Citation Nr: 21063631 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 15-06 877 DATE: October 15, 2021 ORDER New and material evidence not having been received, the claim of entitlement to service connection for residuals of a right foot injury is denied. REMANDED The claim of entitlement to service connection for residuals of an injury to the head, jaw and low front tooth, including gingivitis, headaches and nerve damage, is remanded. The claim of entitlement to service connection for Valley Fever, including as secondary to exposure to soldering fumes, asbestos and/or radiation, is remanded. The claim of entitlement to service connection for a left eye disability, including as secondary to exposure to soldering fumes and/or radiation, is remanded. FINDINGS OF FACT 1. In an April 2009 rating decision, the Agency of Original Jurisdiction (AOJ) denied the Veteran service connection for a right foot condition. 2. The Veteran did not appeal the rating decision or submit new and material evidence within a year of notice of its issuance. 3. The evidence received since April 2009 does not raise a reasonable possibility of substantiating the claim for service connection for residuals of a right foot injury. CONCLUSIONS OF LAW 1. The April 2009 rating decision, in which the AOJ denied the Veteran service connection for a right foot condition, is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. 2. The criteria to reopen the claim of entitlement to service connection for a right foot condition have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty (AD) from January 1967 to July 1973 and in the Air National Guard (NG) from July 1973 to May 1976. His claims come before the Board of Veterans' Appeals (Board) on appeal of an October 2011 Department of Veterans Affairs (VA) rating decision. In July 2017, the Veteran testified in support of these claims during a video conference hearing held before the undersigned Veterans Law Judge. Prior to earlier denials of these claims, at an October 2006 hearing held before a Decision Review Officer at the AOJ, he also provided relevant testimony. In November 2018, the Board remanded these claims to the AOJ for additional action. At the time, the issues on appeal included entitlement to service connection for residuals of a head, jaw and low front tooth injury and entitlement to a respiratory disability manifested by chest pain, such as Valley Fever and pneumonia. However, in rating decisions dated June 2020 and May 2021, the AOJ granted these claims in part by service connecting the Veteran for pneumonia, costochondritis, a temporomandibular joint condition, and a mass on the lower right jaw with residual pain. These conditions are thus no longer before the Board for appellate review. The Board has recharacterized the claims on appeal to reflect the AOJ's actions and the Veteran's intention to continue pursuing claims for service connection for Valley Fever and residuals of a head and low front tooth injury. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of a right foot injury The Veteran alleges that, in early 1967, during basic training maneuvers at Lackland Air Force base, he injured his right foot, necessitating treatment, including casting, at Greeley Hall, a military hospital on the base. He contends that, thereafter, he was confined to the first floor of his barracks with William Poe (WP), a roommate. He further contends that multiple individuals have knowledge of this injury (stationed with him from 1967 to 1973), and his former spouse has photos that substantiate it. The AOJ previously denied this claim in rating decisions dated between December 2003 and April 2009. In the April 2009 rating decision, the AOJ considered all prior rating decisions, the Veteran's service and post-service treatment records and his representative's most recent statement. The AOJ denied the claim on the basis that there was no evidence of record linking the Veteran's current foot pain to his service. The AOJ notified the Veteran of the April 2009 rating decision, which he did not appeal. In addition, within one year of notice of the rating decision, VA received no evidence, new and material or otherwise, in support of this claim. 38 C.F.R. § 3.156(b). The April 2009 rating decision is thus final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. The Veteran attempted to reopen this claim in February 2011. A claim that is the subject of a prior final denial may be reopened if new and material evidence is received with respect to that claim. Once a claim is reopened, the adjudicator must review it on a de novo basis with consideration given to all evidence of record. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273 (1996). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with the 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). Evidence satisfies the reasonable possibility standard when, considered with the old evidence, it would at least trigger VA's duty to assist in securing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The evidence that is considered to determine whether new and material evidence has been received is the evidence associated with the claims file since the last final disallowance of the claim on any basis. Evans v. Brown, 9 Vet. App. at 273. The evidence that has been associated with the claims file since the RO's April 2009 rating decision includes service personnel records, service and post-service treatment records, information on pollutants at Lowry Air Force base, traumatic brain injuries, gingivitis and various toxins, including asbestos and radiation, the Veteran's hearing testimony and written statements, and other lay statements, including from his former spouse. Except with respect to some of the service personnel and treatment records, this evidence, neither cumulative nor redundant of the evidence previously of record, is new. It is not, however, material. It does not raise a reasonable possibility of substantiating this claim. Specifically, none of the new evidence links any current right foot disability to the Veteran's service, including his reported right foot injury. The information on pollutants at Lowry Air Force base, traumatic brain injuries, gingivitis and various toxins, including asbestos and radiation, is not pertinent to the Veteran's right foot claim. He is claiming his foot