Citation Nr: 1808013 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 13-33 944 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for bilateral foot disorder. 2. Entitlement to service connection for a bilateral foot disability. 3. Entitlement a compensable rating for hemorrhoids. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Saindon, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1974 to 1977 and in the Army Reserve from 1977 to 2000. These matters come to the Board of Veterans' Appeals (Board) from a March 2011 rating decision by422 78 9966 the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama. The Veteran testified before the undersigned Veterans Law Judge at a travel Board hearing in October 2015. The transcript is of record. FINDINGS OF FACT 1. An unappealed October 2005 RO decision denied entitlement to service connection for bilateral foot disability. 2. The evidence received since the October 2005 rating decision includes evidence that relates to unestablished facts necessary to substantiate the claim for bilateral foot disability that is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claims. 3. The Veteran's bilateral foot disability was not incurred in or caused by active service; the Veteran's arthritis was not incurred to a compensable degree within one year of active service; and the Veteran did not have continuous symptoms of arthritis since one year from service. 4. The Veteran's service connected hemorrhoids have not resulted in secondary anemia or anal fissures, and are not large or thrombotic, irreducible or with excessive redundant tissue. CONCLUSIONS OF LAW 1. The October 2005 RO decision denying the Veteran's claims of entitlement to service connection for bilateral foot disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. The criteria for reopening the claim of entitlement to service connection for bilateral foot disability have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for entitlement to service connection for bilateral foot disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017) 4. The criteria for a compensable rating for service connected hemorrhoids have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.114 Diagnostic Code 7336 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide the reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Board must consider the competency, credibility, and weight of all evidence, including the medical evidence, to determine its probative value. The Board must then account for evidence that it finds persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122, 129 (2000). Equal weight is not accorded to each piece of evidence contained in the record and every item of evidence does not have the same probative value. If the evidence weighs in favor of the Veteran or is in relative equipoise, the Veteran will prevail. On the other hand, if the preponderance of the evidence is against the Veteran, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). ISSUE 1: New and Material Evidence Unappealed rating decisions are final with the exception that a claim may be reopened by the submission of new and material evidence. When an appellant seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new and material." Second, if VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of the appellant's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). It is the Board's jurisdictional responsibility to consider whether a claim should be reopened, no matter what the RO has determined. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). "New" evidence means evidence not previously submitted to VA decision makers. "Material" evidence means evidence that relates to an unestablished fact necessary to substantiate the claim. Cumulative or redundant evidence is not new and material. 38 C.F.R. § 3.156(a). To reopen, the new and material evidence must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). This is a low threshold that is meant to enable, rather than preclude, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). The focus is not on whether the evidence remedies the principle reason for the previous denial, but whether the evidence, taken together, would at least trigger the duty to assist by providing a medical opinion. Id. at 117. VA previously denied the Veteran service connection for his bilateral foot disability in October 2005. The basis of the denial, in pertinent part, was the absence of complaints, treatment, or diagnosis of a foot disorder during active service. The Veteran did not appeal within a year and no additional relevant evidence or information was received concerning the issue prior to expiration of the appeal period. 38 C.F.R. § 3.156 (b). This decision became final. Since the October 2005 decision, new evidence has been obtained such as lay statements from fellow service members reporting that the Veteran had foot trouble while in service. In addition, VA provided an examination for the Veteran. This new evidence is sufficient to satisfy the low bar of new and material evidence. ISSUE 2: Service Connection for Bilateral Foot Disability Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as arthritis, are subject to presumptive service connection if manifested to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). An alternative method of establishing the second and third Shedden elements for disabilities identified as chronic diseases in 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b). As discussed above, arthritis is a qualifying chronic disease. If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the Veteran shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). The Veteran denied trouble with his feet in service examinations from active duty service, and several years into his service in the Reserve. This changed in the late 1980s when the Veteran had foot trouble, and in particular, trouble with the toe on his right foot. The Veteran was excused from the running portion of physical training testing in the Reserve from approximately 1989 onwards. Service records included a letter from a private physician in 1995 diagnosing the Veteran with bilateral hypertrophied sesamoid. The Veteran had surgery on his left foot in late 2004. VA examined the Veteran in February 2011. The examiner diagnosed bilateral sesamoiditis, calluses and mild arthritis. He opined that these conditions were not at least as likely as not related to service. He explained that there was no documentation in the service treatment records that the Veteran's condition began during active duty, the Veteran's private podiatrist records did not provide the etiology of his foot disorders, the Veteran was on a restricted profile during his times in the Reserve to prevent foot injury, and he had a 30-year history of work at in the United States Postal Service, which required prolonged sitting and standing. The Veteran testified in October 2015 that his foot pain started when he was on active duty, but he did not start seeing a podiatrist until years after active duty. A coworker wrote in November 2015 that he had known the Veteran since 1977, and that the Veteran had painful feet ever since he met