Citation Nr: 20020175 Decision Date: 03/18/20 Archive Date: 03/18/20 DOCKET NO. 19-18 634A DATE: March 18, 2020 ORDER New and material evidence having been received, the appeal to reopen a claim of entitlement to service connection for a low back disability, including degenerative disc disease of the thoracolumbar spine, is granted. REMANDED Entitlement to service connection for a low back disability, including degenerative disc disease (DDD) of the lumbar spine is remanded. Entitlement to service connection for left ankle joint pain is remanded. Entitlement to service connection for right ankle joint pain is remanded. Entitlement to service connection for calcaneal spurs of the right foot is remanded. Entitlement to service connection for calcaneal spurs of the left foot is remanded. Entitlement to service connection for tarsal tunnel syndrome of the right foot is remanded. Entitlement to service connection for tarsal tunnel syndrome of the left foot is remanded. Entitlement to service connection for plantar fasciitis, right foot is remanded. Entitlement to an initial rating in excess of 10 percent for plantar fasciitis of the left foot is denied. FINDINGS OF FACT 1. In a July 1991 rating decision, the RO denied service connection for a low back disability; the Veteran did not appeal that decision within one year of notice of thereof. 2. Evidence received since the July 1991 relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for a low back disability. CONCLUSIONS OF LAW 1. The July 1991 rating decision, that denied the Veteran's claim of entitlement to service connection for a low back disability, is final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. 2. The criteria for reopening the claim of entitlement to service connection for low back disability have been met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156 (a), 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1982 to May 1988, from December 2003 to November 2005, and from May 2014 to October 2014. This matter comes before the Board of Veterans’ Appeals (hereinafter Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). By a rating action in November 2017, the RO determined that new and material evidence had been received to reopen a previously denied claim of service connection for a low back disability; however, the RO confirmed and continued the denial of the claim on the merits. The November 2017 rating action also granted service connection for plantar fasciitis, left foot, evaluated as 0 percent disabling; however, that rating action denied service connection for plantar fasciitis of the right foot, bilateral ankle joint pain, calcaneal spurs of the left and right feet, and tarsal tunnel syndrome of the left and right feet. In a subsequent rating action in November 2017, the RO increased the rating for plantar fasciitis of the left foot from 0 percent to 10 percent, effective July 27, 2017. The Veteran perfected a timely appeal to those decisions. Regardless of whether the RO has determined that new and material evidence has been received sufficient to warrant reopening a previously denied claim, because such a question is a jurisdictional matter, the Board must initially determine whether new and material evidence has been submitted. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). New and Material Evidence When a claimant fails to timely appeal an RO decision denying his claim for benefits, that decision becomes final and can no longer be challenged. See DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (Except as provided by law, when a case or issue has been decided and an appeal has not been taken within the time prescribed by law, the case is closed, the matter is ended, and no further review is afforded.). However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new" and "material." Smith v. West, 12 Vet. App. 312 (1999). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what new and material evidence is, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability The Veteran's claim of entitlement to service connection for a low back disability was denied in a rating action in July 1991. The evidence considered at the time of the July 1991 rating decision included the Veteran's Certificate of Release from Active Duty (DD Form 214) and the service treatment records (STRs). The STRs show that the Veteran was seen in February 1987 with complaints of back pain; he reported a history of pain in the lower back and noted that the pain wakes him up at night. Following an examination, he was diagnosed with chronic back pain of unknown etiology. X-ray study of the back revealed no evidence of herniated intervertebral disc disease. When seen in April 1987, the Veteran indicated that he still had pain in the lower back; the assessment was mechanical back pain. The Veteran was placed on profile. It was noted that an April 1989 periodic examination was negative for any complaints or findings regarding the back; clinical evaluation was the spine was normal. It was noted that the Veteran did not report for a scheduled VA examination. By a rating action in July 1991, the RO denied the claim for service connection for a low back disability, based on a finding that no back disability was shown at the time of the last examination. The Veteran did not file a notice of disagreement (NOD) with that determination within one year of the notification thereof in July 1991. Consequently, as no timely NOD or new and material evidence was received during the appeal period following the July 1991 notice of determination, that decision became final. See 38 C.F.R. § 3.156 (b); Buie v. Shinseki, 24 Vet. App. 242, 252 (2010); 38 C.F.R. §§ 20.200, 20.201, 20.1103 (2018). New and material evidence is therefore required to reopen the claim of service connection for a low back disorder. See 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. The Veteran's request to reopen his claim of service connection for a low back disability (VA Form 21-526) was received in July 2017. Submitted in support of the claim were private treatment reports dated from October 2011 to June 2017, which revealed findings of mild to moderate foraminal stenosis at the L3-L4, L4-L5 and L5-S1 levels. Also submitted were VA progress notes dated from June 2016 to May 2019 which show that he continued to receive clinical attention for chronic low back pain. The Veteran was afforded a DBQ examination in October 2017, at which time reported that his back disability started around 2006; he could not recall any specific injury. Following a physical examination, the examiner reported a diagnosis of degenerative arthritis of the spine. The examiner stated that the Veteran’s degenerative disc disease is less likely as not incurred in or caused by service. The Board notes that the pertinent evidence added to the record since the final denial in July 1991 and includes a medical statement from Dr. John P. Gianetti, dated in July 2019, who reported that the Veteran has suffered from chronic back pain; he opined that the Veteran's 36 years of military service has contributed to the wear and tear on his musculoskeletal system. This evidence was not previously of record and is not cumulative or duplicative of evidence before the RO in July 1991. Hence, the evidence is "new" within the meaning of 38 C.F.R. § 3.156. The evidence is relevant and probative of the issue regarding the development of the low back disability and bears directly and substantially upon the facts regarding whether the Veteran's low back disability is related to an inservice event. Since the credibility of the evidence is presumed in determining whether new and material evidence has been submitted, this evidence is relevant and probative of the issue of whether the Veteran's low back disability was incurred as a result of active service. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the standards under 3.156(a) have been met and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND After examining the record, the Board concludes that further assistance to the Veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C. § 5103A (2012). The specific bases for remand are set forth below. 1. Entitlement to service connection for a low back disability, including degenerative disc disease (DDD) of the lumbar spine is remanded Having determined that the Veteran's claim of entitlement to service connection for a low back disability is reopened, VA has a duty to assist the Veteran in the development of evidence pertinent to the underlying service connection issue, pursuant to 38 U.S.C. § 5107 (b) (2012). The Veteran was afforded a DBQ examination in October 2017 for evaluation of his back disability. Following the examination, the examiner opined that the Veteran had a diagnosis of lumbar degenerative disc disease that was less likely than not incurred in or caused by service. In providing a negative opinion, the examiner indicated that the service treatment records revealed a single self-limiting complaint concerning the back in April 1987, and the remaining available STRs are silent for back complaints. The Board finds this etiology opinion to be inadequate for two reasons. Barr v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). First, in reviewing the Veteran's service treatment records (STRs), the Board finds that the October 2017 examiner's fact finding to be inaccurate. In fact, the STRs show that the Veteran was seen in February 1987 with complaints of back pain; he reported a history of pain in the lower back and noted that the pain wakes him up at night. Following an examination, he was diagnosed with chronic back pain of unknown etiology. And, when seen in April 1987, the Veteran indicated that he was still having back pain; this notation suggests a chronic back condition. Accordingly, the October 2017 etiological opinion was based on an inaccurate factual premise. See Reonal, supra. Second, the Board cannot reject a claim of service connection based on a lack of continuity of treatment. See Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); see Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991) ("regulations require a continuity of symptomatology, not continuity of treatment"). In addition, of record is a medical statement from Dr. John P. Gianetti, dated in July 2019, who reported that the Veteran has suffered from chronic back pain; he opined that the Veteran’s 36 years of military service has contributed to the wear and tear on his musculoskeletal system. Although the medical opinion links the Veteran’s disabilities to his service, the medical opinion is inadequate as the explanation for the opinion is not supported by a clear rationale. Significantly, there are no findings from a contemporaneous physical examination of the Veteran. Related to the opinion, notably, the clinician responded to a medical questionnaire from the Veteran’s representative with a limited rationale. In light of the foregoing, the Board finds that an additional VA examination and opinion is needed to reconcile the conflicting medical evidence of record regarding the claimed low back disability and to fully address the etiology of the current DDD of the lumbar spine. 