Citation Nr: 21062283 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 16-41 766 DATE: October 6, 2021 ORDER New and material evidence having not been received, the claim of entitlement to service connection for memory loss is denied. Entitlement to service connection for a low back disability, to include degenerative changes (also known as degenerative arthritis) is granted. Entitlement to service connection for bilateral ingrown toenails due to onychomycosis is granted. REMANDED Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. In an April 2002 rating decision, the Regional Office (RO) denied the Veteran's claim of entitlement to service connection for memory loss. The RO notified him accordingly on May 2, 2002. Then in December 2002 the Veteran's claim for service connection for memory loss was denied in a Statement of the Case (SOC). The Veteran was notified in January 2003. The Veteran did not file a Form 9 or submit new and material evidence within one year. 2. The evidence received since the April 2002 rating decision is not material to the claim for memory loss because it is cumulative of evidence already considered by the VA and does not relate to an unestablished fact necessary to substantiate the previously denied claim and does not raise a reasonable possibility of substantiating the previously denied claim. 3. Resolving all reasonable doubt in favor of the Veteran, his back disability was incurred during active military service and is etiologically related to active duty service. 4. Resolving all reasonable doubt in favor of the Veteran, his bilateral ingrown toenail condition incurred during active military service and is etiologically related to active duty service. CONCLUSIONS OF LAW 1. The April 2002 rating decision is final. 38 U.S.C. § 5108, 7104, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1100, 20.1103. 2. The criteria for new and material evidence having not been received, the claim for entitlement to service connection for a memory loss is not reopened. 38 U.S.C. § 5108, 7104, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1100, 20.1103. 3. The criteria for establishing entitlement to service connection for low back disability is met. 38 U.S.C. §§1110, 1113, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for establishing entitlement to service connection for bilateral ingrown toenails due to onychomycosis is met. 38 U.S.C. §§1110, 1113, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active service with the United States Army from February 18, 1971 to February 1974, and December 1977 to January 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a hearing on March 6, 2020. In December 2019, the Veteran requested that the hearing be rescheduled to after March 31, 2020, as he was going to be out of the country. See VA 21-4138, Statement in Support of Claim received December 2019. The Veteran's hearing was rescheduled for June 2, 2020. However, the Veteran's June 2, 2020 hearing was rescheduled due to Covid-19 closures. The Veteran was then scheduled for a virtual hearing on June 16, 2021. The Veteran failed to attend his hearing on June 16, 2021. There was no request to reschedule or postpone the June 16, 2021 hearing. See BVA Letter dated April 2021. Then in August 2021 the Board sent the Veteran another letter to determine whether the Veteran wanted a hearing. See BVA Letter dated August 2021. No response was received to the August 2021 letter. The Veteran has failed to attend a hearing and has failed to provide any good notice for not attending. At this time, since the Veteran has failed to respond to communications about scheduling a new hearing, the Board finds that it is reasonable to continue to adjudicate the claims. The Board noted that the Veteran is currently residing in another country. He has requested that the VA continue to use his mailing address in the United States, although he is currently residing in Panama. See Email Correspondence received June 2021. The Veteran did not return a phone call from his representative or the hearing coordinator about the June 2021 virtual hearing. The Veteran communicated in September 2021, that he resides in Panama and is unable to provide a mailing address there or state when he would be able to return to the United States; however, this does not affect his ability to have a virtual hearing, which he was offered and failed to attend. See Correspondence dated September 2021. As the Veteran stated he wanted to continue to receive his mail at his United States mailing address, it is presumed that he is receiving the mail that is sent there and there is no evidence to the contrary. New and Material Evidence Generally, if a claim of entitlement to service connection has been previously denied, by the Board or by a RO, that decision is final, unless the Veteran appealed in a timely manner. 38 U.S.C. § 7104, 7105; 38 C.F.R. § 3.104, 20.1100, 20.1103. However, a previous claim of entitlement to service connection can be reopened if the Veteran files again and if new and material evidence is presented. 