him. Two fellow reservists wrote in November 2015 and February 2016 to state that the Veteran was on profile while in the Reserve and was not allowed to participate in the running portion of the physical training test due to his foot condition. Although the Veteran testified that he had foot pain in active service, pain is not specific to a diagnosis. Pain itself does not mean the Veteran had the same problem in service that he has today. At various times during active service and after, the Veteran was asked if he had lasting foot problems, and he answered no. Even accepting the Veteran's recent testimony that he had pain in service as credible, the Veteran's statements during service that he did not have lasting foot trouble indicates that the in-service pain was different from his current condition. It is not at least as likely as not that the Veteran had sesamoiditis or arthritis during active duty, or during the following year. The lay statements from the Veteran's coworker and fellow reservists do not change this analysis. None of the individuals knew the Veteran during service, and they only testified that the Veteran had pain in the feet, a fact that is not in dispute. In addition, the Veteran did not seek medical help until the late 1980s. This weighs against a connection to service in the 1970s. When he did seek that help, he had surgery for hammer toe of his fourth digit. A different condition from his currently diagnosed disabilities. The Veteran's doctor communicated his foot problems to the Reserve, and from that point forward, the Veteran responded that he had foot trouble when asked. This indicates that the Veteran did have foot problems while in the Reserve, but not until the late 1980s, and not his current disabilities. Although the Veteran had some pain during active service, the facts indicate that the Veteran's current disability was not incurred until much later. Accordingly, the current disability was not caused by or incurred in active service, and direct service connection should be denied. This conclusion is further supported by the opinion of the VA examiner. The examiner opined that the Veteran's disabilities were not caused by or incurred in active service based on the available medical records and the Veteran's statements. Presumptive service connection and service connection under a continuity of symptomatology must also be denied. The Veteran denied problems with his feet for several years after active service. It was not until approximately a decade after active service that the Veteran began responding that he had foot troubles or sought treatment. For presumptive service connection to apply, the Veteran would have needed to have symptoms of arthritis (and not just any foot pain) within one year of service. The weight of the evidence indicates that the Veteran did not have arthritis within one year of service. Similarly, the Veteran did not have continuous symptoms of arthritis from within one year of service to the present claim. Although service connection for his active duty is being denied, consideration must also be given to the Veteran's time spent in the Reserve. The evidence indicates that the Veteran had a foot disability while in the reserve. Having a disability while in the Reserve is not sufficient for service connection, however. Instead, the disability must be the same disability he has today and must have been incurred in or caused by something during a period of active duty. The weight of the evidence indicates that the Veteran did not incur his foot disorder during Reserve duty. The Veteran entered a period of training for the Reserves and reported problems with his feet at that time. Such is clearly different from the notion of suffering an injury during Reserves training. There is nothing in the service records that indicated that the Veteran suffered from an injury while on duty in the Reserve, and the Veteran testified that there was not such an injury. Moreover, the VA examiner opined that the Veteran's current disabilities were more likely from the Veteran's work in the United States Post Office, as the Veteran spent significantly more time standing and walking at the Post Office than while on duty in the Reserve. The Veteran informed the Reserve about his foot trouble shortly after his private treatment, and the Reserve accommodated him by allowing him to not take the running portion of the physical training test. The examiner opined that being placed on a running waiver made it even less likely that the on-duty portion of the Veteran's time in the Reserve affected his feet. The lay statements from the Veteran's coworker and fellow reservists do not change this analysis. The statements corroborate that the Veteran had pain in the feet and was placed on restricted physical training. Even accepting these as true, however, it does not establish that the Veteran's current disabilities were caused by or incurred in Reserve service. As the weight of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Service connection for bilateral foot disability must therefore be denied. ISSUE 3: Compensable Rating for Hemorrhoids Disability ratings are based on VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found are warranted, a practice of assigning ratings referred to as "staging the ratings." Fenderson v. West, 12 Vet. App. 119, 126 (1999). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present. 38 C.F.R. § 4.2. Hemorrhoids are rated under diagnostic code 7336. 38 C.F.R. § 4.114. Hemorrhoids with persistent bleeding and with secondary anemia, or with fissures are rated at 20 percent disabling. Hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences are rated at 10 percent disabling. Other hemorrhoids are rated as noncompensable. VA examined the Veteran's hemorrhoids in February 2011. The examiner found that the Veteran had a history of four or more recurrences per year without thrombosis and frequent bleeding from hemorrhoids. The examination showed a hemorrhoid the size of a nickel without prolapse, thrombosis, bleeding, fissures, or redundant tissue. The hemorrhoid was reducible. The Veteran testified in October 2015 that his hemorrhoids had remained stable over the last few years. The Veteran has other medical records regarding his hemorrhoids throughout the years, but these records do not contradict the findings of the examiner. The other health records also do not indicate that the Veteran was anemic. Although the Veteran has bleeding, that bleeding has not resulted anemia. The Veteran also does not have a history of fissures. The Veteran's hemorrhoids are not shown to be large or thrombotic. They are also not irreducible or with excessive redundant tissue. Without these features, the Veteran's hemorrhoids do not warrant a 10 percent or 20 percent rating. As the weight of the evidence is against an increased rating, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. ORDER New and material evidence having been received, the claim for bilateral foot disability is reopened. Entitlement to service connection for bilateral foot disability is denied. Entitlement to a compensable rating for hemorrhoids is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs