Citation Nr: 1815489	
Decision Date: 03/15/18    Archive Date: 03/23/18

DOCKET NO.  14-17 024	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1. Whether new and material evidence has been presented to reopen the claim of service connection for a chronic disability manifested by chest pain with muscle spasms.

2. Entitlement to service connection for a chronic disability manifested by chest pain with muscle spasms.

3. Entitlement to a compensable rating for pes planus.

4. Entitlement to a rating in excess of 10 percent for plantar fasciitis.

5. Entitlement to a disability rating for compensation based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Disabled American Veterans
ATTORNEY FOR THE BOARD

Kelly A. Gastoukian, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Navy from February 1989 to December 1992, with additional service in the U.S. Army National Guard thereafter.

These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2008 and December 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico and Jackson, Mississippi, respectively. Jurisdiction currently resides with the RO in Jackson, Mississippi.

The Veteran requested a Travel Board hearing in his VA Form 9 in April 2014, but later withdrew that request in June 2016.

Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a TDIU is part of an initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. In his February 2012 notice of disagreement, the Veteran stated his bilateral pes planus and plantar fasciitis were worse and he could not get the relief he needed to hold a job. Therefore, the Board has jurisdiction over this issue as part and parcel of his increased rating claim and has listed such on the title page.

The Board notes that the agency of original jurisdiction (AOJ) has adjudicated the Veteran's chest pain claim as two separate issues, one for atypical chest pain, and one for muscle spasms of the chest, both on a new and material evidence basis.  The Board has combined these issues into one-entitlement to service connection for a chronic disability manifested by chest pain with muscle spasms-for the reasons discussed immediately below.  
The Veteran first filed a service-connection claim for chronic chest pain in June 2005.  As discussed below, the RO denied this claim in a December 2005 rating decision.  The Veteran filed a timely notice of disagreement in September 2006 indicating disagreement with the December 2005 decision "concerning my chest pain and muscle spasms."  Although the RO issued a statement of the case and supplemental statements of the case in February 2007, the Veteran did not perfect an appeal.  

The Veteran filed a claim to reopen his claim for "muscle spasm" of the chest in January 2008.  The RO denied the claim on the merits in June 2008.  In August 2008, the RO received a notice of disagreement.  

In August 2008, August 2009 and October 2009, the Veteran filed copies of a VA Form 9 requesting continued adjudication of his appeal.  On the October 2009 VA Form 9 the Veteran identifying a request for someone to "relook" at his medical condition of chronic chest pains.  The Veteran was informed by the RO that his Form 9 was submitted too late to perfect an appeal as to the his original chest pain claim, denied by the RO in December 2005.  In October 2009, the Veteran's representative clarified that the Veteran wished the August 2009 Form 9 to be accepted as a reopened claim for "[a]typical chest pains with constant spasms."  In November 2009, the RO informed the Veteran that his "atypical chest pain" claim was denied in December 2005, and his "muscle spasm" claim was denied in June 2008, and that both decisions were now final.  The RO denied both issues in a December 2011 rating decision, and the Veteran disagreed.  The RO issued a statement of the case in April 2014 and the Veteran perfected this appeal.

The Court has held that a claimant's identification of the benefit sought does not require any technical precision.  See Ingram v. Nicholson, 21 Vet. App. 232, 256-57   (2007). Rather, "[a] claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symptoms of the disability." Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009).

A change in diagnosis or specificity of the claim must be carefully considered in determining the etiology of a potentially service-connected condition and whether the new diagnosis is a progression of the prior diagnosis, correction of an error in diagnosis, or development of a new and separate condition. 38 C.F.R. § 4.13, 4.125 (2017); Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); see also Velez v. Shinseki, 23 Vet. App. 199 (2009). In determining whether new and material evidence is required, the focus of the Board's analysis must be on whether the evidence presented truly amounts to a new claim "based upon distinctly diagnosed diseases or injuries" (Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008)), or whether it is evidence tending to substantiate an element of a previously adjudicated matter. See Velez v. Shinseki, 23 Vet. App. 199, 204 (2009). Multiple theories pertaining to the same benefit constitute the same claim. See Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006).

