Citation Nr: 20049958 Decision Date: 07/28/20 Archive Date: 07/28/20 DOCKET NO. 17-01 439 DATE: July 28, 2020 ORDER New and material evidence having been received, the claim for service connection for a right knee disability is reopened. New and material evidence having been received, the claim for service connection for a left knee disability is reopened. Service connection for left eye ptosis is granted. REMANDED The appeal for service connection for a right knee disorder, to include as secondary to service-connected disability, is remanded. The appeal for service connection for a left knee disorder, to include as secondary to service-connected disability, is remanded. The appeal for service connection for a left foot disorder, to include pes planus, is remanded. The appeal for service connection for a right foot disorder, to include pes planus, is remanded. The appeal for service connection for a right ankle scar is remanded. The appeal for service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. In a May 2007 rating decisions, the agency of original jurisdiction (AOJ) denied the Veteran’s application to reopen his claim for service connection for a right knee disorder. 2. The Veteran did not appeal the May 2007 rating decision with respect to the right knee disorder, nor was any new and material evidence regarding the right knee received within one year of the May 2007 rating decision. 3. In a May 2007 rating decision, the AOJ denied the Veteran’s claim for service connection for a left knee disorder. 4. The Veteran did not appeal the May 2007 rating decision with respect to the left knee disorder, nor was any new and material evidence regarding the left knee received within one year of the May 2007 rating decision. 5. Additional lay and medical evidence received since the May 2007 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claims for service connection for right and left knee disorders, and raises a reasonable possibility of substantiating the claims. 6. Resolving doubt in favor of the Veteran, the evidence is at least in equipoise that the Veteran’s left eye ptosis began in service. CONCLUSIONS OF LAW 1. The May 2007 rating decision denying service connection for a right knee disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence has been received to reopen the Veteran’s claim for service connection for a right knee disorder. 38 U.S.C. §§ 1110, 5108 (2012); 38 C.F.R. §§ 3.303, 3.156. 3. The May 2007 rating decision denying service connection for a left knee disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 4. New and material evidence has been received to reopen the Veteran’s claim for service connection for a left knee disorder. 38 U.S.C. §§ 1110, 5108 (2012); 38 C.F.R. §§ 3.303, 3.156. 5. The criteria for service connection for left eye ptosis are met. 38 U.S.C. §§ 1110, 1031, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1985 to March 1995. The Veteran testified before the undersigned Veterans Law Judge during a February 2020 videoconference hearing, the transcript of which is included in the file. The Veteran was granted a continuance of 90 days after his hearing to submit evidence. On May 22, 2020, he called and requested an additional extension of 60 days. These 60 days have expired and no additional evidence was added to the file. In this decision, the Board granting the Veteran’s service-connection claim for left eye ptosis, as well as his claims to reopen left and right knee disorders, and is remanding the remaining issues for development. The Veteran remains free to submit any additional evidence he wishes VA to consider concerning these remanded issues. With respect to the Veteran’s service-connection claims for right and foot disabilities, the Board has broadened the claim to address all pertinent right and left foot disorders. During the hearing before the Board, the Veteran clarified that he actually sought service connection for pes planus but that he did not know the scientific name for “flat feet” and his then-representative suggested the Veteran identify the disorder as plantar fasciitis. Transcript pages 27-29. A veteran’s identification of the benefit sought does “not require any technical precision.” Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009). If a veteran claims service connection for a specific disorder, any disorder reasonably encompassed by the veteran’s claim must be considered. Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski, 23 Vet. App. at 86-87. The scope of a claim should be construed based on the reasonable expectations of a non-expert, self-represented claimant, and the evidence developed during the claims process. Harris v. Shinseki, 704 F.2d 946, 948 (Fed. Cir. 2013). Although the Veteran here is represented by a new representative, the Board acknowledges that he clarified that he did not know the appropriate scientific name for “flat feet” and was not aware that his former representative had identified the disability by the wrong name. In giving a sympathetic reading to a veteran’s claim, VA must “generously construe” a “veteran’s filing to discern all possible claims raised by the evidence” and supporting documentation rather than just evaluate the diagnoses specifically named in the application. Id. The “sympathetic reading” requirement does not obligate the Board to conduct an exercise in prognostication, but only requires that it considers all claims reasonably raised by the evidence. See Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995) (emphasis added). In this case, the Veteran has a current diagnosis of pes planus in each foot, of which the AOJ was on notice at the time of the development and the February 2015 rating decision on appeal. Thus, the Board has reasonably broadened the claim to include pes planus. Claims to reopen Whether new and material evidence has been received to reopen claims for service connection for right and/or left knee disorders. Regarding the right knee, the AOJ, by a decision entered in October 1995, denied the Veteran’s claim for service connection for a right knee disability based on a finding that the claim was not well grounded. Additional service treatment records were added to the record thereafter and in August 1996, the AOJ once again denied the claim on the merits as being not well grounded. The Veteran did not appeal, no new and material evidence was received within a year of the August 1996 rating decision, and the decision became final. 38 C.F.R. § 3.156(b). In June 2006, the Veteran filed a request to reopen the claim for service connection for the right knee. In May 2007, the AOJ declined to reopen the claim on the basis that no new and material evidence had been received. In the same decision, the AOJ denied the Veteran’s claim for service connection for a left knee disability on grounds that it was not incurred in or aggravated by service. The Veteran did not appeal either determination, and no new and material evidence was received within a year of the rating decision, and the decisions became final. 38 C.F.R. § 3.156(b). Additional service personnel records were received after the May 2007 rating decision; however, those records were either duplicative of service records already received or were not pertinent to the knee claims. Accordingly, the claims may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudications. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2018); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). For claims to reopen filed on or after August 29, 2001, such as the Veteran’s, evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is 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). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a “reasonable possibility of substantiating the claim” should be considered a component what constitutes new and material evidence, 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). The Court has also held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. Pertinent evidence received since the May 2007 rating decision includes the Veteran’s lay statements regarding painful right and left knee joints that may result in functional impairment, and may be secondary to the Veteran’s service-connected right ankle disability. The Veteran offered sworn testimony indicating that his gait had changed due to his service-connected right ankle disorder. He testified that adjusting his walk to alleviate pressure on the right ankle resulted in greater pain the right and left knees. Additionally, recent case law held that where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. See Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). This evidence was not before the AOJ when the Veteran’s claims were most recently denied in May 2007, and such is not cumulative or redundant of the evidence of record at the time of that decision. This new evidence also relates to unestablished facts necessary to substantiate the claims for service connection for a right and left knee disorders - namely a current disability- and raises a reasonable possibility of substantiating the claims. Accordingly, the claims are reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without 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 disease or injury. 38 U.S.C. § 1112; 38 C.F.R. § 3.304. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Generally, a veteran is presumed to be in sound condition when examined and accepted into service except for defects or disorders noted at that time. 38 U.S.C. § 1111. The presumption is rebutted where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. “[T]he Government must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness...” Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); see VAOPGCPREC 3-2003 (July 16, 2003) (cited at 69 Fed. Reg. 25,178 (May 5, 2004)). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104 (a) (2012); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303 (a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for left eye ptosis. There is no dispute that the Veteran has a current diagnosis of superior eyelid residual ptosis in the left eye. See January 2015 VA examination report. Additionally, service treatment records confirm that the Veteran was diagnosed with ptosis in service. See November 1991 service treatment record. Thus, the question for the Board is whether the current diagnosis of ptosis is related to ptosis in service. The January 2015 VA examiner opined that the Veteran’s ptosis was less likely than not related to service because a service treatment record indicated that the ptosis may be due to a childhood trauma when the Veteran was 13. The examiner did not offer an opinion as to whether there was any clear and unmistakable evidence of preexisting ptosis, or if so, whether there was clear and unmistakable evidence that such preexisting ptosis was not aggravated by service. During the Veteran’s hearing before the Board, the Veteran denied any preexisting ptosis. The Veteran’s testimony is consistent with the Veteran’s service records. Review of the November 1991 service treatment record that diagnosed ptosis indicated that it began within six months of that treatment date. The August 1984 enlistment examination noted normal eyes. In the accompanying August 1984 report of medical history, the Veteran denied any eye trouble. The Board places only a limited probative value on the January 2015 VA examination report. In this regard, it is unclear what service record the examiner relied upon to find that the Veteran may have had a preexisting childhood eye trauma. Both the service entrance examination and report of medical history indicate normal eyes. Further, the November 1991 service treatment record that diagnosed the eye disorder, indicated that it began within six months prior to the November 1991 treatment. As clear and unmistakable evidence of a preexisting eye disorder has not been shown, the presumption of soundness is not rebutted. The Board resolves any doubt finds that the eye ptosis began during service. Further, the Board resolves doubt and finds that the current left eye ptosis is the same ptosis that began in service. In this regard, the January 2015 VA examiner noted that the ptosis had improved but not gone away. In light of the foregoing, the Board resolves all doubt in favor of the Veteran and finds that the evidence is at least in equipoise. Service connection is warranted for left eye ptosis. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 1. Entitlement to service connection for a right and/or left knee disorder. The Veteran asserts that he has a right knee disability secondary to his service-connected right ankle disability. Transcript page 7. He reported that his ankle disability results in a limp, which in turn caused or aggravated the right knee disability. He described knee pain with going up stairs, walking around, and stooping down, as well as a grinding noise in the knee. He reported using a knee brace and self-treating with pain killers. He also reported treatment with a private physician. Transcript pages 7-9. The Veteran also asserts that he has a left knee disability that is secondary to the right knee and ankle. He reported that his left knee had worsened because he put more pressure on the left side, trying to take pressure off of the right leg. The Board acknowledges that the Veteran has not been diagnosed with a specific left or right knee disorder; however, the Veteran has reported pain in the knees that may result in functional impairment. Recent case law held that where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. See Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). As the Veteran has reported pain in the knees resulting in functional impairment, service connection is in effect for the right ankle, and there is at least an indication that the Veteran’s limp from the right ankle has resulted in the painful functional impairment of the right and left knees, the Veteran should be afforded a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for a left and/or right foot disorder. As discussed above, the Veteran clarified that he thought he was seeking service connection for his flat feet all along, and that he did not know the scientific name for flat feet. The Board has expanded the Veteran’s service-connection claim to include consideration as to whether service connection may be established for any foot disabilities. To date, the AOJ has not had addressed the claim with respect to other foot disabilities other than plantar fasciitis, including diagnosed pes planus. Indeed, a September 2006 VA ankle examination report made a point to note that the Veteran also had bilateral pes planus. X-rays associated with the September 2006 VA examination also noted an impression of pes planus in each foot. Additionally, service treatment records diagnosed pes planus in service. See e.g., August 1998 service treatment record. Notably, the August 1984 enlistment examination noted normal feet. There are no treatment records dated prior to service identifying a diagnosis of pes planus. As there is evidence of current diagnoses of pes planus in each foot and an indication that it may have begun in service, the Veteran is entitled to a VA examination for the foot disability. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, a July 2014 private Disability Benefits Questionnaire for the right ankle also indicated that the Veteran complained that he believed his left foot was more painful due to pressure from the service-connected right ankle injury. Therefore, the examiner should also consider whether any foot disabilities may have been caused or aggravated by service-connected right ankle disability if it is determined that they are not directly related to service. For all of these reasons, the Board finds that the claims for left and right foot disorders must be remanded so medical opinions can be obtained addressing the etiology of his foot disabilities, to include pes planus. 3. Entitlement to service connection for a right ankle scar. During the hearing before the Board, the Veteran reported that his right ankle scar had worsened since the last VA examination. Transcript page 14. The Veteran described burning and sensitivity to touch in the area of the ankle scar. The Board observes that the most recent VA examination report reflects an examiner’s finding that the scar was not painful. See February 2017 VA examination report. To ensure that the record includes sufficient medical evidence to properly evaluate the disability under consideration, the Board finds that a more contemporaneous examination is needed. See 38 C.F.R. § 5103A; 38 C.F.R. § 3.159; Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide a veteran with a thorough and contemporaneous medical examination). 4. Entitlement to service connection for bilateral hearing loss. Following certification and transfer of the record to the Board, the Veteran filed a new claim for service connection for hearing loss. The AOJ proceeded to develop claim, including obtaining a VA examination in July 2018, despite the pending appeal. The AOJ did not send the Veteran a supplemental statement of the case as required by 38 C.F.R. § 19.31. Rather, the AOJ provided the Veteran with a rating decision declining to reopen the claim in July 2018. Further, during the Veteran’s hearing before the Board, the Veteran offered sworn testimony that one of his doctors told him that they believed the Veteran’s hearing difficulty is related to service. Transcript page 18. The Veteran’s testimony indicates that there may be outstanding treatment records pertinent to the hearing loss claim. As these records may show qualifying hearing loss present since the most recent VA audiological examination in July 2018, the Veteran should be permitted to supply the outstanding records, or authorize VA to obtain the same on his behalf. For all of these reasons, a remand is required. While on remand, any outstanding VA treatment records should also be obtained. The matters are REMANDED for the following action: 1. Offer the Veteran the opportunity to provide any outstanding private treatment records pertaining to the disabilities at issue in this appeal, to include his hearing loss, or authorize VA to obtain the same on his behalf. 2. Obtain any outstanding VA treatment records. 3. Schedule the Veteran for a VA knee examination to assess the nature and etiology of his claimed right and left knee disabilities. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. The claims file should be sent to and reviewed by the VA examiner. The examiner should take a history from the Veteran as to the progression of his symptoms. Following review of the entire electronic file, the examiner is asked to address the following: (a.) Identify all disabilities affecting the right and left knees. The examiner is advised that a disability exists for VA purposes if joint pain results in functional impairment. (b.) For each disability identified, is it at least as likely as not (a 50 percent probability or higher) that such had onset in, or is otherwise related to service? (c.) Notwithstanding the above, is it at least as likely as not (a 50 percent probability or higher) that any right or left knee disability was caused or aggravated by service-connected disability? Consider the February 2017 VA examination report that documented a limp due to the Veteran’s service-connected right ankle disability. Consider also the Veteran’s statements that he believes his altered gait results in greater pain in the left and right knees. (d.) Complete rationale must be offered for any opinion rendered. 4. Schedule the Veteran for a VA foot examination to assess the nature and etiology of his claimed foot disabilities, to include pes planus. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. The claims file should be sent to and reviewed by the VA examiner. The examiner should take a history from the Veteran as to the progression of his symptoms. Following review of the entire electronic file, the examiner is asked to address the following: (a.) Identify all disabilities affecting the right and left feet. Note pes planus and plantar fasciitis has been diagnosed in both feet. See September 2006 VA examination report (diagnosing pes planus) and private podiatrist’s note indicating plantar fasciitis. (b.) For each disability identified, is it at least as likely as not (a 50 percent probability or higher) that the disorder had onset in, or is otherwise related to service? Consider that the Veteran’s service entrance examination noted normal feet and that during service, in August 1998, the Veteran was diagnosed with pes planus. (c.) Notwithstanding the above, is it at least as likely as not (a 50 percent probability or higher) that the disorder was caused or aggravated by service-connected disability? Consider the July 2014 private disability benefits questionnaire that noted the Veteran’s report that he thought his left foot was more painful due to pressure from the right ankle disability. (d.) Complete rationale must be offered for any opinion rendered. 5. Schedule the Veteran for a VA examination to assess the severity of the Veteran’s right ankle scar. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. The examiner is asked to consider all of the evidence of record, particularly the Veteran’s sworn testimony regarding burning and sensitivity in the area of the scar. 6. Readjudicate the claims following consideration of all of the evidence of record. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Donna D. Ebaugh, 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.