Citation Nr: 21001283 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-53 843 DATE: January 7, 2021 ORDER New and material evidence having been received, the claim for service connection for chronic sinusitis, including headaches, is reopened. An effective date prior to April 18, 2011, for the grant of service connection for peptic ulcer disease (PUD) is denied. An effective date prior to April 18, 2011, for the grant of service connection for residual scar, status post appendectomy is denied. An effective date prior to April 18, 2011, for the grant of service connection for frostbite residuals, right foot is denied. An effective date prior to May 13, 2010, for the grant of service connection for frostbite residuals, left foot is denied. An effective date prior to April 18, 2011, for the grant of service connection for right foot peripheral neuropathy (PN) is denied. An effective date of May 13, 2010, for the grant of service connection for left foot PN is granted. REMANDED Service connection for chronic sinusitis, including headaches is remanded. Service connection for a right foot torn tendon is remanded. A higher compensable rating for residuals of foreign matter in eyes, keratitis, conjunctivitis is remanded. A rating higher than 40 percent for PUD is remanded. A rating higher than 20 percent as of April 18, 2011, and higher than 30 percent as of February 3, 2016, for frostbite residuals, right foot is remanded. A rating higher than 20 percent as of May 13, 2010, and higher than 30 percent as of February 3, 2016, for frostbite residuals, left foot is remanded. A higher compensable rating for right foot PN is remanded. A higher compensable rating for left foot PN is remanded. A higher compensable rating for residual scar, status post appendectomy is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. By a final November 2002 rating decision, the Veteran’s claim for service connection for sinusitis with headaches was denied. Evidence received since then raises a reasonable possibility of substantiating the claim for service connection. 2. VA received the Veteran’s claim for entitlement to service connection for PUD, appendectomy scar, frostbite residuals right foot, and right foot PN on April 18, 2011. There is no evidence of record, either formal or informal, of a claim for these issues before that date. 3. VA received the Veteran’s claim for entitlement to service connection for the left foot PN on May 13, 2010. There is no evidence of record, either formal or informal, of a claim for the left foot prior to that date. 4. VA received a claim for service connection for the feet on April 18, 2011. The evidence indicates that an informal claim was filed for the left foot on March 13, 2010. CONCLUSIONS OF LAW 1. The criteria to reopen the claim for service connection for chronic sinusitis with headaches are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for an effective date prior to April 18, 2011, for the grant of service connection for PUD are not met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 3. The criteria for an effective date prior to April 18, 2011, for the grant of service connection for residual scar, status post appendectomy are not met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 4. The criteria for an effective date prior to April 18, 2011, for the grant of service connection for frostbite residuals, right foot are not met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 5. The criteria for an effective date prior to May 13, 2010, for the grant of service connection for frostbite residuals, left foot are not met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 6. The criteria for an effective date prior to April 18, 2011, for the grant of service connection for right foot PN are not met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 7. The criteria for an effective date of May 13, 2010, for the grant of service connection for left foot PN are met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1979 to August 1983, with additional reserve service through April 2004. New and Material Evidence Chronic sinusitis, including headaches Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish service connection for a current disability, a Veteran must show the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Generally, VA rating decisions that are not timely appealed are final. However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. §§ 5108, 7105. New evidence means 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. 38 C.F.R. § 3.156(a). New and material evidence is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). A November 2002 rating decision denied service connection for chronic sinusitis to include sinus-related headaches, because a May 1999 VA examiner opined that the current sinusitis was unlikely due to the alleged in-service event. The relevant evidence of record at that time included the Veteran’s statements, service medical records, and the May 1999 VA examination. The Veteran was notified of the decision and his appellate rights by letter dated November 27, 2002. The Veteran did not submit a timely notice of disagreement or submit material evidence within one year following that denial. Therefore, the November 2002 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.302. Briefly reviewing the evidence submitted since the November 2002 decision, an August 2005 VA examiner provided a positive nexus opinion for the Veteran’s headaches. That evidence which was not of record at the time of the November 2002 rating decision relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim and is thus new and material. 38 C.F.R. § 3.156(a). Therefore, the claim for service connection for chronic sinusitis with headaches is reopened. Earlier Effective Date Generally, the effective date for an award of disability compensation based on an original claim for direct service connection is the day following separation from active service or the date entitlement arose if a claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). A specific claim in the form prescribed by the Secretary of VA must be filed for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a)(1); 38 C.F.R. § 3.151(a). For claims received on or after March 24, 2015, VA amended its regulations governing how to file a claim. The effect of the amendment was to standardize the process of filing claims, and the forms accepted, to increase the efficiency, accuracy, and timeliness of claims processing, and to eliminate the concept of informal claims. 