2. Entitlement to service connection for left ankle joint pain is remanded 3. Entitlement to service connection for right ankle joint pain is remanded The Veteran contends that he has a bilateral ankle disability that started while in service. The Veteran indicated that he continues to experience chronic ankle pain since his discharge from service. By a rating action in November 2017, the RO denied service connection for a bilateral ankle disability based on a finding that the evidence does not show a current diagnosed disability. However, the RO also noted that the record noted complaints of ankle pain. A review of the record does show that the Veteran was treated for pain in the left and right ankles in October 2015. Moreover, in his medical statement in July 2019, Dr. Gianetti reported that the Veteran suffers from limited ankle joint range of motion and pain; he stated that the Veteran’s 36 years of military service have contributed to wear and tear on his musculoskeletal system. The Board notes that pain alone may constitute functional impairment for which service connection may be granted, and thus, the Veteran's current complaints of pain could constitute evidence of a possible chronic condition. Saunders v. Wilkie, 886 F.3d 1356, 1363-64 (Fed. Cir. 2018) (indicating that the term "disability" refers to the functional impairment of earning capacity, rather than the underlying cause of the impairment, and pain alone may be a functional impairment). A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 8186 (2006). 38 U.S.C. § 5103 (d)(2); 38 C.F.R. § 3.159 (c)(4)(i). Regarding the first element, as pain alone may constitute functional impairment for which service connection may be granted. Under Saunders, then, the presence of bilateral ankle pain is sufficient to satisfy the first element of McLendon. The second element is also satisfied. That is, the Veteran maintains that the strenuous physical training in service caused him to develop ankle pain. Regarding the third and fourth elements, Dr. Gianetti’ s opinion suggests that the Veteran’s bilateral ankle pain could be related to his 36 years of military service, but there is insufficient evidence of record by which the Board can make a decision. As the four McLendon elements are satisfied, a remand is necessary to afford the Veteran a VA examination in order to determine the nature and etiology of his claimed bilateral ankle disability. 38 U.S.C. § 5103A (d); McLendon, supra. 4. Entitlement to service connection for calcaneal spurs of the right foot 5. Entitlement to service connection for calcaneal spurs of the left foot 6. Entitlement to service connection for tarsal tunnel syndrome of the left foot 7. Entitlement to service connection for tarsal tunnel syndrome of the right foot The Veteran is seeking to establish service connection for bilateral calcaneal spurs and bilateral tarsal tunnel syndrome, both of which he claims developed as a result of military service. The evidence of record shows that the Veteran was diagnosed with tarsal tunnel of the feet in October 2012; he was subsequently diagnosed with calcaneal spurs of the right and left foot in October 2015. While the October 2017 DBQ medical opinion addressed the etiology of plantar fasciitis and arthritis, it did not address diagnoses of calcaneal spurs of the feet and tarsal tunnel syndrome of the feet shown by the record. In this regard, the Board notes that treatment records show that the Veteran has received ongoing clinical attention for bilateral foot disabilities, including calcaneal spurs and tarsal tunnel syndrome. Moreover, in his July 2019 letter, Dr. Gianetti reported that the Veteran suffers from calcaneal spurs and tarsal tunnel syndrome of both feet; he stated that the Veteran’s 36 years of military service contributed to the wear and tear of his musculoskeletal system. The Board finds this opinion to be inadequate as it is conclusory and without explanation of rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) ("A mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion."). Since the Veteran has established diagnoses of and treatment for calcaneal spurs and tarsal tunnel syndrome of both feet, and he has provided evidence suggesting that those disabilities may be associated with his period of service, he should be provided a new VA examination in order to determine the nature and etiology of any bilateral foot disabilities, other than plantar fasciitis. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 8. Entitlement to service connection for plantar fasciitis, right foot The Veteran essentially contends that his plantar fasciitis of the right foot had its onset in service. The Veteran has undergone a DBQ/VA examination for evaluation of his foot disabilities, however the opinion obtained addressing its etiology are inadequate to decide the claim. Significantly, the Veteran was afforded a DBQ examination in October 2017. Following the DBQ examination, the examiner stated that the Veteran’s right plantar fasciitis was less likely than not incurred as a result of service. The examiner reasoned that the available treatment records are silent for right foot complaints during service. Here, the DBQ examiner relied largely on the lack of documented complaints, diagnosis, and treatment in service without specifically addressing the Veteran's assertions as to experiencing foot pain and problems in and since service. It is noteworthy that, in July 2019, Dr. John P. Gianetti stated that the Veteran suffers from plantar fasciitis of the feet, and he felt that the Veteran’s 36 years of military service have contributed to the wear and tear on his musculoskeletal system. Although the July 2019 private medical opinion linked the Veteran's disabilities, including his right foot disability, to his service, the medical opinion is inadequate as the explanation for the opinion is not supported by a clear rationale. Significantly, there are no findings from a contemporaneous physical examination of the Veteran. Related to the opinion, notably, the clinician responded to a medical questionnaire from the Veteran's representative with a limited rationale. The Board observes that a medical opinion is adequate when it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). 9. Entitlement to an initial rating in excess of 10 percent for plantar fasciitis of the left foot is remanded The Veteran contends that his left foot disability is more disabling than the rating currently assigned; he maintains that a higher evaluation is warranted due to the unbearable pain that he suffers and surgeries that he has endured. The Veteran maintains that the surgeries were unsuccessful, and he continues to experience chronic daily pain in both feet that have significantly impacted the quality of his life. A review of the record shows that a 10 percent rating under Diagnostic Code 5276 was assigned in July 2018 for painful motion due to bilateral pes planus. The Veteran was afforded a DBQ examination in conjunction with his claim in October 2017. However, while the examination report acknowledged the Veteran's report of flare-ups, no estimate was made as to any additional functional loss during a flare-up. An examiner is expected to offer such an estimate based on information procured from relevant sources, including lay (non-expert) statements. An examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resort to speculation. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). While the record contains a contemporaneous examination for the Veteran's feet, it does not comply with the requirements of Sharp. When the Secretary undertakes to provide a veteran with a VA medical examination or opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following action: 1. Associate with the claims folder all outstanding Veteran's VA and private treatment records. 2. Ensure that the Veteran is scheduled for a VA examination to determine the nature and etiology of his lumbar spine disability, including degenerative disc disease. The entire file, including a copy of this remand, should be made available to and reviewed by the examiner in conjunction with the examination. Based upon a review of the file and examination, the examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any current lumbar spine disability, including DDD, had its onset during the Veteran’s military service or was caused by his service. The examiner must provide an explanation to support any conclusion reached. The examiner should specifically review and comment on the July 2019 opinion of the Veteran’s private physician Dr. John P. Gianetti who indicated that the Veteran’s lumbar spine disability is likely related to service. If necessary, and to the extent possible, the examiner should reconcile his opinion with Dr. Gianetti’s findings. 3. Ensure that the Veteran is scheduled for a VA examination with a qualified medical professional to address the etiology of all foot and ankle disabilities. The claims folder should be made available to and reviewed by the examiner. All necessary tests and studies should be conducted. Following consideration of the evidence of record (both lay and medical) and all evidence obtained during the examination, the examiner should render an opinion as to whether: (a) It is at least as likely as not (i.e., 50 percent probability or greater) that any currently diagnosed bilateral foot condition (other than plantar fasciitis of the left foot), to include, but not limited to, calcaneal spurs and tarsal tunnel of the feet, had its onset in service or is related to any in-service disease, event, or injury. (b) As to each diagnosed ankle disability, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it was incurred in, caused by, or is otherwise related to his period of service. The examiner should specifically review and comment on the July 2019 opinion of the Veteran's private physician Dr. John Gianetti, who indicated that the Veteran's foot and ankle disabilities are related to service. If necessary, and to the extent possible, the examiner should reconcile his opinion with Dr. Gianetti's findings. A rationale for all requested opinions shall be provided. The reasons and bases for each opinion are to be fully explained with a complete discussion of the evidence of record and sound medical principles, including the use of any medical literature (if deemed warranted), which may reasonably explain the medical guidance in the study of this case. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 4. Ensure that the Veteran is scheduled for an examination of the current severity of his plantar fasciitis of the left foot. The examiner should fully describe the disability and report all signs and symptoms necessary for evaluation of the disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to plantar fasciitis alone and discuss the effect of the Veteran's plantar fasciitis on any occupational functioning and activities of daily living. (Continued on the next page)   If it is not possible to provide a specific measurement or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. Thereafter, re adjudicate the Veteran's claims that are the subject of this Remand. If any determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) and given an appropriate opportunity to respond thereto before the case is returned to the Board. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.