disability stems from an in-service injury. The Veteran's written statements and testimony describe in greater detail the circumstances that led to his in-service right foot injury, the nature of that injury, the right foot treatment he has received since the injury, and the current status of his right foot disability. One written statement refers to a previously submitted list of personnel with whom he was stationed from 1967 to 1973. According to the Veteran, the individuals listed knew of his in-service right foot injury when it occurred. In November 2018, after the Veteran had questioned why VA had not yet contacted the individuals he identified as having knowledge of his in-service injury, the Board remanded this claim to the AOJ to notify the Veteran whether he or VA is responsible for doing so. In a June 2019 letter, the AOJ notified the Veteran that it is his responsibility, and since then, he has not submitted any statements from the individuals listed. In addition, although on Remand the AOJ attempted to obtain records of the Veteran's treatment for the reported in-service injury at Greeley Hall, Lackland Air Force Base, its efforts in this regard were unsuccessful (National Personnel Records Center responded, "no records available"). Statements from WS and RD, dated May 2011, RV, dated September 2012, and AB dated October 2012, do not refer to the in-service right foot injury the Veteran has reported. WS mentions meeting the Veteran in 1983 and noticing he had problems sitting, standing and walking and was always cold. RD addresses an in-service ceiling collapse inside the commissary, which she believes exposed her, the Veteran and other employees to asbestos and caused them to develop breathing problems and Valley Fever. RV refers to a 2009 right foot injury the Veteran sustained when he fell at the complex at which they were living. AB too refers to the 2009 fall/foot injury and a 2012 fall. Finally, the statement from BH, the Veteran's former spouse, which the Veteran claimed would substantiate the in-service right foot injury, addressed the Veteran's in-service work surroundings and headaches, not any right foot injury. BH indicated that the Veteran had called her during service and told her he was sick. She further indicated that, one day on base, where the Veteran worked, he had to spray water on himself to clean off the dust in which he was covered. Later, she told him to take a change of clothes to work to put on before coming home. She did not submit any photos substantiating the in-service right foot injury. The post-service treatment records show treatment for right foot pain since 2000, but do not include any opinion associating a right foot disability to an in-service right foot injury. In fact, this evidence relates the Veteran's right foot problems to other injuries or disabilities. In 2000 and 2001, decades after the reported in-service injury, the Veteran indicated that he had had pain, including the radiating type, for three or five years. He underwent magnetic resonance imaging, which showed thickness of the fascia plantaris and a soft tissue mass, and a tissue biopsy, which showed plantar fibromatosis. In 2002, the Veteran received postoperative physical therapy for his right foot. A provider diagnosed right fasciitis plantaris. In 2003, a provider diagnosed chronic right foot pain with arthritis. In 2004, the Veteran reported a history of falls in 1967, 1996 and 1998, which involved his right foot/ankle. A provider diagnosed right foot heel pain of undetermined etiology, a plantar fascial mass, likely a right foot fibroma, peroneal tendonitis, and sural neuritis with generalized lower extremity nerve pain likely due to sciatica. Another provider found that the Veteran had radiculopathy extending from his right buttock down to his heel, then crossing over the top of his foot to the large toe. In 2008, the Veteran reported that after the right foot injury he sustained during basic training in the 1960s, his foot healed well; he was able to run an 11-minute mile and during advanced training. He further reported that in the 1990s, he again injured himself, and since then, he has had pain. In 2009, providers diagnosed right sciatica and radiculopathy. Months later, the Veteran caught his heel in the sidewalk, after which he reported feeling his sciatica pain travel up to his head. In 2010, the Veteran reported right foot numbness. That year and in 2011, providers diagnosed degenerative joint disease. Since 2010, the Veteran has occasionally reported a history of an in-service right foot injury and subsequent right foot injuries since 1996, including in 2009. In 2011, a treatment provider discussed the Veteran's right foot problems in association with a fall that occurred several weeks prior to the visit. Another treatment provider indicated that the Veteran's foot pain was not foot-related but rather due to referred pain from lumbosacral disease. In 2014, a treatment provider linked the Veteran's right foot pain to a 2001 benign adipose tissue biopsy that resulted in what appeared to be similar to a right foot drop. In 2015 and 2016, based on x-rays, providers diagnosed likely plantar fibromatosis and plantar fasciitis versus radiculopathy. In 2016, a provider diagnosed chronic right foot pain, status post injury many years ago, but did not specify the injury to which he was referring. In 2018, a provider explained to the Veteran that a lot of his right plantar foot pain is coming from his back, specifically his sciatica. Since 2018, the Veteran has occasionally reported that his right foot problems are due to service, but no medical professional has corroborated this assertion. As the new evidence in this case does not raise a reasonable possibility of substantiating the claim for service connection for residuals of a right foot injury, and is therefore not material, the criteria to reopen this claim are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND Entitlement to service connection for residuals of an injury to the head and low front tooth, including gingivitis, headaches and nerve damage Entitlement to service connection for a left eye disability, including as secondary to exposure to soldering fumes and/or radiation The Veteran asserts that, during active duty, he sustained a head injury affecting the left side of his face, including his jaw, and displacing a tooth. He further asserts that he still has residuals of this injury, including headaches, nerve damage and gingivitis, the latter of which initially manifested following the displacement of the tooth. Records in the Veteran's file confirm two in-service injuries, one affecting the head and jaw, another involving the nerves in the mouth, and post-service nerve damage. In September 2020, during a VA examination, an examiner acknowledged the in-service injuries and related a lump on the Veteran's lower jaw, gum disease and pain from the top of the Veteran's head down his scalp, to his eye, cheek and tooth under his left cheek bone, to those injuries. The AOJ later service connected the Veteran for the lump and jaw pain, but not the gum disease or any symptoms affecting his eye and/or teeth/mouth. Based on the VA examination report, the Board is uncertain whether these conditions should be service connected, including as part of, or separately from, the lump. Also, the VA examinations conducted in support of this appeal are inadequate to proceed in adjudicating these claims. First, in offering unfavorable opinions as to the presence and/or etiology of the Veteran's headaches and any nerve damage, the examiners did not treat as competent the Veteran's statements/testimony describing lay-observable neurological symptoms that have continuously manifested since service. Second, during a January 2020 VA cranial nerves examination, an examiner noted that there were no findings to support a nerve diagnosis despite post-service treatment records discussing chronic neuralgia in the areas the Veteran described. Third, during a January 2020 VA headaches examination, an examiner ruled out a relationship between headaches and service based on findings that no medical professional had diagnosed migraines, and a specialist felt the headaches were due to degeneration of the spine. This opinion ignores evidence showing that, prior to any cervical spine involvement, beginning in service and continuing after service, the Veteran reported and received treatment for headache complaints, whatever the type. A more comprehensive medical opinion addressing all pertinent evidence of record is thus needed. Entitlement to service connection for Valley Fever, including as secondary to exposure to soldering fumes, asbestos and/or radiation Post-service treatment records confirm that the Veteran has chronic pulmonary Coccidioides (Valley Fever), first diagnosed in 1977. Treatment providers have discussed the Valley Fever in conjunction with the Veteran's chest and left eye pain, both initially reported in service. The Veteran claims that this pain never resolved, resulting in diagnoses of basal pneumonia (now service connected with costochondritis) and Valley Fever, the latter of which has since disseminated, causing pain in other parts of his body. The examiner did not address whether the Veteran's Valley Fever is otherwise related to his in-service chest and left eye pain or aggravated by the service-connected pneumonia and costochondritis. Again, a more comprehensive medical opinion is needed. These matters are REMANDED for the following action: 1. Obtain a more comprehensive opinion on the etiology of the Veteran's headaches, nerve damage and left eye disability. The examiner should review the Veteran's file, including: (1) his written statements and October 2006 and July 2017 hearing testimony explaining his assertions in this case and indicating continuity of head, eye and chest pain and lay-observable neurological symptoms since service; (2) service treatment records, which document two injuries, one affecting the head and jaw, the other involving the nerves in his mouth; (3) post-service treatment records confirming chronic headaches, chronic neuralgia, a left eye disability and Valley Fever; and (4) a September 2020 VA examiner's opinion relating a lump on the Veteran's lower jaw, gum disease and pain from the top of the Veteran's head down his scalp, to his eye, cheek and tooth under his left cheek bone to his in-service injuries. The examiner should consider as competent the Veteran's reports of pertinent lay-observable symptoms (continuous headaches and pain around the head, face, mouth, tooth and left eye since service) or, if appropriate, find him lacking in credibility. The examiner should acknowledge that, even though the Veteran might not have had nerve damage during a VA examination, if neuralgia or any other neurological disorder was evident during the claims process, it is considered a current disability for VA compensation purposes. Acknowledging post-service diagnoses of chronic headaches, the examiner should opine whether the Veteran's chronic headaches, whatever the type, initially manifested in service as the documented headaches or as due to the documented injuries. The examiner should consider the Veteran's statements and post-service treatment records showing headaches prior to the development of a cervical spine disability. The examiner should explain whether the Veteran's current headaches might represent both a residual of his in-service injuries and a symptom of his cervical spine disability. Acknowledging post-service diagnoses of chronic neuralgia, the examiner should opine whether this condition initially manifested in service as the documented in-service nerve damage in the mouth or documented pain in the scalp, head and facial area to which the September 2020 VA examiner referred. The examiner should also offer an opinion as to whether the Veteran's Valley Fever, first diagnosed in 1977, is at least as likely as not related to his in-service chest and left eye pain. If not, the examiner should offer an opinion as to whether the Valley Fever is aggravated by the Veteran's service-connected pneumonia and costochondritis. The examiner should provide a clear rationale for each opinion. 2. Readjudicate these claims. Based on the VA examiner's September 2020 opinion, noted above, and any other pertinent information secured in response to this Remand, consider whether the Veteran is entitled to service connection for gum disease and/or pain affecting his eye, tooth and/or mouth separately from the service-connected mass on and pain in his lower right jaw. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. N. 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.