afforded a VA heart conditions examination in July 2017, at which time, interview-based METs was estimated at greater than 3 but not greater than 5 with dyspnea and fatigue. The examiner then noted that the limitation in the METs level was due to multiple medical conditions, including the Veteran’s heart condition and stated that it is not possible to accurately estimate the percent of METs limitation attributable to each medical condition. Here, the Board will afford the Veteran the benefit of the doubt and attribute the Veteran's severely reduced predicted METs level to his service-connected coronary artery disease. See, Mittleider v. West, 11 Vet. App. 181, 182 (1998) (When it is not possible to separate the effects of a nonservice-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability.). On September 22, 2017, VA received a Cardiac Condition Questionnaire signed by a doctor at the St. Louis VAMC which notes the Veteran requires continuous medication to treat his heart condition. It was further noted that the estimated METs level was 1 to 3 with symptoms of angina during activity. The doctor further stated that the METs level was due solely to the Veteran's heart condition. Due to the contradictory METs level reporting, Board finds that a remand for an examination is necessary. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from October 2018 to the Present. 2. After, and only after, completion of step one above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any obstructive sleep apnea. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner must opine as to whether it is at least as likely as not (1) proximately due to service-connected PTSD, or (2) aggravated beyond its natural progression by service-connected PTSD. The examiner’s attention is invited to the medical treatise articles submitted by the Veteran’s counsel regarding sleep apnea and mental health. 3. After, and only after, completion of step one above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any skin disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including exposure to tactical herbicides. The examiner must opine as to whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner must opine as to whether it is at least as likely as not related to in-service herbicide agent exposure. 5. After, and only after, completion of step one above, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected coronary artery disease, status post myocardial infarction with angioplasty. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to coronary artery disease, status post myocardial infarction with angioplasty alone and discuss the effect of the Veteran’s coronary artery disease, status post myocardial infarction with angioplasty on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner’s attention is invited to the July 2017 VA heart conditions examination in which the examiner estimated the Veteran’s METs level at greater than 3 but not greater than 5 with dyspnea and fatigue. The examiner’s attention is invited to a September 2017 Cardiac Condition Questionnaire signed by a doctor at the St. Louis VAMC which notes the Veteran requires continuous medication to treat his heart condition. It was further noted that the estimated METs level was 1 to 3 with symptoms of angina during activity. The doctor further stated that the METs level was due solely to the Veteran's heart condition. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). 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 of record 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. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 6. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel