Citation Nr: 1808375 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 14-07 145A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating in excess of 30 percent for tension headaches. 2. Entitlement to a rating in excess of 30 percent for chronic tendonitis in the right foot with a history of injury. 3. Entitlement to a compensable initial rating for hemorrhoids. 4. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right knee/leg disorder. 5. . Whether new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder. 6. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left foot disorder. 7. Entitlement to service connection for a right ankle disorder. 8. Entitlement to service connection for flat feet. 9. Entitlement to service connection for corns and calluses of both feet. 10. Entitlement to service connection for costochondritis, claimed as chest pain. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from September 1978 to April 1984. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2011, January 2012, October 2012, and September 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The issues of entitlement to increased ratings for tension headaches, chronic tendonitis in the right foot, and hemorrhoids, and service connection for a right knee/leg disorder, an acquired psychiatric disorder, a right ankle disorder, flat feet, corns and calluses of both feet, and costochondritis are addressed in the REMAND section below. FINDINGS OF FACT 1. The Veteran did not perfect his appeal of an August 2005 rating decision that denied service connection for a right knee/leg disorder. 2. An unappealed February 2011 rating decision denied service connection for an acquired psychiatric disorder, and no new and material evidence was received within one year of the denial. 3. An unappealed December 2008 Board decision denied the claim of entitlement to service connection for a left foot disorder, including hammertoes, acquired planovalgus foot deformity, intractable plantar keratosis, porokeratosis, acquired plantar fasciitis, peroneal tendonitis, lateral malleolus, exostosis, and hallux valgus. 4. The evidence added to the record after the expiration of the appeal period following the August 2005 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and that relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a right knee/leg disorder. 5. The evidence added to the record after the expiration of the appeal period following the February 2011 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and that relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for an acquired psychiatric disorder. 6. The evidence added to the record after the December 2008 Board decision is cumulative and redundant of the evidence previously of record and does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a left foot disorder. CONCLUSIONS OF LAW 1. Subsequent to the final August 2005 rating decision, new and material evidence has been received to reopen the claim of entitlement to service connection for a right knee/leg disorder. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). 2. Subsequent to the final February 2011 rating decision, new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). 3. Subsequent to the final December 2008 Board decision, new and material evidence has not been received to reopen the claim of entitlement to service connection for a left foot disorder. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.110 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C.A § 5108; 38 C.F.R. § 3.156. "New" evidence means evidence "not previously submitted to agency decisionmakers." "Material" evidence means "evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim." 38 C.F.R. § 3.156(a). Material evidence is: (1) evidence on an element where the claimant initially failed to submit any competent evidence; (2) evidence on an element where the previously submitted evidence was found to be insufficient; (3) evidence on an element where the appellant did not have to submit evidence until a decision of the Secretary determined that an evidentiary presumption had been rebutted; or (4) some combination or variation of the above three situations. Kent v. Nicholson, 20 Vet. App. 1 (2006). In order to be "new and material" evidence, the evidence must not be cumulative or redundant, and "must raise a reasonable possibility of substantiating the claim," which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). Further, RO decisions become final "only after the period for appeal has run," and "[a]ny interim submissions before finality must be considered by the VA as part of the original claim." Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). If new and material evidence is received within one year after the date of mailing of an RO decision, it may be "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period that prevents an initial determination from becoming final." King v. Shinseki, 23 Vet. App. 464, 466-67 (2010). When VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final. Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Buie v. Shinseki, 24 Vet. App. 242, 252 (2011) (remanding for the Board to consider the application of 38 C.F.R. § 3.156(b) and whether the regional office correctly viewed the statements in question "as new claims"). That is, when statements are received within one year of the rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b). An August 2005 rating decision denied service connection for a right knee/leg disorder because the disorder was not incurred in or caused by service. The Veteran filed a timely notice of disagreement (NOD), and a statement of the case (SOC) was issued in March 2007. When he submitted his VA Form 9 in March 2007, he did not perfect the appeal with regard to the right knee/leg issue. A February 2011 rating decision denied service connection for an acquired psychiatric disorder on the basis that the evidence did not how a current diagnosis of an acquired psychiatric disorder. The Veteran did not appeal this decision, and no new and material evidence was received within one year of the denial. Therefore, the August 2005 and February 2011 rating decisions became final. A December 2008 Board decision denied service connection for a left foot disorder on the basis that the disorder was not incurred in or caused by service. The Veteran did not appeal this decision. Since these decisions, additional lay statements and VA treatment notes have been received. In an August 2013 statement, the Veteran asserted that a VA physician had prescribed pain medication for pain in the right knee/leg as a result of her right foot and/or ankle disorder, and a June 2013 VA treatment note supports that assertion. This evidence is neither cumulative nor redundant of the evidence of record in August 2005 and it relates to an unestablished fact necessary to substantiate the claim, namely it suggests a relationship between the right leg and knee disorders and a service-connected, or potentially service-connected, disability. The additional VA treatment notes also reflect that the Veteran has been treated for an acquired psychiatric disorder. This evidence is not cumulative or redundant of the evidence previously of record, and it relates to an unestablished fact necessary to substantiate the claim, that is, evidence of current disability. Therefore, new and material evidence has been received to reopen the claims of entitlement to service connection for a right knee/leg disorder and an acquired psychiatric disorder, and the appeal is granted as to those issues. Regarding the left foot disorder, a December 2008 Board decision denied the claim on the basis that the left foot disorder did not manifest in service or was otherwise causally related to service. The left foot disorders addressed in that decision include hammertoes, acquired planovalgus foot deformity, intractable plantar keratosis, porokeratosis, acquired plantar fasciitis, peroneal tendonitis, lateral malleolus, exostosis, and hallux valgus. Since that time additional lay statements and treatment notes have been received; however, none of this evidence demonstrates that any of the left foot disorders identified were a result of service. The medical evidence reveals treatment for these disorders, but does not address their etiology. Therefore, the evidence received is cumulative and redundant of the evidence of record as of December 2008 and does not raise a reasonably possibility of substantiating the claim. Accordingly, the claim to reopen the previously denied claim seeking service connection for a left foot disorder is denied. Finally, to the extent that the claims have been reopened, this constitutes a full grant of the benefits and no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012) and the implementing regulations. With regard to the left foot claim, the VCAA provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. All pertinent treatment records, to include available service treatment records, post-service VA and private treatment records, have been obtained. Furtrher, the Veteran has not identified any outstanding, existing evidence that could be obtained to substantiate the claim, and the Board is also unaware of any such evidence. The Veteran was not provided a VA examination for this claim. However, as discussed, the left foot claim has not been successfully reopened, and so no VA examination is necessary. ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection for a right knee/leg disorder is granted. New and material evidence having been received, the application to reopen the claim of entitlement to service connection for an acquired psychiatric disorder is granted. New and material evidence not having been received, the application to reopen the claim of entitlement to service connection for a left foot disorder is denied. REMAND With regard to the claims of entitlement to increased ratings for tension headaches, a right foot disability, and hemorrhoids, and entitlement to service connection for disorders of the right knee/leg, right ankle, bilateral flat feet, corns and calluses of the bilateral feet, and costochondritis, additional treatment notes were added to the file after the last adjudication of those claims in SOCs issued in 2014. In addition, VA examinations were completed in June 2016 to assess the current severity of the Veteran's tension headaches, right foot disability, and hemorrhoids, as well as for the flat feet claim. Section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law 112-154, amended 38 U.S.C. § 7105 to provide that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests agency of original jurisdiction (AOJ) consideration. However, that provision only applies to evidence submitted by the Veteran. Thus, the Veteran is not presumed to have waived RO consideration of the June 2016 VA examination reports or the VA treatment notes. Moreover, another examination for flat feet is needed. While the nature of the Veteran's flat feet was evaluated in June 2016, no etiological opinion was provided. He has provided evidence of an in-service injury or event associated with the claim, and there is evidence of a current diagnosis. Therefore, an opinion as to the etiology of the Veteran's flat feet is necessary. The Board also remands the claim for service connection for corns and calluses as such findings may be part of the manifestations of flat feet. Therefore, that claim is inextricably intertwined with the service connection claim for flat feet. Next, the Veteran was afforded a VA examination for her right knee/leg claim in August 2013, but the examiner did not respond to the question regarding aggravation of the right knee and leg disability. Therefore, another examination should be scheduled. With regard to the Veteran's an acquired psychiatric disorder, it will be remanded to assess the etiology of the disability, to include whether the disorder is associated with her service-connected tension headaches or posttraumatic stress disorder (PTSD). As for the Veteran's right ankle claim, no VA examination was performed to assess the etiology of the disorder. There is evidence of a current disorder and an associated service-connected disability and in-service event. Therefore, an examination to determine the existence and etiology of any right ankle disorder should be scheduled. Accordingly, the case is REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. 2. Schedule the Veteran for an examination to determine the nature and etiology of flat feet. All pertinent evidence of record must be made available to and reviewed by the examiner, and any indicated tests and studies should be performed. Based on the review of the record and examination of the Veteran, the examiner is asked to offer a medical opinion as to whether it is at least as likely as not (i.e., whether there is a 50 percent or better probability) that flat feet originated during active service or are otherwise etiologically related to active service, to include related to the in-service activities described in the Veteran's written statements. For purposes of the opinion, the examiner should assume that the Veteran is a reliable historian. The examiner must not ignore the Veteran's competent reports of the claimed in-service injury or of symptoms experienced during active service and since. The rationale for each opinion expressed must also be provided. 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. Schedule the Veteran for an examination to determine the nature and etiology of her right knee/leg disorder. All pertinent evidence of record must be made available to and reviewed by the examiner, and any indicated tests and studies should be performed. Based on the review of the record and examination of the Veteran, the examiner is asked to offer a medical opinion as to whether it is at least as likely as not (i.e., whether there is a 50 percent or better probability) that the a right knee/leg disorder was caused or aggravated beyond normal progression by one or more of the Veteran's service-connected disabilities, to include the claimed right ankle disorder and service-connected right foot disability For purposes of the opinion, the examiner should assume that the Veteran is a reliable historian. The examiner must not ignore the Veteran's competent reports of the claimed in-service events or injury or of symptoms experienced. The rationale for each opinion expressed must also be provided. The opinion and rationale must separately address causation and aggravation. 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. Schedule the Veteran for an examination to determine the nature and etiology of her an acquired psychiatric disorder. All pertinent evidence of record must be made available to and reviewed by the examiner, and any indicated tests and studies should be performed. Based on the review of the record and examination of the Veteran, the examiner is asked to offer a medical opinion as to whether it is at least as likely as not (i.e., whether there is a 50 percent or better probability) that the acquired psychiatric disorder originated during active service or is otherwise etiologically related to active service, to include related to in-service events or activities described by the Veteran. For purposes of the opinion, the examiner should assume that the Veteran is a reliable historian. The examiner must not ignore the Veteran's competent reports of the claimed in-service events or injury or of symptoms experienced during active service and since. The examiner should also offer an opinion as to whether it is at least as likely as not (i.e., whether there is a 50 percent or better probability) that the Veteran's an acquired psychiatric disorder is caused or aggravated beyond normal progression by one or more of the Veteran's service-connected disabilities. The rationale for each opinion expressed must also be provided. 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. Schedule the Veteran for an examination to determine the nature and etiology of her right ankle disorder. All pertinent evidence of record must be made available to and reviewed by the examiner, and any indicated tests and studies should be performed. Based on the review of the record and examination of the Veteran, the examiner is asked to offer a medical opinion as to whether it is at least as likely as not (i.e., whether there is a 50 percent or better probability) that the right ankle disorder originated during active service or is otherwise etiologically related to active service, to include related to in-service events or activities described by the Veteran. For purposes of the opinion, the examiner should assume that the Veteran is a reliable historian. The examiner must not ignore the Veteran's competent reports of the claimed in-service events or injury or of symptoms experienced during active service and since. The examiner should also offer an opinion as to whether it is at least as likely as not (i.e., whether there is a 50 percent or better probability) that the Veteran's right ankle disorder is caused or aggravated beyond normal progression by one or more of the Veteran's service-connected disabilities. The rationale for each opinion expressed must also be provided. 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 remaining on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, a supplemental statement of the case should be issued to the Veteran and her representative, and they should be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. The Veteran need take no action until he is otherwise notified, but she 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 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). ______________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs