Citation Nr: 18149131 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 14-44 358 DATE: November 8, 2018 ORDER Whether new and material evidence has been received to reopen service connection for bilateral foot disability is granted. REMANDED Whether new and material evidence has been received to reopen service connection for tinnitus is remanded. Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to service connection for a disability manifested by bowel incontinence, to include as secondary to prostate cancer, diabetes mellitus, or herbicide exposure, is remanded. Entitlement to service connection for bilateral foot disability, to include as secondary to other service-connected disabilities, is remanded. Entitlement to special monthly pension based on the need for regular aid and attendance or housebound status is remanded. Entitlement to a temporary total disability rating based on hospitalization in excess of 21 days or convalescence is remanded. FINDING OF FACT A final December 1979 rating decision denied the Veteran’s original claim for service connection for foot disability based on a finding that the Veteran’s foot condition (manifesting in service as calluses, corns, and hallux valgus) was “essentially developmental and existed pre-service, improved by treatment, and [was] not aggravated by service”; a March 2010 rating decision declined to reopen that claim because new and material evidence had not been received; at the Veteran’s request, a final, unappealed July 2010 rating decision reconsidered and confirmed that decision; evidence received since the prior final denial includes new VA treatment records documenting new diagnoses of foot ulcers that seem to be related to his service-connected diabetes and notations of continued calluses and hallux valgus, relates directly to previously unestablished facts needed to substantiate the underlying claim of service connection (i.e., medical nexus), and raises a new secondary theory of entitlement; thus, considering the low threshold for reopening under Shade v. Shinseki, 24 Vet. App. 110 (2010), it also raises a reasonable possibility of substantiating that claim, and new and material evidence has been received. CONCLUSION OF LAW The criteria for reopening service connection for bilateral foot disability have been met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from January 1971 to February 1974. These matters are before the Board of Veterans’ Appeals (Board) on appeal from February 2013, June 2014, December 2015, and February 2015 rating decisions. Although the Veteran originally requested a hearing in conjunction with several matters on appeal, he withdrew that request by September 2018 correspondence. For the reasons discussed above, the Board is reopening service connection for a foot disability, obviating the need for any further discussion of that claim. REASONS FOR REMAND 1. Whether new and material evidence has been received to reopen service connection for tinnitus, entitlement to service connection for an acquired psychiatric disability, and entitlement to service connection for bowel incontinence are remanded. A review of the record shows a June 2014 rating decision denied service connection for a psychiatric disability and a February 2015 rating decision denied a claim to reopen service connection for tinnitus and an original service connection claim for bowel incontinence. The Veteran also filed a December 2014 “claim” seeking service connection for a psychiatric disability and a July 2015 “claim” to reopen service connection for tinnitus and seeking service connection for bowel incontinence. Although these were subsequently adjudicated as new claims, the Board accepts them as reasonably expressing disagreement with the June 2014 and February 2015 denials described above and, therefore, that timely appeals thereof were initiated. As no statement of the case (SOC) has been issued addressing those appeals, corrective action is needed pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). 2. Entitlement to service connection for bilateral foot disability is remanded. Although the original denial of service connection for bilateral foot disability indicated the Veteran’s foot condition was developmental and pre-existed service, the Board notes that his enlistment examination was normal and, therefore, he must be presumed sound upon entry absent clear and unmistakable evidence to the contrary. While the Veteran does agree that he had foot problems prior to service, his lay statements alone are insufficient to rebut the presumption of soundness. Moreover, as noted above, there are new foot diagnoses that have not previously been considered in this appeal, some of which appear to be associated with his diabetes. There is also evidence that he continues to suffer from hallux valgus, despite having a bunionectomy in service, casting significant doubt on the prior finding that they improved following treatment in service. Finally, the Board notes the Veteran is also service-connected for diabetes, peripheral neuropathies, and peripheral vascular disease, all of which may have an impact on any foot conditions or disabilities found. In light of the above, a new examination is needed. 