Citation Nr: 21063626 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-46 117 DATE: October 14, 2021 ORDER The appeal to reopen service connection for a right knee disability is granted. The appeal to reopen service connection for a left knee disability is granted. The appeal to reopen service connection for a right foot disability is granted. The appeal to reopen service connection for a left foot disability is granted. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a left foot disability, to include heel pain, is denied. Entitlement to service connection for a right foot disability, to include heel pain, is denied. Entitlement to service connection for a right arm disability, to include carpal tunnel syndrome and right wrist ganglion cyst, is denied. Entitlement to service connection for a left arm disability, to include carpal tunnel syndrome, is denied. Entitlement to service connection for an acquired psychiatric disorder claimed as anxiety and depression is denied. REMANDED Entitlement to service connection for low back disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is remanded. Entitlement to nonservice-connected pension is remanded. FINDINGS OF FACT 1. New and material evidence has been received to reopen service connection for right and left knee disabilities and right and left foot disabilities. 2. The preponderance of the evidence is against finding that right knee and left knee disabilities began during active service, or are otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that right and left foot disabilities, to include heel pain, began during active service, or are otherwise related to an in-service injury or disease. 4. The preponderance of the evidence is against finding that bilateral carpal tunnel syndrome and right wrist ganglion cyst began during active service, or is otherwise related to an in-service injury or disease. 5. The preponderance of the evidence is against finding that the Veteran has a currently diagnosed acquired psychiatric disorder, to include anxiety and depression, that began during active service, or is otherwise related to service. CONCLUSIONS OF LAW 1. The evidence received is new and material to reopen service connection for a right knee disability. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156 (a), 3.303, 20.1105. 2. The evidence received is new and material to reopen service connection for a left knee disability. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156 (a), 3.303, 20.1105. 3. The evidence received is new and material to reopen service connection for a right foot disability. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156 (a), 3.303, 20.1105. 4. The evidence received is new and material to reopen service connection for a left foot disability. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156 (a), 3.303, 20.1105. 5. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 6. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 7. The criteria for service connection for a right foot disability, to include heel pain, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 8. The criteria for service connection for a left foot disability, to include heel pain, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 9. The criteria for service connection for a left arm disability, to include carpal tunnel syndrome, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 10. The criteria for service connection for a right arm disability, to include carpal tunnel syndrome and right wrist ganglion cyst, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 11. The criteria for service connection for an acquired psychiatric disorder claimed as anxiety and depression have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2000 to August 2004. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 1. The appeal to reopen service connection for right and left knee disabilities and right and left foot disabilities. The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The Regional Office (RO) denied service connection for bilateral knee disabilities and bilateral foot disabilities in a November 2011 decision, finding no evidence of disease, injury, or an event in service and no current disability. The Veteran did not appeal this decision and no evidence was received within one year of December 2011 notice of the denial. Therefore, the decision was final. Evidence received since the November 2011 final denial includes VA and private treatment records which show current bilateral knee pain and multiple diagnoses related to the bilateral feet. Accordingly, the Board finds that new and material evidence has been received to reopen service connection for right and left knee disabilities and right and left foot disabilities. See Shade, 24 Vet. App. at 117. In Bernard v. Brown, 4 Vet. App. 384, 392 (1993), the United States Court of Appeals for Veterans Claims held that claims to reopen previously and finally denied claims, implicated both the question of whether there is new and material evidence to reopen the claim and the question of whether, upon such reopening, the claimant is entitled to the requested benefits. Therefore, the "matter" over which the Board has jurisdiction under 38 U.S.C. § 7104 (a) is the claim of entitlement to VA benefits. While the Agency of Original Jurisdiction (AOJ) did not reopen service connection for the Veteran's knee and foot disabilities, a review of the August 2017 statement of the case shows that the AOJ did discuss the claim on the merits based on new evidence submitted, and because the Veteran has been offered an opportunity to respond to the appeal regarding service connection on the merits. Therefore, the Board finds no prejudice to the Veteran based on de novo review of the claims. 2. Entitlement to service connection for a right and left knee disabilities The Veteran contends in a June 2014 statement that his claimed disabilities are due to his duties in service which required that he be on his feet standing and climbing in and out of work areas for more than 12 hours a day. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Service treatment records do not reflect any injuries or complaints related to the knees in service or on a separation examination. Post-service VA treatment records show that in December 2004, the Veteran complained of on-and-off knee pain for the past two months. He noted that he worked as a stocker at Walmart, had pain in the knees and elbows, was on his feet for his whole shift and had to get down on his knees. The Veteran continued to have complaints of knee pain. January 2005 x-rays showed no gross abnormalities. The Board finds that, while the Veteran has current knee pain with no associated diagnosis shown by the record, the preponderance of the evidence weighs against finding that the Veteran's right and left knee pain began during service or is otherwise related to an in-service injury, event, or disease. While the Veteran has current bilateral knee pain, x-rays showed no abnormalities in the knees in January 2005 shortly after service separation. The Veteran did not have complaints related to the knees in service, and the evidence does not establish a nexus between the Veteran's current knee pain and service. The Veteran is competent to report current bilateral knee pain symptoms and he has submitted lay statements from O.T. and F.N. identifying current pain and limitations due to pain. The medical and lay evidence of record, however, does not tend to establish a nexus between the Veteran's current knee pain and service. As to the Veteran's own assertion that his current knee pain was due to standing on his feet and climbing in and out of work areas in service, he is not competent to provide a diagnosis in this case or determine that this was the cause of his post-service knee pain symptoms, particularly where treatment records show that he had knee pain in conjunction with his occupation post-service. The issue is medically complex, as it requires medical expertise and interpretation of diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). For these reasons, the Board finds that the preponderance of the evidence is against finding that right and left knee disabilities began during active service, or are otherwise related to an in-service injury or disease. 3. Entitlement to service connection for right and left foot disabilities, to include heel pain The Veteran contends that his disabilities are due to duties in service which required that he be on his feet standing and climbing in and out of work areas for more than 12 hours a day. Service treatment records do not reflect any injuries or complaints related to the feet in service or at separation. Post-service private treatment records from DeKalb Physician's Clinic show that the Veteran was diagnosed with plantar fasciitis in relation to his chronic foot pain in August 2013. August 2013 treatment records from Collom & Carney Clinic show that the Veteran reported foot pain symptoms beginning 6 years ago, which would have been in approximately 2007, a few years after service separation. X-rays showed mild to moderate hallux valgus deformity with bunion formation and hammertoe deformities. The Veteran was diagnosed with hallux valgus, Tailor's bunion, and metatarsalgia. The Board finds that, while the Veteran has current diagnoses of plantar fasciitis, hallux valgus, Tailor's bunion, and metatarsalgia in the right and left feet, the preponderance of the evidence weighs against finding that his foot disabilities began during service or are otherwise related to an in-service injury, event, or disease. The Veteran is competent to report current pain symptoms and he has submitted June 2014 lay statements from O.T. and F.N. identifying foot pain and limitations due to pain. The evidence of record, however, does not establish a nexus between the Veteran's current plantar fasciitis, hallux valgus, Tailor's bunion, and metatarsalgia and service. As to the Veteran's own assertion that his disabilities are due service, he is not competent to determine that this was the cause of his post-service bilateral foot pain symptoms as the issue is medically complex. See Jandreau 1377. For these reasons, the Board finds that the preponderance of the evidence is against finding that right and left foot disabilities are related to service. 4. Entitlement to service connection for right and left arm disabilities The Veteran contends that his disabilities are due to duties in service which required that he climb in and out of work areas, and move his work materials around the work area on an aircraft carrier. Service treatment records do not reflect any injuries or complaints related to the left or right arm in service. Post-service VA treatment records show that in December 2004 and January 2005, the Veteran noted that he worked as a stocker, he complained of pain in the elbows, and he noted that he had repetitive movements all day while working. X-rays showed no abnormalities, and he was told to limit repetitive movements when at home. Private treatment records from DeKalb Physician's Clinic show that the Veteran was seen for bilateral wrist pain in June 2009 present for approximately nine months. Symptoms were worse with prolonged activities, especially at work. X-rays were ordered. The Veteran was diagnosed with bilateral right greater than left median neuropathy consistent with bilateral carpal tunnel syndrome, as well as a right wrist ganglion cyst. The Board finds that, while the Veteran has current diagnoses of bilateral carpal tunnel syndrome and a right wrist ganglion cyst, the preponderance of the evidence weighs against finding that his bilateral carpal tunnel syndrome and right wrist ganglion cyst began during service or are otherwise related to an in-service injury, event, or disease. Instead, his disabilities were diagnosed post-service in 2009, with an onset in 2008. The Veteran is competent to report current pain symptoms and he has submitted June 2014 lay statements from O.T. and F.N. identifying pain and limitations due to pain. The evidence of record, however, does not establish a nexus between the Veteran's current bilateral carpal tunnel syndrome and right wrist ganglion cyst and service. Complaints of elbow pain in 2004 and 2005 were not accompanied by a diagnosis and the record does not reflect current complaints related to elbow or elbow joint pain. Moreover, the record does not establish a nexus between elbow pain and service. As to the Veteran's own assertion that his disabilities are due service, he is not competent to determine that this was the cause of his bilateral carpal tunnel syndrome, right wrist ganglion cyst, or elbow pain. See Jandreau 1377. For these reasons, the Board finds that the preponderance of the evidence is against finding that left and right arm disabilities, to include bilateral carpal tunnel syndrome and right wrist ganglion cyst, are related to service. 5. Entitlement to service connection for an acquired psychiatric disorder claimed as anxiety and depression The Veteran contends in a June 2014 statement that the effects of his physical disabilities were many and were very stressful. June 2014 lay statements from O.T. and F.N. indicate that the Veteran's pain caused depression. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Service treatment records do not reflect any complaints or diagnoses related anxiety or depression. VA and private treatment records do not identify a current psychiatric diagnosis, and do not identify anxiety or depression. The Board finds that the Veteran does not have a current diagnosis of depression or anxiety and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). While the Veteran believes he has a current diagnosis of anxiety or depression, he is not competent to provide a diagnosis in this case. The issue requires specialized education and psychiatric or psychological diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Absent evidence showing a currently diagnosed acquired psychiatric disability related to service, the Board finds that service connection is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for low back disability The Board cannot make a fully informed decision on the issue of entitlement to service connection for a low back disability without an examination. The record shows that a VA examination was requested to address the Veteran's back disability. However, in May 2015 correspondence, the Veteran called to reschedule his examination because he did not have transportation to attend the appointment. In order to afford the Veteran every benefit of the doubt, a new VA examination should be scheduled. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability is remanded. Because a decision on the remanded issue of entitlement to service connection for a back disability could significantly impact a decision on the claim for a TDIU, the issues are inextricably intertwined. A remand of the claim for TDIU is required. 3. Entitlement to nonservice-connected pension is remanded. Entitlement to nonservice-connected pension was denied because the Veteran had not established permanent and total disability. The Veteran has submitted lay evidence asserting that he cannot work due to physical and mental disabilities. The Board cannot make a fully-informed decision on the issue of entitlement to pension without an examination. The Board finds that a remand is warranted to rate the Veteran's disabilities, and to afford him a VA examination to address whether he is unable to secure and sustain a substantially gainful occupation employment due to a combination of his disabilities. Moreover, the AOJ has not adjudicated the question of whether the Veteran has met the income and net worth requirement for entitlement to pension. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his low back disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms, such as pain, that causes functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran's low back disability, to include back pain, at least as likely as not related to service? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's separation examination noting back pain and his post-service symptoms. 2. Schedule the Veteran for an examination(s) by an appropriate clinician(s) regarding the current severity of the Veteran's disabilities for pension purposes. The examiner should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of disabilities on employment. The examiner should identify all limitations or functional impairment caused his disabilities. The examiner should address whether the Veteran's disabilities are (a) sufficient to render it impossible for an average person to follow a substantially gainful occupation; or (b) whether his diagnosis is of such a nature to render him permanently and totally disabled. 3. Request that the Veteran submit income and medical expense information for the appeal period. 4. Readjudicate the appeal for pension based on total disability, income, and net worth. The AOJ should also provide ratings for the Veteran's nonservice-connected disabilities. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christine C. Kung 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.