Citation Nr: 18152379 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 15-38 837 DATE: November 21, 2018 ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection for a low back disorder is granted. New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for bilateral pes planus is denied. Service connection for lumbar segmental dysfunction with radiculopathy and neuropathy is granted. REMANDED Entitlement to service connection for a left heel disorder is remanded. Entitlement to service connection for a left ankle disorder is remanded. Entitlement to service connection for a right ankle disorder is remanded. FINDINGS OF FACT 1. In a final rating decision issued in May 2005, the Agency of Original Jurisdiction (AOJ) denied service connection for a low back disorder and bilateral pes planus. 2. Evidence added to the record since the final May 2005 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a low back disorder. 3. Evidence added to the record since the final May 2005 denial is cumulative and redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for bilateral pes planus. 4. Resolving all doubt in favor of the Veteran, a low back disorder, diagnosed as lumbar segmental dysfunction with radiculopathy and neuropathy, is related to his military service. CONCLUSIONS OF LAW 1. The May 2005 rating decision that denied service connection for low back disorder and bilateral pes planus is final. 38 U.S.C. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2004) [(2017)]. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a low back disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. New and material evidence has not been received to reopen the claim of entitlement to service connection for bilateral pes planus. 38 U.S.C. § 5108; 38 C.F.R § 3.156(a). 4. The criteria for service connection for lumbar segmental dysfunction with radiculopathy and neuropathy have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1998 to March 2005. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in September 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2016, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the record. At such time, the Veteran submitted additional evidence with a waiver of AOJ consideration. 38 C.F.R. § 20.1304(c). The undersigned also held the record open for 60 days for the receipt of additional evidence, which was subsequently submitted in June 2016 with a waiver of AOJ consideration. Id. Therefore, the Board may properly consider such newly received evidence. Furthermore, the Board observes that, subsequent to the April 2016 Board hearing, additional evidence, to include updated VA treatment records, was associated with the record. While the Veteran has not waived AOJ consideration of such evidence, the Board finds that there is no prejudice in proceeding with the adjudication of his claims at this time. In this regard, the Board herein reopens and grants his previously denied claim for service connection for a low back disorder, which is fully favorable; and such records are duplicative of those previously considered with respect to the Veteran’s claim regarding bilateral pes planus. Moreover, the Board herein remands the remaining claims for additional development such that the AOJ will have an opportunity to review such newly received evidence in the readjudication of the Veteran’s claims. New and Material Evidence Claims By way of background, in November 2004, the Veteran filed an original claim for service connection for a low back disorder and bilateral pes planus. In a May 2005 rating decision, the AOJ considered the Veteran’s service treatment records (STRs), to include a January 2005 VA pre-discharge examination report, and lay statements from the Veteran, and denied such claims. As pertinent to the Veteran’s claimed low back disorder, the AOJ acknowledged that the Veteran’s STRs indicated treatment for low back pain in June 2000, which was due to a tight piriformis muscle. However, the AOJ noted that treatment was not shown again until January 2002, when the Veteran was seen for complaints of low back pain with a two-year history of pain. Here, the AOJ further noted that a chronic disorder was not diagnosed, and continued treatment was not shown. Additionally, the AOJ indicated that the January 2005 VA pre-discharge examination report revealed that the Veteran had full range of motion in his lumbar spine, and a finding that his history of a back strain had resolved. Therefore, the AOJ denied service connection for low back pain as: (1) there was no diagnosis of a chronic disability; (2) his in-service back strain had resolved; and (3) pain alone could not be evaluated without being associated with an underlying pathologic abnormality. With regard to the Veteran’s bilateral pes planus, the AOJ acknowledged that his STRs indicated that such disorder was present at the time he entered service. However, the AOJ noted that such did not show any treatment for chronic complaints of bilateral foot pain. Additionally, the AOJ found that the January 2005 VA pre-discharge examination report revealed that the Veteran had mild pes planus, with non-tenderness over the plantar fascia. Such report further revealed that the Veteran could walk on his toes, heels, and tandem walk, and his gait was normal. Therefore, the AOJ denied service connection for bilateral pes planus as there was no evidence that such disorder was permanently aggravated by service. In May 2005, the Veteran was notified of the decision and his appellate rights. However, he did not enter a notice of disagreement with such decision. Furthermore, no new and material evidence was physically or constructively received within one year of the issuance of the rating decision, and no relevant service department records have since been received. Therefore, the May 2005 decision is final. 38 U.S.C. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2004) [(2017)]. Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which 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. 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). 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. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a low back disorder. Evidence received since the May 2005 rating decision includes an August 2013 VA examination report, additional VA and private treatment records, and lay statements. In this regard, while the August 2013 VA examiner found that there was no objective evidence to support a diagnosis of a back disorder as such was not identified on clinical examination or history, the remainder of the evidence reflects a current low back disorder. In this regard, in an August 2015 private treatment record, Dr. P.R. reported that the Veteran complained of severe chronic lower back pain. Such record reflects that following orthopedic, neurological, palpatory, and radiologic examinations, lumbar segmental dysfunction with radiculopathy and neuropathy was diagnosed. Additionally, April 2016 private treatment records reflect diagnoses of degeneration of intervertebral disc of lower back and panniculitis of thoracolumbar spine, as well as dysfunction with degeneration of the lumbar spine, and lumbar myalgia with a reported sense of numbness and tingling into the legs and feet. Moreover, in a written correspondence dated in December 2010 and during the April 2016 Board hearing, the Veteran offered further details regarding his in-service occupational duties. In this regard, he reported that serving as a cavalry scout included observing the enemy with enormous amounts of gear. Specifically, in indicated that he walked/ran for miles to get to the enemy position with gear on, and jumped in and out of vehicles with gear on. Similarly, in an April 2013 statement, the Veteran’s colleague, J.B., reported that the Veteran’s job duties involved a variety of physical activities such as lifting and carrying boxes that weigh over 25 pounds, climbing up/down and in/out various military vehicles, and being on his feet for extended periods of time. He further reported that he observed the Veteran and his physical limitations regularly slowed him down, and it was apparent that he suffered from chronic back pains which forced him to take breaks to ease his pain level. In an additional April 2013 statement, the Veteran’s spouse, C.M-O., indicated that she had known the Veteran since October 2002 and, at that time, he complained of back pain. She further indicated that she witnessed him in discomfort and saw that such limited his physical activities. Furthermore, in an April 2013 statement, the Veteran’s colleague, J.H., noted that he worked with the Veteran for seven years, and he observed that the Veteran suffered from back pain on several occasions, to specifically include when lifting. Furthermore, in August 2015, Dr. P.R. reported that the Veteran’s spinal degeneration was consistent with repetitive micro-injuries that were sustained with heavy lifting, carrying, and sitting. He further reported that many of the Veteran’s military duties were very consistent with such direct causations. As noted previously, the Veteran’s claim for service connection for a low back disorder was previously denied on the basis that there was no diagnosis of a chronic disability. The newly received evidence reflects such a diagnosis. Moreover, the Veteran, his spouse, and colleagues have described a continuity of back pain since service, and Dr. P.R. has rendered an opinion relating his currently diagnosed back disorder to his military service. Therefore, the Board finds that the evidence added to the record since the final May 2005 denial is not cumulative or redundant of the evidence of record at the time of the decisions and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a low back disorder. Consequently, new and material evidence has been received and the Veteran’s claim of entitlement to service connection for a low back disorder is reopened. 2. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for bilateral pes planus. Evidence received since the May 2005 rating decision includes VA and private treatment records as well as additional lay statements. In this regard, the newly received treatment records reflect complaints and treatment for the Veteran’s diagnosed bilateral pes planus; however, such records do not address whether the Veteran’s military service aggravated such disorder. Additionally, the Veteran, colleagues, and spouse reported the nature, severity, and limitations associated with his bilateral pes planus. Furthermore, as discussed in the preceding section, the Veteran offered detailed testimony regarding the nature of his in-service duties. He further indicated that his flat feet deteriorated as a result of his military duties and, to his knowledge, he did not have pes planus at the time he entered service. He further noted that he started to have feet problems while in service as he had to change boots several times and the amount of miles he walked/ran in the military contributed to his foot pain. As noted previously, the Veteran’s claim for service connection for bilateral pes planus was previously denied on the basis the evidence did not show that such disorder was permanently aggravated by service. The newly received evidence likewise fails to show such aggravation. In this regard, the newly received treatment records and lay statements are duplicative and redundant of the evidence previously considered at the time of the May 2005 rating decision. Specifically, a diagnosis of bilateral pes planus was of record at the time of such decision, and the Veteran has always maintained that such disorder became worse as a result of his in-service occupational duties of cavalry scout. Consequently, the newly received evidence is cumulative and redundant of the evidence of record at the time of the May 2005 decision. Furthermore, the newly received evidence does not demonstrate that the Veteran’s bilateral pes planus increased in severity beyond the natural progression during his military service. Consequently, the Board finds that the evidence added to the record since the final May 2005 denial is cumulative and redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for bilateral pes planus. Therefore, new and material evidence has not been received to reopen such claim, and, consequently, his appeal must be denied. 3. Entitlement to service connection for a low back disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). As an initial matter, the record reflects a current low back disorder, diagnosed as lumbar segmental dysfunction with radiculopathy and neuropathy in August 2015. Further, the Veteran’s STRs indicate a history of a back strain, to include his complaints of low back pain in 2000 and 2002, and he has competently and credibly testified as to the physical nature of his duties as a cavalry scout as well as a continuity of back symptomatology since service. Further, as discussed previously, in the August 2015 private treatment record, Dr. P.R concluded that: (1) the Veteran’s spinal degeneration was consistent with repetitive micro-injuries that were sustained with heavy lifting, carrying, and sitting; and (2) many of the Veteran’s military duties were very consistent with such direct causations. There is no medical opinion to the contrary. Therefore, the Board resolves all doubt in the Veteran’s favor and finds that a low back disorder, diagnosed as lumbar segmental dysfunction with radiculopathy and neuropathy, is related to his military service. Consequently, service connection for such disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 4. Entitlement to service connection for a left heel disorder. The Veteran contends that his current left heel disorder is related to his in-service occupational duties of cavalry scout as discussed previously. He further claims that he began to feel left heel pain in approximately 2000/2001, began seeking treatment in 2005, and has experienced a continuity of symptomatology since service. Similarly, his colleagues and spouse have likewise reported witnessing his ongoing complaints and limitations associated with his left heel since his military service. Therefore, the Veteran claims that service connection for a left heel disorder is warranted. The Veteran’s STRs are negative for any treatment, complaints, or diagnoses referable to the left heel; however, his DD Form 214 confirms that his military occupational specialty was cavalry scout. Furthermore, his post-service treatment records reflect diagnoses of achillodynia of the left foot in August 2011, plantar fasciitis in March 2013, and left retrocalcaneal exostosis/heel spur in July 2013. In light of the Veteran’s in-service duties of a cavalry scout, his and others’ reports of a continuity of left heel symptomatology since service, and current diagnoses of a left heel disorder, the Board finds that a remand is necessary in order to afford the Veteran a VA examination so as to determine the nature and etiology of his left heel disorder. 5. Entitlement to service connection for a left ankle disorder. 6. Entitlement to service connection for a right ankle disorder. The Veteran contends that his current bilateral ankle disorder is related to his in-service occupational duties of cavalry scout as discussed previously. In this regard, he indicated that, although he had a twisted ankle in 1999, he believed his bilateral ankle disorders were a result of his in-service occupational duties as he had an additional 5-6 years of service following the incident. He further claims that he began seeking treatment in 2005 and has experienced a continuity of symptomatology since service. Similarly, his colleagues and spouse have likewise reported witnessing his ongoing complaints and limitations associated with his bilateral ankles since his military service. Therefore, the Veteran claims that service connection for a bilateral ankle disorder is warranted. The Veteran’s STRs reveal that he had a right ankle sprain in September 1999. In this regard, he reported that he hurt his right ankle by playing basketball as he jumped in the air and landed wrong. Subsequent STRs dated the same month and October 1999 reflect follow-up treatment for such sprain. In light of the foregoing, the Veteran was afforded a VA examination in August 2013 in connection with his claims, at which time he reported that he sprained his left ankle in 2000. He further indicated that he had been diagnosed with achilles tendonitis. In this regard, the examiner noted a diagnosis of left achilles tendonitis, but found that there was no objective evidence to support a diagnosis of a right ankle disorder. Further, he did not offer an etiological opinion. However, it appears that there may be outstanding private treatment records relevant to the Veteran’s bilateral ankle disorders. Here, during the April 2016 Board hearing, he indicated that he was currently being treated for a right ankle disorder from a “Dr. Puzaterial” (phonetic spelling in hearing transcript). In this regard, such records have not been requested or obtained. Therefore, a remand is necessary in order to attempt to obtain such private treatment records. Furthermore, as the August 2013 VA examiner did not offer an etiological opinion regarding the Veteran’s left ankle disorder, and there may be evidence demonstrating a current right ankle disorder, the Board also finds that a remand is necessary in order to afford the Veteran a new VA examination so as to determine the nature and etiology of his claimed bilateral ankle disorder. The matters are REMANDED for the following action: 1. After obtaining any necessary updated authorization forms from the Veteran, obtain all outstanding private treatment records relevant to his bilateral ankle disorder, to specifically include those from “Dr. Puzaterial” (phonetic spelling in hearing transcript). Make at least two (2) attempts to obtain records from any identified source. If any such records are unavailable, inform the Veteran afford him an opportunity to submit any copies in his possession. 2. Afford the Veteran an appropriate VA examination to determine the nature and etiology of his left heel disorder. The record, to include a complete copy of this remand, must be made available to the examiner, and all indicated tests and studies should be accomplished. (A) The examiner must identify all left heel disorders found to be present at any time during the pendency of the claim, even if such has resolved. If he or she does not find a current left heel disorder, such determination should be reconciled with the notation of achillodynia of the left foot in August 2011, plantar fasciitis in March 2013, and left retrocalcaneal exostosis/heel spur in July 2013. (B) For each currently diagnosed left heel disorder, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such is related to his military service, to include his in-service occupational duties of cavalry scout. In offering such opinion, the examiner should consider the Veteran’s in-service occupational duties of cavalry scout as noted above, and lay statements from the Veteran, his spouse, and his colleagues with respect to a continuity of left heel symptoms since service. A rationale for any opinion offered should be provided. 3. Afford the Veteran an appropriate VA examination to determine the nature and etiology of his left heel disorder. The record, to include a complete copy of this remand, must be made available to the examiner, and all indicated tests and studies should be accomplished. (A) The examiner must identify all left and right ankle disorders found to be present at any time during the pendency of the claim, even if such has resolved. If he or she does not find a current left ankle disorder, such determination should be reconciled with the notation of achilles tendonitis at the August 2013 VA examination. (B) For each currently diagnosed left and/or right ankle disorder, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such is related to his military service, to include his in-service occupational duties of cavalry scout, and/or his treatment for a right ankle sprain in September 1999/October 1999? In offering such opinion, the examiner should consider the Veteran’s in-service occupational duties of cavalry scout as noted above, and lay statements from the Veteran, his spouse, and his colleagues with respect to a continuity of bilateral ankle symptoms since service. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Koria B. Stanton, Associate Counsel