Citation Nr: 18155596 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 15-28 764 DATE: December 4, 2018 ORDER Entitlement to service connection for type II, diabetes mellitus, is dismissed. Entitlement to service connection for sleep disturbances is dismissed. Entitlement to service connection for peripheral neuropathy of the left upper extremity is dismissed. Entitlement to service connection for peripheral neuropathy of the right upper extremity is dismissed. Entitlement to service connection for peripheral neuropathy of the left lower extremity is dismissed. Entitlement to service connection for peripheral neuropathy of the right lower extremity is dismissed. Entitlement to service connection for a neck condition is dismissed. Entitlement to service connection for arthritis is dismissed. Entitlement to service connection for loss of toenails and broken toes is dismissed. Entitlement to service connection for a shoulder condition is dismissed. Entitlement to service connection for loss of balance is dismissed. New and material evidence has not been received, and the claim for entitlement to service connection for a back condition is not reopened. New and material evidence has not been received, and the claim for entitlement to service connection for headaches is not reopened. New and material evidence has not been received, and the claim for entitlement to service connection for a bilateral hip disability is not reopened. New and material evidence has not been received, and the claim for entitlement to service connection for bilateral pes planus is not reopened. Entitlement to service connection for an ankle condition is denied. Entitlement to service connection for a bilateral shin condition is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include depression and PTSD, is remanded. FINDINGS OF FACT 1. In March 2016, prior to the promulgation of a decision in the appeal, the Veteran requested a withdrawal of the issue of entitlement to service connection for type II, diabetes mellitus. 2. In November 2018, prior to the promulgation of a decision in the appeal, the Veteran requested a withdrawal of the issues of entitlement to service connection for sleep disturbances, peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities, a shoulder condition, a neck condition, arthritis, loss of toenails and broken toes, and loss of balance. 3. A November 1998 Board decision denied the Veteran’s original claim for entitlement to service connection for bilateral pes planus and back, hip, and headache disorders; the Veteran has not submitted a motion for reconsideration of that decision and did not timely appeal that decision. 4. Evidence received since the November 1998 relevant to the issue of entitlement to service connection for a back condition either is not new or is new but is not material and does not raise a reasonable possibility of substantiating the claim. 5. Evidence received since the November 1998 relevant to the issue of entitlement to service connection for a bilateral hip condition either is not new or is new but is not material and does not raise a reasonable possibility of substantiating the claim. 6. Evidence received since the November 1998 relevant to the issue of entitlement to service connection for bilateral pes planus either is not new or is new but is not material and does not raise a reasonable possibility of substantiating the claim. 7. Evidence received since the November 1998 relevant to the issue of entitlement to service connection for headaches either is not new or is new but is not material and does not raise a reasonable possibility of substantiating the claim. 8. The preponderance of the evidence is against finding that an ankle condition began during active service, or is otherwise related to an in-service injury, event, or disease. 9. The preponderance of the evidence is against finding that a bilateral shin condition began during active service, or is otherwise related to an in-service injury, event, or disease.   CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issues of entitlement to service connection for type II, diabetes mellitus; sleep disturbances; peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities; a shoulder condition; a neck condition; arthritis; loss of toenails and broken toes; and loss of balance have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The November 1998 Board decision is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. 3. New and material evidence has not been received, and the claim for entitlement to service connection for a back condition is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156, 3.303. 4. New and material evidence has not been received, and the claim for entitlement to service connection for a bilateral hip condition is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156, 3.303. 5. New and material evidence has not been received, and the claim for entitlement to service connection for bilateral pes planus is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156, 3.303. 6. New and material evidence has not been received, and the claim for entitlement to service connection for headaches is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156, 3.303. 7. The criteria for entitlement to service connection for an ankle condition have not been met. 38 U.S.C. §§ 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 8. The criteria for entitlement to service connection for a bilateral shin condition have not been met. 38 U.S.C. §§ 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1977 to December 1978. In a November 2018 statement, the Veteran’s representative waived initial consideration by the Agency of Original Jurisdiction (AOJ) of all evidence received since the last adjudication of the issues on appeal. Accordingly, the Board may proceed with appellate consideration and accepts the additional evidence for inclusion in the record on appeal. See 38 C.F.R. § 20.1304(c). At a March 2016 hearing before a Decision Review Officer (DRO), the Veteran testified that he is in receipt of Social Security Administration (SSA) disability benefits. VA is required to obtain disability records from the SSA only if there is a reasonable possibility that such records are relevant to the Veteran’s claim for VA compensation. Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). However, in this case the Veteran has not asserted, and there is otherwise no indication, that the SSA records are relevant to the issues decided herein. Therefore, a remand to obtain the Veteran’s SSA records is not required. See id. The Veteran has not been provided a VA examination in connection with the service connection issues decided herein because, as is discussed more fully below, there is no indication that the claimed disabilities may be associated with an established event, injury, or disease in service. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In his substantive appeals, the Veteran requested a Board hearing by live videoconference. However, in October 2018, the Veteran, through his representative, submitted a letter indicating that he wished to withdraw his hearing request. Under 38 C.F.R. § 20.704(e), a request for hearing may be withdrawn by an appellant at any time before the hearing. Therefore, the Board finds that the hearing request has been withdrawn, and will proceed with appellate review. The Veteran initially submitted a claim for entitlement to service connection for “chronic depression”. He later submitted a claim for entitlement to service connection for PTSD. The Board will consider whether entitlement to service connection is warranted for any acquired psychiatric disability shown in the medical records to have been diagnosed during the claim or in proximity to the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Neither the Veteran nor his representative has raised any other issues with regard to the duty to notify or duty to assist as they pertain to the issues decided herein. 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). In that regard, the Board notes that the development directed in the Remand section below pertains to the issue remanded herein, and there is no indication that evidence developed as part of those actions may be relevant to the issues decided herein. The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issue decided herein. The Veteran should not assume that evidence that is not explicitly discussed herein has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Withdrawn Issues The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. In the present case, the Veteran requested in March 2016 that the appeal for entitlement to service connection for type II, diabetes mellitus, be withdrawn. In November 2018, he further requested that the appeals for entitlement to entitlement to service connection for sleep disturbances, peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities, a shoulder condition, a neck condition, arthritis, loss of toenails and broken toes, and loss of balance be withdrawn. Therefore, there remain no allegations of errors of fact or law for appellate consideration as to those issues. Accordingly, the Board does not have jurisdiction to review the issues and they are dismissed. Reopening Issues The Veteran seeks to reopen the previous claims for entitlement to service connection for a back condition, a bilateral hip condition, bilateral pes planus, and headaches, which were denied in the November 1998 Board decision. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In addition, a Board decision is final unless the Chairman of the Board orders reconsideration. See 38 U.S.C. §§ 7103(a), 7104; 38 C.F.R. § 20.1100(a). An exception to these rules is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The question of whether new and material evidence has been received to reopen a previously denied claim must be addressed by the Board in the first instance because the issue goes to the Board’s jurisdiction to reach and adjudicate the underlying claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and further analysis beyond consideration of whether the evidence received is new and material is neither required nor permitted. Barnett, 83 F.3d at 1384. New evidence is existing evidence not previously considered by VA. Material evidence is 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The United States Court of Appeals for Veterans Claims (Court) held that the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) to have a finally denied claim reopened under 38 U.S.C. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA’s duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court has also held that the law should be interpreted as enabling reopening of a claim, rather than to precluding it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The focus is not exclusively on whether evidence remedies the principal reason for denial in the last prior final decision, but on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Id. at 118. In general, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. For preexisting conditions noted upon entry into service, a veteran cannot bring a claim for service connection for the condition, but a veteran may bring a claim for service-connected aggravation of that condition. In such cases, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish aggravation. If the presumption of aggravation under section 1153 is applicable, the burden shifts to the government to show a lack of aggravation by establishing that the increase in disability is due to the natural progress of the disease. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). 1. Previously denied claims In April 1993, the Veteran submitted an original claim for entitlement to service connection for migraines, which he contended began in 1978, and for flat feet with resulting pain in the hips and lower back, which he contended began in 1977. The AOJ denied the Veteran’s claims in a January 1994 rating decision. The Veteran submitted a timely notice of disagreement as to the issues in April 1994, in which he argued that his pre-existing flat feet became worse as a result of his active service. Following issuance of a statement of the case in June 1994, the Veteran also submitted a substantive appeal as to the issues in November 1994. His representative at the time submitted a VA Form 646, Statement of Accredited Representative in Appealed Case, in December 1994 essentially arguing that the Veteran’s preexisting pes planus was aggravated during his active service. The representative noted that the Veteran’s pes planus was asymptomatic at the time of his entrance into active service and remained so “until the veteran was subjected to the rigors of training and military service. Had it not been for this service the condition would have remained asymptomatic.” In November 1998, the Board issued a decision denying the Veteran’s claims. In the decision, the Board noted that the Veteran’s service treatment records show that he received treatment for headaches and a low back disorder during his active service, but found that there was no evidence demonstrating that the disorders represented chronic disabilities. In addition, the Board noted that the Veteran’s August 1977 enlistment examination revealed asymptomatic moderate pes planus, but a November 1978 medical board found the Veteran’s pes planus was not aggravated by service. The Board therefore concluded that the Veteran’s preexisting pes planus was not aggravated during his active service. The Board further noted that the only evidence relating a current back condition, hip condition, or headache to the Veteran’s active service or indicating that the preexisting pes planus was aggravated during the Veteran’s active service was the Veteran’s own opinions, which were not considered competent. The Veteran has not filed a motion for reconsideration of the November 1998 Board decision, nor has such reconsideration been ordered by the Chairman of the Board. The Veteran also did not appeal the decision to the Court within the prescribed period of time. Accordingly, the November 1998 Board decision is final. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1100.   2. Whether new and material evidence has been received to reopen the previously denied claims for entitlement to service connection for a back condition, a bilateral hip condition, bilateral pes planus, and headaches Evidence received since the final November 1998 Board decision that is relevant to the claims for entitlement to service connection for a back condition, a bilateral hip condition, bilateral pes planus, and headaches includes VA treatment records; private treatment records; statements from the Veteran, to include his testimony at the March 2016 DRO hearing; and a November 2018 brief from the Veteran’s representative. The medical treatment records show that the Veteran has continued to report back pain, hip pain, foot pain, and headaches. They do not contain any medical statements linking a current back condition, hip condition, or headaches to the Veteran’s active service or indicating that the Veteran’s preexisting pes planus was aggravated during his active service. Accordingly, the medical treatment records are new in the sense that they have not yet been reviewed by VA, but are cumulative of previously considered records as they merely confirm facts previously established and do not raise a reasonable possibility of substantiating the claims. In his statements, to include his testimony at the March 2016 DRO hearing, the Veteran essentially repeats his previous assertions that his preexisting pes planus was aggravated in service and that his current low back condition, hip condition, and headaches are related to his active service, to include the headaches and low back complaints shown in the service treatment records. The final November 1998 Board decision explicitly considered the complaints of a low back disorder and headaches shown in the service treatment records and whether the Veteran’s preexisting pes planus underwent an increase in severity during his active service. Accordingly, the Veteran’s statements are redundant of his previous statements that were considered as part of the prior final decision and are not considered new. In her November 2018 brief, the Veteran’s representative argues that VA has failed to fulfill its duty to assist in providing the Veteran examinations as to his pes planus, back condition, and headaches. With regard to the Veteran’s pes planus, she notes the service treatment records showing that the Veteran had asymptomatic moderate pes planus on entrance into service in August 1977; was given orders for no prolonged standing, no running, and no drilling in May 1978; and then later in May 1978 was diagnosed with symptomatic pes planus. She asserts, “[h]is pes planus plainly worsened in service, as indicated in his records” and that the Veteran should have been, or should now be, provided a VA examination to determine whether the condition worsened during his active service. With regard to the Veteran’s back condition and headaches, she notes that the service treatment records show the Veteran reported severe back pain in April 1978 and severe headaches in June 1978 and November 1978, and that the Veteran has sought treatment since service for a back condition and headaches. She asserts that the Veteran should have been, or should now be, provided a VA examination to determine whether his back condition and headaches are directly related to his active service. She did not provide any arguments as to the Veteran’s claimed hip condition other than to say that the condition is secondary to the Veteran’s pes planus. The Board finds that the representative’s statements do not constitute new and material evidence sufficient to reopen the previously denied claims. Her recitation of facts found in the Veteran’s service treatment records and assertions that the pes planus was aggravated during service and that the back condition and headaches are directly related to the back condition and headaches noted in the service treatment records are not new because they are mere repetition of facts and arguments previously considered by VA in the final November 1998 Board decision. Her assertions that VA erred in not providing the Veteran a VA examination as to his original claim is not material because it merely points out a perceived procedural due process violation during the course of that claim. It does not present evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Her argument that VA must now provide the Veteran a VA examination as to his claims is also not material for the same reason. In that regard, the Board notes that VA may provide an examination in claims to reopen a finally adjudicated claim only if new and material evidence is presented or secured. See 38 C.F.R. § 3.159(c)(4)(iii). In this case, new and material evidence has not been presented or secured as to the previously denied claims; therefore, an examination as to those claims is not required. In summary, the Veteran’s original claims for entitlement to service connection for a back condition, a bilateral hip condition, bilateral pes planus, and headaches in the final November 1998 Board decision. The Board found that the Veteran’s preexisting pes planus was not aggravated during his active service, and that the back condition and headaches shown in the service treatment records were not shown to be chronic in nature and therefore were unrelated to the Veteran’s post-service back and headache complaints. Evidence received since the November 1998 Board decision is cumulative or duplicative of evidence already considered by VA, does not relate to an unestablished fact necessary to substantiate the previously denied claim, and/or does not raise a reasonable possibility of substantiating the previously denied claims. 38 C.F.R. § 3.156. Accordingly, new and material evidence to reopen the finally denied claims for entitlement to service connection for a back condition, a bilateral hip condition, bilateral pes planus, and headaches has not been received, the benefit-of-the-doubt doctrine is not for application, and the claims are not reopened. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will also be service connected. 38 C.F.R. § 3.310(b). 3. Entitlement to service connection an ankle condition and a bilateral shin condition The Veteran seeks entitlement to service connection for an ankle condition and a bilateral shin condition. He has contended that the conditions are secondary to his bilateral pes planus. The Veteran’s representative presented similar contentions in her November 2018 brief. However, the Veteran has not been service connected for bilateral pes planus. Therefore, no disability may be service connected on a secondary basis as due to or aggravated by his pes planus, and the Board will consider only whether service connection may be granted on a direct basis for an ankle condition and/or a bilateral shin condition. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, although the Veteran may currently have an ankle condition and a bilateral shin condition, the preponderance of the evidence is against finding that they began during his active service, or are otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran’s service treatment records reflect complaints of foot pain relating to the preexisting pes planus, but are absent for complaints of or treatment for an ankle condition or a bilateral shin condition. The Veteran has not presented any arguments as to why his current ankle and/or bilateral shin condition may be etiologically related to his active service. Although the Veteran believes that his ankle condition and bilateral shin condition are related to his active service, the evidence of record simply does not show such a connection. In summary, the Veteran has asserted that he has a current ankle condition and bilateral shin condition that are secondary to his pes planus. However, his pes planus has not been service connected. Therefore, entitlement to service connection for an ankle condition and a bilateral shin condition may not be granted on a secondary basis as due to or aggravated by the pes planus. The Veteran has not argued, and the record does not show, that the current ankle condition or bilateral shin condition had its onset during his active service or is otherwise related to an in-service injury, event, or disease. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claims for entitlement to service connection for an ankle condition and for a bilateral shin condition. Because the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine is not for application, and the claims must be denied. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Veteran submitted a claim for entitlement to service connection for PTSD in November 2015. He identified in-service stressful events at the March 2016 DRO hearing. The Veteran’s VA treatment records show that he has been diagnosed with PTSD, but are not specific as to the basis for that diagnoses. To date the Veteran has not been provided initial notice as to the factors pertinent to establishing entitlement to service connection for PTSD, and no effort has been made to corroborate the in-service stressful events already identified by the Veteran. A remand of the issue is required so that the Veteran may be provided initial notice as to the claim for entitlement to service connection for PTSD, to include that he may identify any in-service stressful events on an included VA Form 21-0781, Statement in Support of Claim for Service Connection for PTSD; and so that VA may attempt to corroborate the Veteran’s reported stressors. In addition, the Veteran has not yet been provided a VA examination as to his claim for entitlement to service connection for an acquired psychiatric disability. His service treatment records show that he endorsed frequent trouble sleeping; depression or excessive worry; and nervous trouble of any sort on a November 1978 report of medical history. His VA treatment records reflect that he has been diagnosed with acquired psychiatric disabilities, to include depression. Although the record indicates that the current acquired psychiatric disabilities are related to the Veteran’s current lack of funds, physical health problems, and other such situational stressors, they also suggest that the disabilities may be related to aspects of his active service. As such, the Board finds that the low threshold for provision of a VA examination as to the claim has been met, and that the issue must be remanded so that the Veteran may be provided such an examination. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: 1. Provide notice to the Veteran of the factors pertinent to establishing entitlement to service connection for PTSD. The notice letter must include a VA Form 21-0781, Statement in Support of Claim for Service Connection for PTSD. 2. After the above action is complete and an appropriate amount of time is provided for the Veteran to complete the VA Form 21-0781 or otherwise further identify his in-service stressors, attempt to corroborate the Veteran’s reported in-service stressors, including those he identified at the March 2016 DRO hearing. 3. After the Veteran’s reported stressors have been developed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disability, to include depression and PTSD. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether the disability is at least as likely as not (50 percent probability or greater) related to a verified in-service stressor. For any diagnosed acquired psychiatric disability other than PTSD, the examiner must opine whether the disability is at least as likely as not related to an in-service injury, event, or disease. If the examiner determines that only some of the Veteran’s psychiatric symptoms are related to his active service, then the examiner must specify which symptoms are related to the Veteran’s active service and which are related to factors other than the Veteran’s active service. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. J. Anthony, Counsel