Citation Nr: 18157766 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 15-13 837 DATE: December 14, 2018 ORDER The petition to reopen the claim of entitlement to service connection for a lower back disability is granted. The petition to reopen the claim of entitlement to service connection for bilateral foot disability is granted. REMANDED Entitlement to service connection for a lower back disability is remanded. Entitlement to service connection for bilateral foot disability is remanded. FINDINGS OF FACT 1. By an April 2007 rating decision, claims of entitlement to service connection for a lower back and bilateral foot disabilities were denied. 2. Additional evidence has been received which is not cumulative or redundant of the evidence of record at the time of the April 2007 rating decision and relates to unestablished facts necessary to substantiate the claims for service connection. CONCLUSIONS OF LAW 1. The April 2007 rating decision denying service connection for lower back and bilateral foot disabilities is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the claims of entitlement to service connection for lower back and bilateral foot disabilities and the claims are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from September 1953 to September 1956. This issue comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The issues of entitlement to service connection for a heart disability and acquired psychiatric disorder have been raised by the record in separate August 2016 statements, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b). New and Material Evidence The Veteran claims service connection for his lower back and bilateral foot disabilities. A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). By way of history, the Veteran filed his claims for lower back and bilateral foot disabilities in March 2006, which was denied by the RO in April 2007. The Veteran filed a Notice of Disagreement (NOD) of that rating decision in August 2007. The RO issued a statement of the case (SOC) in March 2008. The Veteran did not perfect the appeals by submitting timely substantive appeals for either issue. The April 2007 rating decision final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Thereafter, the Veteran filed to reopen his claims in April 2012, which were denied in the June 2012 rating decision on appeal. A claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “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. 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. Id. In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). The language of 38 C.F.R. § 3.156 (a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board is required to make its own determination as to whether new and material evidence has been received to reopen a claim. Barnett v. Brown, 83 F.3d 1380, 1385 (Fed. Cir. 1996). 1. Lower back disability In its April 2007 rating decision, the RO denied the claim for service connection for a lower back disability based on the finding that the evidence of record did not show the lower back disability was caused by military service. At the time of that decision, the pertinent evidence of record included the Veteran’s August 1956 Report of Medical Examination, his private treatment records and his January 2007 lay statement that his lower back disability was caused by falling from a communications pole while on active duty in Korea. The August 1956 medical examination noted a normal spine. The private treatment records include a April 2006 record reporting the Veteran complaints of lower back pain. In December 2006, the Veteran was informed by the RO that his service treatment records (STR’s) were destroyed by a fire at the National Archives and Records Administration on July 12, 1973. As such, these records were not available for review by the RO, nor are they available for review by the Board. Evidence received since the April 2007 rating decision includes an April 2015 medical opinion by Dr. D., stating that the Veteran’s lower back disability was due to his fall in-service. This information is new and material, as it provides evidence of a medical nexus between the Veteran’s lower back disability and his military service, which was a previously unsubstantiated fact that is necessary to substantiate the claim. Therefore, the claim is reopened. 2. Bilateral foot disability In its April 2007 rating decision, the RO denied the claim for service connection for bilateral foot disability based on the finding that the evidence of record did not show this disability was caused by military service. At the time of that decision, the pertinent evidence of record included the August 1956 Report of Medical Examination, the Veteran’s March 2006 lay statement and his private treatment records. The August 1956 medical examination noted normal feet. The March 2006 lay statement stated that his foot disability was the result of his active duty service. The private medical records include a January 1997 record reporting a diagnosis of right heel fasciitis. In addition, an April 2006 record reported the Veteran complaints of burning sensation, numbness and heel pain in his feet and a subsequent diagnosis of left foot fasciitis and right foot numbness. As indicated above, the service treatment records were missing and presumed destroyed in the 1973 fire. Evidence received since the April 2007 rating decision includes an August 2016Veteran lay statement that he was admitted to an in-service hospital for foot treatment and that harsh weather conditions while on active duty in Korea contributed to his bilateral foot disability. The Veteran's spouse submitted a statement at the same time indicating she was informed by the Veteran's family in 1957 that the Veteran had had problems with his feet since active duty and that he was hospitalized during active duty for his feet. The Veteran's brother submitted a statement indicating that he knowledge that the Veteran did not have feet problems before enlisting and that he was aware his brother fell from a pole during active duty injuring his feet. This evidence is new and material, as it provides evidence of an in-service event as well as evidence of continuity of symptomology, which was a previously unsubstantiated fact necessary to substantiate the claim for service connection. Therefore, the claim is reopened. REASONS FOR REMAND The Veteran contends that his lower back and bilateral foot disabilities are due to his military service. To date, the Veteran has not undergone a VA examination to determine the etiology of his lower back and bilateral foot disabilities. The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). As mentioned above, the Veteran’s STR’s were destroyed in a July 1973 National Archives and Records Administration fire. Thus, VA has a heightened duty to assist the claimant in developing these claims. Cromer v. Nicholson, 19 Vet. App. 215 (2005), citing Russo v. Brown, 9 Vet. App. 46 (1996); See also Cuevas v. Principi, 3 Vet. App. 542 (1992). Consistent with the VA's duty to assist, under McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), a VA medical examination must be provided when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i). The Veteran’s lower back disability claim meets all the McLendon elements for a VA examination. The Veteran has submitted private treatment records indicating current lower back pain. The Veteran has also submitted a January 2007 lay statement stating that he sustained an in-service lower back injury. The Board notes that the Veteran has submitted an April 2015 medical nexus opinion from Dr. D., who opined that the Veteran’s lower back disability is a direct result of the Veteran’s in-service fall. However, this opinion is inadequate because there was no rationale given. Thus, there is insufficient competent medical evidence in the Veteran’s claims file for the Board to adjudicate this claim. Therefore, a VA examination is warranted for the Veteran’s lower back claim. Likewise, the Veteran’s bilateral foot disability claim meets all the McLendon elements for a VA examination. The Veteran has submitted private medical records indicating bilateral foot problems. In addition, the Veteran has submitted an August 2016 lay statement stating that he was previously hospitalized for in-service foot issues and that harsh weather conditions during active duty contributed to his bilateral foot disability. However, there is no etiology medical opinion regarding this disability. As such, there is insufficient competent medical evidence in the claims file for the Board to adjudicate this claim. Therefore, a VA examination is also warranted for the Veteran’s bilateral foot claim. The Board also notes that the Veteran has identified treatment records from “Navy Veteran Hospital” in his August 2016 lay statement. A remand is required to allow VA to obtain these records if possible. 38 C.F.R. § 3.159(c)(1). The matter is REMANDED for the following action: 1. Contact the Veteran and, with his assistance, identify to his best recollection all in-service treatment dates and places of service, including treatment at “Navy Veteran Hospital” in 1954. The RO is then directed to forward that information to the National Archives to determine whether any of the Veteran’s STR’s can be obtained and be made part of the Veteran’s claims file. Specific requests must be made to obtain the hospitalization records as appropriate. If these records are still unavailable, the Veteran’s claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Obtain updated VA and/or private treatment records to the extent possible. If any such records are unavailable, the Veteran’s claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 3. After completing the above, schedule the Veteran for a VA examination with a qualified medical professional to determine the nature and the etiology of the lower back disability. The examiner should obtain a relevant history of back injury and symptomology from the Veteran and review the claims file, including a copy of this remand. Based on the examination and a review of the record, the examiner must address the following: a. Does the Veteran have a current lower back disability at any time since the claim was submitted? b. If the answer to (a) is yes, whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s lower back disability was either incurred in, or otherwise related to the Veteran’s active duty service? 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 certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The Veteran’s contentions that he has suffered from lower back pain during and since service should be taken into account when rendering an opinion. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner is to specifically address the April 2015 medical opinion by Dr. D.. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. After completing the above, schedule the Veteran for a VA examination with a qualified medical professional to determine the nature and the etiology of the Veteran’s bilateral foot disability. The examiner should obtain a relevant history of foot injuries and symptomology from the Veteran and review the claims file, including a copy of this remand. Based on the examination and a review of the record, the examiner must address the following: a. Does the Veteran have a current bilateral foot disability at any time since the claim was filed? b. If the answer to (a) is yes, whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s bilateral foot disability was either incurred in, or otherwise related to the Veteran’s active duty service? 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 certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The Veteran’s contentions that he has suffered from bilateral foot pain during and since service should be taken into account when rendering an opinion. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. (Continued on the next page)   A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Massey, Associate Counsel