Citation Nr: 20005271 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 16-41 054 DATE: January 23, 2020 ORDER Whether new material evidence has been received in order to reopen a claim of entitlement to service connection for neck condition (now claimed as cervical spine issues; previously denied as cervical spine condition) is denied. Whether new material evidence has been received in order to reopen a claim of entitlement to service connection for left foot condition (now claimed as bilateral hammertoes post-surgical) is granted. REMANDED Evaluation in excess of 20 percent for chronic lumbar strain with radiculopathy is remanded. Evaluation in excess of 20 percent for left lower extremity sciatic nerve as secondary to the service-connected disability of chronic lumbar strain is remanded. Entitlement to service connection for bilateral hammertoes is remanded. FINDINGS OF FACT 1. A March 2005 rating decision, which denied service connection for a neck condition, is final. The Veteran did not file a notice of disagreement with this rating decision or submit any evidence related to this claim within a year of this rating decision. 2. The evidence received since 2005, when considered by itself or in connection with evidence previously assembled, does not relate to unestablished facts necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim of service connection for a neck condition. 3. An August 2010 rating decision, which denied service connection for a left foot condition, is final. The Veteran did not file a notice of disagreement with this rating decision or submit any evidence related to this claim within a year of this rating decision. 4. The evidence received since the August 2010 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for a left foot condition, now claimed as bilateral hammertoes. CONCLUSIONS OF LAW 1. The March 2005 rating decision, which denied service connection for a neck condition, is final. 38 U.S.C. § 5108, 7105; 38 C.F.R. § 3.104, 3.105, 20.302, 20.1103. 2. The evidence received subsequent to the rating decision is not new and material; the claim for service connection for a neck condition is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The August 2010 rating decision, which denied service connection for a left foot condition, is final. 38 U.S.C. § 5108, 7105; 38 C.F.R. § 3.104, 3.105, 20.302, 20.1103. 4. The evidence received subsequent to the rating decision is new and material; the claim for service connection for a left foot condition, now claimed as bilateral hammertoes, is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1984 to March 1989 and November 1990 to April 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran provided sworn testimony before the undersigned Veterans Law Judge (VLJ) at a Board hearing. A copy of the hearing transcript has been associated with the electronic claims file. The Board notes that additional evidence has been received since the 2016 statement of the case. However, since the Veteran waived RO consideration of that evidence at the 2019 Board hearing, and as the claims are being remanded for further development, there is no prejudice in the Board proceeding with the appeal. The Board also acknowledges that the Veteran included claims for migraine headaches and thoracic spine in the May 2016 notice of disagreement (NOD) along with the aforementioned claims on appeal. However, in a May 2016 letter, the RO informed the Veteran that the claim for migraine headaches could not be accepted as the time limit for an NOD on that particular issue had passed as it was on a different appeal stream. In the May 2016 statement of the case (SOC), the RO combined thoracic spine with chronic lumbar strain with radiculopathy, and reiterated the August 2015 rating decision, which had informed the Veteran that her thoracic spine is part of the rating criteria for the already service-connected lumbar spine. As such, these issues will not be discussed. The Veteran has not raised any issues with the duty to notify or duty to assist in obtaining documentary evidence. 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). Thus, the Board need not discuss any potential issues in this regard. Further, neither the Veteran nor her representative has alleged any deficiency with the conduct of his Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens, 814 F.3d at 1361, that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott, 789 F.3d at 1381. Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. Request to Reopen As a threshold matter, the Board must determine whether new and material evidence has been submitted to reopen any previously denied claims. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. 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 substantiating the claim. See 38 U.S.C.§ 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for the Federal Circuit (Court) has held that evidence is presumed credible for the purposes of reopening a claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption is rebuttable when the evidentiary assertion is inherently incredible. King v. Brown, 5 Vet. App. 19, 21 (1993) (evidentiary assertions are presumed true except when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion). The Court has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Bostain v. West, 11 Vet. App. 124, 126-27 (1998). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a determination as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. 1. Whether new and material evidence has been received to reopen a claim for service connection for a neck condition By way of history, the Veteran’s initial claim for service connection for a neck condition was denied in a March 2005 rating decision. In that decision, the RO determined the evidence did not show that the condition began in or was caused by the Veteran’s military service, but noted the Veteran had fibromyalgia. The Veteran was notified of the 2005 decision on March 31, 2005, but she did not appeal, nor did she submit any evidence within one year of this decision. Thereafter, the Veteran requested to reopen the claim for her neck condition in October 2009, which was denied in an August 2010 rating decision. In that decision, the RO determined that “the medical evidence submitted is not considered new and material evidence as it still does not provide a separate diagnosis of a cervical spine condition and your claim may not be reopened at this time. However, your neck pain was utilized in the evaluation for your service-connected fibromyalgia.” The Veteran was notified of the 2010 decision on August 12, 2010, but she did not appeal However, as some evidence was received within a year of that decision, the Board will consider whether it was new and material. The Federal Circuit has held that if VA receives new evidence within the appeal period of an AOJ decision, it must be considered according to 38 C.F.R. § 3.156(b). If such consideration is not performed, the underlying claim does not become final but rather it remains pending. Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014); see also Turner v. Shulkin, 29 Vet. App. 207 (2018) (VA treatment records generated within the one-year appeal period following a rating decision may satisfy the requirements of 38 C.F.R. § 3.156(b) when VA adjudicators at VBA have knowledge of the existence of those VA treatment records within the one-year appeal period). Here, the Veteran filed additional claims with her neck condition, and in connection with those claims, VA medical records were obtained. Some of those records were not new as they were duplicates of records the RO had already considered. While some new records were received, they were not material, as they did not suggest a link to service. Although the Veteran continued to receive treatment at a VA medical facility for neck pain, and the records showed continued treatment, there was no suggestion in the medical records of a link between that disease and the Veteran’s service, which was the reason the claim was denied. Therefore, even considering caselaw such as Turner in every way possibly beneficial to the Veteran, as well as considering all new evidence submitted within that year, the Board still finds the August 2010 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In 2015, the Veteran filed another claim to reopen service connection for a neck condition. In connection with the claim, VA has received medical records of her continued neck pain. However, the VA medical records are not material as there was no suggestion in the medical records of a link between her current neck pain and her service and therefore do not relate to an unestablished fact necessary to substantiate the claim. Also, as the RO noted in the August 2015 rating decision, the neck pain is currently included in the evaluation of her service-connected fibromyalgia. Therefore, evidence is not new and material, and the claim to reopen is denied. See 38 C.F.R. § 3.156; Shade, 24 Vet. App. 110 (2010). 2. Whether new and material evidence has been received to reopen a claim for service connection for a left foot condition/bilateral hammertoe By way of history, the Veteran’s initial claim for service connection for a left foot condition was denied in an August 2010 rating decision. In that decision, the RO determined there was no medical evidence relating the current condition of her left foot to service, but, rather, the evaluation of her left foot pain was used as part of the evaluation for fibromyalgia. The Veteran was notified of the 2010 decision on August 12, 2010, but she did not appeal. Further, there was nothing new received within one year of that decision that could be considered material evidence. Therefore, the Board finds the August 2010 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Thereafter, in 2015, the Veteran filed a claim to reopen for service connection for her left foot condition, now claimed as post-surgical bilateral hammertoes. After denying reopening the claim in August 2015, the RO sought a VA medical opinion in May 2016. By obtaining a VA medical opinion after the Veteran submitted a petition to reopen the claim, the RO conducted a de facto reopening. Falzone v. Brown, 8 Vet. App. 398, 404 (1995). Nonetheless, the Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection on the merits. Barnett v. Brown, 83 F.3d 1380, 1383-1384. Additionally, the Board finds that the Veteran has offered a new theory of entitlement; namely, that her left foot condition is now claimed as post-surgical bilateral hammertoes from her surgery in service; but the Court has held that a new etiological theory does not constitute a new claim. Velez v. Shinseki, 23 Vet. App. 199 (2009); Ashford v. Brown, 10 Vet. App. 120, 123 (1997); Roebuck v. Nicholson, 20 Vet. App. 307 (2006). However, while a new theory of entitlement, by itself, cannot be the basis to reopen a claim, if the evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim under section 5108. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). Here, in support of this theory of entitlement, the Veteran underwent a May 2016 examination, and the VA opinion noted the Veteran had mild hallux valgus on entrance to service, and opined the claimed condition was not aggravated beyond its natural progression by an in-service event or injury; however, the examiner also opined that while the Veteran no longer has hammer toes, she has pain in the balls of her feet “which is a probable sequela of her hammertoes.” The Board determines that the additional evidence received relates to an unestablished fact necessary to substantiate the claim – a possible link or association connecting the Veteran’s current foot condition to her in-service arthroplasty surgery to correct her hammertoes. Therefore, this evidence is new and material, and the claim may be reopened. See 38 C.F.R. § 3.156; Shade, 24 Vet. App. 110 (2010). REASONS FOR REMAND 1. Increased Rating for Back Condition The Veteran was last afforded a VA examination in July 2015. When the evidence suggests a service-connected disability has worsened since the last examination, VA must provide a new examination. During the September 2019 Board hearing, the Veteran testified her symptoms have worsened, including that she needs to lay down for 15 minutes every hour; that she was hospitalized in 2019 for pain and had an abscess on the spine; that she goes to the VA emergency room for treatment and gets shots for the pain about six to eight times a year; in 2015, she went to pain management at James Haley for three weeks; and takes medication on a daily basis. VA medical treatment records also showed ongoing treatment for the Veteran’s back pain. Based on the foregoing, the Board finds remand is appropriate for the increased rating claim so that a new examination can be arranged to properly assess the current severity of the Veteran’s back condition. Further, VA medical records as discussed at the Board hearing have not been updated and associated with the claims file, and upon remand, the RO is instructed to retrieve these records. 2. Increased Rating for Sciatica By way of history, in a May 2016 rating decision, the RO granted service connection for left lower extremity sciatic nerve with an evaluation of 10 percent from March 24, 2009, and an evaluation of 20 percent from May 25, 2016. After reporting worsening pain, she underwent a VA examination in January 2018. Although the Veteran waived RO consideration of this examination, the Board notes the Veteran’s VA treatment records since December 2017 are not associated with the claims file; further, at the 2019 Board hearing, the Veteran asserted her condition had increased in severity (see above). As such, the Board finds a remand is appropriate so that proper development may be conducted, and that an addendum opinion as to the current severity of the Veteran’s left lower extremity sciatic nerve pain be obtained in light of that development. 3. Service Connection for Left Foot Condition / Bilateral Hammertoes The Veteran contends she has a foot condition due to service, specifically that she had hammertoes and arthroplasty surgery in service with residuals of that surgery. The Veteran underwent a May 2016 VA examination as to her foot condition, where she reported she had been told she had plantar fasciitis, has heel cups in her shoes, and her feet hurt when she stands or walks, especially with pain on weight bearing on her heels and balls of her feet. Although the examiner marked the Veteran had no residual signs or symptoms from the in-service surgery, the examiner later opined that the Veteran “no longer has hammertoes but continues to have pain on the ball of the foot which is a probable sequela of her hammertoes.” Further, in the 2019 Board hearing, the Veteran again testified she was diagnosed with plantar fasciitis and also described tingling sensations and numbing, reported she has spasms in her feet, and is sensitive to cold; which may be related to her service-connected issues of fibromyalgia, sciatica, and/or the radiculopathy from her back condition. As such, an addendum medical opinion is necessary to determine the Veteran’s current diagnosis of her foot condition, and to clarify if she has any post-surgical residuals which are at least as likely as not due to or caused by the Veteran’s in-service hammertoes and arthroplasty surgery to correct the hammertoes, or whether any current foot condition is due to and already evaluated with other service-connected disabilities. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA medical treatment records from December 2017 to the present, specifically the hospitalization records from March 2019, and associate them with the claims file. 2. DO NOT PROCEED WITH THE FOLLOWING UNTIL THE ABOVE HAS BEEN COMPLETED. 3. Schedule the Veteran for a VA examination to determine the current severity of the Veteran’s back condition and sciatica in the left lower extremity. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. 4. Schedule an examination and obtain an opinion as to the nature and etiology of any foot condition. The examiner must review the Veteran’s claims file to become familiar with the relevant medical history, to specifically include the Veteran’s May 2016 VA examination and VA opinion. The examiner should offer an opinion as to whether: a) The Veteran has a current diagnosis for a foot condition, to include plantar fasciitis; b) it is as least as likely as not (50 percent probability or greater) that any current foot condition is related to the Veteran’s in-service hammertoes and/or residuals from the arthroplasty. c) it is as least as likely as not (50 percent probability or greater) that any foot condition is related to the Veteran’s fibromyalgia, left lower extremity sciatica, and/or back radiculopathy. The examiner is asked to consider the reports of in-service pain following the arthroplasty; the May 2016 VA examination which noted she had pain on weight bearing in the balls of her feet, and the opinion that this pain is a probable sequela of hammertoes; the VA medical records noting ongoing complaints of foot pain; and testimony that she has spasms and swelling in her feet, and her statements that she was diagnosed with plantar fasciitis. Rationale must be provided for the opinions proffered. If the examiner determines that a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. In other words, simply stating that an opinion cannot be provided without resort to mere speculation is not acceptable without a detailed reason as to why this is so. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.