Citation Nr: 18150913 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 16-15 234 DATE: November 16, 2018 ORDER The petition to reopen the previously denied claim of entitlement to service connection for a left knee disability is granted. The petition to reopen the previously denied claim of entitlement to service connection for a bilateral ankle disability is granted. The petition to reopen the previously denied claim of entitlement to service connection for migraine and cluster headaches is granted. Service connection for a shrapnel injury, left knee, is denied. REMANDED Entitlement to service connection for a bilateral ankle disability is remanded. Entitlement to service connection for migraine and cluster headaches is remanded. Entitlement to service connection for plantar fasciitis, right foot, is remanded. Entitlement to service connection for a bilateral hip disability is remanded. Entitlement to service connection for a bilateral knee disability is remanded. FINDINGS OF FACT 1. An August 2002 rating decision denied entitlement to service connection for a left knee disability, a bilateral ankle disability, and headaches; the Veteran did not appeal or submit new and material evidence within one year of the decision. 2. Evidence received since the August 2002 rating decision is new and material. 3. A shrapnel injury to the left lower extremity, knee, or residuals thereof are not shown at any time during this appeal. CONCLUSIONS OF LAW 1. The August 2002 RO decision that denied entitlement to service connection for a left knee disability, a bilateral ankle disability, and headaches is final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. 2. New and material evidence has been received since the August 2002 rating decision, and the Veteran’s claims for entitlement to service connection for a left knee disability, a bilateral ankle disability, and headaches are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for a shrapnel injury, left knee, have not been met. 38 U.S.C. §§ 101, 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from January 1981 to July 1989 and from August 1990 to February 2002 New and Material Evidence The Veteran’s original claims for entitlement to service connection for a left knee disability, a bilateral ankle disability (to include Achilles tendonitis), and headaches were denied in an August 2002 RO decision; the Veteran did not appeal. Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). However, 38 U.S.C. § 5108 provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Hence, before reaching the issue of whether service connection is warranted, the Board must first determine whether the claim may be reopened. See Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc); see also 38 U.S.C. A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). New and material evidence means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) held that new evidence would raise a reasonable possibility of substantiating the claim if when considered with the old evidence it would at least trigger the Secretary's duty to assist by providing a medical opinion. The RO denied the appellant’s prior claim for a bilateral ankle disability because there was no evidence that the Veteran had a current right or left ankle disability at that time. Since the August 2002 RO decision, the Veteran has continued to complain of bilateral ankle pain and limitation of motion, and a private treatment provider has diagnosed the Veteran with osteoarthritis of the lower leg. Although it is unclear whether this diagnosis refers to the Veteran's ankles, or some other part of the lower extremities, the Board finds that the totality of the new evidence at least triggers VA’s duty to assist by referring the matter for a VA medical examination and is therefore material. Accordingly, the Veteran's claim for a bilateral ankle disability is reopened and the issue of entitlement to service connection for a bilateral ankle disability will be addressed in the Remand section of this opinion. The Veteran’s prior claims for a left knee disability and headaches were denied because the RO concluded that the Veteran did not have any chronic disability that was incurred in service. Since the August 2002 RO decision, the Veteran has presented a new theory of entitlement to service connection, arguing that his knee problems and headaches are caused or aggravated by his service connected back disability. A letter from Dr. D.W.. states that mobility in the bilateral lower extremities is restricted due to sciatic nerve damage and that increased back pain has contributed to migraines. This evidence is new and material, and the Veteran's previously denied claims for entitlement to service connection for a left knee disability and cluster and migraine headaches are reopened. The issues of entitlement to service connection for a left knee disability and cluster and migraine headaches are addressed below in the Remand section of this decision. Service Connection The Veteran is seeking entitlement to service connection for a shrapnel injury to the left knee. The Veteran contends that a piece of shrapnel was impaled in his left knee during a field training exercise. The question for the Board is whether the Veteran has a current disability 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 currently diagnosed left knee disability due to a shrapnel injury, and has not had one 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 Veteran's service treatment records do not document any shrapnel injury to the left leg, nor do available post-service medical records. The Veteran was afforded a VA examination of his knees in November 2013, and there were no findings for an old shrapnel injury to the left knee at that time. An x-ray of his left knee in August 2003 was negative for any abnormalities, including any foreign bodies. While the Board has considered the Veteran's statements describing a shrapnel injury to the left knee, which he describe as visible on x-ray, the available medical evidence does not support his contentions. The Board could find no documentation of any shrapnel injury to the left knee in the Veteran's service treatment records and, post-service, there is no medical evidence of any residual disability associated with the trauma the Veteran described, including scarring, muscle damage, or retained foreign bodies. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997). In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Based on the above evidence, entitlement to service connection for residuals of a left knee shrapnel injury is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a right foot disability, to include plantar fasciitis, is remanded. The Veteran is seeking entitlement to service connection for a right foot disability, claimed as plantar fasciitis. He contends that twenty years of high impact activities such as running, jumping, and marching over twenty years of military service have damaged his feet. Additionally, he has argued that his bilateral knee arthritis aggravated his foot problems. While the Veteran does not have a diagnosed right foot disability, VA outpatient treatment records and private medical records reflect complaints of foot pain. The Veteran has not been provided a VA examination to clarify whether the Veteran has any current right foot disability, and, if so, whether this disability is related to his active military service. Accordingly, on remand, the Veteran should be afforded a VA examination of his right foot. 2. Entitlement to service connection for bilateral hip disability is remanded. The Veteran is seeking entitlement to service connection for a bilateral hip disability. The Veteran was afforded a VA examination in November 2013 and was diagnosed with bilateral hip arthritis. The VA examiner opined that the Veteran's bilateral hip disability was less likely than not caused by or related to his service connected lumbar degenerative disc disease. However, the examiner did not address whether the Veteran's service connected low back disability permanently aggravated the Veteran's hip disability. Additionally, the Veteran has also argued that twenty years of demanding physical activity during his active military service, such as running and jumping, damaged his joints over time. The merits of this theory of entitlement were not addressed by the examiner. Accordingly, on remand, a new VA medical opinion should be obtained. 3. Entitlement to service connection for a bilateral knee disability is remanded. The Veteran is seeking entitlement to service connection for a bilateral knee disability. The Veteran was afforded a VA examination in November 2013 and was diagnosed with bilateral knee arthritis. The VA examiner opined that the Veteran’s bilateral knee disability was less likely than not caused by or related to his service connected lumbar degenerative disc disease. However, the examiner did not address whether the Veteran’s service connected low back disability permanently aggravated the Veteran’s knee disability. Additionally, the examiner did not address whether the Veteran's frequent in-service complaints of bilateral knee pain and swelling are related to his current bilateral knee disability. Finally, the Veteran has also argued that twenty years of demanding physical activity during his active military service, such as running and jumping, damaged his joints over time. The merits of this theory of entitlement were not addressed by the examiner. Accordingly, on remand, a new VA medical opinion should be obtained. 4. Entitlement to service connection for a bilateral ankle disability is remanded. The Veteran is seeking entitlement to service connection for a bilateral ankle disability. However, the Veteran has never been afforded a VA examination to clarify whether he has any current bilateral ankle disability, and if so, whether that disability is related to service, to include in-service complaints of ankle pain and injury. The Veteran has also argued that twenty years of demanding physical activity during his active military service, such as running and jumping, damaged his joints over time, and that his knee problems have stressed his bilateral feet and ankles. Accordingly, on remand, the Veteran should be afforded a VA examination of his ankles. 5. Entitlement to service connection for cluster and migraine headaches is remanded. The Veteran is seeking entitlement to service connection for headaches. The Veteran was afforded a VA examination in November 2013 and was diagnosed with migraine and cluster headaches. The VA examiner opined that the Veteran’s migraines were less likely than not caused by or related to his service connected lumbar degenerative disc disease. However, the examiner did not address whether the Veteran’s service connected low back disability permanently aggravated the Veteran’s headaches. Additionally, the examiner did not address whether the Veteran’s in-service complaints of headaches are related to his current migraine and cluster headaches. Accordingly, on remand, a new VA medical opinion should be obtained. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from November 2013 to the Present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right foot disability, to include plantar fasciitis. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including frequent running, jumping, and marching over twenty years of military service. The examiner shoulder also address whether any right foot disability was proximately due to or permanently aggravated by a bilateral knee disability. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral hip disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including frequent running, jumping, and marching over twenty years of military service. The examiner shoulder also address whether any bilateral hip disability was proximately due to or permanently aggravated by the Veteran's service connected low back disability. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral knee disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including in-service complaints of knee pain or injury and frequent running, jumping, and marching over twenty years of military service. The examiner shoulder also address whether any bilateral knee disability was proximately due to or permanently aggravated by the Veteran’s service connected low back disability. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral ankle disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including in-service complaints of ankle pain or injury and frequent running, jumping, and marching over twenty years of military service. The examiner shoulder also address whether any bilateral ankle disability was proximately due to or permanently aggravated by the Veteran’s bilateral knee disability. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any headaches, to include migraine and cluster headaches. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including in-service complaints of headaches. The examiner shoulder also address whether any migraine or cluster headaches were proximately due to or permanently aggravated by the Veteran’s service connected low back disability. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. D. Anderson, Counsel