Citation Nr: 21063426 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 19-00 621 DATE: October 14, 2021 ORDER The petition to reopen the previously denied claim for entitlement to service connection for a low back disability is granted. The petition to reopen the previously denied claim for entitlement to service connection for a bilateral ankle disability is granted. The petition to reopen the previously denied claim for entitlement to service connection for a bilateral foot disability is granted. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a bilateral ankle disability is remanded. Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to a compensable rating for hemorrhoids is remanded. Entitlement to a rating in excess of 10 percent for patello-femoral syndrome left knee is remanded. Entitlement to a rating in excess of 10 percent for patello-femoral syndrome right knee is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) prior to July 7, 2018, is remanded. FINDINGS OF FACT 1. The Veteran did not timely appeal a November 2007 rating decision that denied his original claims for entitlement to service connection for a back condition, a bilateral ankle condition, and a bilateral foot condition. 2. The Veteran did not timely appeal an April 2016 rating decision that denied his petitions to reopen the previously denied claims for entitlement to service connection for a back condition and a bilateral ankle condition. 3. New and material evidence has been received since the November 2007 rating decision as to the claim for entitlement to service connection for a bilateral foot condition. 4. New and material evidence has been received since the April 2016 rating decision as to the claims for entitlement to service connection for a low back condition and a bilateral ankle condition. CONCLUSIONS OF LAW 1. The November 2007 and April 2016 rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 19.20, 19.21, 19.52, 20.1103. 2. The criteria for reopening the previously denied claim for entitlement to service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1131, 5108; 38 C.F.R. §§ 3.156, 3.303. 3. The criteria for reopening the previously denied claim for entitlement to service connection for a bilateral ankle disability have been met. 38 U.S.C. §§ 1110, 1131, 5108; 38 C.F.R. §§ 3.156, 3.303. 4. The criteria for reopening the previously denied claim for entitlement to service connection for a bilateral foot disability have been met. 38 U.S.C. §§ 1110, 1131, 5108; 38 C.F.R. §§ 3.156, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1988 to May 1992 and from June 1998 to November 2004. In April 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. During the pendency of this appeal, the Veteran raised the issue of entitlement to a TDIU, to include as due to the service-connected hemorrhoid and bilateral knee disabilities at issue on appeal. A February 2019 rating decision granted entitlement to a TDIU from July 7, 2018. The issue of entitlement to a TDIU during the relevant rating period for increased rating issues on appeal prior to July 7, 2018, remains on appeal. See Harper v. Wilkie, 30 Vet. App. 356 (2018); see also Rice v. Shinseki, 22 Vet. App. 447 (2009). Reopening Issues 1. The petition to reopen the previously denied claim for entitlement to service connection for a low back disability 2. The petition to reopen the previously denied claim for entitlement to service connection for a bilateral ankle disability 3. The petition to reopen the previously denied claim for entitlement to service connection for a bilateral foot disability The Veteran seeks to reopen his previously denied claims for entitlement to service connection for a low back disability, a bilateral ankle disability, and a bilateral foot disability. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Under 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The question of whether new and material evidence has been received to reopen a previously denied claim must be addressed by the Board in the first instance because the issue goes to the Board's jurisdiction to reach and adjudicate the underlying claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). New evidence is existing evidence not previously considered by VA. 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 general, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The Veteran submitted his original claims for entitlement to service connection for a back condition, a bilateral ankle condition, and a bilateral foot condition in June 2007. In the November 2007 rating decision, the agency of original jurisdiction denied the Veteran's claims because the record did not show treatment or diagnosis of a chronic residual condition related to in-service plantar calluses, pes planus, and recurrent back pain or of the ankle fractures referenced in the Veteran's service treatment records. The letter informing the Veteran of the November 2007 rating decision was enclosed with a VA Form 4107 that explained his right to appeal the decision. The Veteran did not submit a timely notice of disagreement as to the November 2007 rating decision's denial of entitlement to service connection for a back condition, a bilateral ankle condition, and a bilateral foot condition. In addition, new and material evidence as to those issues was not received within the one-year appeal period following issuance of the November 2007 rating decision. As such, the Veteran did not initiate a timely appeal of the November 2007 rating decision's denial of entitlement to service connection for a back condition, a bilateral ankle condition, and a bilateral foot condition, and the decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 19.20, 19.21, 19.52, 20.1103. The Veteran submitted a petition to reopen the previously denied claims for entitlement to service connection for a back condition and a bilateral ankle condition in October 2015. In the April 2016 rating decision, the agency of original jurisdiction found that new and material evidence had been received as to the previously denied claims such that reopening was appropriate, but denied those claims on the merit because the evidence did not show that the claimed conditions were incurred in or aggravated by military service. The letter informing the Veteran of the April 2016 rating decision was enclosed with a VA Form 4107 that explained his right to appeal the decision. The Veteran did not submit a timely notice of disagreement as to the April 2016 rating decision's denial of entitlement to service connection for a back condition and a bilateral ankle condition. In addition, new and material evidence as to those issues was not received within the one-year appeal period following issuance of the April 2016 rating decision. As such, the Veteran did not initiate a timely appeal of the April 2016 rating decision's denial of entitlement to service connection for a back condition and for a bilateral ankle condition, and the decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 19.20, 19.21, 19.52, 20.1103. Evidence that has been associated with the record since issuance of the final November 2007 rating decision and that is relevant to the issue of entitlement to service connection for a bilateral foot disability includes an October 2018 VA examination report showing that the Veteran has bilateral foot pain that is productive of functional loss, and the Veteran's testimony at the April 2021 Board hearing that he believes his current foot pain either is due to in-service strenuous activities or is secondary to his service-connected knee disabilities. Evidence that has been associated with the record since issuance of the final April 2016 rating decision and that is relevant to the issues of entitlement to service connection for a low back disability and a bilateral ankle disability includes October 2018 VA examination reports showing a diagnosis of degenerative joint disease of the lumbar spine and that the Veteran has bilateral ankle pain that is productive of functional loss, and the Veteran's testimony at the April 2021 Board hearing that he believes his low back disability and bilateral ankle pain are due to in-service strenuous activities, are due to an in-service vehicle accident, or are secondary to his service-connected knee disabilities. The Board finds that this evidence is new and material as to the previously denied claims because it presents new information as to the nature of the Veteran's current disabilities and as to how those disabilities may be directly related to his active service or may be secondary to his service-connected disabilities. The October 2018 VA examinations and the Veteran's testimony at the Board hearing are sufficient to trigger VA's duty to assist the Veteran. Therefore, the previously denied claims for entitlement to service connection for a low back disability, a bilateral ankle disability, and a bilateral foot disability are reopened. 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. The October 2018 VA examiner opined that the Veteran's current low back disability was less likely than not caused by an in-service injury, event, or illness because, although the Veteran's November 2002 MEB separation physical examination noted recurrent back pain, "[t]here is no evidence that Veteran's back pain persisted after he left the service or was treated for it." Thus, the examiner provided a negative opinion based solely on the lack of contemporaneous medical evidence documenting continued complaints of low back pain from the Veteran's separation from active service through the claim period. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible). The examiner did not address the Veteran's contentions that his current low back disability is due to in-service strenuous activities or is due to an in-service vehicle accident, or is secondary to his service-connected knee disabilities. The examiner also did not provide adequate rationale for why the current low back disability is not directly related to the low back pain the Veteran was treated for during his active service. Therefore, the opinion is inadequate for decision-making purposes, and a remand is required to obtain another opinion. 2. Entitlement to service connection for a bilateral ankle disability is remanded. In the October 2018 VA examination report and a November 2018 addendum, the October 2018 VA examiner opined that the Veteran's current bilateral ankle disability was less likely than not caused by an in-service injury, event, or illness because, although the Veteran's November 2002 MEB separation physical examination noted bilateral ankle fractures in 1988 to 1989 and then in 1992, "[t]here is no evidence that Veteran's ankle problems persisted after he left the service or was treated for it." Thus, the examiner provided a negative opinion based solely on the lack of contemporaneous medical evidence documenting continued complaints of ankle problems from the Veteran's separation from active service through the claim period. See Buchanan, 451 F.3d at 1337. The examiner did not address the Veteran's contentions that his current bilateral ankle disability is due to in-service strenuous activities or is secondary to his service-connected knee disabilities, and did not provide adequate rationale for why the current bilateral ankle disability is not directly related to the ankle pain the Veteran was treated for during his active service. Therefore, the opinion is inadequate for decision-making purposes, and a remand is required to obtain another opinion. 3. Entitlement to service connection for a bilateral foot disability is remanded. The October 2018 VA examiner opined that the Veteran's bilateral foot disability was less likely than not caused by an in-service injury, event, or illness because, although the Veteran's November 2002 MEB separation physical examination noted pes planus, "[t]here is no evidence that Veteran's foot pain persisted after he left the service or was treated for it". The examiner clarified in the November 2018 addendum that the Veteran does not currently have a diagnosis of pes planus. Thus, the examiner provided a negative opinion based solely on the lack of contemporaneous medical evidence documenting continued complaints of foot pain from the Veteran's separation from active service through the claim period. See Buchanan, 451 F.3d at 1337. The examiner did not address the Veteran's contentions that his current bilateral foot disability is due to in-service strenuous activities or is secondary to his service-connected knee disabilities, and did not provide adequate rationale for why the current bilateral foot disability is not directly related to the foot pain the Veteran had during his active service. Therefore, the opinion is inadequate for decision-making purposes, and a remand is required to obtain another opinion. 4. Entitlement to a compensable rating for hemorrhoids is remanded. The Veteran was most recently afforded a VA examination as to his service-connected hemorrhoids in November 2018. At the April 2021 Board hearing, the Veteran testified that the hemorrhoids have increased in severity since that examination. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his service-connected hemorrhoids. 5. Entitlement to a rating in excess of 10 percent for patello-femoral syndrome left knee is remanded. 6. Entitlement to a rating in excess of 10 percent for patello-femoral syndrome right knee is remanded. The Veteran was most recently afforded a VA examination as to his service-connected left and right knee disabilities in November 2018. At the April 2021 Board hearing, the Veteran testified that those disabilities have increased in severity since that examination. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his service-connected left and right knee disabilities. 7. Entitlement to a TDIU prior to July 7, 2018, is remanded. Finally, because a decision on the other remanded issues could significantly impact a decision on the issue of entitlement to a TDIU prior to July 7, 2018, the issues are inextricably intertwined. A remand of the claim for entitlement to a TDIU prior to July 7, 2018, is required. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's current low back, bilateral ankle, and bilateral foot disabilities at least as likely as not (50 percent probability or greater) had their onset during his active service or are otherwise related to an in-service event, injury, or disease, to include in-service strenuous activities, the in-service vehicle accident the Veteran described at the April 2021 Board hearing, and the low back pain and ankle pain the Veteran was treated for during his active service. If not, is it at least as likely as not that the Veteran's current low back, bilateral ankle, and bilateral foot disabilities are proximately due to or aggravated beyond the natural progression by a service-connected disability, to include the service-connected left and right knee disabilities? The examiner must note that the bilateral plantar calcaneal bone spurs, bilateral ankle pain productive of functional loss, and bilateral foot pain productive of functional loss diagnosed or shown at the October 2018 VA examinations constitute service connectable disabilities. The examiner therefore must provide the requested opinions in relation to those disabilities. The opinions must reflect consideration of the Veteran's lay statements, to include those he made at the April 2021 Board hearing indicating that during his active service his duties included going through crawl spaces, climbing into and out of tanks, jumping onto and off of tanks, and jumping off of stationary airplanes. In considering those assertions and the vehicle accident the Veteran described at the April 2021 Board hearing, the clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible, but may be considered in conjunction with other factors in determining the credibility of lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In determining whether the Veteran's statements are credible, other factors for consideration include internal consistency, facial plausibility, and consistency with other information submitted by or on behalf of the Veteran. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected hemorrhoids. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected patello-femoral syndrome of the left and right knees. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and on repeated use over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups and on repeated use over time based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement 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). 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU prior to July 7, 2018. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. J. Anthony, 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.