Citation Nr: 18143820 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 16-27 662 DATE: October 22, 2018 ORDER New and material evidence has been received to reopen the claim for service connection for a right hand cold weather injury; the appeal is granted to this extent only. Entitlement to service connection for left hand pinched nerve is denied. Entitlement to service connection for right hand pinched nerve is denied. REMANDED Entitlement to an initial disability rating in excess of 30 percent for bilateral plantar fasciitis is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a right hand cold weather injury is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected bilateral foot cold weather injury, bilateral plantar fasciitis, left knee degenerative arthritis, and medications used to treat service-connected disabilities is remanded. Entitlement to an earlier effective date for service connection for left knee degenerative arthritis based on clear and unmistakable error (CUE) based on November 1994 and June 2006 rating decisions is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. FINDINGS OF FACT 1. A November 1994 rating decision denied service connection for a right hand cold weather injury. The Veteran was notified of this decision and of his appellate rights by letter dated November 4, 1994. 2. The Veteran did not submit a notice of disagreement within one year of the mailing of notice of the November 1994 rating decision, and no new and material evidence was obtained or received by VA within this one-year time period. 3. Additional evidence received since the November 1994 rating decision is neither cumulative nor redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the claim for service connection for a right hand cold weather injury. 4. The competent evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a left hand pinched nerve. 5. The competent evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a right hand pinched nerve. CONCLUSIONS OF LAW 1. The November 1994 rating decision is final with regard to the claim for service connection for a right hand cold weather injury. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been submitted to reopen the claim for service connection for a right hand cold weather injury. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for a left hand pinched nerve are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for a right hand pinched nerve are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1982 to June 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision and a January 2015 rating decision. The January 2012 rating decision denied the Veteran’s claims for service connection for a left hand pinched nerve, right hand pinched nerve. The Veteran’s claim for service connection for right hand cold weather injury was denied as new and material evidence was not found. The January 2015 rating decision denied the Veteran’s claims for service connection for a right knee disability and erectile dysfunction. The rating decision granted the Veteran’s claim for service connection for plantar fasciitis and assigned a 30 percent disability rating, effective December 4, 2013. A June 2016 Statement of the Case (SOC) determined that new and material evidence had been submitted with regards to the Veteran’s claim for service connection for a right hand cold weather injury. Although the Veteran’s claim for service connection for a right hand cold weather injury has been reopened by VA, the Board must determine of its own accord whether new and material evidence is of record to reopen the claim before it may consider it on the merits. Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). A new Appointment of Individual as Claimant’s Representative (VA Form 21-22a) dated November 2014, was received by VA appointing the attorney listed on the title page above. The Board recognizes this change in representation. Although the Veteran has not formally sought entitlement to a TDIU rating during the pendency of this appeal, the issue of TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the Board finds that the issue of entitlement to a TDIU rating is also currently before the Board, and as such, the issue is stated on the cover page and discussed further below. In December 2017, John S. Berry of Berry Law Firm submitted a letter indicating that the organization wished to revoke their Power of Attorney and discontinue providing accredited representation of the Veteran. Under 38 C.F.R. § 14.631, a representative may withdraw from representation provided before a VA agency of original jurisdiction (AOJ) prior to certification of an appeal to the Board if such withdrawal would not adversely impact the claimant’s interests. In order to withdraw properly from representation, the representative must notify the claimant, the VA organization in possession of the claims file, and the AOJ in writing of this fact prior to taking any action to withdraw, and must also take steps necessary to protect the claimant’s interests including, but not limited to, giving advance notice to the claimant, allowing time for appointment of an alternative representative, and returning any documents provided by VA in the course of the representation to VA or pursuant to the claimant’s instructions, to the organization or individual substituted as the representative, agent, or attorney of record. Id. In the present case, the Veteran’s appeal was certified to the Board in August 2016, more than a year prior to Mr. Berry’s submission. Further, there is no indication that the attorney provided advance notice to the Veteran prior to taking action to withdraw. Additionally, there is no evidence the attorney took any action other action necessary to protect the claimant’s interests as noted above. Accordingly, the attorney’s withdrawal was not proper, and the Veteran is remains represented by the attorney at this time. Any further attempts to withdraw representation must be made pursuant to 38 C.F.R. § 14.631. New and Material Evidence A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if no notice of disagreement (NOD) is filed within the prescribed time period, or an appeal is not perfected pursuant to 38 C.F.R. § 20.302. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103; see 38 C.F.R. §§ 20.200, 20.201, 20.302 (setting forth requirements and timeframe for initiating and perfecting an appeal). To reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial, regardless of the basis for that denial. See 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 282-83 (1996) (holding that § 5108 requires a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened). VA regulation defines “new and material evidence” as follows. “New evidence” means evidence not previously submitted to agency decision makers, and “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. 38 C.F.R. § 3.156(a), Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). To warrant reopening, the new evidence must neither be 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. Id.; see Shade, 24 Vet. App. at 117 (holding that there is a “low threshold” for reopening). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). If new and material evidence is received within one year after the date of mailing of an RO decision, it prevents that decision from becoming final and will be “considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.” 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009) (holding that new and material evidence received within one year of an RO decision prevents that decision from becoming final); 38 C.F.R. § 3.400(q) (providing that, as to new and material evidence received within appeal period, “effective date will be as though the former decision had not been rendered”). 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a right hand cold weather injury. Service connection for a right hand cold weather injury was originally denied in a November 1994 rating decision. The Veteran was notified of this decision and of his appellate rights by letter dated November 4, 1994. He did not appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.302. Further, no new and material evidence was received within one year of the date of mailing of the rating decision. See 38 C.F.R. § 3.156(b). Accordingly, the November 1994 rating decision is final regarding this claim. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran submitted a Supplemental Claim for Compensation (VA Form 21-526b) in order to reopen the claim for service connection for a right hand cold weather injury disability in February 2011. The Veteran submitted private medical records indicate that experienced frostbite during his active service, and that he has had continuous tingling and numbness of his bilateral hands since 1994, specifically in his thumb and second finger. This evidence relates to an unestablished fact necessary to support the claim, namely a nexus between the Veteran’s current disability and his active service. Thus, the Board finds the evidence is both new and material. See 38 C.F.R. § 3.156(a); see also 38 C.F.R. § 3.303; Shade, 24 Vet. App. at 122. Therefore, the claim for service connection is reopened. Service Connection Service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical “nexus” requirement). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)); see 38 C.F.R. §3.303(a). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 2. Entitlement to service connection for left hand pinched nerve and 3. Entitlement to service connection for right hand pinched nerve are denied. The question for the Board is whether the Veteran has a current disability of either a left hand pinch nerve or a right hand pinched nerve that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a left hand pinched nerve or a right hand pinched nerve and has not had a diagnosis of either disability at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The claims folder does not contain evidence of a diagnosis of either a left hand pinched nerve or a right hand pinched nerve. Specifically, the Veteran’s VA treatment records and private treatment records during the relevant time period do not contain such a diagnosis. In sum, the preponderance of the evidence weighs against the finding of service connection for a left hand pinched nerve or a right hand pinched nerve. Thus, the benefit-of-the-doubt rule does not apply and service connection for a left hand pinched nerve and a right hand pinched nerve is denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 30 percent for bilateral plantar fasciitis is remanded. The May 2016 VA Foot Conditions Examination is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); D’Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination must be based on consideration of the claimant’s medical history and must describe the disability in sufficient detail so that the Board’s evaluation of the disability will be a fully informed one). Regarding the claim for a higher rating for the Veteran’s plantar fasciitis, a new VA examination must be provided to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017). VA examiners are required to obtain information from the Veteran as to the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors, and the extent of functional impairment. Sharp, 29 Vet. App. at 32. VA examiners are also required to estimate the additional loss of range of motion during a flare-up based on all procurable information from the record, as well as the Veteran’s own statements. Id. at 34-35. If an estimate cannot be provided without resort to speculation, it must be clear whether this is due to a lack of knowledge among the medical community at large, or insufficient knowledge of the specific examiner. Id. at 36. In this case, the May 2016 examination report does not provide the necessary information regarding flare-ups, as specified above. The examination report indicates that the Veteran experiences flare-ups as cold sensitivity, paresthesia, numbness, chronic pain, tingling, burning, neuropathy, and intense pain during walking and standing. The examiner did not estimate additional functional loss based on the Veteran’s statements describing the flare-ups, or provide information why the available information in the file was not sufficient to permit such an estimate. Additionally, the January 2015 examination report demonstrates that the Veteran reports flare-ups that cause pain with walking and prolonged standing. Therefore, a retrospective medical opinion is necessary to capture the severity of the Veteran’s plantar fasciitis for the entire appeal period. See Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). 2. Entitlement to service connection for a right knee disability is remanded. The Veteran underwent a Knee and Lower Leg Conditions VA Examination in May 2016. The medical opinion provided that the Veteran’s right knee disability was less likely than not linked to his service-connected left knee degenerative arthritis because medical records do not demonstrate such a relationship. The Veteran must be provided with a new VA examination and medical opinion because the negative opinion was based primarily upon an absence of corroborating medical records. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”); see also Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992) (reflecting that the Board is free to assess medical evidence and is not obligated to accept a physician’s opinion). The May 2016 medical opinion does not form a sufficient foundation upon which to base a denial of entitlement to service connection. See Nieves-Rodriguez, 22 Vet. App. at 304 (indicating “[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.”). Therefore, an addendum medical opinion must be provided concerning the link between the Veteran’s right knee disability and his service-connected left knee degenerative arthritis. 3. Entitlement to service connection for a right hand cold weather injury is remanded. The Veteran underwent a Hand and Finger Conditions VA Examination in May 2016. The medical opinion provided that the Veteran’s claimed right hand cold weather injury was less likely than not linked to his active service because in-service did not show treatment for a right hand condition, current treatment records are essentially silent for a right hand condition, and current medical records indicate that the Veteran’s bilateral hand numbness and neuropathic symptoms are related to his diabetes mellitus. The negative medical opinion was based, in part, upon an absence of contemporaneous documentation of complaints and treatment for a right hand cold weather injury. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (holding that the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible); Cf. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that a VA opinion was inadequate where the examiner did not comment on the Veteran’s report of in-service injury and relied on lack of evidence in service medical records to provide a negative opinion); see also Stefl, 21 Vet. App. at 124; Nieves-Rodriguez, 22 Vet. App. at 302. Thus, the VA examiner’s opinions improperly relied, in part, on the absence of corroborating medical evidence. Further, the examiner failed to consider the Veteran’s reports of an in-service cold weather injury to his right hand and the resulting symptomatology. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr, 21 Vet. App. at 307-08 (holding that lay testimony is competent to establish the presence of observable symptomatology). Therefore, an addendum medical opinion must be provided concerning the link between the Veteran’s claimed right hand cold weather injury and his active service. 4. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected bilateral foot cold weather injury, bilateral plantar fasciitis, left knee degenerative arthritis, and medications used to treat service-connected disabilities is remanded. The Veteran underwent a May 2016 VA Male Reproductive Organs Examination. The negative medical opinion concerning his claim for service connection for erectile dysfunction is inadequate. See Barr, 21 Vet. App. at 312; D’Aries, 22 Vet. App. at 104. The medical opinion advised that the medical records show an association between the Veteran’s erectile dysfunction and his diabetes mellitus. The medical opinion also provided that there is no medical evidence that link the Veteran’s erectile dysfunction and his service-connected bilateral foot cold weather injury, bilateral plantar fasciitis, left knee degenerative arthritis. However, the medical opinion did not comment on a potential link between the medication used to treat the Veteran’s service-connected disabilities and his erectile dysfunction. The Board notes that the Veteran is also service connected for depressive disorder with major depressive episode. Further the Veteran’s treatment records show he is prescribed Paxil for depression and anxiety and an October 2014 Suicide Prevention Note shows the Veteran stated that his prescribed Paxil may partially cause his erectile dysfunction. Therefore, an addendum medical opinion must be provided concerning the link between the Veteran’s erectile dysfunction and medication taken to treat his service-connected disabilities. 5. Entitlement to an earlier effective date for service connection for left knee degenerative arthritis based on clear and unmistakable error (CUE) based on November 1994 and June 2006 rating decisions is remanded. The Veteran maintains that he is entitled to an earlier effective for service connection for left knee degenerative arthritis because his separation examination notes a chronic left knee disability. The Veteran provides that he is entitled to an earlier effective date because this evidence demonstrates the rating decisions in November 1994 and June 2006 denying his claim for service connection are based on clear and unmistakable error in not considering the separation examination. However, the Veteran’s service treatment records do not contain a separation examination. On remand, all appropriate efforts must be made to locate any missing service treatment records, including all separation examinations. The Veteran’s attorney also stated in September 2016 that he was attaching the separation examination in question. But, no such separation examination was provided. The Veteran and his attorney must be afforded an opportunity to provide any separation examinations. 6. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. The Veteran raised the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). VA should develop the issue as directed below. The matters are REMANDED for the following action: 1. Contact the Veteran and provide him with notice in compliance with the Veterans Claims Assistance Act of 2000 (VCAA) that informs him of what evidence he must show to support a TDIU rating. The Veteran should also be provided with a TDIU application form for completion (VA Form 21-8940). 2. Obtain the Veteran’s complete service treatment records, to include all separation examinations. If these records are not available, a negative reply is required. The Veteran should also be afforded an opportunity to submit any separation examinations. 3. Obtain the Veteran’s VA treatment records for the period from March 2018 to the present. 4. Ask the Veteran to complete a VA Form 21-4142 for any adequately identified physicians and/or facilities. Make two requests for the authorized records from any adequately identified physicians and/or facilities, unless it is clear after the first request that a second request would be futile. 5. Schedule the Veteran for an examination of the current severity of his plantar fasciitis. (a.) 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. (b.) To the extent possible, the examiner should identify any symptoms and functional impairments due to plantar fasciitis alone and discuss the effect of the Veteran’s plantar fasciitis on any occupational functioning and activities of daily living. (c.) The examiner should also provide a retrospective opinion, as best as can be ascertained from the Veteran’s self-reports as well as from clinical records and other evidence, for the January 2015 VA examination. The examiner is asked to provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. (d.) 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). All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. 6. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s right knee disability is at least as likely as not: (a.) Proximately due to the Veteran’s service-connected left knee degenerative arthritis; or (b.) Aggravated beyond its natural progression by the Veteran’s service-connected left knee degenerative arthritis. All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. 7. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s claimed right hand cold weather injury is at least as likely as not related to an in-service injury, event, or disease, including in-service cold weather exposure. All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. 8. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s erectile dysfunction is at least as likely as not: (a.) Proximately due to the medication prescribed for the Veteran’s service-connected disabilities, including medication prescribed for depressive disorder with major depressive episode; or (b.) Aggravated beyond its natural progression by the medication prescribed for the Veteran’s service-connected disabilities, including medication prescribed for depressive disorder with major depressive episode. All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. 9. Schedule the Veteran for any additional VA examination(s) necessary to evaluate the issue of a TDIU rating. All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Mussey, Associate Counsel