Citation Nr: 18153855 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 15-14 436A DATE: November 28, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for a right foot disorder is reopened. Entitlement to service connection for a right foot disorder is granted. REMANDED Entitlement to an initial disability rating in excess of 50 percent for post-traumatic stress disorder (PTSD) is remanded. Entitlement to an initial disability rating in excess of 10 percent for right shoulder strain and impingement syndrome is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A November 2006 rating decision denied the claim of entitlement to service connection for a right foot disorder; the Veteran did not appeal the decision or submit any pertinent evidence within the appeal period and the decision is now final 2. Evidence received subsequent to the expiration of the appeal period is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a right foot disorder. 3. The Veteran’s right foot disorder is etiologically related to his active duty service. CONCLUSIONS OF LAW 1. New and material evidence has been presented to reopen the claim of entitlement to service connection for a right foot disorder. 38 U.S.C. § 5108 (2012 38 C.F.R. § 3.156 (2018). 2. The criteria for service connection for a right foot disorder have been met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Navy from April 1984 to January 1996. He also had honorable active duty service with the United States Army from October 2001 to October 2002, from August 2004 to February 2006, and from September 2007 to March 2009. The Board recognizes that the Veteran requested a Board hearing by way of his substantive appeal. The hearing was scheduled for a date in August 2018. He was notified by way of a letter dated in June 2018, but he failed to appear for the hearing. He has not provided a reason for the failure to appear or requested that the hearing be rescheduled; thus, the Board deems the hearing request withdrawn. A claim for TDIU has been reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a right foot disorder. Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. “New” evidence is defined as existing evidence not previously submitted to agency decision-makers. “Material” evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The RO initially denied service connection for a right foot disorder in November 2006. The RO determined that there was no evidence that there was permanent residual or chronic disability subject to service connection. The Veteran did not appeal the denial or submit any pertinent evidence within the appeal period. Therefore, that decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.201, 20.302, 20.1103. In October 2009, the Veteran filed a claim to reopen the claim of entitlement to service connection for a right foot disorder. Evidence received since the November 2006 rating decision includes a January 2010 VA examination report indicating that the Veteran had right foot deformities caused by an injury occurring during service. The medical evidence constitutes new and material evidence. This follows because the evidence relates to a previously unestablished element that is necessary to grant entitlement to service connection for a right foot disorder. Accordingly, reopening of the claim for service connection for a right foot disorder is warranted. 2. Entitlement to service connection for a right foot disorder. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In considering the evidence of record under the applicable laws and regulations, the Board finds that that the Veteran is entitled to service connection for a right foot disorder. July 2005 service treatment records show that the Veteran presented with a four-month history of toe pain in the third and fourth toes. The diagnosis was intermetatarsal neuroma. He returned to the clinic in September 2005 with the same complaints. A physical examination revealed pain with compression of the metatarsal heads, tenderness to palpation between the second through fifth digits, and forefoot mobility within functional limits. Service treatment records documented a right foot injury in October 2005. He was at a checkpoint assisting a patient when a vehicle born improvised explosive device exploded. The diagnosis was right foot neuroma. In November 2005, the Veteran provided a sworn statement detailing the October 2005 injury. He explained that the vehicle born improvised explosive device exploded and he injured his foot on the debris as he was running to provide emergency medical care to an Iraqi Army member. December 2005 and January 2006 post-deployment health assessments note that the Veteran continued to complain about his right foot symptoms. The December 2005 physician noted a right foot neuroma and plantar pain. The January 2006 physician noted neuroma of the foot. April 2006 treatment records show that the Veteran continued to report a neuroma of his right foot. On a December 2008 report of medical assessment, a health care provider noted a neuroma. A statement of medical examination and duty status noted that the Veteran was involved in an accident in December 2008. The Veteran reported a history of a right foot neuroma. December 2008 service treatment records noted that the Veteran injured his foot when an improvised explosive device knocked him off his feet and when he stood up, he stepped on a piece of shrapnel that pierced the bottom of his boot and entered his foot. The diagnosis was an intermetatarsal neuroma. The Veteran underwent a VA examination in January 2010. It was noted that the Veteran landed on his shoulder and foot during a vehicle born improvised explosive device blast. A physical examination revealed protuberance dorsally on the second and third toes, which increased with standing. There was a callus over the second proximal interphalangeal joint and tenderness to palpation between the second and third toes in the tarsal area. The examiner noted limitations with standing, walking, and climbing stairs due to his feet. The examiner also noted flexion deformities of the toes with partial overlapping of the first and second digits, as well as a miniscule heel spur. The examiner provided a diagnosis of right foot deformities and stated that the disorder was caused by an injury that occurred during service. In a February 2010 statement, the Veteran further explained that he stepped on a piece of shrapnel and injured his right foot during an explosion. April 2010 VA treatment records noted pain in his right foot and a right foot neuroma. The Veteran reported that an explosion went off about 40 feet away and that he was blown about 10 feet away and landed on the ground. When he finally stood up he started to run and stepped on shrapnel that went through his boot causing an injury to his right foot. A May 2010 VA treatment record noted foot pain between the third and fourth digits, which started after he stepped on a sharp object while in service. The diagnosis was interdigital neuroma in the foot. October 2010 VA treatment records showed that the Veteran presented with complaints of chronic right foot pain after an injury while on active duty. It was noted that he was diagnosed with a neuroma, but surgical resection was not recommended. Since the initial injury, the Veteran noted persistent pain and gradually progressive deformity of his toes. A physical examination revealed right foot with slight contracture and reproducible pain of metatarsal head. The assessment was foot deformity with pain subsequent to injury during service. A February 2013 VA podiatry outpatient note indicated that Veteran was bothered with a neuroma on his right foot for years. He reported that it started in service when he had to march with heavy packs and as a result of a piece of metal in his shoe. Since then, his toes had been separating and he experienced pain with standing for prolonged periods. The impression was a neuroma of the right foot. June 2016 VA treatment records continued to show treatment for a right foot disorder. The diagnoses included metatarsalgia, pes cavus, metatarsus adductus, and right third neuroma. Based on the above noted evidence, the Board finds that service connection is warranted for the Veteran’s right foot disorder. Notably, the January 2010 VA examiner, as well as multiple other health care professionals, related his right foot disorder to his in-service injuries. While the January 2010 VA examiner did not use the preferred language (at least as likely as not), a reading of the examination report clearly indicates that there is a more than 50 percent likelihood that the Veteran’s right foot disorder is related to his active duty service, specifically the right foot injuries that occurred during his deployments. Moreover, the VA treatment records and the service treatment records contain comments from health care professionals relating his right foot disorder to the in-service injury. In light of the service-treatment records showing treatment for a right foot disorder due to in-service injuries, the January 2010 VA examiner’s opinion that his right foot disorder was related to service, the Veteran’s competent statements regarding the in-service injuries and symptoms since service, and the statements from medical professionals relating the right foot disorder to the in-service injuries, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s currently diagnosed right foot disorder is related to service. Therefore, resolving all doubt in the Veteran’s favor, the Board finds that service connection is warranted for the Veteran’s right foot disorder. REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 50 percent for PTSD is remanded. The Veteran most recently underwent a VA examination to excess the severity of his service-connected right shoulder disorder in May 2017 and his service-connected PTSD in June 2017. In May 2018, the Veteran’s representative stated that the Veteran’s disabilities worsened. A new VA examination is necessary when there is evidence that a service-connected disability has worsened since the last examination. Therefore, given that there is an indication that the Veteran’s disabilities may have increased in severity since the most recent VA examinations, the Board finds that new VA examinations are needed to determine the current severity of the Veteran’s service-connected right shoulder and psychiatric disorders. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991). 2. Entitlement to an initial disability rating in excess of 10 percent for right shoulder strain and impingement syndrome is remanded. Please see discussion in paragraph 1. 3. Entitlement to a TDIU is remanded. The TDIU claim is intertwined with the increased rating claims remanded herein. Thus, the Board will defer its decision on the TDIU claim until the increased rating claims are resolved. The matters are REMANDED for the following actions: 1. The Agency of Original Jurisdiction (AOJ) should undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims, to include updated VA treatment records. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Then, the AOJ should afford the Veteran a VA examination by an examiner with sufficient expertise to determine the current severity of his service-connected PTSD. The electronic records should be made available to and reviewed by the examiner. Any indicated studies should be performed. The RO must ensure that all information required for rating purposes is provided. 3. Then, the AOJ should afford the Veteran a VA examination by an examiner with sufficient expertise to determine the current severity of his service-connected right shoulder disorder. The electronic records should be made available to and reviewed by the examiner. Any indicated studies should be performed. The AOJ should ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In addition, the examiner must determine the extent of any additional limitation of joint motion (in degrees) due to weakened movement, excess fatigability, incoordination, or pain during flare-ups and/or with repeated use. In doing so, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Furthermore, if any opinion cannot be offered without resorting to mere speculation, the examiner should clearly explain why this is the case and identify any additional evidence that may allow for a more definitive opinion. 4. Then, the AOJ should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. L. Chu Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. N. Nolley, Associate Counsel