Citation Nr: 20021268 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 17-11 412 DATE: March 25, 2020 ORDER The application to reopen the previously denied claim of entitlement to service connection for a right foot condition is granted. The application to reopen the previously denied claim of entitlement to service connection for a left foot condition is granted. REMANDED The following issues are remanded for further development: (1) whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for non-ischemic cardiomyopathy; (2) entitlement to service connection for a heart condition other than non-ischemic cardiomyopathy; (3) entitlement to service connection for a respiratory condition; (4) entitlement to service connection for a right foot condition; and (5) entitlement to service connection for a left foot condition. FINDING OF FACT In an August 2011 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) denied claims for service connection for right and left foot conditions. Evidence received since the August 2011 rating decision relates to prior unestablished facts. CONCLUSIONS OF LAW 1. The August 2011 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection for a right foot condition. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. 2. The August 2011 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection for a left foot condition. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from May 1990 to November 1994 in the United States Navy. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision of the VA RO in Portland, Oregon. In his March 2017 substantive appeal, the Veteran requested both a decision review officer (DRO) hearing at the RO as well as a Travel Board hearing. A DRO hearing was scheduled in August 2017, but the Veteran’s request was withdrawn by his representative. Additionally, a Board hearing was scheduled for March 2020, but the Veteran did not appear for the hearing. New and Material Evidence As indicated above in the Conclusions of Law section, the Board finds that new and material evidence has been received to reopen the previously denied claims of entitlement to service connection for right and left foot conditions. Accordingly, to this extent, the Board grants the Veteran’s appeal. In support of this determination, the Board first notes that, in an August 2011 rating decision, a VA RO denied entitlement to service connection for right and left foot conditions. Regarding the right foot, the RO acknowledged that the Veteran’s service treatment records (STRs) documented an in-service right ankle fracture in July 1993. However, the RO concluded that there were no complications of this fracture and that the Veteran did not have a current right foot disability. In comparison, regarding the left foot, the RO found that there were no in-service complaints of or treatment for the left foot in service as well as a lack of a current left foot disability. The Veteran was notified of this decision via a letter issued the date of the rating decision. The neither appealed nor submitted any evidence within one year of notification. Accordingly, the August 2011 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 19.52, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Generally, to reopen a previously denied, final claim, a claimant must present new and material evidence. See 38 U.S.C. § 5108. Evidence is “new” if it was not previously submitted to agency decision makers. Evidence is “material” if, when viewed by itself or with other evidence previously of record, it 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). 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). Since the August 2011 rating decision, updated VA treatment records dated through September 2017 have been associated with the Veteran’s claims file. This evidence is “new”—i.e., materials not previously submitted to agency decision makers—and is also material—i.e., addresses the reasons for the prior denial. Specifically, a September 2017 VA orthotics and prosthetics note recorded a diagnosis of “other osteomyelitis, unspecified ankle and foot.” Additionally, the provider noted the presence of several deep callouses on both of the Veteran’s feet. This evidence addresses the previously unestablished fact of a current diagnosis. Accordingly, the Board finds that the application to reopen the previously denied claims of entitlement to service connection for right and left foot conditions must be granted. REASONS FOR REMAND 1. New and Material Evidence to Reopen Service Connection for Non-Ischemic Cardiomyopathy; Service Connection for a Heart Condition other than Non-Ischemic Cardiomyopathy As an initial matter, the Board notes that the Veteran previously submitted a claim seeking service connection for a “heart condition” in August 2010. Despite this broadly-phrased claim, in an August 2011 rating decision, a VA RO appeared only to adjudicate entitlement to service connection for non-ischemic cardiomyopathy. In his October 2015 claim form, the claim currently on appeal, the Veteran requested service connection for heart disease. In Boggs v. Peake, the United States Court of Appeals for the Federal Circuit held that claims that are based on distinctly and properly diagnosed diseases or injuries must be considered separate and distinct claims for new and material evidence purposes. 520 F.3d 1330, 1337 (Fed. Cir. 2008); see also Ephraim v. Brown, 82 F.3d 399, 402 (Fed. Cir. 1996) (stating that a newly diagnosed psychiatric disorder, even if medically related to a previously diagnosed disorder is not the same for jurisdictional purposes when it has not previously been considered)). Applying this principle in the instant case, the Board finds that only the diagnosis of non-ischemic cardiomyopathy was previously adjudicated by VA in the August 2011 rating decision. Accordingly, the requirement of the receipt of new and material evidence is only applicable to this diagnosis. As such, the Board has bifurcated this issue on appeal and created a new issue of entitlement to service connection for a heart condition other than non-ischemic cardiomyopathy. Moving beyond this jurisdictional matter, in May 2017, VA received a letter from the Social Security Administration (SSA) indicating that the Veteran had a pending claim for SSA disability benefits. Currently, the Veteran’s claims file does not contain any documentation that the agency of original jurisdiction (AOJ) attempted to obtain copies of any documents or medical records used by SSA in making any determinations regarding the receipt of benefits. The underlying documents considered by SSA may be relevant to the Veteran’s heart condition and non-ischemic cardiomyopathy issues. Accordingly, remand is warranted so that outstanding SSA records may be obtained. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Lastly, the Board notes that a VA examiner has not opined whether any of the Veteran’s heart diagnoses arose in or were caused by service. As such, the Board also finds that a VA examination and medical opinion must be provided on remand. 2. Service Connection for Right and Left Foot Conditions Similar to the above heart condition and non-ischemic cardiomyopathy issues, the Board finds that remand for the issues of service connection for right and left foot conditions is also warranted for the provision of a VA examination and medical opinion. Specifically, as discussed in the above decision to reopen the foot condition issues, the Veteran has current disabilities of both feet. Additionally, the Veteran had an injury to the right ankle and foot area in service. Relatedly, in a November 2011 VA podiatry consultation note, the Veteran reported experiencing painful lesions on both feet with an onset in service. As there are no etiological opinions of record regarding the Veteran’s feet, a VA examination and medical opinions are required prior to the adjudication of these issues on their merits. 3. Service Connection for a Respiratory Condition The Board notes that the Veteran was afforded a VA examination with respect to the issue of service connection for a respiratory condition in December 2015. After examining the Veteran and reviewing the claims file, the examiner stated that the Veteran did not have a current respiratory disability. However, in VA treatment records received after the December 2015 examination, the Veteran received diagnoses of bullous emphysema and chronic obstructive pulmonary disease (COPD). See, e.g., June 2017 VA Treatment Record; March 2016 VA Admission Evaluation Note. As such, this issue must also be remanded for the provision of a supplemental VA medical opinion. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records and associate them with the claims file-particularly those dated since September 2017. If no such records exist, the claims file should be annotated to reflect as such, and the Veteran notified as such. 2. Obtain all records associated with any claim the Veteran submitted for Social Security disability benefits, including copies of any decisions and medical records relied upon concerning that claim. If no such records exist, the claims file should be annotated to reflect as such, and the Veteran notified as such. 3. After Items (1) – (2) have been completed to the extent possible, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any heart condition, including non-ischemic cardiomyopathy. The Veteran’s claims file should be made available to and be reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and the results reported in detail. The examiner should then address the following: (a.) Please identify by diagnosis any current heart condition, including non-ischemic cardiomyopathy and congestive heart failure. “Current” is defined as any condition identified since the filing of the claim in September 2015 to the present. (b.) For each condition identified in part (a), please state whether it is at least as likely as not (50 percent probability or more) that the condition was caused by, incurred in, or is otherwise related to service. The examiner should consider medical and lay evidence dated both prior to and since the filing of the claim. The examiner must provide a complete rationale for any opinion rendered. If the examiner cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 4. After Items (1) – (2) have been completed to the extent possible, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any right and left foot conditions. The Veteran’s claims file should be made available to and be reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and the results reported in detail. The examiner should then address the following: (a.) Please identify by diagnosis any current foot conditions. “Current” is defined as any condition identified since the filing of the claim in September 2015 to the present. (b.) For each condition identified in part (a), please state whether it is at least as likely as not (50 percent probability or more) that the condition was caused by, incurred in, or is otherwise related to service. In providing responses to part (b), please address the Veteran’s report of experiencing painful callouses/lesions on his feet from basic training to the present. The examiner should consider medical and lay evidence dated both prior to and since the filing of the claim. The examiner must provide a complete rationale for any opinion rendered. If the examiner cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 5. After Items (1) – (2) have been completed to the extent possible, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any respiratory condition. The Veteran’s claims file should be made available to and be reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and the results reported in detail. The examiner should then address the following: (a.) Please identify by diagnosis any current respiratory conditions. “Current” is defined as any condition identified since the filing of the claim in September 2015 to the present. (b.) For each condition identified in part (a), please state whether it is at least as likely as not (50 percent probability or more) that the condition was caused by, incurred in, or is otherwise related to service. In providing responses to part (b), please directly address whether the Veteran’s 1994 in-service experience with pneumonia and pulmonary abscess made him more susceptible to developing a current respiratory condition. Additionally, please also address the Veteran’s tobacco use history. The examiner should consider medical and lay evidence dated both prior to and since the filing of the claim. The examiner must provide a complete rationale for any opinion rendered. If the examiner cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.S. Pettine, 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.