Citation Nr: 1808011 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 12-05 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for a cervical spine disability. 4. Entitlement to service connection for posttraumatic stress disorder (PTSD). 5. Entitlement to service connection for right hand osteoarthritis. 6. Entitlement to service connection for left hand osteoarthritis. 7. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a back disability, to include as secondary to the knee. 8. Entitlement to service connection for a bilateral foot condition, claimed as Athlete's foot. 9. Entitlement to an increased rating higher than 10 percent for right knee degenerative joint disease. 10. Entitlement to an increased rating higher than 10 percent for left knee chondromalacia patella, patellofemoral syndrome, with minimal degenerative joint disease. 11. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. (The issue of whether a prior decision, dated February 17, 2009, of the Board of Veterans' Appeals that denied service connection for a back disability, should be revised or reversed on the grounds of clear and unmistakable error is addressed in a separate Board decision.). REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from April 1986 to March 1990, and February 1991 to March 1991. This matter comes to the Board of Veterans' Appeals (Board) from January 2011 and September 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran testified at an RO hearing in July 2014. In March 2017, the Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing at the RO. The issues of service connection for a back disability and hearing loss disability, and increased rating claim for bilateral knee disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. At the March 2017 Board hearing, the Veteran testified that he wanted to withdraw from appellate consideration the issues of entitlement to service connection for a right shoulder disability, cervical spine disability, arthritis of the bilateral hands, and PTSD, as well as the claim for entitlement to a TDIU. 2. The Veteran's service connection claim for a low back disability was denied in a February 2009 Board decision. The Veteran did not appeal this decision; and, as noted in a separate Board decision, clear and unmistakable error in this decision has not been shown. 3. The evidence received since the February 2009 decision is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the service connection claim for a low back disability. 4. The evidence of record is at least in equipoise as to whether the Veteran's currently diagnosed bilateral Athlete's foot was incurred in service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of service connection for a right shoulder disability have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 2. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of service connection for a cervical spine disability have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 3. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of service connection for arthritis of the right hand have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 4. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of service connection for arthritis of the left hand have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 5. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of service connection for PTSD have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 6. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of entitlement to a TDIU have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 7. The February 2009 Board decision denying service connection for a low back disability is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2017). 8. Since the February 2009 Board decision, new and material evidence has been received with respect to the Veteran's claim of entitlement to service connection for a low back disability; and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 9. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for bilateral Athlete's foot have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawn Issues An appeal consists of a timely filed notice of disagreement in writing, and after a statement of the case has been furnished, a timely filed substantive appeal. 38 U.S.C. § 7105(a); 38 C.F.R. § 20.200. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Further, a substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). A governing regulation provides that all withdrawal of appeals must be in writing (or on the record at a hearing). 38 C.F.R. § 20.204(b). In particular, an appeal withdrawal should be filed with the agency of original jurisdiction (hereinafter "AOJ") until the appellant or representative filing the withdrawal receives notice that the appeal has been transferred to the Board. 38 C.F.R. § 20.204(b)(2). The withdrawal statement also must include the name of the veteran, applicable VA file number, and a statement that the appeal is withdrawn. 38 C.F.R. § 20.204(b)(1). At the March 2017 Board hearing, the Veteran testified that he wanted to withdraw from appellate consideration the issues of entitlement to service connection for a right shoulder disability, cervical spine disability, arthritis of the bilateral hands, and PTSD, as well as entitlement to a TDIU. Therefore, the Veteran has satisfied the requirements of 38 C.F.R. § 20.204(b) in withdrawing his appeal with respect to these issues. Because the Veteran has withdrawn his appeal as to the issues of entitlement to service connection for a right shoulder disability, cervical spine disability, arthritis of the bilateral hands, and PTSD, as well as entitlement to a TDIU, there remain no allegations of error of fact or law for appellate consideration on these issues, and the Board does not have further jurisdiction. II. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 and 3.326(a). The Veteran's petition to reopen service connection for a back disability has been considered with respect to VA's duty to notify and assist. Given the favorable outcome noted below, no conceivable prejudice to the Veteran could result from this adjudication. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). III. New and Material Evidence for Low Back Disorder A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. §§ 5108, 7103, 7104, 7105; 38 C.F.R. §§ 3.156, 20.1100 (2017). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 sustaining the claim. 38 C.F.R. § 3.156(a) (2017). New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof. See Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. The only exception would be where evidence presented is inherently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran's service connection claim for a low back disorder was originally denied in a March 2004 rating decision. The RO noted that the Veteran had complaints of back pain in service in March 1991 but no diagnosis was offered. It also was noted that post-service, the Veteran had complaints of back pain in October 1999, but x-ray examination was normal. The low back disability claim was denied on the basis that there was no evidence that the disability was occurred in or was caused by military service. The Veteran appealed the March 2004 decision to the Board. A VA examination was provided in January 2005, which showed a diagnosis of low back strain. The examiner noted that given the Veteran was treated once in 1991 for back strain and that there were no other records to review until 1999, it would be least likely that the Veteran's current back condition was related to military service. A supplemental opinion was provided in May 2005 confirming the previous opinion, based on a review of the Veteran's medical history. In February 2009 the Board affirmed the denial of service connection for a low back disorder. In its decision, the Board noted the service treatment records showing the finding of the Veteran falling off an LCU ("landing craft utility") boat into the ocean; the February 2007 buddy statement that he had witnessed the Veteran complaining of back pain after the LCU boat incident in service; the October 1999 orthopedic progress note showing that the Veteran had suspected disc space narrowing; the January 2005 VA examination report showing a diagnosis of chronic back strain; and the August 2006 MRI showing degenerative joint disease and facet hypertrophic changes with mild degrees of canal stenosis at both L3-4 and L4-5, broad based protrusion at L4-5 with displacement without overt compression of the descending nerve roots bilaterally, mild degrees of bilateral neural foraminal encroachment at L3-4 and moderate degree of neural foraminal encroachment bilaterally at L4-5. The Board also noted the findings in the January 2005 VA examination and May 2005 follow-up opinion, as well as the September 2006 opinion from a private doctor that was submitted that was favorable to the Veteran's claim. Upon review of the record, the Board found that the May 2005 VA medical opinion was the most probative of record that had found no continued symptoms of back pain from the injury in service until 1999 when he was first diagnosed with a back disability. The Board considered the benefit of the doubt doctrine in the decision but found that the preponderance of the evidence was against the claim. The Veteran filed a January 2010 motion to revise or reverse the Board's February 2009 decision, which is denied in a separate Board decision. The Veteran did not otherwise appeal the Board's February 2009 decision. Therefore, the Board's decision is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100 (2017). In June 2010 the Veteran submitted a petition to reopen service connection for his back disability, this time claiming it as secondary to his service-connected knee disability. He testified at the Board hearing in March 2017 that although he originally injured his back during a fall in service off of a boat, he noticed that the worse his knees got, the more painful his back would get. See March 2017 Board hearing transcript, p. 19. He also mentioned that the doctors he saw at Salem VAMC had told him that they thought his back disability was related to his knees. Id. at 25. The Board finds that this evidence is both new and material. Specifically, the newly received evidence shows that the Veteran has offered an alternative theory of entitlement to service connection for his back, and has stated that doctors have told him that his back is related to his service-connected knee disabilities. This evidence was not previously considered by agency decisionmakers, is not cumulative or redundant, relates to unestablished facts necessary to substantiate the Veteran's claim, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.303 (2017). Accordingly, the Veteran's claim is considered reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). IV. Service Connection for Athlete's Foot Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran seeks service connection for bilateral Athlete's foot. He testified at both the RO hearing and the Board hearing that he first noticed his symptoms of tinea pedis in service and has continued to have the condition since then. See June 2014 RO hearing transcript, p. 7; March 2017 Board hearing transcript, p. 3. The medical evidence of record shows the Veteran was treated for tinea pedis in service in December 1988. Post-service evidence also shows a diagnosis of tinea pedis. See, e.g., October 20, 2011 VA podiatry outpatient note. The Veteran underwent a VA examination in August 2016. It was noted that the Veteran had first started treating his foot fungus two to three years prior. The examiner found that the Veteran's tinea pedis was less likely as not incurred in service, because even though he had a diagnosis of tinea pedis in service in December 1988, this was only one note and did not support a chronic condition. The examiner noted that post-service evidence did not show a diagnosis of tinea pedis until 2011 at the Salem VAMC. It was noted on a recent podiatry note in August 2016 that the Veteran stated that his tinea pedis began about five years prior. As the examiner determined that the evidence in the file did not support a chronic condition, it was the examiner's opinion that it was less likely than not that his current tinea pedis was related to his service. While the August 2016 VA examination report has been considered, the probative value of the medical opinion provided is undermined by the fact that the examiner did not consider the Veteran's competent statements of having experienced tinea pedis since service. Tinea pedis is a type of disorder that is capable of lay observation. Even though the record does not show ongoing treatment for tinea pedis since service, the Veteran testified at the March 2017 Board hearing that while he suffered with Athlete's foot since service, he just treated it himself with over-the-counter medication, and did not seek medical treatment until around 2000. See March 2017 Board hearing transcript, pp. 10-11. The Board finds that the Veteran statements concerning his symptoms since service are competent and credible as they have been relatively consistent throughout the record. In addition the service treatment records show a diagnosis of tinea pedis and post-service evidence shows continued diagnosis of tinea pedis since at least 2011, if not earlier. Accordingly, resolving all doubt in the Veteran's favor, service connection for bilateral Athlete's foot is warranted. ORDER Entitlement to service connection for a right shoulder disability is dismissed. Entitlement to service connection for a cervical spine disability is dismissed. Entitlement to service connection for PTSD is dismissed. Entitlement to service connection for right hand osteoarthritis is dismissed. Entitlement to service connection for left hand osteoarthritis is dismissed. Entitlement to a TDIU is dismissed. Entitlement to service connection for bilateral Athlete's foot is granted. New and material evidence has been received to reopen the service connection claim for a back disability, and to this extent only, the claim is granted. REMAND In addressing the merits of the Veteran's newly reopened service connection claim for a back disability, the April 2013 VA examination that was provided addressing whether the Veteran's back disability was secondary to his service-connected knee disabilities did not address the likelihood that the knees had aggravated the back disability (only causation was addressed). Thus, additional examination is warranted to resolve the claim. As the case is being reviewed de novo, the Veteran also should be provided with a supplemental opinion as to likelihood that his back disability is related to his back injury in service. Regarding the hearing loss claim, the only rationale provided in the November 2010 VA examination for why the Veteran's hearing loss was not related to acoustic trauma in service was that the separation examination showed that the Veteran's hearing was normal in both ears. It also was noted that hearing loss due to noise occurs at the time of exposure. However, VA laws and regulations do not strictly require in-service complaint of, or treatment for, hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, the U.S. Court of Appeals for Veterans Claims has held where there is no evidence of the veteran's claimed hearing disability until many years after separation from service, "[i]f evidence should sufficiently demonstrate a medical relationship between the veteran's in service exposure to loud noise and his current disability, it would follow that the veteran incurred an injury in service . . . ." Hensley v. Brown, 5 Vet. App. 155, 160 (1993) (quoting Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992)). Therefore, the critical question is whether the Veteran's current hearing loss disability is causally related to service. For this reason another medical opinion is warranted with respect to the hearing loss claim. As for the knees, the Veteran testified at the Board hearing that he thought the instability was worse in his left knee and that the pain had become worse in the right knee. See March 2017 Board hearing transcript, p. 35. As the evidence suggests a worsening in the Veteran's bilateral knee disabilities since they were last evaluated for compensation and pension purposes in April 2013, additional examination is warranted to resolve the claim. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any additional treatment he has received for his hearing loss, back disability, and bilateral knee disabilities, including the dates of when the VA doctors at the Salem VAMC who told him that his back disability was related to his knees. 2. Arrangements should be made to obtain any additional VA treatment records, or any other medical records identified by the Veteran, related to his hearing loss, back disability, and bilateral knee disabilities since August 2016 from the VAMC in Salem. 3. Thereafter, return the claims folder to the examiner who provided the November 2010 VA audiology examination to determine the etiology of the Veteran's hearing loss. If this examiner is no longer available to complete an addendum to her opinion, the Veteran should be scheduled for a new VA examination by an audiologist to ascertain the origins or etiology of his hearing loss disability. The claims file is to be provided to the examiner for review in conjunction with the examination and the examination report should reflect that the examiner reviewed the claims file. After a review of the claims file and an examination of the Veteran (if warranted), the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hearing loss had its clinical onset during active service or within one year of service separation, or is related to any in-service disease, event, or injury, including noise exposure. In providing this opinion, the examiner should acknowledge the Veteran's exposure to acoustic trauma in service as a Motor Vehicle Operator and statements regarding a continuity of symptomatology since service. The examiner also should note that the fact that there was no diagnosis of hearing loss in service is not, by itself, a sufficient reason to deny service connection for hearing loss. Note 1: In providing answers to the above questions, the examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended causal relationship; "less likely" weighs against the claim. Note 2: The Veteran's subjective history of his symptoms should be considered. Note 3: The rationale for all opinions expressed in the examination above should be provided. If the examiner(s) is unable to offer an opinion without resorting to speculation, he or she should provide a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 4. Thereafter, return the claims folder to the examiner who provided the April 2013 VA back (spine) examination to determine the etiology of the Veteran's back disorder. If this examiner is no longer available to complete an addendum to the opinion, the Veteran should be scheduled for a new VA examination by a clinician with relevant experience to ascertain the origins or etiology of his lumbar spine disability. The claims file is to be provided to the examiner for review in conjunction with the examination and the examination report should reflect that the examiner reviewed the claims file. After a review of the claims file and an examination of the Veteran (if warranted), the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the back disability was proximately caused by, OR alternatively, aggravated by (permanently worsened beyond the natural progression of the disorder) his service-connected bilateral knee disabilities; or had its clinical onset during active service or within one year after separation, or is otherwise related to any in-service disease, event, or injury, including the fall off of the boat in service. In providing this opinion, the examiner should acknowledge the Veteran's statements regarding a continuity of symptomatology since service, and statements that his back pain worsened as his knees got worse. Note 1: In providing answers to the above questions, the examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended causal relationship; "less likely" weighs against the claim. Note 2: The Veteran's subjective history of his symptoms should be considered. Note 3: The rationale for all opinions expressed in the examination above should be provided. If the examiner(s) is unable to offer an opinion without resorting to speculation, he or she should provide a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 5. Schedule the Veteran for a VA examination to determine the current nature and severity of his bilateral knee disability. The claims file and a copy of this remand must be made available to, and reviewed by, the examiner. All indicated tests should be conducted, and all findings reported in detail. It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. The examiner should also offer an estimate as to additional functional loss during flares regardless of whether the Veteran is undergoing a flare-up at the time of the examination. Further, in accord with the requirements of 38 C.F.R. § 4.59, the knee joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight- bearing; or an explanation from the examiner that any such testing cannot or should not be conducted. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his right or left knee symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. 6. After the requested examinations have been completed, the reports should be reviewed to ensure that they are in complete compliance with the directives of this remand. If any report is deficient in any manner, it should be returned to the examiner for corrective action. 7. Finally, readjudicate the claims on appeal. If any of the benefits remains denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period to respond. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs