Citation Nr: 18143885
Decision Date: 10/23/18	Archive Date: 10/22/18

DOCKET NO. 15-22 699
DATE:	October 23, 2018
ORDER
New and material evidence having been received, the claim for service connection for bilateral clubfoot with arthritis and pes planus is reopened.
New and material evidence having been received, the claim for service connection for a lumbosacral spine disorder (previously characterized as mild degenerative changes of the spine at L3-4, L4-5, and L5-S1) is reopened.
REMANDED
Whether new and material evidence has been received to reopen a claim for a bilateral shoulder disorder (also previously adjudicated as part of a multiple joint arthritis claim) is remanded.
Whether new and material evidence has been received to reopen a claim for a bilateral knee disorder (also previously adjudicated as part of a multiple joint arthritis claim) is remanded.
Whether new and material evidence has been received to reopen a claim for a bilateral wrist disorder (also previously adjudicated as part of a multiple joint arthritis claim and now also claimed as a bilateral hand disorder) is remanded.
Whether new and material evidence has been received to reopen a claim for bilateral hip arthritis (previously adjudicated as part of a multiple joint arthritis claim) is remanded.
Entitlement to service connection for right elbow arthritis is remanded.
Entitlement to service connection for a lumbosacral spine disorder (previously characterized as mild degenerative changes of the spine at L3-4, L4-5, and L5-S1) is remanded.
Entitlement to service connection for bilateral clubfoot with arthritis and pes planus is remanded.
Entitlement to service connection for fibromyalgia is remanded.
Entitlement to service connection for heart disease is remanded.
Entitlement to service connection for depression, to include as secondary to bilateral clubfoot with arthritis and pes planus, is remanded.
Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.
FINDINGS OF FACT
1.  In a January 2003 rating decision, the agency of original jurisdiction (AOJ) determined that new and material evidence had not been received to reopen the claim for service connection for bilateral clubfoot with arthritis and pes planus and denied service connection for a lumbosacral spine disorder (previously characterized as mild degenerative changes of the spine at L3-4, L4-5, and L5-S1).  The Veteran was notified of the decision that same month, but he did not appeal or submit new and material evidence within the one-year period thereafter.
2.  The evidence received since the January 2003 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the underlying claim for service connection for bilateral clubfoot with arthritis and pes planus.
3.  The evidence received since the January 2003 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the underlying claim for service connection for a lumbosacral spine disorder (previously characterized as mild degenerative changes of the spine at L3-4, L4-5, and L5-S1).
CONCLUSIONS OF LAW
1.  The January 2003 rating decision determining that new and material evidence had not been received to reopen the claim for service connection for bilateral clubfoot with arthritis and pes planus and denying service connection for a lumbosacral spine disorder (previously characterized as mild degenerative changes of the spine at L3-4, L4-5, and L5-S1) is final.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103 (2017).
2.  The evidence received since the January 2003 rating decision is new and material as to the claim for service connection for bilateral clubfoot with arthritis and pes planus, and the claim is reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017).
3.  The evidence received since the January 2003 rating decision is new and material as to the claim for service connection for a lumbosacral spine disorder (previously characterized as mild degenerative changes of the spine at L3-4, L4-5, and L5-S1), and the claim is reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from August 1973 to July 1975.
This case comes before the Board of Veterans’ Appeals (Board) on appeal from January 2012 and January 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).
Initially, the Board notes that the shoulder, knee, wrist, and hip issues were addressed as part of a multiple joint arthritis claim adjudicated in the most recent final January 2003 rating decision.  Claims for service connection for bilateral shoulder and wrist disorders were separately adjudicated in that rating decision, and claims for service connection for bilateral knee and shoulder disorders were also separately adjudicated in a July 1991 rating decision (i.e., the AOJ considered disorders other than arthritis).
In response to the AOJ’s request for clarification as to the specific location of his arthritis, the Veteran responded that he was claiming the previous issues of bilateral shoulder and knee conditions, as well as arthritis of the bilateral hips and hands.  See November 2012 report of general information; see also, e.g., January 2004 VA treatment provider written statement received in September 2011 (submitted by Veteran; noted he also has carpal tunnel syndrome); December 2013 notice of disagreement; June 2015 substantive appeal (listed shoulder and knee claims separately from multiple joint arthritis issue).
