Citation Nr: 18150780 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 15-04 307 DATE: November 15, 2018 ORDER An earlier effective date of December 31, 2008, for the establishment of service connection for sleep apnea is granted. New and material evidence having been received to reopen the claim of entitlement to service connection for pes planus, the claim is reopened. To this extent only, the benefit sought on appeal is allowed. REMANDED Entitlement to service connection for gout is remanded. Entitlement to service connection for pes planus is remanded. Entitlement to service connection for plantar fasciitis is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a chronic liver disorder is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to a rating in excess of 10 percent for service-connected gastroesophageal reflux disorder (GERD) is remanded. FINDINGS OF FACT 1. The Veteran’s original claim of entitlement to service connection for sleep apnea was received by the Department of Veterans Affairs (VA) on December 31, 2008. 2. The evidence received since the last prior denial of service connection for pes planus was not previously submitted to agency decisionmakers, relates to an unestablished fact necessary to substantiate the claim, is not cumulative nor redundant of the evidence of record at the time of the last prior final denial, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date of December 31, 2008, for the establishment of service connection for sleep apnea have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. 2. New and material evidence having been received to reopen the claim of entitlement to service connection for pes planus, the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSIONS The record reflects Veteran served on active duty in the United States Army from July 1988 to December 1998, and from April 1990 to September 2000. This matter is before the Board of Veterans’ Appeals (Board) on appeal from determinations by a VA Regional Office (RO). The Board acknowledges that it was previously determined below that new and material evidence had been received to reopen the pes planus claim which had been previously denied by an unappealed July 2001 rating decision. Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in June 2015. A transcript of that hearing is of record. 1. An earlier effective date of December 31, 2008, for the establishment of service connection for sleep apnea The effective date for the grant of service connection for a disease or injury is the day following separation from active duty or the date entitlement arose if a claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later. The effective date of an award based on a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The Board notes that VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the present appeal for an earlier effective date pertains to a period prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015 will be applied in this case. The VA administrative claims process recognizes formal and informal claims. A formal claim is one that has been filed in the form prescribed by the Secretary. 38 C.F.R. § 3.151. Any communication or action, indicating an intent to apply for one or more benefits, under the laws administered by VA, from a claimant may be considered an informal claim. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. When a claim has been filed which meets the requirements of 38 C.F.R. § 3.151, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. 3.155. The provisions of 38 C.F.R. § 3.157 commence with notation of the general rule that the effective date of compensation benefits will be the date of receipt of the claim or the date when entitlement arose, whichever is the later. However, this regulation goes on to provide that receipt of clinical reports of examination or hospitalization may serve as informal claims "for increase or to reopen" where the claim is for an already service-connected condition. The date of receipt of such clinical evidence may serve to form the basis for an earlier effective date for the subsequent award of VA benefits if such benefits derive from (1) a claim for increased evaluation or (2) an application to reopen a claim for compensation denied because the service-connected disability was not of compensable degree. "Application" is not defined in the statute. However, in the regulations, "claim" and "application" are considered equivalent and are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p); see also Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). The Federal Circuit, in Rodriguez, supra, pointed out that for purposes of establishing the requirements and procedures for seeking veterans' benefits, a claim, whether "formal" or "informal" must be "in writing" in order to be considered a "claim" or "application" for benefits, and that the provisions of 38 C.F.R. § 3.1(p) defines "claim," informal as well as formal, as a "communication in writing." Further, the Federal Circuit stated that when 38 C.F.R. § 3.155(a) refers to "an informal claim," it necessarily incorporates the definition of that term in 38 C.F.R. § 3.1(p) as a "communication in writing." The Federal Circuit also pointed out the provisions of 38 C.F.R. § 3.155(a) make clear that there is no set form that an informal written claim must take. All that is required is that the communication "indicat[e] an intent to apply for one or more benefits under the laws administered by the Department," and "identify the benefits sought." The Board notes that the current effective date of July 17, 2012, for the establishment of service connection for sleep apnea was assigned based upon the determination that was when competent medical evidence demonstrated the Veteran had the claimed disability. However, that grant followed from the Veteran’s original claim of service connection for sleep apnea which was received by VA on December 31, 2008. The Board acknowledges that the record does not indicate the Veteran had competent medical evidence which diagnosed sleep apnea prior to July 2012. Nevertheless, he did report pertinent symptomatology that originated during service, and submitted supporting lay evidence in support of that contention. Moreover, no competent medical examination was accorded to the Veteran regarding the sleep apnea claim prior to July 2012. Stated another way, there was evidence which supported the claim since the December 31, 2008, claim. In view of the foregoing, and resolving all reasonable doubt in favor of the Veteran, the Board finds that he is entitled to an effective date of December 31, 2008, for the establishment of service connection for sleep apnea. The Board acknowledges the Veteran testified at his June 2015 hearing that he filed his original claim of service connection for sleep apnea in 2005 or 2006, and service connection should be from that period. See Transcript pp. 8-9. He also indicated in his February 2015 Substantive Appeal that as it was determined his sleep apnea was incurred in service, then service connection should be established from his discharge in 2000. However, in order to establish an effective date to the time of his separation from service, he must have submitted a claim for such within his first post-service year. Although he did submit a VA Form 21-526 (Application for Compensation or Pension) in October 2000 that claimed service connection for various disabilities, he did not indicate he was seeking service connection for sleep apnea. In fact, a thorough review of the record does not reflect any written communication was received by VA from the Veteran in which he indicated he was seeking service connection for sleep apnea prior to December 31, 2008. Thus, an effective date earlier than December 31, 2008, is not warranted. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for pes planus. Service connection was previously denied for an unappealed July 2001 rating decision. Despite the finality of a prior decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Further, the Court has also held that in order to reopen a previously and finally disallowed claim there must be new and material evidence presented since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996) (overruled on other grounds). New evidence means existing evidence not previously submitted to agency decisionmakers. 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). Here, the evidence added to the record since the last prior denial includes statements and hearing testimony from the Veteran that while he did have pes planus at the time of his entry into service, it was aggravated therein. In addition, he provided evidence to the effect his pes planus was aggravated by his service-connected bilateral knee and ankle disabilities. Further, the evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been submitted, without regard to other evidence of record. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In view of the foregoing, the Board finds the evidence received since the last prior denial of service connection for pes planus was not previously submitted to agency decisionmakers, relates to an unestablished fact necessary to substantiate the claim, is not cumulative nor redundant of the evidence of record at the time of the last prior final denial, and raises a reasonable possibility of substantiating the claim. Therefore, new and material evidence has been received to reopen this claim in accord with 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Entitlement to service connection for gout is remanded. 2. Entitlement to service connection for pes planus is remanded. 3. Entitlement to service connection for plantar fasciitis is remanded. 4. Entitlement to service connection for hypertension is remanded. 5. Entitlement to service connection for a chronic liver disorder is remanded. 6. Entitlement to service connection for erectile dysfunction is remanded. 7. Entitlement to a rating in excess of 10 percent for service-connected GERD is remanded. Initially, the Board notes that the Veteran testified at his June 2015 hearing that he continued to receive ongoing medical care through the Ft. Meade VA facility. See Transcript p. 22. As such, he has indicated the existence of VA medical records which are not on file. Relevant statutory and regulatory provisions emphasize the importance of obtaining VA records as part of the duty to assist. See 38 U.S.C. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992); Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). Consequently, the Board concludes that it must remand this case in order to obtain any such records. In addition, the Board notes with respect to the gout claim that the service-connected disabilities of the bilateral knees and ankles are already recognized as including such claimed disability. However, it is not clear whether he has gout in any other part of his body, and, if so, whether it is related to service. Therefore, competent medical evidence is necessary to clarify this matter. Regarding the pes planus claim, the Board notes the record reflects this disability was noted as part of his April 1988 enlistment examination. However, the Veteran has contended this pre-existing disability was aggravated by service. His service treatment records do reflect multiple problems regarding his lower extremities, and was the basis for establishing service connection for his bilateral ankle disabilities. He has also contended his pes planus was aggravated by his service-connected bilateral ankle and knee disabilities. Similarly, he has contended his diagnosed plantar fasciitis was secondary to his ankle and knee disabilities. The Board acknowledges that the Veteran was accorded a VA examination in April 2014 that addressed his pes planus and plantar fasciitis claims. However, it does not appear this examination addressed whether the pre-existing pes planus was aggravated by his active service. Further, while this examination included an opinion against the pes planus and plantar fasciitis being caused by the service-connected ankle and knee disabilities, it did not address the issue of secondary aggravation as required by 38 C.F.R. § 3.310(a) and Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Without such an opinion, the Board must find this examination is not adequate for resolution of the pes planus and plantar fasciitis claims. See El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013). Similarly, the Board finds that April 2014 VA examinations that addressed the Veteran’s hypertension and liver claims are not adequate for resolution of these claims. For example, he has indicated the hypertension and fatty liver are secondary to his service-connected sleep apnea, but this question was not addressed in the pertinent VA examinations. The pertinent VA examination did opine the findings of fatty liver were not caused by pain medications taken for service-connected disabilities, but did not address whether it was aggravated by such. Moreover, the examiner opined that the findings of fatty liver were due to the Veteran’s obesity. As the service treatment records indicate the Veteran was treated for weight problems while on active duty, it appears these findings could possibly be related to service. In view of the foregoing, the Board finds that a remand is required to accord the Veteran new competent medical examinations which adequately address the nature and etiology of his claimed gout, pes planus, plantar fasciitis, hypertension, and liver. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. The Board also notes that the record, including the Veteran’s hearing testimony at an April 2014 VA examination, reflect his erectile dysfunction is secondary to his hypertension. As such, these claims are inextricably intertwined, and the Board must defer adjudication of the erectile dysfunction claim until the developed deemed necessary for the hypertension has been completed. Finally, the Board notes the Veteran testified at his June 2015 hearing that his GERD had worsened since his last VA examination for this disability in 2014. When a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (April 7, 1995). Therefore, a remand is required to accord the Veteran a new examination to evaluate the current severity of this service-connected disability. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records for the Veteran which cover the period from July 2013 to the present. In pertinent part, follow-up on the Veteran’s account of treatment at the Ft. Meade VA facility as noted at the June 2015 Board hearing. 2. Request the Veteran identify all medical care providers who have treated him for gout, pes planus, plantar fasciitis, hypertension, liver, erectile dysfunction, and GERD from July 2013 to the present. After obtaining any necessary release, request those records not on file. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service gout, pes planus, plantar fasciitis, hypertension, liver, and erectile dysfunction symptomatology; as well as the nature, extent and severity of his GERD symptoms and the impact of the condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Schedule the Veteran for a competent medical examination(s) by an appropriately qualified clinician(s) to address the nature and etiology of his claimed gout, pes planus, plantar fasciitis, hypertension, and liver. In regard to the pes planus, the respective examiner should express an opinion as to whether it is at least as likely as not this pre-existing disability was aggravated by his active service. If the examiner determines the Veteran’s pes planus was not aggravated by service, then he or she should express an opinion whether it is at least as likely as not it, and the plantar fasciitis, was caused or aggravated by his service-connected disabilities of the bilateral knees and ankles. For the gout, the respective examiner should indicate whether it is present other than his knees and ankles. If so, the examiner should express an opinion whether it was incurred in or otherwise the result of active service, to include whether such findings are related to/an extension of the already recognized service-connected gout in the knees and ankles. For the hypertension and liver claims, the respective examiner(s) should express an opinion whether it is at least as likely as not it was incurred in or otherwise the result of active service. If it is determined either disability is not directly related to service, then an opinion should be expressed whether it is at least as likely as not it was caused or aggravated by service-connected disability, to include the medications taken for these disabilities. By aggravation, the Board means a permanent increase in severity that is beyond natural progression. 5. Schedule the Veteran for a competent medical examination by an appropriately qualified clinician   evaluate the current nature and severity of his service-connected GERD. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD John Kitlas, Counsel