In the instant claim, the Veteran continues to seek service connection for a chronic disability manifested by chest pain, however variously claimed or diagnosed (i.e., chronic chest pain, atypical chest pain, chest pain due to muscle spasms).   Indeed, the Veteran requested to be service-connected for chronic chest pain on his original claim in 2005, and noted muscle spasms of the chest on his notice of disagreement with the RO's December 2005 rating decision.   Although he did not perfect an appeal, he initiated a claim to reopen in January 2008 (stating "I would like to reopen my claim for muscle spasm").  The RO adjudicated this claim in June 2008, and the Veteran filed a timely notice of disagreement in August 2008.  It appears the RO did not recognize this NOD, as it informed the Veteran about the finality of the June 2008 rating decision in November 2009 correspondence, and proceeded to readjudicate claims for "atypical chest pain" (as denied in December 2005) and "muscle spasms" of the chest (as denied in June 2008) in a December 2011 rating decision, which has been appealed to the Board.  

Based on the procedural history outlined above, the Board finds that the Veteran's chest pain and muscle spasm claims are one and the same-originally filed in June 2005, and denied in December 2005-and that new and material evidence is indeed required to reopen the claim.  The Veteran's claim to reopen was received in January 2008, and the claim was denied by the RO in June 2008.  In light of the fact that the Veteran filed a timely notice of disagreement with the RO's June 2008 rating decision, the current appeal stems from that rating decision.  The Board has jurisdiction because the RO adjudicated the Veteran's chest pain claims (albeit as two claims, one for atypical chest pain and another for muscle spasm of the chest area) in an April 2014 statement of the case, and the Veteran filed a timely VA Form 9.  

The issues of entitlement to a compensable rating for bilateral pes planus, a rating in excess of 10 percent for bilateral plantar fasciitis, and TDIU 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 December 2005 rating decision initially denied service connection for atypical chest pain, claimed as chronic chest pain; the Veteran filed a timely notice of disagreement regarding the decision, but failed to perfect an appeal by filing a timely substantive appeal.

2. Evidence received by VA since the December 2005 rating decision that denied service connection for chest pain relates to the bases for the prior denials and raises a reasonable possibility of substantiating the claims.

3. The evidence of record demonstrates that the Veteran has a chronic disability manifested by chest pains with muscle spasms that was incurred in service.


CONCLUSIONS OF LAW

1. The December 2005 rating decision that denied the Veteran's claim of entitlement to service connection for chest pain is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017).

2. New and material evidence has been submitted since the previous denial of service connection for chest pain, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2017).

3. The criteria for the award of service connection for a chronic disability manifested by chest pains with muscle spasms are met.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. New and Material Evidence

In June 2005, VA received the Veteran's original claim for entitlement for service connection for chronic chest pain. The claim was denied by a December 2005 rating decision. The Veteran submitted a Notice of Disagreement in September 2006 (concerning "chest pain and muscle spasms"). In February 2007, a De Novo Review of all evidence was performed and a Statement of the Case and Supplemental Statement of the Case were issued. The Veteran did not file a formal appeal.  Therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103.

In January 2008, the Veteran filed a request to reopen the prior claim for chest pain manifested by muscle spasms.  A June 2008 rating decision denied service connection for muscle spasms in the chest area. The Veteran filed a notice of disagreement in August 2008. A statement of the case was issued in April 2014. The Veteran perfected an appeal to the Board with a VA Form 9 in May 2014.

The Board is required to address new and material claims in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the AOJ may have made with regard to a new and material claim does not bind the Board. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Thus, the Board will adjudicate this new and material issue.

New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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 substantiating the claim. 38 C.F.R. § 3.156(a) (2017).

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998).

Only evidence presented since the last, final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996).

