Citation Nr: 18153038 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 15-18 875A DATE: November 27, 2018 ORDER New and material evidence having been received, the claim for entitlement to service connection for a low back disability is reopened; to this extent only, the appeal is granted. New and material evidence having been received, the claim for entitlement to service connection for a bilateral foot disability is reopened; to this extent only, the appeal is granted. REMANDED Entitlement to service connection for a low back disability, to include as secondary to the service-connected left hip disability, is remanded. Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for a cervical spine disability caused by VA treatment in December 2005 and January 2006 is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for a lumbar spine disability caused by VA treatment in December 2005 and January 2006 is remanded. FINDINGS OF FACT 1. An April 1994 rating decision denied entitlement to service connection for a bilateral foot disability and a low back disability. 2. Following the April 1994 rating decision, documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period. 3. Additional evidence received since the April 1994 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for a bilateral foot disability, and raises a reasonable possibility of substantiating the claim. 4. Additional evidence received since the April 1994 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for a low back disability, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The April 1994 rating decision denying service connection for a bilateral foot disability and a low back disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. 2. Evidence received since the last final denial on the issue of service connection for a bilateral foot disability is new and material; the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. Evidence received since the last final denial on the issue of service connection for a low back disability is new and material; the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1976 to March 1979. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran submitted VA Form 21-0958, Notice of Disagreement (NOD), with a March 2017 rating decision that in pertinent part denied entitlement to a total disability rating based on individual unemployability (TDIU). The Board’s review of the claims file reveals that the Agency of Original Jurisdiction is in the process of taking action on this NOD. As such, the Board will not take any further action on the matter, and it will only be before the Board if the Veteran timely files a substantive appeal after a statement of the case (SOC) is issued. New and Material Evidence The Veteran asserts that he is entitled to service connection for a bilateral foot disability and a low back disability. In an August 1994 rating decision, the RO denied entitlement to service connection for a congenital foot condition and for a low back condition secondary to a foot condition. The RO stated that the Veteran’s service treatment records showed that he had congenital pes planus with a history of foot problems and callus formation prior to service. The RO determined that the Veteran’s preexisting foot condition was not permanently aggravated by service. The RO found that there was no evidence of a back disability during service. The Veteran did not file a notice of disagreement (NOD) and new and material evidence was not actually or constructively received within a year of the rating decision. Therefore, the April 1994 rating decision is final as to the denial of service connection for a bilateral foot disability and a low back disability. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. In determining whether evidence is new and material, the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received 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. Shade, 24 Vet. App. at 118 (2010). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512 (1992). Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. Low Back Disability The Board finds that the Veteran has submitted new and material evidence since the April 1994 rating decision. The Veteran’s VA treatment records indicate that he has degenerative joint disease of the lumbar spine. A diagnosis of a low back disability was not of record at the time of the April 1994 rating decision. Further, in an October 2016 letter, a private physician opined that the Veteran’s hip replacement resulted in a significant leg length difference, which further exacerbated his physical disability and stressed his lumbar spine. The Veteran is service-connected for left hip degenerative joint disease, status total hip arthroplasty. As the October 2016 letter indicates the service-connected hip disability may have aggravated his low back disability, it relates to an unestablished element necessary to substantiate the claim. The new evidence was not of record at the time of the April 1994 rating decision and relates to an unestablished fact necessary to substantiate the claim. Therefore, the Board finds the additional evidence is new and material to reopen the claim of service connection for a low back disability. Bilateral Foot Disability In regard to the Veteran’s claim for service connection for a bilateral foot disability, the Board finds that new and material evidence has been received. In a July 2013 opinion, a private physician opined that the Veteran’s foot problems “arose because of service related activities.” The private physician noted that the Veteran had complained of a congenital foot problem that became a progressively greater problem during basic training and worsened following heavy manual labor and a conditioning program during active duty. The July 2013 private opinion was not of record at the time of the April 1994 rating decision and relates to an unestablished fact necessary to substantiate the claim, that the Veteran’s preexisting foot disability may have been permanently aggravated during his period of active duty service. Therefore, the Board finds the additional evidence is new and material to reopen the claim of service connection for a bilateral foot disability. REASONS FOR REMAND Bilateral Foot Disability The Board cannot make a fully-informed decision on the issue of whether the Veteran’s preexisting bilateral foot disability was permanently aggravated by service because no VA examiner has provided an opinion on this issue. Although the private physician indicated the foot was aggravated by service in the July 2013 letter, he did not provide a full rationale for the opinion. Therefore, a VA examination and opinion must be obtained addressing whether the Veteran has a foot disability that was caused or aggravated by service. Low Back Disability In regard to the Veteran’s claim for service connection for a low back disability, the Board cannot make a fully informed decision. In the October 2016 letter, the private physician opined that the Veteran’s hip replacement resulted in a significant leg length difference, which further exacerbated his physical disability and stressed his lumbar spine. The Veteran is service-connected for left hip degenerative joint disease, status total hip arthroplasty. The October 2016 private physician did not provide a full rationale for the opinion and no VA examiner has addressed whether the Veteran has a low back disability that was caused by service or caused or aggravated by his service-connected left hip disability. Accordingly, the claim must be remanded for a VA examination. Entitlement to compensation under 38 U.S.C. § 1151 for cervical and lumbar spine disabilities The Veteran has asserted that he has cervical and lumbar spine disabilities secondary to osteomyelitis that he asserts VA failed to timely diagnose. In his October 2010 claim, the Veteran asserted that he was originally misdiagnosed until it was discovered he had an infection resulting in disintegration of C7 and L2 and L3. A January 2006 VA treatment record notes diagnoses of streptococcus discitis, osteomyelitis, an epidural abscess, myositis and degenerative joint disease. In an October 2016 opinion, a private physician stated that “It is apparent from his records that he had a delayed diagnosis of severe and disabling osteomyelitis of his lumbar spine L1-L3 probably secondary to streptococcus. Because of the delay in his diagnosis, the pathologic process progressed with bony destruction and associated lumbar spondylosis and lumbar scoliosis with chronic arthritic changes in this region.” As the private physician did not provide a full rationale for the opinion that there was a delayed diagnosis, the opinion is inadequate. However, it indicates there may have been an additional disability due to a delay in diagnosis. A November 2016 VA examiner opined that the Veteran’s degenerative changes in the cervical and lumbar spines were a normal part of aging. However, the VA examiner did not address the Veteran’s osteomyelitis and strep infection or provide a full rationale for the opinion. Therefore, the VA opinion is inadequate. The Board notes that a November 2016 VA examination report noted that the Veteran had a right leg length discrepancy secondary to a lumbar spinal infection with collapse, indicating the Veteran may have an additional disability due to the infection. Accordingly, a new VA examination is necessary fully addressing whether the Veteran has an additional cervical or lumbar spine disability due to VA treatment. Evidence indicates that there may be outstanding relevant VA treatment records. The Veteran has reported that he has continued to receive VA treatment for the disabilities on appeal. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. In a statement received in October 2012, the Veteran indicated he is receiving Social Security Administration disability benefits for his left hip disability. As there may be outstanding and relevant Social Security Administration records, a remand is required to allow VA to request these records. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from January 2017 to the Present. 2. Obtain the Veteran’s complete records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 3. After obtaining any additional records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral foot disability. (a) Identify all conditions of the left and right feet. (b) Is the Veteran’s bilateral pes planus and hallux valgus of the right foot, noted in service, a congenital defect, a congenital disease, or an acquired condition? (c) If it is determined that the Veteran’s bilateral pes planus and/or hallux valgus of the right foot is a congenital defect, then is it at least as likely as not (a probability of 50 percent or greater) that there was a superimposed disease or injury in service that resulted in additional disability of the feet? (d) (1) If it is determined that the Veteran’s bilateral pes planus and/or hallux valgus of the right foot is a congenital disease or an acquired condition, then is there clear and unmistakable evidence that it preexisted the Veteran’s service? (2) If the answer to (d)(1) is yes, then is there clear and unmistakable evidence that the preexisting bilateral pes planus and/or hallux valgus of the right foot was not aggravated beyond its natural progression during service? (e) If the answer to (d)(1) or (2) is no, then is it at least as likely as not that bilateral pes planus and/or hallux valgus of the right foot is related to an in-service injury, event, or disease, including activities during active duty such as running, marching, and manual labor? (f) For any other currently diagnosed foot disability, is it at least as likely as not (a 50 percent probability or greater) that such condition is related to the Veteran’s active duty service, including activities during active duty such as running, marching, and manual labor? The examiner should review the Veteran’s service treatment records, including the March 1978 Medical Board opinion, and the July 2013 private opinion indicating the Veteran’s foot disabilities were aggravated by service. The examiner must provide a complete rationale for any opinion expressed. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. After obtaining any additional records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any low back disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The VA examiner must also opine as to whether it is at least as likely as not (1) proximately due to service-connected left hip degenerative joint disease, status post total hip arthroplasty, or (2) aggravated beyond its natural progression by the service-connected left hip degenerative joint disease, status post total hip arthroplasty. The VA examiner should address the October 2016 private opinion indicating the Veteran’s hip replacement may have stressed the Veteran’s lumbar spine. The examiner must provide a complete rationale for any opinion expressed. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 5. After obtaining any additional records, schedule the Veteran for a VA examination by an appropriate clinician to address whether the Veteran has a cervical and/or lumbar spine disability caused by VA treatment, including a possible delayed diagnosis. The clinician should specifically address the following: (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran has an “additional disability” caused by VA treatment, specifically treatment at the Southern Arizona VA Health Care System in December 2005 and San Francisco VAMC in January 2006? If so, the additional disabilities should be clearly identified. The clinician should address the theory that the Veteran has residuals from a strep infection and osteomyelitis that was not timely diagnosed. The term “additional disability” means any condition that did not exist immediately before the VA treatment in December 2005 and January 2006. The clinician must compare the Veteran’s condition immediately before and after the VA treatment. If there is no “additional disability,” then the clinician does not need to provide answers to (b) and (c) but must explain why the symptoms the claimant contends constitute “additional disabilities” are not an additional disability caused by the VA treatment furnished the Veteran. (b) If the Veteran has an additional disability caused by the VA treatment, then is it at least as likely as not that the proximate cause of such disability or disabilities is carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA? In providing the opinion, please address the Veteran’s theory that fault on the part of VA is demonstrated by a delay in the diagnosis of the infection. In determining whether the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing surgical treatment, discuss if VA failed to exercise the degree of care that is expected of a reasonable health care provider. (c) If the Veteran has an additional disability caused by the VA treatment, then is it at least as likely as not that this additional disability was reasonably foreseeable as an ordinary risk of the treatment that would be disclosed in connection with the informed consent (primary health care provider explains the reasonably foreseeable risks associated with VA treatment or services furnished the Veteran)? The examiner must provide a complete rationale for any opinion expressed. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Marenna, Counsel