Citation Nr: 21066117 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 17-34 100 DATE: October 28, 2021 ORDER New and material evidence having been received, the appeal to reopen the claim for entitlement to service connection for a low back disability is granted. Entitlement to service connection for a left ankle disability is denied. Entitlement to service connection for a right ankle disability is denied. REMANDED The issue of entitlement to service connection for a low back disability is remanded. The issue of entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as due to exposure to herbicide agents, is remanded. The issue of entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as due to exposure to herbicide agents, is remanded. The issue of entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as due to exposure to herbicide agents, is remanded. The issue of entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as due to exposure to herbicide agents, is remanded. The issue of entitlement to service connection for a heart disability, to include as due to exposure to herbicide agents, is remanded. FINDINGS OF FACT 1. A September 1969 rating decision denied entitlement to service connection for a back condition; the Veteran did not timely appeal the denial; and new and material evidence was not submitted as to the issue within the one-year appeal period following the issuance of the September 1969 rating decision. 2. A May 2003 rating decision denied a petition to reopen the claim for service connection for a low back disability; a Statement of the Case (SOC) was issued in October 2003; the Veteran did not file a substantive appeal as to the October 2003 SOC. 3. A July 2004 rating decision denied a petition to reopen the claim for service connection for a low back disability; the Veteran did not timely appeal that denial; and new and material evidence was not submitted as to the issue within the one-year appeal period following the issuance of the July 2004 rating decision. 4. Evidence received since the July 2004 rating decision is new and raises a reasonable possibility of substantiating the Veteran's claim for entitlement to service connection for a low back disability. 5. The preponderance of the evidence is against finding that the Veteran has had a left ankle disability at any time during or proximate to the pendency of the claim. 6. The preponderance of the evidence is against finding that the Veteran has had a right ankle disability at any time during or proximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The September 1969, May 2003, and July 2004 rating decisions which denied entitlement to service connection for a low back disability are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156 (b), 20.200, 20.202, 20.302, 20.1103. 2. New and material evidence having been received; the claim for entitlement to service connection for a low back disability is reopened. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. §§ 3.156 (a), 3.303. 3. The criteria for entitlement to service connection for a left ankle condition have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. 4. The criteria for entitlement to service connection for a right ankle condition have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1967 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of December 2015 and June 2016 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In his June 2017 and March 2018 substantive appeals, the Veteran requested a hearing before a Veterans Law Judge via video-conference. The hearing was scheduled for August 2021, but the Veteran did not attend. He has not offered good cause for his failure to appear at the hearing or request that such be rescheduled. Therefore, the Board considers his request for a hearing to be withdrawn. See 38 C.F.R. §§ 20.702 (d); 20.704 (d). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is provided in 38 U.S.C. § 5108, which states that 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). If the Board finds that no such evidence has been offered, that is where the analysis must end, and further analysis beyond consideration of whether the evidence received is new and material is neither required nor permitted. Barnett, 83 F.3d at 1384. 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 determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In this case, the RO denied service connection for a back disability in a September 1969 rating decision, in part, because there was no evidence of a current disability. Thus, service connection for a back disability could not be established. The Veteran did not file a notice of disagreement with the September 1969 rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of issuance of notice of the rating decision. The Veteran's petition to reopen his claim for entitlement to service connection for a low back disability was denied in May 2003 and July 2004 since the Veteran did not submit new and material evidence related to the claim. See 38 C.F.R. § 3.156 (b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). The July 2004 rating decision became final based on the evidence then of record. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1105. Evidence associated with the record since the final July 2004 rating decision includes a June 2012 VA examination that contains a diagnosis of degenerative disc disease of the thoracolumbar spine. This evidence is new in that it was not previously considered by VA. It is also material because it provides evidence that relates to an unestablished fact necessary to substantiate the claim. As such, the June 2012 VA examination raises a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran's claim for entitlement to service connection for a low back disability, and the claim is reopened. 38 C.F.R. § 3.156 (a). 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, 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). 1. Entitlement to service connection for a right ankle disability is denied. 2. Entitlement to service connection for a left ankle disability is denied. The Veteran seeks entitlement to service connection for a bilateral ankle condition that he asserts is directly related to his active service. The question for the Board is whether the Veteran has a current disability that began during his active service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current right or left ankle disability 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). The medical treatment records do not show that the Veteran has been diagnosed with a right or left ankle disability. The Veteran's VA treatment records do not reflect treatment for a diagnosis of a bilateral ankle disability. Furthermore, a June 2012 examination reflects that the Veteran had normal bilateral ankle plantar flexion and dorsiflexion. Additionally, he demonstrated normal bilateral ankle reflexes. The Board is cognizant of the recent holding in Saunders v. Wilkie which stated that where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). In sum, pain alone resulting in functional impairment is in fact a disability, and should not be summarily discounted as a bar to benefits based on a finding of no current diagnosis. However, the Veteran does not claim, nor do his medical records show that he experiences, any functional impairment due to bilateral ankle pain. As such, the Veteran's bilateral ankle pain does not amount to a functional impairment of earning capacity, and Saunders is not applicable in this case. The Board acknowledges the Veteran's belief that he has a current bilateral ankle disability. He is competent to report pain and other subjective symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not considered competent to provide a diagnosis in this case because the issue is medically complex and requires medical knowledge and expertise the Veteran has not been shown to have. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Because his statements are not competent, they are not probative in establishing that he has had a right or left ankle disability during or proximate to the pendency of the claim. In summary, the record does not show that the Veteran had a right or left ankle disability at any time during or recent to the filing of the claim. The existence of a current disability is the cornerstone of a claim for VA disability compensation. In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for a bilateral ankle disability. Because the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. The Veteran contends that he has a low back disability that is directly related to his active service. Specifically, the Veteran contends that he injured his back during service and has suffered from low back pain continuously since his in-service injury. The Veteran was provided a VA examination related to his low back in June 2012. VA has a duty to ensure that any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board's evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Here, the Board finds the June 2012 VA examination is inadequate for decision making purposes. The VA examiner diagnosed the Veteran with degenerative disc disease of the thoracolumbar spine and opined that the condition was less likely than not related to his active service. As rationale, the VA examiner explained that the Veteran's service treatment records do not indicate clinic visits for his back and his separation evaluation indicates low back pain with normal exam. The VA examiner further explained that the medical records do not indicate a chronic problem until 10 years after the Veteran's separation from service. However, a review of the Veteran's service treatment records reveal that the Veteran's spine was evaluated as abnormal upon his separation from active service. Additionally, the VA examiner did not address the Veteran's and his spouse's reports that the Veteran has suffered from low back pain since his separation from active service. As the June 2012 VA examination is not adequate for decision-making purposes, the Veteran must be provided an addendum opinion to determine whether his current low back disability is directly related to his active service, to include the evaluation of abnormal spine upon separation from active service. 2. Entitlement to service connection for bilateral upper extremity peripheral neuropathy is remanded. 3. Entitlement to service connection for bilateral lower extremity peripheral neuropathy is remanded. The Veteran contends that he has bilateral upper extremity and bilateral lower extremity peripheral neuropathy that is directly related to his active service, to include his presumed exposure to herbicide agents. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103 (d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c) (4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third prong may be satisfied by lay evidence of continuity or equivocal or non-specific medical evidence). The Veteran has not yet been provided with an examination related to his bilateral upper and lower extremity peripheral neuropathy. The evidence of record reflects that the Veteran has an active problem of neuropathy. In addition, his service personnel records reflect that he had service in the Republic of Vietnam during the Vietnam era. Therefore, he is presumed to have been exposed to herbicide agents. See 38 C.F.R. § 3.307 (a) (6) (iii). As such, the record reflects there is evidence of a current disability, an in-service event, and an indication that the disability may be associated with service. Accordingly, remand is required for an examination. 4. Entitlement to service connection for a heart disability is remanded. The Veteran contends that he has a heart disability that is directly related to his active service. He was provided a VA heart conditions examination in April 2016. Here, the Board finds the April 2016 VA examination related to the Veteran's heart disability is inadequate for decision-making purposes. The VA examiner noted a diagnosis of palpitations of the heart. However, the VA examiner did not provide an opinion as to whether the Veteran's current disability is directly related to his active service. As the examination is not adequate for decision-making purposes, the Veteran must be provided an addendum opinion to determine whether his current heart disability is directly related to his active service, to include his presumed exposure to herbicide agents. Additionally, the Board notes that the record for review may be incomplete. The most recent VA treatment records are from May 2018. VA treatment records, even if not in the claims file, are considered part of the record on appeal because they are within VA's constructive possession. See 38 U.S.C. § 5103A (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand, updated VA treatment records must be obtained and associated with the record. The matters are REMANDED for the following action: 1. Obtain all outstanding treatment records relevant to the matters being remanded, to include from May 2018. 2. Forward the record and a copy of this remand to the examiner who conducted the June 2012 VA back examination, or if the examiner is unavailable, another suitably qualified examiner, for completion of an addendum opinion. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following review of the record, the examiner should express an opinion as to: (a.) Provide a diagnosis for any low back disability demonstrated since service, found on current examination or in the record. (b.) For each low back disability, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the condition had its onset during the Veteran's service or is otherwise etiologically related to the Veteran's service, to include the notations of a low back disability during his active service and the evaluation of an abnormal spine upon separation from active service. The VA examiner should also address the Veteran and his spouse's reports that the Veteran has suffered from low back pain continuously since his in-service injury. 3. Schedule the Veteran for a VA examination to provide an opinion regarding the nature and etiology of the Veteran's bilateral upper and bilateral lower extremity peripheral neuropathy. The claims folder must be made available to the examiner and the examiner must indicate that a review was completed. Following review of the claims folder address the following: (a.) Provide a diagnosis for any bilateral upper and bilateral lower extremity peripheral neuropathy demonstrated since service, found on current examination or in the record. (b.) If the Veteran has a current diagnosis of bilateral upper extremity and/or bilateral lower extremity peripheral neuropathy, is it at least as likely as not (50 percent probability or more) that the Veteran's bilateral upper and/or bilateral lower extremity peripheral neuropathy are related to active service, to include, but not limited to exposure to herbicide agents? The examiner must note that applicable VA law establishes that the legal provision for presumptive service connection does not otherwise preclude a veteran from establishing service connection with proof of actual direct causation on a non-presumptive, direct incurrence basis. 4. Forward the record and a copy of this remand to the examiner who conducted the April 2016 VA heart examination, or if the examiner is unavailable, another suitably qualified examiner, for completion of an addendum opinion. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following review of the record, the examiner should express an opinion as to: (a.) Provide a diagnosis for any heart disability demonstrated since service, found on current examination or in the record. (b.) Is it at least as likely as not (50 percent probability or more) that any heart disability is related to active service, to include, but not limited exposure to herbicides? The examiner must note that applicable VA law establishes that the legal provision for presumptive service connection does not otherwise preclude a veteran from establishing service connection with proof of actual direct causation on a non-presumptive direct incurrence basis. 5. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether service connection may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. M. Mills Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. G. LeMoine, 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.