For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994).
Since the December 2005 rating decision and February 2007 Supplemental Statement of the Case, an October 2011 VA examiner provided an opinion noting that the Veteran's current chest pain with muscle spasms were likely musculoskeletal in nature, and have been present since service.  This evidence is new because it was not received before, nor considered in the February 2007 supplemental statement of the case. Additionally, it is material because it contributes to a more complete picture of the circumstances surrounding the etiology of the Veteran's disability.  Accordingly, the claim is reopened.

II. Service Connection

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

In the present case, the evidence favors a find that the Veteran has a chronic disability manifested by chest pain with muscle spasms that was incurred during his period of active duty service in from 1989 to 1992, which includes service in the Persian Gulf.  

With respect to current disability, an August 2005 VA examiner indicated that the Veteran had "atypical chest pain, as likely as not musculoskeletal chest-wall pain."  A March 2008 VA treatment record showed the Veteran complained of chest pain that occurred several times a week since service.  He reported that other than being given muscle relaxers, nothing had been done for the chest pain.  A May 2008 VA treatment record noted the Veteran reported left sided grabbing chest pain. An evaluation was negative for heart disease.  The impression was atypical chest pain.  

During service, the Veteran also complained of, and received treatment for non-cardiac chest pain. A July 1990 service treatment record showed the Veteran complained of intermittent chest pain and felt a flutter when the pain occurred. Non-cardiac chest pain was assessed. Another July 1990 service treatment record showed the Veteran complained of chest pain which he described as a "squeezing" followed by a "fluttering" sensation. Non-cardiac chest pain was assessed. A June 1992 service treatment record showed complaints of chest pain localized to the left sixth intercostal space. An assessment of pleuritic chest pain or intercostal spasm was noted. An October 1992 service treatment record showed an assessment of acute non-cardiac chest pain with further notations of intercostal muscle spasm or pleuritic chest pain. 

The Veteran has consistently and credibly described ongoing symptoms of chest pain with muscle spasms from his period of active duty to the present day.  Crucially, in assessing the origins and history of the Veteran's condition, an October 2011 VA examination noted the Veteran had onset of chest pain symptoms in 1991, and that the Veteran's chest pains have stayed the same since that time. The examiner specifically opined that the chest pain was more likely than not musculoskeletal in origin and present since the Veteran's military service.  

The Board recognizes that, in a December 2009 letter, Dr. A.H. linked the Veteran's chest pain to hypertensive heart disease.  Dr. A.H. offered no medical explanation as to how he came to this conclusion.  On the other hand, the above-referenced October 2011 VA examiner-after reviewing the findings of Dr. A.H., and performing his own heart examination-specifically determined that the Veteran's chest pain was not due to hypertensive heart disease or ASHD, but rather was more likely than not musculoskeletal in origin.  By way of rationale, the VA examiner noted that the Veteran was not diagnosed with hypertension until 2001, which was many years after the onset of his symptoms.  Moreover, there was little present evidence of hypertensive vascular disease based on present studies, to include chest x-ray, EKG and echocardiogram.  In light of the fact that the Veteran's chest pain pre-dated his hypertension and ASHD, the VA examiner stated that chest pain was not secondary to either.  The VA examiner indicated that the Veteran's musculoskeletal chest pain had been present since service, and the record documents the Veteran's complaints during the time of his period of active duty.   

The Board finds the October 2011 examiner's assessment and opinion to be more probative than that of Dr. A.H., as it is supported by a cogent clinical explanation based on the timing of the symptoms and the date of onset of other disabilities, and because it is consistent with all other medical evidence of record, to include service treatment records and the assessment of the August 2005 VA examiner, which similarly note the presence of a chronic non-cardiac chest pain disability, that is musculoskeletal in nature.  The October 2011 VA examiner's assessment is also consistent with the Veteran's competent and credible lay statements as to the persistent nature of his symptoms, and origin date.

It light of the foregoing, the Board is satisfied that the criteria for entitlement to service connection for a chronic disability manifested by chest pain with muscle spasms have been met.  That a definite diagnosis for this condition has not been made does not preclude a grant of service connection and the assignment of an appropriate disability rating to reflect the degree of functional impairment due to this condition.  The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C. 5107(b) (2012); 38 C.F.R. § 3.102 (2017).


ORDER

The application to reopen the claim of entitlement to service connection for a chronic disability manifested by chest pain with muscle spasms is granted.

Service connection for a chronic disability manifested by chest pain with muscle spasms is granted.


REMAND

The Veteran seeks a compensable disability rating for service-connected bilateral pes planus and a disability rating in excess of 10 percent for service-connected bilateral plantar fasciitis. 
The December 2009 VA examiner noted the Veteran reported daily flare-up pain that was provoked by standing and walking. The examiner further noted any physically exerted activity to both feet would most likely provoke flare-up pain. The examiner's impression was bilateral mild pes planus with bilateral mild to moderate plantar fasciitis and small plantar spurs. The examiner opined that during flare-up pain, the Veteran could have significant change in range of motion of the joints with increased pain and decreased functional capacity. However, the examiner stated additional loss of function due to flare-up could not be determined without resorting to speculation.

An August 2011 VA treatment record showed the Veteran complained of pain in both feet due to plantar fasciitis and gout. The podiatrist noted tenderness on the plantar aspect of both heels and also on the dorsum of the left foot, which indicated an allodynia type reaction. The podiatrist noted the Veteran could potentially be a candidate in the future for endoscopic plantar fasciotomy, but would need to get his gout under control first. 

In the Veteran's February 2012 notice of disagreement he indicated his condition was getting worse, and the Veteran has not been afforded a subsequent examination.  On remand, VA should afford him a contemporaneous VA examination to assess the current nature, extent and severity of his bilateral pes planus and plantar fasciitis. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).

Prior to the examination, any outstanding records of pertinent medical treatment must be obtained and added to the record.

The Board observes that the RO previously adjudicated a claim for TDIU in a December 2011 rating decision. Since that time however, during the pendency of this appeal, the Veteran has again indicated that he could not hold a job due to his service-connected disabilities. See February 2012 Notice of Disagreement. The Veteran's TDIU claim is part and parcel of his increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009). On remand, the AOJ should afford the Veteran the opportunity to present evidence and argument in support of his TDIU claim, to include the submission of an updated VA Form 8940 (Veteran's Application for Increased Compensation Based on Unemployability), and adjudicate the claim.

Accordingly, the case is REMANDED for the following action:

1. Afford the Veteran the opportunity to present evidence and argument in favor of his TDIU claim. Send the Veteran an updated copy of VA Form 8940 (Veteran's Application for Increased Compensation Based on Unemployability) and ask the Veteran to complete and return it to VA.

2. Obtain VA treatment records since February 2014.

3. Schedule the Veteran for a VA examination in order to determine the current severity of his bilateral pes planus and plantar fasciitis disabilities. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. 

Following review of the claims file, the VA examiner should conduct range-of-motion testing, and provide commentary regarding symptoms, including painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. Any additional loss of motion with repetitive movement must be noted. The examiner shall inquire as to periods of flare-up, and note the frequency and duration of any such flare-ups. The examiner must estimate the effect of all functional losses, including due to flare-ups, by equating the disability experienced due to such losses to additional loss of motion beyond what is shown clinically.
The examiner should identify all symptomatology associated with the Veteran's bilateral pes planus and plantar fasciitis. It would be helpful if the examiner could specify the signs, symptoms, and findings attributable solely to pes planus, and those attributable solely to plantar fasciitis. The examiner should opine as to the severity of the level of impairment of each disability. 

All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided.

4. After completing the above, readjudicate the Veteran's claims, to include entitlement to a TDIU, based on the entirety of the evidence. If the claims remain denied, in whole or in part, the Veteran and his representative should be issued a Supplemental Statement of the Case. An appropriate period of time should be allowed for response.

The Veteran has the right to submit additional evidence and argument on the 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).


______________________________________________
V. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs