Citation Nr: 18158321 Decision Date: 12/18/18 Archive Date: 12/14/18 DOCKET NO. 16-51 018 DATE: December 18, 2018 REMANDED Entitlement to service connection for any bilateral foot condition (claimed as foot problems) is remanded. Entitlement to service connection for any left-sided condition is remanded. Entitlement to service connection for C8 right-sided radiculopathy is remanded. Entitlement to service connection for left knee strain (claimed as a leg and knee condition as due to an undiagnosed illness) is remanded. Entitlement to service connection for right knee strain (claimed as a leg and knee condition as due to undiagnosed illness) is remanded. Entitlement to service connection for chronic fatigue is remanded. Entitlement to service connection for mitral valve disease (claimed as chest and heart pain) is remanded. Entitlement to service connection for gastritis with duodenitis and active colon ulcers indicative of ulcerative colitis is remanded. Entitlement to service connection for headaches is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1986 to September 1986, and from December 1990 to June 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of August 2012 and February 2015. New VA treatment records were added to the claims file in July 2018. Because the records were added after the last supplemental statement of the case (SSOC) of September 2017 and after the transfer of records to Board in September 2017, the Board may determine the action required with respect to the additional evidence. 38 C.F.R. § 19.37(b). A rating decision of October 1998 denied service connection for seven claimed disabilities on the basis that they were not well-grounded. The issues were entitlement to service connection for: headaches, stomachaches, chest and heart pain, leg and knee conditions, posttraumatic stress disorder (PTSD), right hand condition, and chronic fatigue. In July 2002, the agency of original jurisdiction (AOJ) readjudicated these issues de novo and not as claims to reopen. If a denial or dismissal of an issue became final from July 14, 1999, to November 9, 2000, and the issue was denied because the claim was not well grounded, VA must, upon request of the claimant or upon the motion of VA, readjudicate certain finally decided claims as if the denial or dismissal had not been made. Here, however, the RO reconsidered the claims on a de novo basis in July 2002. For finality purposes, the July 2002 rating decision therefore replaced the October 1998 denial of the claims as not being well-grounded. The July 2002 rating decision was issued after a revision in the law, effective March 1, 2002, that changed the term “chronic disability” to “qualifying chronic disability” and expanded the definition of a “qualifying chronic disability.” 38 U.S.C. § 1117. That is, the Veteran’s March 2012 filing to reopen his service-connection claims relating to undiagnosed illness are not based on a substantive right created by a statutory or regulatory provision that was not applied and did not exist in its current form at the time of the prior final denial in July 2002. Accordingly, this is not a situation in which a claim based on a liberalizing law is a new claim requiring no new and material evidence to reopen if the claim was previously and finally disallowed. See Spencer v. Brown, 4 Vet. App. 283, 288 (1993), aff'd, 17 F.3d 368 (Fed. Cir. 1994). Nonetheless, the Veteran’s March 2012 service-connection claims that were previously denied in July 2002 are not to be treated as requests to reopen in this case, because relevant service treatment records were submitted after the final decision of July 2002 that existed at the time of the final decision but that had not been associated with the claims file. 38 C.F.R. § 3.156(c). In general, a claim that has been denied in a final, unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception provides that VA shall reopen a disallowed claim if new and material evidence is presented or secured with respect to the claim. 38 U.S.C. § 5108. If relevant service treatment records that existed at the time of the last final decision are associated with the claims file after the last final decision, new and material evidence is not required. 38 C.F.R. § 3.156(c). In other words, if a relevant service treatment record is new (not previously of record), it obviates the need to reopen the claim based on new and material evidence. The Veteran alleges that he served from 1986 to 1993, including Army Reserve service. See June 2016 VA examination report for PTSD. On remand, VA should attempt to verify any periods of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA) from September 1986 to December 1990, and from June 1991 to December 1993. Active military, naval, or air service may include a period of ACDUTRA or INACDUTRA. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). VA should also attempt to obtain service treatment records pertaining to any periods of Army Reserve service. 1. Entitlement to service connection for any bilateral foot condition (claimed as foot problems). By a claim filed in March 2012, the Veteran seeks service connection for “foot problems.” He states that a foot problem began during service and has worsened to the present. See statement of April 2013. He maintains that, due to working in “below zero” weather when stationed in Germany, he was treated for “hypothermia (frostbite)” and that he could not feel his feet at that time. See statement of June 2012. He has not expressly argued that his current foot problem relates to the in-service frostbite. In a filing of May 2013, he reported that the onset date of his foot problems is unknown. There is a calcaneal spur in the Veteran’s left foot. See VA treatment record of October 2016. A VA treatment record of October 2015 notes that he has plantar fasciitis of the left foot which was aggravated by recent running. In a VA treatment record of September 2015, the Veteran reported that he had no history of foot pain problems and that he developed pain in his left foot on the previous Saturday due to running. A VA treatment record of January 2014 notes “skin nodule, left foot, and painful subcutaneous nodule c/w plantar fibroma.” There is no evidence of current right foot disability other than the Veteran’s statement that he has “knots” under his feet that cause pain when he walks. See statement of May 2013. The Veteran is competent to report his current pain symptoms of the right foot. The record reflects that the Veteran elected not to undergo a separation examination in connection with his first period of service ending in 1986. For the entrance examination of December 1990 (corresponding to the second period of service), the Veteran denied having any foot trouble. The 1991 separation examination report found normal feet, and he specifically denied having any foot trouble. No foot symptoms are noted in the service treatment record, including any injury or treatment relating to hypothermia or frostbite as alleged by the Veteran. The Veteran has not been afforded a VA examination with respect to his persistent symptoms of the feet. VA must provide a medical examination as to a disability compensation claim 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 claimant's service or with another service-connected disability, but (4) the competent medical evidence on file is not sufficient for VA to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159 (c)(4). The third factor has been held to have a low threshold. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran is competent to report his experienced symptoms. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Although certain evidence may ultimately be insufficient to establish a nexus, that evidence, together with other evidence of record, may sufficiently indicate that a current disability may be associated with an in-service injury. The Board determines that, under the low threshold of 38 C.F.R. § 3.159 (c)(4)(C), an examination to determine if there is a nexus between the Veteran's current bilateral foot symptoms and his service is warranted. 2. Entitlement to service connection for any left-sided disability. 3. Entitlement to service connection for C8 right sided radiculopathy. In March 2012, the Veteran filed a service-connection claim for “C8 – right or left side (condition).” A rating decision of August 2012 denied service connection for any left side condition and for C8 right-sided radiculopathy (claimed as right hand condition as due to an undiagnosed illness). The basis for the denial as to right-sided radiculopathy was that no new and material evidence had been submitted to reopen the claim denied in a rating decision of July 2002. The basis for the denial of entitlement to service connection for right-sided radiculopathy in 2002 was that motor and sensory examination of the right wrist was normal upon VA examination and that there was not record of having been treated for a right hand condition during service. The Veteran appealed August 2012 rating decision. See NOD of November 2012; VA Form 9 of September 2016. Entitlement to service connection for C8 right-sided radiculopathy was again denied in a rating decision of February 2015. Following the July 2002 rating decision, relevant service treatment records, which existed but had not been associated with the claims file when the agency of original jurisdiction denied the claim relating to right-sided radiculopathy in July 2002, have been associated with the claims file. Therefore, VA must address the Veteran’s March 2012 claim relating to right-sided radiculopathy on a de novo basis and not as a request to reopen the prior denial based on new and material evidence. 38 C.F.R. § 3.156(c). Because reopening was denied by the August 2012 and February 2015 rating decisions, the AOJ did not assess the credibility of the evidence or determine the need for a medical examination or opinion. The Board will return the issue to the AOJ for consideration of the merits. The AOJ should, in the first instance, decide the matter so as to preserve for the claimant the one review on appeal as provided for by 38 U.S.C. § 7104. Remand is also required as to the Veteran’s service-connection claim relating to any left-sided disability. The Veteran states that his loading of medical supplies in Germany 7 days per week for 12-14 hours per day in below zero temperatures caused him to be treated for “hypothermia (frostbite)” during service and that he could not feel his “feet, hands, or anything else” at that time. He argues that the left side of his body is currently affected by numbness as a result. See Veteran’s statement of June 2012. He also alleges that he has had numbness in his arms, legs, neck, and body since service in 1990. See Veteran’s statement of April 2013. He has referenced “Gulf War Syndrome” without explanation. See Veteran’s statement of June 2012. The Veteran underwent a VA examination for neuropathy in February 2015, and a negative nexus opinion was provided as to peripheral nerve conditions. The Board will remand for a new VA examination and opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). While the VA examiner found in the medical history section of the report that there was no history of injury to the back, a service treatment record (for which the date is illegible) notes that the Veteran fell at work and had a sore back. Furthermore, the VA examiner found no neuropathy upon examination, but a subsequent VA treatment record of February 2017 notes that the Veteran suffers from myasthenia gravis and that there is some evidence of mild polyneuropathy. The VA examiner’s negative nexus opinion was based on the considerations that there is “no history of peripheral nerve damage noted as a result of the service” and that the current neurological exam was normal. Because post-examination medical evidence indicates current neurological symptoms, an additional medical examination and opinion are necessary to decide the claim. 38 C.F.R. § 19.9(a). The scope of the claim includes any disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). 4. Entitlement to service connection for left knee strain (claimed as a leg and knee condition as due to an undiagnosed illness). 5. Entitlement to service connection for right knee strain (claimed as a leg and knee condition as due to an undiagnosed illness). In March 2012, the Veteran filed a service-connection claim for left knee strain and right knee strain, which was denied by a rating decision of August 2012 on the basis that no new and material evidence had been submitted to reopen the same claim that had been denied a rating decision of July 2002. The basis for the denial of entitlement to service connection in 2002 for a bilateral knee disability was that there was no in-service disease or injury. The Veteran appealed the August 2012 rating decision. See NOD of November 2012; VA Form 9 of September 2016. Following the July 2002 rating decision, relevant service treatment records, which existed in 2002 but had not been associated with the claims file when the AOJ denied the claim relating to bilateral knee disability in July 2002, have been associated with the claims file. Therefore, VA must address the Veteran’s March 2012 claim relating to a bilateral knee disability on a de novo basis and not as a request to reopen the prior denial based on new and material evidence. 38 C.F.R. § 3.156(c). Because reopening was denied by the August 2012 rating decision, the AOJ did not assess the credibility of the evidence or determine the need for a medical examination or opinion. The Board will return the issue to the AOJ for consideration of the merits. The AOJ should, in the first instance, decide the matter so as to preserve for the claimant the one review on appeal as provided for by 38 U.S.C. § 7104. 6. Entitlement to service connection for chronic fatigue (previously claimed as due to an undiagnosed illness) (now claimed as sleep disorder) associated with degenerative arthritis of the cervical spine (claimed as neck). In March 2012, the Veteran filed a service-connection claim for “chronic fatigue, undiagnosed illness,” which was denied by a rating decision of August 2012 on the basis that no new and material evidence had been submitted to reopen the service-connection claim for chronic fatigue, as due to an undiagnosed illness (denied a rating decision of July 2002. The basis for the denial of entitlement to service connection in 2002 was that there was no in-service disease or injury and that the Veteran did not service in the Southwest Asia theater during the Gulf War. The Veteran appealed the August 2012 rating decision. See NOD of November 2012; VA Form 9 of September 2016. Following the July 2002 rating decision, relevant service treatment records, which existed in 2002 but had not been associated with the claims file when the agency of original jurisdiction denied the claim relating to chronic fatigue in July 2002, have been associated with the claims file. Therefore, VA must address the Veteran’s March 2012 claim relating to chronic fatigue on a de novo basis and not as a request to reopen the prior denial based on new and material evidence. 38 C.F.R. § 3.156(c). Because reopening was denied by the August 2012 rating decision, the AOJ did not assess the credibility of the evidence or determine the need for a medical examination or opinion. The Board will return the issue to the AOJ for consideration of the merits. The AOJ should, in the first instance, decide the matter so as to preserve for the claimant the one review on appeal as provided for by 38 U.S.C. § 7104. 7. Entitlement to service connection for mitral valve disease (claimed as chest and heart pain). In March 2012, the Veteran filed a service-connection claim for “mitral valve disease, claimed as chest and heart pain,” which was denied by a rating decision of August 2012 on the basis that no new and material evidence had been submitted to reopen the denial of the same claim in July 2002. The basis for the denial of entitlement to service connection in 2002 was that there was no record of the Veteran having been treated for chest and heart pain during service. The Veteran appealed the August 2012 rating decision. See NOD of November 2012; VA Form 9 of September 2016. Following the July 2002 rating decision, relevant service treatment records, which existed in 2002 but had not been associated with the claims file when the agency of original jurisdiction denied the claim relating to mitral valve disease in July 2002, have been associated with the claims file. Therefore, VA must address the Veteran’s March 2012 claim relating to mitral valve disease on a de novo basis and not as a request to reopen the prior denial based on new and material evidence. 38 C.F.R. § 3.156(c). Because reopening was denied by the August 2012 rating decision, the AOJ did not assess the credibility of the evidence or determine the need for a medical examination or opinion. The Board will return the issue to the AOJ for consideration of the merits. The AOJ should, in the first instance, decide the matter so as to preserve for the claimant the one review on appeal as provided for by 38 U.S.C. § 7104. 8. Entitlement to service connection for gastritis with duodenitis and active colon ulcers indicative of ulcerative colitis (claimed as stomach aches as due to an undiagnosed illness). In March 2012, the Veteran filed a service-connection claim for migraine “gastritis with duodenitis, active colon ulcers, indicative of ulcerative colitis,” which was denied by a rating decision of August 2012 on the basis that no new and material evidence had been submitted to reopen the denial of the same claim in July 2002. The basis for the denial of entitlement to service connection in 2002 was that there was no evidence relating the Veteran’s current dyspepsia or ulcer pain to in-service symptoms. The Veteran appealed the August 2012 rating decision. See NOD of November 2012; VA Form 9 of September 2016. Following the July 2002 rating decision, relevant service treatment records, which existed in 2002 but had not been associated with the claims file when the agency of original jurisdiction denied the claim relating to gastritis in July 2002, have been associated with the claims file. Therefore, VA must address the Veteran’s March 2012 claim relating to gastritis on a de novo basis and not as a request to reopen the prior denial based on new and material evidence. 38 C.F.R. § 3.156(c). Because reopening was denied by the August 2012 rating decision, the AOJ did not assess the credibility of the evidence or determine the need for a medical examination or opinion. The Board will return the issue to the AOJ for consideration of the merits. The AOJ should, in the first instance, decide the matter so as to preserve for the claimant the one review on appeal as provided for by 38 U.S.C. § 7104. 9. Entitlement to service connection for migraine headaches (claimed as headaches as due to an undiagnosed illness. In March 2012, the Veteran filed a service-connection claim for migraine headaches, which was denied by a rating decision of August 2012 on the basis that no new and material evidence had been submitted to reopen the denial of the same claim in July 2002. The basis for the denial of entitlement to service connection in 2002 was that there was no record of the Veteran having been treated for headaches during service. The Veteran appealed the August 2012 rating decision. See NOD of November 2012; VA Form 9 of September 2016. Following the July 2002 rating decision, relevant service treatment records, which existed in 2002 but had not been associated with the claims file when the agency of original jurisdiction denied the claim relating to headaches in July 2002, have been associated with the claims file. Therefore, VA must address the Veteran’s March 2012 claim relating to headaches on a de novo basis and not as a request to reopen the prior denial based on new and material evidence. 38 C.F.R. § 3.156(c). Because reopening was denied by the August 2012 rating decision, the AOJ did not assess the credibility of the evidence or determine the need for a medical examination or opinion. The Board will return the issue to the AOJ for consideration of the merits. The AOJ should, in the first instance, decide the matter so as to preserve for the claimant the one review on appeal as provided for by 38 U.S.C. § 7104. The matters are REMANDED for the following action: 1. Undertake appropriate development to verify any period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA) from September 1986 to December 1990, and from June 1991 to December 1993. All records/responses received must be associated with the claims file. 2. Undertake appropriate development to obtain service treatment records pertaining to any period of service with the Army Reserve. All records/responses received must be associated with the claims file. 3. Undertake appropriate development to obtain any outstanding VA or private treatment records relating to the remanded issues. All records/responses received must be associated with the claims file. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any foot disability found. The examiner must opine as to whether any foot disability present at any time since March 2012 is at least as likely as not related to an in-service injury, event, or disease, including frostbite and hypothermia treatment during service as alleged by the Veteran. A rationale is required for all opinions expressed in the report. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left-sided condition, to include myasthenia gravis and any neurological disability. The examiner must opine as to whether any left-sided disability present at any time since March 2012 is at least as likely as not related to an in-service injury, event, or disease, including the numbness reported by the Veteran during service and the service treatment record noting a workplace injury to the back and a sore back. A rationale is required for all opinions expressed in the report. (Continued on the next page)   6. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right-sided neuropathy, to include myasthenia gravis. The examiner must as to opine whether any right-sided neuropathy present at any time since March 2012 is at least as likely as not related to an in-service injury, event, or disease, including the numbness reported by the Veteran during service and the service treatment record noting a workplace injury to the back and a sore back. A rationale is required for all opinions expressed in the report. 7. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If any sought benefit is not granted in full, send the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steven D. Najarian, Counsel