The Board also notes that the right elbow was not considered in the January 2003 rating decision for multiple joint arthritis, and as such, has been characterized as a new original claim.  See also November 2012 report of general information (Veteran clarified that current claim included new claim for right elbow arthritis).  In addition, the Veteran has submitted a March 2016 private medical opinion indicating that he has depression that is secondary to his bilateral clubfoot.
Based on the foregoing, including the Veteran’s contentions and the prior rating decisions, the issues on appeal have been recharacterized as stated above.
In a May 2018 written statement, the Veteran confirmed that he did not want a hearing before the Board.

Law and Analysis
In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by AOJ, Board must determine whether new and material evidence has been received subsequent to an unappealed AOJ denial).
In a final November 1975 rating decision, the AOJ originally denied service connection for bilateral clubfoot with pes planus (with secondary arthritis of the midfoot joints added to the characterization after that time), finding that it was a congenital or developmental abnormality that was not aggravated beyond normal progress during the Veteran’s military service.  In a January 2003 rating decision, the AOJ most recently determined that new and material evidence had not been received to reopen the claim.  The AOJ also denied service connection for a lumbosacral spine disorder (then characterized as mild degenerative changes of the spine at L3-4, L4-5, and L5-S1) in that decision, finding that there was no nexus between the current disorder and the Veteran’s military service.  The Veteran was notified of the decision that same month, but he did not appeal or submit new and material evidence within the one-year period thereafter.  VA adjudicators were not in constructive receipt of VA treatment records later associated with the claims file but dated within one year of the January 2003 rating decision.  Indeed, the Veteran’s next contact with VA was in 2011.  Turner v. Shulkin, 29 Vet. App. 207 (2018).  Therefore, the January 2003 rating decision is final.  38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103.
At the time of the January 2003 rating decision, the record included the Veteran’s service treatment records, VA and private treatment records, a VA general medical examination report, and statements from the Veteran.
The evidence received since the January 2003 rating decision includes a July 2014 VA back examination report discussing the Veteran’s current back problems and in-service symptoms, as well as a March 2016 bilateral clubfoot private opinion indicating that the condition was aggravated beyond its natural progression during service.  That evidence was not previously considered by the AOJ, relates to an unestablished fact necessary to substantiate the claims (a nexus), and could reasonably substantiate the claims.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  Thus, the Board finds that the evidence is both new and material, and the claims for service connection for bilateral clubfoot with arthritis and pes planus and a lumbosacral spine disorder (previously characterized as mild degenerative changes of the spine at L3-4, L4-5, and L5-S1) are reopened.
REASONS FOR REMAND
On review, the Board finds that additional development is necessary prior to final adjudication of the Veteran’s reopened and original claims.  Specifically, it appears that there may be outstanding, relevant private treatment records, as detailed in the directives below.
In addition, a November 1974 service treatment record shows that the Veteran was to see a doctor for a psychiatric consultation; however, the report of any such treatment is not in the service treatment records.  The AOJ should therefore attempt to obtain any in-service mental health treatment records through a request for any mental health jacket.
Regarding the bilateral clubfoot claim, VA regulations specifically prohibit service connection for a congenital or developmental defect, unless such defect was subjected to a superimposed disease or injury which created additional disability.  Service connection may be granted for diseases of congenital, developmental, or familial origin.  See VAOPGCPREC 82-90 (1990) (cited at 55 Fed. Reg. 45,711) (Oct. 30, 1990).  The July 2014 VA examination report and March 2016 private opinion from Dr. H.S. do not clearly address this distinction, and an opinion is needed in this regard, as well as to address additional relevant findings detailed in the directives below.
Regarding the lumbosacral spine claim, the July 2014 VA examiner determined that it was less likely than not that the Veteran’s diagnosed lumbar spine disorder was incurred in or caused by the claimed in-service injury, event, or illness.  In so finding, the examiner indicated that there was no further mention of treatment of a back condition in service (following the February 1975 treatment documented in the service treatment records) or the ensuring years until the Veteran was hospitalized in 1991 for thoracic compression after a fall.  Although the examiner addressed questions related to the disorder, it is unclear if the examiner considered the complete history of the development of the disorder, inasmuch as the Veteran reported having low back pain during the September 1975 VA general medical examination.  Based on the foregoing, an additional VA medical opinion is needed.
Finally, the TDIU claim is inextricably intertwined with the pending service connection claims, and a remand is therefore required.