38 C.F.R. § 3.155; 79 Fed. Reg. 57660-01. However, prior to the effective date of the amendment, an informal claim was any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA. An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. On the other hand, if the formal claim is received after one year of its receipt, then the effective date will be the date of VA’s receipt of the formal application form. Jernigan v. Shinseki, 25 Vet. App. 220 (2012); 38 U.S.C. § 5103(b); 38 C.F.R. § 3.155. However, the effective date of a claim will be the date of the informal claim if VA did not send a claimant a formal application form after receiving an informal claim, as required by 38 C.F.R. § 3.155, because the one-year time limit to return the formal claim did not begin. Quarles v. Derwinski, 3 Vet. App. 129 (1992). PUD Residual scar, status post appendectomy Frostbite residuals, right foot Frostbite residuals, left foot Right foot PN Left foot PN The Veteran seeks an effective date earlier than April 18, 2011, for the grant of service connection for PUD, appendectomy scar, frostbite residuals of the right foot, and PN of the bilateral feet. Specifically, the Veteran has asserted that an earlier effective date of May 13, 2010, is warranted for the claims, as that is the date that he allegedly filed a claim for all issues. A review of the evidence indicates that on May 13, 2010, the Veteran called VA requesting to reopen and/or file a new claim for his left foot condition. The request was documented in writing in a Report of General Information and added to the Veteran’s file. Subsequently, on April 18, 2011, VA received written correspondence from the Veteran requesting that listed disabilities, including frostbite, peptic ulcers, and appendectomy, be service connected. In response to these two statements, the RO granted service connection for frostbite of the left foot effective May 13, 2010, and service connection for frostbite of the right foot, appendectomy scar, PUD and bilateral foot PN, effective April 18, 2011. While the Board acknowledges that the Veteran believes an earlier effective date of May 13, 2010, should be assigned for all service connected disabilities granted in the November 2011 rating decision, the May 2010 statement submitted to VA by the Veteran only stated he wished to open a claim for the left foot. Based on this statement, the RO granted service connection for left foot frostbite residuals effective May 13, 2010. All other claims were assigned an effective date of April 18, 2011, the date on which VA received the Veteran’s subsequent informal claim listing the other disabilities for which service connection was granted. There is no evidence of a claim, either informal or formal, prior to April 18, 2011, for the issues of service connection for PUD, appendectomy scar, or conditions of the right feet. Service connection for left foot frostbite was already assigned an effective date of May 13, 2010, as requested by the Veteran. Therefore, the claims for earlier effective dates for the issues of service connection for left foot frostbite, right foot frostbite, appendectomy scar, PUD, and right foot PN are denied. However, the Board finds that an earlier effective date of May 13, 2010, is warranted for the grant of service connection for left foot PN. In the May 13, 2010, informal claim, the Veteran stated he wished to open a claim for his “left foot condition,” but did not specify any specific left foot condition. Because VA examinations found both frostbite residuals and left foot PN, the Board finds that the earlier effective date of May 13, 2010, is warranted for left foot PN as well. Accordingly, the Board finds that an earlier effective date for the grant of service connection for frostbite residuals of the right and left foot, appendectomy scar, PUD and right foot PN is not warranted, and the claims are denied. However, an earlier effective date of May 13, 2010, is warranted for the grant of service connection for left foot PN, and that claim is granted. REASONS FOR REMAND Right foot disability The Board finds that remand is necessary to obtain a clarifying opinion regarding any right foot conditions, other than frostbite and PN. Specifically, a February 2016 VA examiner diagnosed hallux valgus and plantar fibroma status post fascial injury. The examiner indicate that hallux valgus was a new and separate condition, however stated that “for the claimant’s condition of torn tendon, right foot, the diagnosis is already noted in the diagnosis section,” which listed plantar fibroma of the right foot. In an opinion, the examiner found the right foot torn tendon was not related to service as it occurred in 2010, many years after service. However, the examiner then noted that medical records from 2000 indicated an injury to the fascia of the right foot resulting in plantar fibroma. No opinion was provided regarding whether the plantar fascia injury was related to an in-service injury, including possible active duty for training in 2000. Therefore, remand is necessary to obtain a clarifying opinion. Chronic sinusitis with headaches In light of the claim for service connection for chronic sinusitis with headaches being reopened, the Board finds a remand is necessary to obtain a new VA examination. Residuals of foreign matter in eyes, keratitis, conjunctivitis PUD Frostbite residuals, bilateral feet Bilateral feet PN Residual scar, status post appendectomy The Board finds that remand is necessary to obtain updated VA examinations for the above listed disabilities, as the last VA examination was performed in 2016. TDIU The Board finds that the issue of TDIU is inextricably intertwined with the claims for increased rating. Therefore, the claim for TDIU must also be remanded. The matters are REMANDED for the following action: 1. Associate any pertinent VA or private medical records that are not already of record with the claims file. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any right foot disability other than frostbite residuals or peripheral neuropathy, to include plantar fibroma status post fascial injury. The examiner must review the claims file, including previous VA examinations, and should note that review in the report. A complete history of onset and symptoms should be elicited from the Veteran. Any tests and studies deemed necessary should be conducted and all findings should be reported in detail. The examiner should opine as to whether it is at least as likely not (50 percent or greater probability) that any current right foot disability identified had its onset in service (or during Reserve training) or is otherwise related to service. The examiner should specifically address February and May 2000 Reserve medical records indicating a right foot fascia injury and should state whether the Veteran has any current residuals due to that injury. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any sinusitis or headache disability. The examiner must review the claims file, including previous VA examinations, and should note that review in the report. A complete history of onset and symptoms should be elicited from the Veteran. Any tests and studies deemed necessary should be conducted and all findings should be reported in detail. The examiner should opine as to whether it is at least as likely not (50 percent or greater probability) that any chronic sinusitis or headache disability had its onset in service or is otherwise related to service. The examiner should specifically address the impact of an in-service eye injury during which the Veteran was exposed to chemical debris. 4. Schedule the Veteran for VA examinations to determine the current severity of his service-connected eye disability, bilateral feet frostbite residuals, bilateral feet peripheral neuropathy and appendectomy scar. All necessary tests should be performed, and the results reported. All pertinent symptomatology and findings must be reported in detail. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Ahmad, 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.