3. Entitlement to special monthly pension based on the need for regular aid and attendance or housebound status is remanded. The Veteran receives nonservice-connected pension and is therefore eligible for increased pension by reason of need for aid and attendance or by reason of being housebound. However, what remains to be shown is whether he actually is housebound or needs aid and attendance. As it does not appear that the RO arranged for any actual evidentiary development in this matter, an examination is needed. 4. Entitlement to a temporary total disability rating based on hospitalization in excess of 21 days or convalescence is remanded. The medical evidence appears incomplete. Specifically, the Board notes the Veteran alleges 47 days of inpatient antibiotic treatment (and has reported the same to several VA providers) and VA records show he was admitted for intravenous therapy on April 9, 2014. However, there are no records from that hospitalization documenting its duration or the details of the therapy received therein. As such records are constructively of record and could be critical to resolving the instant claim, they must be secured. The matters are REMANDED for the following action: 1. Obtain all updated records (i.e., those not already of record) of VA and adequately identified private treatment the Veteran has received for the disabilities remaining on appeal, to SPECIFICALLY INCLUDE records of the Veteran’s hospitalization beginning April 9, 2014 for intravenous therapy. If any records sought cannot be obtained, the scope of the pertinent search, steps taken, and reason for any unavailability encountered must be documented for the record. 2. Schedule the Veteran for an examination by a podiatrist to determine the nature and etiology of any foot disabilities found. Based on a review of the record, examination of the Veteran, and any tests or studies deemed necessary, the examiner must respond to the following: (a.) Please diagnose all foot disability entities found. All diagnostic findings (or lack thereof) must be reconciled with conflicting evidence in the record. If any previously documented diagnoses are no longer or otherwise not felt to apply, the examiner must explain why, citing to the pertinent diagnostic criteria. (b.) For each disability diagnosed, please opine as to whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that such disability is related to the Veteran’s military service, to include notations of foot pathology and the documented bunionectomy therein. The examiner must specifically consider the significance of both (1) notations of foot problems even after the 1972 bunionectomy therein and (2) post-service records showing he continues to suffer from calluses and hallux valgus. (c.) For each disability diagnosed, please also opine as to whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that such is CAUSED OR AGGRAVATED (WORSENED BEYOND ITS NATURAL PROGRESSION) BY his service-connected diabetes, lower extremity peripheral neuropathy, or lower extremity peripheral vascular disease. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 3. Then, schedule an appropriate examination for the Veteran to determine whether he is rendered so helpless that he needs the regular aid and attendance of another person or is housebound such that a higher rate of pension is warranted. Based on an examination of the Veteran, review of the record, and any tests or studies deemed necessary, the examiner should provide opinions responding to the following: (a.) Is it AT LEAST AS LIKELY AS NOT (A 50 PERCENT OR GREATER PROBABILITY) that the Veteran has disabilities rendering him permanently housebound (i.e., substantially confined to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical area, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime)? (b.) Is it AT LEAST AS LIKELY AS NOT (A 50 PERCENT OR GREATER PROBABILITY) that the Veteran has disabilities rendering him blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less? (c.) Is it AT LEAST AS LIKELY AS NOT (A 50 PERCENT OR GREATER PROBABILITY) that the Veteran is otherwise so helpless or near-helpless that he requires the regular aid and attendance of another person? In so finding, the examiner should consider (and note) all pertinent factors including (but not limited to) whether or not the Veteran is bedridden, inability to dress or undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. For purposes of this examination, the examiner should note that “bedridden” will be that condition which, through its essential character, actually requires that the Veteran remain in bed. The fact that he has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the Veteran is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant’s condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 4. Issue an appropriate SOC addressing the Veteran’s appeals seeking service connection for psychiatric and bowel disabilities and to reopen service connection for tinnitus. The Veteran and his representative should be notified of the means and time for properly perfecting those appeals and afforded the opportunity to do so. Any appeals that are timely and properly perfected should then be returned to the Board for further appellate consideration. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel