Citation Nr: 18152805 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 17-59 573 DATE: November 26, 2018 ORDER The claim of service connection for right foot pes planus is reopened; the appeal is granted to this extent only. The claim of service connection for left foot pes planus is reopened; the appeal is granted to this extent only. The claim of service connection for allergies is reopened; the appeal is granted to this extent only. The claim of service connection for a left leg/foot skin disorder is reopened; the appeal is granted to this extent only. The claim of service connection for a left leg vascular disorder is reopened; the appeal is granted to this extent only. The application to reopen a claim of service connection for a colon disorder is denied. A rating in excess of 30 percent for irritable bowel syndrome with gastroesophageal reflux disease (GERD) is denied. REMANDED Entitlement to service connection for right foot pes planus is remanded. Entitlement to service connection for left foot pes planus is remanded. Entitlement to service connection for allergies is remanded. Entitlement to service connection for a left leg/foot skin disorder is remanded. Entitlement to service connection for a left leg vascular disorder is remanded. Entitlement to service connection for a right hip disorder is remanded. Entitlement to service connection for a left hip disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for asthma is remanded. Entitlement to service connection for an eye disorder is remanded. Entitlement to a total rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. An October 2012 rating decision denied the Veteran’s claim of service connection for a colon disorder; the claimant did not appeal the decision; she did not thereafter submit new and material evidence as to this issue within the one-year appeal period; and VA did not subsequently obtain and associate with the claims file VA treatment records generated within the one-year appeal period related to this issue. 2. Evidence received since the October 2012 rating decision does not relate to an unestablished fact necessary to substantiate the claim of service connection for a colon disability. 3. An April 2014 rating decision denied the Veteran’s claims of service connection for right and left foot pes planus, allergies, a left leg/foot skin disorder, and a left leg vascular disorder; the claimant did not appeal the decision; she did not thereafter submit new and material evidence within the one-year appeal period; and VA did not subsequently obtain and associate with the claims file VA treatment records generated within the one-year appeal period related to these issues. 4. Evidence received since the April 2014 rating decision is new, it is related to an unestablished fact necessary to substantiate the claims of service connection for right and left foot pes planus, a left leg/foot skin disorder, allergies, and a left leg vascular disorder and it raises a reasonable possibility of substantiating the claims. 5. The preponderance of the evidence shows that the Veteran’s irritable bowel syndrome with GERD is manifested by severe symptoms such as diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress at all times during the pendency of the appeal. CONCLUSIONS OF LAW 1. The October 2012 and April 2014 rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence submitted to reopen the claims of entitlement to service connection right and left foot pes planus, allergies, a left leg/foot skin disorder, and a left leg vascular disorder is new and material, and the claims are reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. New and material evidence has not been submitted sufficient to reopen a claim of entitlement to service connection for a colon disorder. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 4. The criteria for a rating in excess of 30 percent for irritable bowel syndrome with GERD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.114, Diagnostic Code 7319. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Air Force from January 1995 to December 1996 and January 2002 to January 2003. The Veteran also had other periods of service with a Reserve Component. In October 2018, the Board of Veterans’ Appeal (Board) received from the Veteran’s representative a waiver of agency of original jurisdiction (AOJ) review of the additional evidence added to the record since the issuance of the September 2017 and December 2017 statements of the case. Applications to Reopen As to reopening a prior final decision, the law provides that if new and material evidence has been presented or secured with respect to matters which have been disallowed, these matters may be reopened and the former disposition reviewed. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. 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). The United States Court of Appeals for Veterans Claims (Court) has held that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board is required to consider all the evidence received since the first denial of the claim in light of the totality of the record. See Hickson v. West, 12 Vet. App. 247, 251 (1999). In this regard, the Court in Shade v. Shinseki, 24 Vet. App. 110 (2010) held that the language of 38 C.F.R. § 3.156(a) created a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Further, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The Court in Turner v. Shulkin, 29 Vet. App. 207 (2018), also recently held that for purposes of finality VA treatment records dated during the appeal period are consider in VA’s possession even if these records are not physically associated with the claims file until many years after the RO issued a rating decision if the RO had sufficient knowledge of the existence of the records within the one-year appeal period. The Court also held that these VA treatment records will thereafter only trigger VA’s duty under 38 C.F.R. § 3.156(b) if they are new and material evidence. With the above criteria in mind, the record shows that an October 2012 rating decision denied a claim of service connection for a colon disorder. The decision denied the claim because the record did not show a chronic disability for purpose of service connection. The Veteran did not appeal the October 2012 rating decision. While additional evidence was received by the AOJ in the first year following the issuance of the October 2012 rating decision, this evidence is not related to the issue of a colon disorder. See 38 C.F.R. § 3.156(b). The Board also finds that VA did not subsequently obtain and associate with the claims file VA treatment records generated within the one-year appeal period of the October 2012 rating decision. See Turner, super. Accordingly, the Board finds the October 2012 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Similarly, the record shows that an August 2014 rating decision most recently denied the Veteran’s claims of service connection for right and left foot pes planus, allergies, a left leg/foot skin disorder, and a left leg vascular disorder. The decision denied the claims of service connection for right and left leg pes planus and allergies because she did not have a current disability and denied her claims of service connection for a left leg/foot skin disorder and a left leg vascular disorder because there was no link between these disabilities and her military service. The Veteran did not appeal the August 2014 rating decision. Additionally, new and material evidence was not received by the AOJ in the first year following the issuance of the August 2014 rating decision. See 38 C.F.R. § 3.156(b). The Board also finds that VA did not subsequently obtain and associate with the claims file VA treatment records generated within the one-year appeal period of the August 2014 rating decision. See Turner, super. Accordingly, the Board finds that the August 2014 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Since the final October 2002 and August 2014 rating decisions, the Veteran, her representative, and/or VA obtained and associated with the claims file additional medical records, written statements in support of the claims, and medical treatise evidence as well as service treatment records. Initially, as to all the claims to reopen, because the service treatment records are duplicative of the service treatment records that were in the claims file at the time of the earlier October 2012 and April 2014 rating decisions, the Board finds that they can neither be new nor material evidence. 1. Bilateral Pes Planus and Allergies As to right and left foot pes planus and allergies, the medical records added to the record since the time of the final April 2014 decision include post-service diagnoses of bilateral pes planus and allergies. See, e.g., VA treatment record dated in October 2015; treatment records from Eastern Allergy, Asthma, and Immunology received in June 2016. Because a current disability is a condition precedent for establishing service connection (see Hickson v. West, 12 Vet. App. 247, 253 (1999)) and the absence of such was the basis for the previous denials, the Board finds this medical evidence constitutes new and material evidence to reopen the claims. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156. 2. Left Leg/Foot Skin Disorder and Left Leg Vascular Disorder As to a left leg/foot skin disorder and a left leg vascular disorder, the evidence added to the record since the time of the final April 2014 decision includes, for the first-time, evidence of a link between military service and both a current left foot skin disability and left leg varicose veins. See, e.g., Veteran affidavit and medical treatise evidence received in October 2018; letter from Dr. S. M. dated in March 2018. Therefore, because the AOJ based the previous denial, at least in part, on the absence of such a nexus, the Board finds that this evidence constitutes new and material evidence and reopens these claims. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156. 3. Colon Disorder The evidence associated with the record since the time of the final October 2012 rating decision contains written statements from the Veteran and her representatives asserting she has a twisted colon due to her military service. These same claims were, in substance, already before VA at the time of the October 2012 rating decision. Therefore, the Board finds these statements and testimony are neither new nor material evidence as defined by 38 C.F.R. § 3.156(a) because they are duplicative. Simply stated, the Veteran has repeated her claims without providing new evidence. As to the additional medical records since the time of the final October 2012 rating decision, they continue to be negative for a diagnosis of a colon disorder separate from her already service-connected irritable bowel syndrome with GERD. See 38 C.F.R. § 3.303; Hickson, supra. Therefore, the Board finds these medical records are neither new nor material evidence as defined by 38 C.F.R. § 3.156(a) because they are duplicative, and the application to reopen the service connection claim must be denied. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). 1. Irritable Bowel Syndrome with GERD The Veteran’s irritable bowel syndrome with GERD is rated as 30 percent disabling under 38 C.F.R. § 4.114, Diagnostic Code 7319. Under 38 C.F.R. § 4.114, Diagnostic Code 7319, irritable colon syndrome warrants a maximum 30 percent rating when the Veteran has severe symptoms such as diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress. Given the fact that the Veteran is receiving the maximum schedular disability award possible under Diagnostic Code 7319 throughout the pendency of her appeal, the Board finds entitlement to a higher rating must be denied. 38 C.F.R. § 4.114; Hart, supra; Fenderson, supra. Further, considering the nature of the Veteran’s adverse symptomatology (i.e., abdominal pain, diarrhea, and constipation) and the location of her disability, the Board also finds that the most probative evidence of record shows that that her disability is not better rated under another Diagnostic Code. See Butts, supra; Owens, supra. REASONS FOR REMAND 1. Entitlement to service connection for bilateral pes planus, allergies, a left leg/foot skin disorder, and a left leg vascular disorder As to the newly reopened claims of service connection for bilateral pes planus, allergies, a left leg/foot skin disorder, and left leg vascular disorder, the Board finds that while the record includes sufficient evidence to reopen these claims, because the credibility of the newly presented evidence is to be presumed (see Justus, supra.), it does not contain sufficient evidence to adjudicate the merits of the claims as the record does not contain adequate or any etiology opinions. Therefore, the Board finds remand to obtain etiology opinions is required. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 84-86 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that VA’s duty to assist includes conducting a thorough and contemporaneous examination of the veteran that takes into account the records of prior examinations and treatment). While the appeal is in remand status, any outstanding VA and private treatment records as well as the Veteran’s vocational rehabilitation file and records on file with her claim for Social Security Administration (SSA) disability benefits should also be obtained and associated with the record. See 38 U.S.C. § 5103A(b). 2. Entitlement to service connection for right and left hip disorders, a left knee disorder, a back disorder, and asthma As to the initial claims of service connection for right and left hip disorders, a left knee disorder, a back disorder, and asthma, the Board notes that the record contains a March 2018 letter from Dr. S. M. in which he provides nexus opinions as to these claims. However, the Board does not find his opinions adequate to grant any of these claims because they are not credible considering the other evidence found in the claims file. See Madden v. Gober, 125 F.3d. 1477 1481 (Fed. Cir. 1997) (holing that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Nonetheless, the Board finds that the March 2018 letter is adequate to trigger for the first time VA’s duty to obtain etiology opinions as to each of these disabilities. See McLendon, supra. Therefore, the Board remands these issues to obtain the needed etiology opinions. See 38 U.S.C. § 5103A(d); McLendon, supra. 3. Entitlement to service connection for an eye disorder As to the initial claim of service connection for an eye disorder, the record shows that the Veteran is diagnosed with presbyopia and myopia. Service treatment records also show that in June 2002, while on active duty, the Veteran sustained a blunt trauma injury to the left eye with subsequent worsening vision as well as blurred vision diagnosed as a cornea abrasion. Tellingly, while VA’s regulations provide that refractive errors of the eyes, including presbyopia and myopia, are congenital or developmental defects and not a disease or injury within the meaning of applicable legislation (38 C.F.R. §§ 3.303(c), 4.9), service connection may be granted for a superimposed disease or injury that causes additional disability (See VAOPGCPREC 82-90 (July 18, 1990) (cited at 55 Fed. Reg. 45,711) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury)). Given the above, the Board finds that a remand is required to provide the Veteran with a VA examination to obtain a medical opinion as to whether her documented in-service eye injury caused additional disability. See 38 U.S.C. § 5103A(d); McLendon, supra. 4. Entitlement to a TDIU The record raises a claim for entitlement to a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Board finds this issue is not ready for appellate review because the Veteran has not been provided with notice of the laws and regulations governing these claims or completed and returned to VA a fully executed TDIU claim form. Therefore, remand for such is warranted. See 38 U.S.C. §§ 5107, 5107A; Dingess v. Nicholson, 19 Vet. App. 473 (2006). These matters are REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran herself should submit any new, pertinent evidence the Board/VA does not have (if any). 3. Obtain and associate with the claims file the Veteran’s VA vocational rehabilitation file. 4. Obtain and associate with the claims file the Veteran’s records on file with the SSA that were generated in connection with her claim for disability benefits. 5. Provide the Veteran with notice of the laws and regulations governing TDIU claims. 6. Ask the Veteran to complete and return a fully executed TDIU claim form. 7. Thereafter, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the origins of her bilateral pes planus as well as any right and left hip disorders, left knee disorder, and back disorder. The claims file should be made available and reviewed by the examiner in conjunction with the examination. All studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical), the examiner should address the following: a. Identify any diagnoses for foot, hip, left knee, and back disorders. b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the moderate bilateral pes planus diagnosed on the September 1994 entry examination was permanently aggravated beyond the normal course of the condition by the Veteran’s subsequent active duty service from January 1995 to December 1996 and/or from January 2002 to January 2003. c. Provide an opinion as to whether any hip, left knee, and/or back disorder is at least as likely as not (50 percent or greater probability) related to the Veteran’s military service, to include an injury while serving with a reserve component. d. As to any arthritis in the hip, left knee, and/or back, provide an opinion as to whether it initially manifested within the first year following either of the Veteran’s periods of active duty. In providing the requested opinions, the examiner should comment on the Veteran’s competent lay claims regarding observable symptomatology and the medical treatise evidence filed by the Veteran’s representative. In addition, the examiner should comment and discuss the March 2018 letter from Dr. S. M. In providing answers to the above questions, the examiner is advised that 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 conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. The examiner must include in the medical report the rationale for any opinion expressed. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 8. Thereafter, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the origins of any left leg/foot skin disability. The claims file should be made available and reviewed by the examiner in conjunction with the examination. All studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical), the examiner should address the following: a. Identify all skin disorders of the left leg/foot. b. For each diagnosis, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such disorder is causally or etiologically related to either of the Veteran’s periods of active duty. In providing the requested opinions, the examiner should comment on the Veteran’s competent lay claims regarding observable symptomatology and discuss the medical treatise evidence filed by the Veteran’s representative. In providing answers to the above questions, the examiner is advised that 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 conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. The examiner must include in the medical report the rationale for any opinion expressed. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 9. Thereafter, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the origins of any left leg vascular disorder. The claims file should be made available and reviewed by the examiner in conjunction with the examination. All studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical), the examiner should address the following: a. Identify all left leg vascular diagnoses. b. For each diagnosis, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such is causally or etiologically related to a period of active duty or an injury while serving with a reserve component. In providing the requested opinions, the examiner should comment on the Veteran’s competent lay claims regarding observable symptomatology and discuss the March 2018 letter from Dr. S. M. In providing answers to the above questions, the examiner is advised that 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 conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. The examiner must include in the medical report the rationale for any opinion expressed. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 10. Thereafter, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the origins of her allergies and asthma. The claims file should be made available and reviewed by the examiner in conjunction with the examination. All studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical), the examiner is asked for the following: a. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the allergies diagnosed on the September 1994 entry examination were permanently aggravated beyond the normal course of the condition by her subsequent active duty service from January 1995 to December 1996 and/or from January 2002 to January 2003. b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that asthma is causally or etiologically related to a period of active duty. In providing the requested opinions, the examiner should comment on the Veteran’s competent lay claims regarding observable symptomatology and discuss the March 2018 letter from Dr. S. M. In providing answers to the above questions, the examiner is advised that 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 conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. The examiner must include in the medical report the rationale for any opinion expressed. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 11. Thereafter, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the origins of any eye disorder. The claims file should be made available and reviewed by the examiner in conjunction with the examination. All studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical), the examiner is asked to address the following: a. Identify all current eye diagnoses. b. As to any refractive error in either eye, to include myopia and presbyopia, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that additional disability was caused by the blunt trauma injury to the left eye, which the Veteran sustained while on active duty in June 2002. c. As to any eye disabilities other than refractive error, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such are causally or etiologically related to a period of military service, to include any injury while serving with a reserve component. In providing the requested opinions, the examiner should comment on the Veteran’s competent lay claims regarding observable symptomatology. In providing answers to the above questions, the examiner is advised that 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 conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. The examiner must include in the medical report the rationale for any opinion expressed. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). M. M. CELLI Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Neil T. Werner, Counsel