The case is REMANDED for the following actions:
1.  The Agency of Original Jurisdiction (AOJ) should secure any in-service records of mental health treatment and evaluations (mental health jacket) for the Veteran.  See November 1974 service treatment record (shows Veteran was to see a doctor for a psychiatric consultation).
It is noted that a generic request for service treatment records will not suffice; a specific request should be made for mental health records.
2.  The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his claimed disorders.  After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file.
A specific request should be made for any non-VA treatment, including: (1) any records of hospitalizations in the 1980s and 1990s as noted in other treatment records (outlined in the paragraph below); (2) any records dated from approximately 2007 to 2009 (see September 2009 VA treatment record indicating Veteran had been getting care/medications through private insurance for over two years); and (3) any heart treatment records (see February 2002 VA treatment record indicating Veteran received private treatment for his heart from a Dr. C. as needed).  
The record does contain records of non-VA treatment; however, it appears that there may be additional records from Presbyterian in Charlotte in 1980 (for fatigue, insomnia, and depression), Duke University Medical Center in 1987, at an unspecified facility in December 1989 (for conversion reaction/panic disorder), and in April 1990 at Minereth-Meyer Clinic in Washington, DC (related to use of Xanax).
The AOJ should also secure any outstanding VA treatment records, including: (1) those from the March 2010 heart treatment with Dr. M.M. in New York that appear to be located in the Vista Imaging System (see May 2010 and August 2010 VA treatment records) and (2) any scanned/uploaded non-VA consultations for the claimed disorders (see, e.g., 2013 VA consultation request for non-VA care with Dunes Podiatry).
3.  After completing the foregoing development, the AOJ should refer the Veteran’s claims file to the July 2014 VA examiner, or, if that examiner is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of his bilateral clubfoot with arthritis and pes planus.  An examination of the Veteran should only be performed if deemed necessary by the individual providing the opinion.
The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and statements.  See, e.g., September 1975 and July 2014 VA examination reports; March 2016 private medical opinion from Dr. H.S.
It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.
The examiner should state whether the Veteran’s bilateral clubfoot is a congenital defect or disease.
To assist the examiner, for VA adjudication purposes, “disease” generally refers to a condition considered capable of improving or deteriorating, whereas “defect” generally refers to a condition not considered capable of improving or deteriorating.  (As an example, VA considers sickle cell anemia as congenital “disease” for VA purposes, whereas refractive error is considered a congenital “defect.”)
(1)  If the Veteran’s bilateral clubfoot is a congenital defect, the examiner should state whether there is evidence of a superimposed disease or injury during service.
(2)  If the Veteran’s bilateral clubfoot is a congenital disease, the examiner should state whether the disease preexisted the Veteran’s military service.
If so, the examiner should state whether there was an increase in the severity during service.  If the evidence reflects such an increase, the examiner should indicate whether any increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology.
In discussing the above matters, the examiner is asked to discuss the medical significance, if any, of the February 1975 service treatment record (October 1975 VBMS entry) noting that x-rays of both feet were approximately the same in their description, including a finding of hypertrophic spurring of the head of the talus on its dorsal aspect at the talonavicular articulation in addressing whether the in-service x-rays show any degenerative changes.
(3)  If the Veteran’s bilateral clubfoot is not congenital and/or did not preexist service, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested in or is otherwise related to the Veteran’s military service, including any symptomatology therein.
(The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.)
A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  Copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review.
4.  After completing the foregoing development, the AOJ should refer the Veteran’s claims file to the July 2014 VA examiner, or, if that examiner is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of any current lumbosacral spine disorder that may be present.  An additional examination of the Veteran should only be performed if deemed necessary by the individual providing the opinion.
The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and statements.
It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.
The examiner should identify all current lumbosacral spine disorders. 
For each diagnosis identified, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested in or is otherwise related to the Veteran’s military service, including any symptomatology therein.
In providing this additional opinion, the examiner should discuss the medical significance, if any, of the Veteran’s reported low back pain during the September 1975 VA general medical examination, in addition to consideration of the other history discussed in the July 2014 VA examination report.
(The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.)
A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  Copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review.
5.  After completing the above actions, the AOJ should conduct any other indicated development.  Further development may include providing VA examinations or obtaining VA medical opinions for any reopened or other remaining claims.  See also March 2016 private mental health evaluation report from Dr. H.H.G.
 
J.W. ZISSIMOS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Postek, Counsel