38 U.S.C. § 5108. The VA is required to review all the evidence submitted by a Veteran since the last final denial of the claim in order to determine whether a claim must be reopened and readjudicated on the merits. Glynn v. Brown, 6 Vet. App. 523 (1994). "New" evidence means not previously part of the actual records before the agency adjudicators. "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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Smith v. West, 12 Vet. App. 312 (1999). 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 (2010). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. The Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence having not been received, the claim of entitlement to service connection for memory loss is denied. The Veteran's initial claim of entitlement to service connection for memory loss was denied in April 2002 due to lack of a present diagnosis. Therefore, in order for evidence to be both new and material, it must address this unestablished fact. On review of the record as a whole, the Board finds that there continues to be no evidence showing a diagnosis of a condition associated with memory loss, not already service connected. The Board notes that the Veteran is already service connected for post-traumatic stress disorder (PTSD). The only mention in the record of memory symptoms appears to be considered a symptom of the Veteran's mental health condition, PTSD, and as such, these symptoms are not considered a separate impairment. For example, in August 2002, the Veteran reported memory problems for about ten years. He had cognitive testing. The VA provider stated that recent memory resulted in low average performance and further testing was not felt warranted. See CAPRI received April 2021. Then in August 2019, the Veteran had a test to assess cognitive impairment. The Veteran was given the Blessed-Orientation Memory Concentration Test (BOMC). He received a score of two. The scores for the BOMC test range from zero to 28. A score greater than ten is considered significant for dementing illness, with the Veteran's score being below the significant range. Id. While the Veteran has reported memory difficulty in the context of mental impairment, he has not been diagnosed with any condition related to memory impairment. While the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, the Board finds that this threshold has not been met. The Veteran has not submitted new and material evidence, as the evidence still does not support that the Veteran has a current disability to his memory. Therefore, the claim for reopening must be denied. Service Connection Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). A grant for service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the in-service event, injury, or disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including the evidence pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be granted for specified chronic diseases when shown in service with subsequent manifestations at a later date, however remote, unless clearly attributable to intercurrent causes. 38 C.F.R. §§ 3.303(b), 3.307. Some chronic diseases are subject to presumptive service connection, although, not otherwise established as incurred or aggravated by service if manifest to a compensable degree, within an applicable time limit, provided that the rebuttable presumptive provisions of § 3.307 are also satisfied. See also 38 C.F.R. §§ 3.303, 3.309. Alternatively, to show a chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.309. When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Finally, 38 U.S.C. § 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, '[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.' Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 1. Entitlement to service connection for a low back disability is granted. The Veteran contends that he has had low back pain since active duty service. First, the Veteran's records support that he has a current disability. In August 2002, the Veteran had a VA examination that reported he had multiple levels of degenerative change including anterior endplate spurs, decreases in intervertebral disc space, and facet arthropathy. See C&P Exam received August 2002. Thus, the first element of service connection has been met. Next, the evidence supports a finding of an in-service event, injury, or disease. The Veteran had a long period of honorable and active service in the Army from February 18, 1971 to February 1974, and December 1977 to January 1992. The Veteran's service treatment records document complaints of low back pain intermittently throughout service. At the Veteran's retirement examination, the examiner noted the Veteran had mechanical low back pain. See STR-Medical received July 2001. The Veteran stated in his Report of Medical History that he had constant low back pain, which he took over the counter pain medications for with no relief. Id. The Board accepts these records along with the statements of the Veteran as competent evidence establishing an in-service event, injury, or disease. Lastly, the Board finds that the Veteran competently and credibly reported chronic, continuous low back pain since service. The nature, onset, and course of his low back pain are capable of being identified by the Veteran as a lay witness. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran reported to his providers and examiners that he has had low back pain since service. For example, in July 2008, the Veteran told his primary care provider that he had back pain since retirement from the military with lumbar pain. He had tried physical therapy with no improvements. See Medical Treatment Record-Government Facility received June 2013. Additionally, in July 2013, a VA examiner completed a Back Conditions Disability Benefits Questionnaire (DBQ), that noted a diagnosis of degenerative disc disease of the lumbar spine with radiculopathy dating back to the 1990s for the Veteran. The medical history stated that the Veteran had chronic low back pain since 1991 with radicular pain. See C&P Exam received July 2013. The Board recognizes the August 2013 VA examiner's opinion finding that it was less likely than not that the Veteran's low back disability was incurred in or caused by the Veteran service in the military. The Board affords this conclusory negative nexus opinion minimal probative value. The rationale for the August 2013 VA opinion admitted that the Veteran had in service injury to his back and that he reported back pain at his retirement. The opinion also admitted that the Veteran had imaging in 2002 showing multilevel degenerative disc and facet changes with mild central stenosis; however, the opinion concluded that there was no nexus of care from 1991 to 2002 and as a result denied the Veteran's claim for service connection. The Board finds that the August 2013 VA opinion is inadequate for failing to consider the Veteran's competent and credible lay statements describing chronic, continuous symptoms since service or relatively soon after active service, as summarized above. The August 2013 DBQ as to the back condition was also inconsistent with the opinion, as it noted a diagnosis of degenerative disc disease of the lumbar spine with radiculopathy dating back to the 1990s for the Veteran. However, the Board does not need to reach the weight assignable to any medical opinion because service connection may be granted on a presumptive basis under 38 C.F.R. § 3.303(b) for the "chronic" disease of arthritis, described as degenerative disease in the low back, based on a finding of a continuity of low back pain symptoms since service. 2. Entitlement to service connection for bilateral ingrown toenails due to onychomycosis is granted. The Veteran maintains that his bilateral ingrown toenails condition manifested during active service and continued afterwards. Resolving reasonable doubt in favor of the Veteran the Board finds that service connection is warranted. With respect to a current disability, the Veteran's VA examination in July 2013 stated that the Veteran was diagnosed with reoccurring ingrown-bilateral toenails due to onychomycosis. See C&P Exam received July 2013. Moreover, in August 2002, a podiatrist performed a VA examination of the Veteran and he reported that the Veteran had chronic painful ingrown great toenails bilaterally with post procedural mycotic dystrophy. See C&P Exam received August 2002. Accordingly, the first element of service connection has been satisfied. With regard to in-service incurrence, the Veteran reported that he experienced problems with his ingrown toenails bilaterally on his feet since service. The Board finds that the Veteran is competent to report the onset and continuity of his symptoms. 38 C.F.R. § 3.303(a); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). For example, in August 2002, the Veteran reported ingrown toenails with dystrophy for more than the past 15 to 16 years. See C&P Exam received August 2002. Moreover, in July 2013, the VA doctor who performed a Skin Diseases DBQ noted that the Veteran was diagnosed with reoccurring ingrown bilateral toenails due to onychomycosis since 1973. See C&P Exam received July 2013. From this evidence, the Board finds that the Veteran's competent and credible lay statements, considered in combination with the medical evidence documenting treatment for ingrown toenails in service, sufficiently establishes the in-service incurrence element of this claim. The remaining question is whether there is a nexus between the Veteran's in-service incurrence and his ingrown toenails due to onychomycosis. Although two VA examiners, a doctor, and a podiatrist, have evaluated the Veteran's ingrown toenail disability, only one VA opinion is noted in the records. In August 2013 a Physician's assistant (PA) provided a negative nexus opinion, reasoning that there was a ten-year gap in treatment for the condition and a lack of objective evidence. However, the August 2013 VA examiner did not address the lay statements made by the Veteran or the diagnosis by the VA doctor in the July 2013 Skin Conditions DBQ stating that the Veteran's chronic condition began in 1973. Accordingly, the opinion is based on an inaccurate factual premise and it is inadequate. See Reonal v. Brown, 5 Vet. App. 548 (1993). Contrary to this opinion, the Veteran has consistently reported that he has experienced ingrown toenails since service. The Board finds that the Veteran is competent to report the onset and continuity of his symptoms. 38 C.F.R. § 3.303(a); see also Jandreau, 492 F.3d at 1377. Furthermore, the Board finds no reason to doubt the credibility of these statements, as ingrown toenails is a condition that could be easily recognized by a lay person. Given that there is no adequate negative opinion, the competent and credible statements made by the Veteran is the most probative evidence of record. See 38 C.F.R. § 3.303(a) (service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence); see also Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). Accordingly, the Board finds that the most probative evidence establishes a nexus between service and the Veteran's current ingrown toenails due to onychomycosis. In sum, the weight of the evidence supports finding that the Veteran's ingrown toenails due to onychomycosis was incurred during his active service and service connection is granted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; 3.303(a), (d). REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability is remanded. Although further delay is regrettable, a remand is necessary for an adequate VA opinion. When an opinion does not express the right degree of certainty, does not provide a rationale, is conclusory, does not consider all of the relevant evidence of record including lay statements, or does not consider all raised theories of entitlement then the examination is inadequate. Steff v. Nicholson, 21 Vet. App. 120 (2007); Bloom v. West, 12 Vet. App. 185, 187 (1999); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Combee v. Brown, 34 F.3rd1039, 1043-44 (Fed. Cir. 1994). The Veteran specifically reported that he hurt his right knee in a motor vehicle accident in 1982 when on active duty and that his right knee has been hurting ever since. See NOD received September 2014. The Veteran's service treatment record supports his statements that he complained about pain in his right knee in service. For example, in November 1986, the Veteran was brought to the emergency room after a motor vehicle accident. He reported bilateral knee pain. See STR-Medical received July 2001. Then again in June 1991, the Veteran reported knee pain on the inside of his right knee cap. The Veteran had imaging of his right knee in October 1991. See STR-medical received October 2014. The imaging of the Veteran's right knee noted that the Veteran had a small spur of the patella with some calcifications. Id. At retirement, the Report of Medical Examination listed that the Veteran had left knee pain from the patella or patellofemoral as well as low back pain. In the Report of Medical History, at retirement, the Veteran reported that he had a car accident in 1982 affecting the right leg above the knee with right leg pain. See STR-Medical received July 2001. Id. In July 2013, the Veteran had a VA examination performed by a VA doctor. The doctor reported that the Veteran was diagnosed with a knee strain in service. Another VA provider, a PA, provided an opinion as to the Veteran's right knee in August 2013. The opinion stated that the record was silent for treatment for right knee pain since separation of service to the present. However, in August 2002, the Veteran had a general medical examination. He reported pain in his knees. See CAPRI received in September 2013. Therefore, the Board finds that the August 2013 VA medical opinion failed to provide a coherent or meaningful rationale and another opinion must be obtained. Upon remand an addendum opinion is to be provided which addresses the claim of service connection as to the Veteran's right knee. The matters are REMANDED for the following action: 1. Update any VA treatment records and any relevant private treatment records. 2. Then request a VA medical opinion by a medical expert with the appropriate training and expertise to determine the nature and etiology of the Veteran's current right knee disabilities. Following review of the claims file, the examiner should answer the following question: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's right knee disability began in or is otherwise caused by his service? Please note and discuss that service records show the Veteran had injuries to the right knee, including a car accident, and that the Veteran complained of right leg pain at retirement in the Report of Medical History, referring to the same car accident. Please also note and discuss that the Veteran reported ongoing right knee pain since service. 3. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 4. After completing all indicated development, the Veteran's claim should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a SSOC and afforded the requisite opportunity to respond before the case is returned to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, C. Parnell 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.