Citation Nr: 1806442 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-25 301A ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim for service connection for athlete's foot, and if so, whether the claim should be granted. 2. Whether new and material evidence has been submitted to reopen the claim for service connection for a heart disability, claimed as an abnormal left ventricle, and if so, whether the claim should be granted. 3. Whether new and material evidence has been submitted to reopen the claim for service connection for a sinus disability, diagnosed as allergic rhinitis, and if so, whether the claim should be granted. 4. Whether new and material evidence has been submitted to reopen the claim for service connection for a bladder disability, and if so, whether the claim should be granted. 5. Whether new and material evidence has been submitted to reopen the claim for service connection for a lower back disability, and if so, whether the claim should be granted. 6. Whether new and material evidence has been submitted to reopen the claim for service connection for a bilateral foot disability, claimed as calluses, and if so, whether the claim should be granted. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Hampton, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1979 to May 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. Jurisdiction over the Veteran's claims has been transferred to the RO in Oakland, California. In the September 2011 rating decision on appeal, the RO made determinations as to whether to reopen each of the claims reflected on the title page, above. The Board, however, must determine on its own whether new and material evidence has been submitted to reopen the Veteran's claims. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As is further explained below, the Board has determined new and material evidence has not been submitted to reopen the claims for service connection for athlete's foot and for a heart disability. With regard to the remaining claims, the Board notes the Veteran's claims for service connection for a lower back disability and for a bilateral foot disability, claimed as calluses, were denied in a July 1981 rating decision on the basis that there was no evidence showing the Veteran had lower back or foot conditions related to service. The July 1981 rating decision became final because the Veteran did not submit a Notice of Disagreement or new evidence in connection with the claims within the appeal period. See 38 C.F.R. § 3.156(b) (2017). Evidence obtained subsequent to the July 1981 decision's appeal period includes records showing treatment for lower back and foot conditions which the Veteran has stated originated during his service. The Board next notes the Veteran's claims for service connection for a bladder disability and a sinus disability were denied in a June 2010 rating decision on the basis that there was no evidence of any present bladder or sinus condition. The June 2010 rating decision became final because the Veteran did not submit a Notice of Disagreement or new evidence in connection with the claims within the appeal period. See 38 C.F.R. § 3.156(b) (2017). Evidence received subsequent to the June 2010 rating decision includes VA outpatient records documenting the Veteran's complaints of urinary frequency and related symptoms, which resulted in diagnoses of possible prostatitis, benign prostatic hyperplasia (BPH), and overactive bladder. The records also include diagnoses of allergic rhinitis. With regard to the claim for service connection for athlete's foot, the claim was denied in a July 1981 rating decision on the basis that athlete's foot was not shown by the evidence of record. The Veteran did not appeal the July 1981 decision and so, the decision became final. See Buie v. Shinseki, 24 Vet. App. 242, 252 (2010); 38 C.F.R. §§ 20.200, 20.201, 20.1103 (2017). Subsequently, the Veteran has continued to assert he suffers from the symptoms of athlete's foot. Under these circumstances, the Board finds that new and material evidence has been received sufficient to reopen the Veteran's previously denied claims for service connection for a lower back disability, a bilateral foot disability, claimed as calluses, a bladder disability, a sinus disability, and athlete's foot. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In his September 2013 substantive appeal form, the Veteran requested a videoconference hearing before a Veterans Law Judge. In an October 2016 letter, VA informed the Veteran of the date, time, and location of his hearing, which was scheduled for December 2016. The Veteran did not attend the hearing. He has not provided any explanation for his absence or requested to reschedule the hearing. Accordingly, the Veteran's hearing requested is deemed withdrawn. See 38 C.F.R. §§ 20.702(d), 20.704(d) (2017). The issues of entitlement to service connection for a bladder disability, a lower back disability, a bilateral foot disability, claimed as calluses, and a sinus disability, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A June 2010 rating decision denied the Veteran's claim for service connection for a heart disability; the Veteran did not appeal the decision or submit any pertinent evidence within the appeal period. 2. Evidence received since the June 2010 decision is either redundant or was previously of record, or does not relate to an unestablished fact necessary to substantiate the claim; such evidence does not raise a reasonable possibility of substantiating the claim. 3. The Veteran's tinea pedis had its onset during service. CONCLUSIONS OF LAW 1. The criteria for reopening the claim for service connection for a heart disability have not been met. 38 U.S.C.A. §§ 5108 (West 2015); 38 C.F.R. § 3.156 (2017). 2. The criteria for service connection for tinea pedis have been met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria: New and Material Evidence Generally, a claim that has been denied in an unappealed RO or Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105 (c) (West 2015). The exception to this rule is 38 U.S.C.A. § 5108, which provides 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. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 U.S.C.A. § 3.156 (b) (2017). 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 U.S.C.A. § 3.156 (a) (2017). The U.S. Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Legal Criteria: Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110 (West 2015); 38 C.F.R. § 3.303 (2017). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d) (2017). Legal Criteria: 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.A. § 5107 (West 2015); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Reopening of the claim for service connection for a heart disability As noted above, the Veteran's claim for service connection for a heart disability was originally denied in a June 2010 rating decision. The claim was denied, in pertinent part, on the basis that there was no objective evidence the Veteran had any current heart condition. The Veteran did not appeal the June 2010 decision and so, the decision became final. See Buie v. Shinseki, 24 Vet. App. 242, 252 (2010); 38 C.F.R. §§ 20.200, 20.201, 20.1103 (2017). New and material evidence is therefore required to reopen the claim for service connection for a heart disability. See 38 C.F.R. § 3.156 (2017). As noted above, the basis of the RO's denial was primarily the absence of any diagnosis of a heart condition in the Veteran's records. As such, in order to be considered new and material, any evidence submitted subsequent to the June 2010 decision must include a diagnosis or indication of the presence of a heart condition. The Board has carefully reviewed the entire record, to include all post-service VA outpatient treatment notes. There has been no diagnosis of any condition related to the Veteran's heart. Accordingly, the Board has determined that no evidence received since June 2010 relates to unestablished facts necessary to substantiate the Veteran's claim. Consequently, reopening of the Veteran's claim for service connection for a heart disability is not warranted. In reaching its decision, the Board has duly considered the benefit-of-the-doubt doctrine, but has determined a preponderance of the evidence weighs against the Veteran's claim. As such, the doctrine is inapplicable, and the claim must be denied. Service connection for athlete's foot The Board notes a veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2015); 38 C.F.R. § 3.304 (b) (2017). Only such conditions as are recorded in examination reports are to be considered noted. Id. The standard for rebutting the presumption of soundness requires that VA show by clear and unmistakable evidence that a veteran's disability both pre-existed service and was not aggravated by service. Id. Once the presumption of soundness upon entry is rebutted, the government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase was due to the natural progress of the pre-existing condition. See 38 U.S.C.A. § 1153 (West 2015); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims has explained that clear and unmistakable evidence means the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254, 258-59 (1999). The service treatment records (STRs) include a September 1979 notation in a "Physician's summary" section of a medical history form completed by the Veteran, stating the Veteran alleged a history of athlete's foot, but no symptoms were present. Because the presence of athlete's food was not documented on evaluation at entry, the Board finds the presumption of soundness applies, and thus, that the Veteran is presumed not to have had athlete's foot at entry. After a review of the foregoing and of the entire record, the Board is unable to conclude that there is clear and unmistakable evidence that the Veteran had athlete's foot prior to service. The Veteran has consistently maintained he has intermittently suffered from athlete's foot since service. In this regard, the Board notes that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the presence of athlete's foot is readily identifiable by its features and, thus, that the date of its onset is capable of lay observation by the Veteran. After careful consideration of the foregoing, and given the current diagnosis of tinea pedis, the Board finds the evidence is in equipoise as to whether the Veteran has athlete's foot that had its onset during service. As such, granting of service connection for tinea pedis is warranted. ORDER New and material evidence with respect to the claim for service connection for a heart disability has not been received, and reopening of the claim is denied. Service connection for tinea pedis is granted. REMAND Although further delay is regrettable, the Board finds additional development is required before the Veteran's remaining claims are decided. At the outset, the Board notes that VA must provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested 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) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2015); 38 C.F.R. § 3.159(c)(4)(i) (2017). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. Service connection for a bladder disability Post-service treatment records show the Veteran has complained of urinary frequency and other related symptoms and has been diagnosed with BPH, prostatitis, and/or overactive bladder. The Veteran has contended his symptoms had their onset during service. In May 2014, a VA examiner indicated the symptoms were likely related to BPH, but provided no opinions as to whether the condition originated during or was caused by service. The Board observes the record is unclear as to whether the Veteran's symptoms are related to a bladder condition, a prostate condition, or both. Under these circumstances, the Board finds a VA examination is warranted pursuant to McLendon in order to determine the nature and etiology of any present condition which is the cause of the symptoms underlying the Veteran's claim. Service connection for a lower back disability The record shows the Veteran has degenerative arthritis of the lumbar spine. He contends he has had lower back pain since service. Under these circumstances, the Board finds a VA examination is warranted pursuant to McLendon in order to determine the etiology of the Veteran's lower back disability. Service connection for a bilateral foot disability claimed as calluses The record shows the Veteran has been diagnosed with calluses on both feet. He has contended he has suffered from bilateral foot symptoms, to include pain, since service. The Board observes that the Veteran was granted service connection for bilateral "foot corns" in a November 2011 rating decision on the basis of an October 2011 VA examination report, in which a VA examiner found the "foot corns" were related to service. In the same report, the examiner stated her opinion that the Veteran's foot calluses were not caused or aggravated by service, but she provided no rationale in support of this opinion. The Board observes additional VA outpatient treatment records appear to conflate the Veteran's calluses with the service-connected "foot corns." As such, it is unclear whether the two are the same or separate conditions. Based on the foregoing, the Board finds a remand is warranted pursuant to McLendon in order to clarify the nature and etiology of any present foot calluses, to include whether they constitute a separate disability from the Veteran's service-connected "foot corns." Service connection for a sinus disability The Veteran has claimed entitlement to service connection for a sinus disability. VA outpatient treatment records include a January 1990 diagnosis of allergic rhinitis (hay fever). Upon entry, a "Physician's summary" noted the Veteran alleged a history of hay fever, but no diagnosis was definitively made on the accompanying examination report. Under these circumstances, the Board finds a remand is warranted in order to obtain a VA examination and opinion addressing the likelihood that the Veteran's post-service allergic rhinitis was present prior to service, and if so, the likelihood the condition was aggravated during service. In this regard, the Board notes although the Veteran was afforded a VA examination in October 2011, the examiner did not address these issues in terms of "clear and unmistakable" evidence. Accordingly, the case is REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. 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. Thereafter, afford the Veteran a VA examination to determine the nature and etiology of all present disabilities which are the cause of his urinary frequency and related symptoms. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Following the examination and a review of the relevant records and lay statements, the examiner should identify all conditions which are the cause of the Veteran's urinary frequency and related symptoms. The examiner should specifically confirm or rule out BPH, prostatitis, and overactive bladder. With respect to each identified condition, the examiner must state whether it is at least as likely as not (50 percent probability or greater) that the condition originated during or is otherwise etiologically related to the Veteran's military service. In providing this opinion, the examiner must address the Veteran's statements to the effect that his urinary frequency and related symptoms began during service. The examiner must provide a rationale for any proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Following completion of step 1 above, afford the Veteran a VA examination to determine the nature and etiology of his lower back disability. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Following the examination and a review of the relevant records and lay statements, the examiner should state whether it is at least as likely as not that the Veteran's lower back disability originated during or is otherwise etiologically related to the his military service. In providing this opinion, the examiner must address the Veteran's statements to the effect that his lower back pain had its onset during service. The examiner must provide a rationale for any proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. Following completion of step 1 above, afford the Veteran a VA examination to determine the nature and etiology of his bilateral foot calluses. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Following the examination and a review of the relevant records and lay statements, the examiner should clarify whether the Veteran's bilateral foot calluses are a separate condition from his service-connected bilateral "foot corns." If the examiner determines the calluses and foot corns are the same condition, he or she should explain the reasons for this finding. If the bilateral foot calluses are a separate condition, the examiner must state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bilateral foot calluses originated during or are otherwise etiologically related to the his military service. The examiner must provide a rationale for any proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 5. Following completion of step 1 above, afford the Veteran a VA examination to determine the nature and etiology of all sinus or rhinitis disabilities present during the period of the claim. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Following the examination and a review of the relevant records and lay statements, the examiner should identify all sinus disabilities present during the period of the claim. The examiner should then opine as to: a) the likelihood that any sinus or rhinitis disability existed prior to service; b) if the examiner concludes any sinus or rhinitis disability existed prior to service, the likelihood that the disability worsened during service; and c) if the examiner diagnoses the Veteran with a sinus or rhinitis disability that did not exist prior to service, whether it is at least as likely as not that the sinus disability had its onset during or is otherwise etiologically related to service. In providing this opinion, the examiner should acknowledge and comment on the Veteran's competent report of ongoing sinus symptoms since service. The examiner must provide a rationale for any proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 6. Then, 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. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017). Department of Veterans Affairs