Citation Nr: 21068294 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 19-00 206 DATE: November 9, 2021 ORDER New and material evidence having been received, the claim of service connection for a low back disability is granted. Service connection for a low back disability is granted. Entitlement to an effective date of March 21, 1995, for the grant of service connection for a left ankle scar is granted. REMANDED Service connection for a left shoulder disability is remanded. Entitlement to an initial compensable rating for a left ankle scar is remanded. Entitlement to a disability rating in excess of 20 percent for status post surgical repair of left Achilles tendon tear is remanded. Entitlement to a disability rating in excess of 30 percent for bilateral flat feet is remanded. Entitlement to an effective date earlier than July 11, 2017 for the grant of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's claim for service connection for a back disability was denied in a July 1995 rating decision on the basis that none of the elements of service connection were met. He was notified of this decision, did not timely disagree with it or submit new and material evidence within one year of it, and it became final. 2. Evidence received since the July 1995 rating decision raises a substantial possibility of substantiating the claim of service connection for a low back disability. 3. The probative evidence of record is at least in equipoise as to whether the Veteran's low back disability is etiologically related to his active duty service. 4. On April 3, 1995, less than one year after the Veteran's separation from active duty service, VA received a claim from the Veteran that included the issue of service connection for a left ankle scar. CONCLUSIONS OF LAW 1. The July 1995 rating decision is final with regard to the issue of service connection for a back disability. New and material evidence sufficient to reopen the claim of service connection for a low back disability has been received. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 19.52, 20.1103 (2021). 2. With resolution of reasonable doubt in the Veteran's favor, the criteria for a grant of service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2021). 3. With resolution of reasonable doubt in the Veteran's favor, the criteria for entitlement to an effective date of March 21, 1995, for the grant of service connection for a left ankle scar have been met. 38 U.S.C. §§ 5101, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from April 1989 to March 1995. The Veteran testified before the undersigned Veterans Law Judge during a June 2021 hearing and a transcript is of record. This matter is on appeal from September 2016, February 2017, March 2017, and May 2017 rating decisions. While this appeal was pending, in September 2017, the Veteran submitted a claim for a TDIU, attributable in part to his service-connected foot and left ankle disabilities. In a January 2018 rating decision, the Agency of Original Jurisdiction (AOJ) granted a TDIU on and after July 11, 2017. VA received notice of the Veteran's intent to file the increased rating claims on appeal on November 28, 2016. The Board therefore finds that the issue of entitlement to a TDIU prior to July 11, 2017 has been raised in connection with the claims on appeal for increased ratings. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran's claim for service connection for a left shoulder rotator cuff tear has been recharacterized as a left shoulder disability, to include a rotator cuff tear. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). 1. Low Back Disability New and Material Evidence The Veteran contends that he has a low back disability that is etiologically related to his active duty service. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. New evidence means existing evidence not previously submitted to agency decision makers. 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 is neither cumulative nor redundant of evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. 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). However, evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343, 1347 (Fed. Cir. 2000). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is generally "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Until the Veteran meets his threshold burden of submitting new and material evidence sufficient to reopen his claim of entitlement to service connection, the benefit of the doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). The Veteran was denied service connection for a back disability in a July 1995 rating decision. He did not submit a Notice of Disagreement (NOD) or new and material evidence within one year of the rating decision. Therefore, the July 1995 rating decision is final. 38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 20.204, 20.302, 20.1103 (2021). The basis for the July 1995 denial was that none of the elements of service connection were met. The question is thus whether the Veteran has submitted or VA has otherwise received evidence that was not before the adjudicator in July 1995, that is neither redundant nor cumulative, and that raises a reasonable possibility of substantiating a claim that the Veteran currently has a low back disability as a result of active duty service. The evidence that was of record at the time of the July 1995 rating decision included the Veteran's service treatment records and a June 1995 VA examination report. Since the July 1995 rating decision, the Veteran has provided a September 2021 medical opinion by a private orthopedic surgeon. The orthopedic surgeon opined that it is at least as likely as not that the Veteran's current low back disability "is the direct result of multiple injuries he sustained while on active duty." As the record now contains more evidence pertinent to the issue of a nexus to service than it did in July 1995, the Board finds that new and material evidence has been received which pertains to previously unestablished facts necessary to support the claim. As this evidence raises a reasonable possibility of substantiating the claim, satisfying the criteria of 38 C.F.R. § 3.156(a) for new and material evidence, the claim is reopened. 2. Low Back Disability Service Connection The Veteran contends that his low back disability had its onset during active duty service or was caused or aggravated by his service-connected bilateral flat feet. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (2021). In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's service treatment records contain no mention of low back symptoms or diagnosis of a low back disability. The Veteran was afforded a VA examination in June 1995, three months after his separation from active duty service. The Veteran reported a low back injury in December 1991 with probable acute lumbosacral strain, treated with temporary light duty and medication. He reported current symptoms of occasional low back pain with excessive lifting, bending or stooping. The clinician diagnosed status following acute lumbosacral strain with occasional residual low back pain but provided no opinion as to the etiology of the Veteran's low back pain. The Veteran was afforded an additional VA examination in July 2016. The clinician diagnosed spinal stenosis and bilateral lower extremity radiculopathy and opined that it was less likely than not that it was caused by his service-connected bilateral flat feet, but provided no opinion with regard to aggravation. To be adequate, a VA opinion must provide separate rationales for both causation and aggravation. Atencio v. O'Rourke, 30 Vet. App. 74 (2018). This examination report is therefore of no probative value and will play no role in the Board's analysis. During the June 2021 hearing, the Veteran testified that his service-connected bilateral flat feet and left ankle Achilles tendon tear caused him to have an altered gait and to fall, both of which were contributing causes of his low back symptoms. The Veteran has submitted a September 2021 medical opinion by a private orthopedic surgeon, who noted the Veteran's reports of wear and tear on his back due to heavy lifting during active duty service and opined that his current low back disability was a "direct result of multiple injuries he sustained while on active duty" but a "major contributing cause" of his current symptoms was an antalgic gait caused by his service-connected left ankle disability. The record contains VA and private medical opinions with regard to this claim. As stated above, the VA opinion is inadequate. The private orthopedic surgeon has provided an opinion favorable to the Veteran's claim and has provided a thorough rationale for that opinion. In light of the totality of the circumstances, and after resolving all reasonable doubt in the Veteran's favor, the evidence of record supports a finding that it is at least as likely as not that the Veteran's low back disability was incurred in or caused by wear and tear during his active duty service. Accordingly, the Board finds that granting service connection for a low back disability is the decision that is the most consistent with VA's policy to administer the law under a broad and liberal interpretation consistent with the facts of the case. 38 C.F.R. §§ 3.303 (a). 3. Left Ankle Scar Effective Date The Veteran asserts that he should be granted an effective date earlier than November 28, 2016, for service connection for a left ankle scar. Unless specifically provided otherwise by statute, the effective date of an award for compensation benefits based on (1) an original claim, (2) a claim reopened after final adjudication, or (3) a claim for increase, is the date VA received the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400; Lalonde v. West, 12 Vet. App. 377, 382 (1999). With regard to a claim for service connection, the effective date is the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service. 38 C.F.R. § 5110(b)(1); 38 C.F.R. § 3.400. The Board is required to adjudicate all issues reasonably raised by a liberal reading of the appeal, including all documents and oral testimony in the record prior to the Board's decision. Brannon v. West, 12 Vet. App. 32 (1998); Solomon v. Brown, 6 Vet. App. 396 (1994). Prior to March 24, 2015, there was an informal claims process. 38 C.F.R. § 3.155(a) (2014). The essential elements for any claim are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006). VA received notice of the Veteran's intent to file a claim on November 28, 2016. On December 2, 2016, VA received the Veteran's claim for an increased rating for his left ankle disability. In a February 2017 rating decision, VA granted service connection for a left ankle scar, with an effective date of November 28, 2016. The Veteran separated from active duty service on March 20, 1995. VA received a claim for service connection for a "[l]eft ankle injury" on April 3, 1995, less than one year after separation. The Veteran was afforded a VA examination in June 1995, during which the Veteran reported a 1992 left ankle injury that was surgically repaired during active duty service. On examination, there was a "well healed longitudinal surgical scar over left Achilles tendon region." The Board finds that the April 1995 claim, by listing a left ankle injury among the disabilities for which the Veteran was seeking service connection, expressed an intent to seek benefits and identified the benefits sought, specifically any left ankle disability that was a residual of that injury, which would include any resulting scars. Resolving reasonable doubt in the Veteran's favor, the Board finds that this informal claim included the issue of service connection for a left ankle scar, an issue which was not adjudicated until the February 2017 rating decision. See Brokowski, 23 Vet. App. at 84. For those reasons, the Board concludes that the Veteran is entitled to an effective date of March 21, 1995, for service connection for a left ankle scar, which is the day after the Veteran's separation from active duty service. REASONS FOR REMAND 1. Service connection for a left shoulder disability is remanded. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was afforded a VA examination in April 2017. The clinician's unfavorable opinion with regard to service connection relied on a lack of "evidence of continuity of care," which is not a requirement found in the law. For this reason, a remand is warranted to obtain an additional medical opinion. In addition, every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disabilities noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111 (2012). Only such conditions as are recorded in examination reports are to be considered as "noted." 38 C.F.R. § 3.304. A history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1). At the time of his June 1988 entrance examination, the examiner found the Veteran's upper extremities to be normal; the examination report contains no mention of a left shoulder condition. The presumption of soundness therefore attaches with respect to this issue. However, service treatment records from May 1989 note the Veteran's report of a fractured left humerus thirteen years prior. The questions before the Board, then, include whether clear and unmistakable evidence demonstrates that the Veteran's left shoulder disability existed before entry and was not aggravated by such service, so as to rebut the presumption of soundness. The medical opinion obtained on remand should address these questions. 2. Entitlement to an initial compensable rating for a left ankle scar is remanded. The Veteran was last afforded a VA examination for ankle conditions, which included findings regarding his left ankle scar, in January 2017, nearly five years ago. During the June 2021 hearing, the Veteran testified that his left ankle scar has increased in size. The record thus raises the possibility that the Veteran's service-connected left ankle scar could now be more severe than the January 2017 examination report reflects. "Where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted." Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). A remand for a new examination is thus warranted. 3. Entitlement to a disability rating in excess of 20 percent for status post surgical repair of left Achilles tendon tear is remanded. As stated above, the Veteran was last afforded a VA examination for ankle conditions in January 2017, nearly five years ago. During the June 2021 hearing, the Veteran testified that his left ankle range of motion had decreased and that his symptoms included giving way, which was not a symptom reported at the time of the January 2017 examination. The record thus raises the possibility that the Veteran's service-connected status post surgical repair of left Achilles tendon tear could now be more severe than the January 2017 examination report reflects. A remand for a new examination is thus warranted. 4. Entitlement to a disability rating in excess of 30 percent for bilateral flat feet is remanded. The Veteran was last afforded a VA examination for foot conditions in March 2017, nearly five years ago. During the June 2021 hearing, the Veteran testified that his foot symptoms had increased in severity, including increased swelling and pain. The record thus raises the possibility that the Veteran's service-connected bilateral flat feet could now be more severe than the March 2017 examination report reflects. A remand for a new examination is thus warranted. 5. Entitlement to an effective date earlier than July 11, 2017 for the grant of a TDIU is remanded. The issue of the Veteran's entitlement to a TDIU prior to July 11, 2017 is inextricably intertwined with the increased rating claims. The matters are REMANDED for the following action: 1. Arrange for the Veteran to have an examination by an appropriate clinician for the purpose of determining the current severity of his left ankle scar. The electronic claims file must be made available to the clinician for review. The clinician is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of any symptoms of his service-connected left ankle scar. Although an independent review of the claims file is required, the Board calls the clinician's attention to the Veteran's testimony regarding his symptoms during the June 2021 hearing. 2. Arrange for the Veteran to have an examination by an appropriate clinician for the purpose of determining the current severity of his status post surgical repair of left Achilles tendon tear. The electronic claims file must be made available to the clinician for review. The clinician is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of any symptoms of his service-connected status post surgical repair of left Achilles tendon tear. Although an independent review of the claims file is required, the Board calls the clinician's attention to the Veteran's testimony regarding his symptoms during the June 2021 hearing, including his report of giving way. 3. Arrange for the Veteran to have an examination by an appropriate clinician for the purpose of determining the current severity of his bilateral flat feet. The electronic claims file must be made available to the clinician for review. The clinician is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of any symptoms of his service-connected bilateral flat feet. Although an independent review of the claims file is required, the Board calls the clinician's attention to the following: a. A September 2017 VA treatment record noting the Veteran's report of daily spasms in both feet. b. The Veteran's testimony regarding his symptoms during the June 2021 hearing. 4. Arrange for an opinion by an appropriate clinician for the purpose of determining the etiology of the Veteran's left shoulder disability. The entire claims file and a copy of this remand must be made available to the clinician for review. The clinician must provide opinions as to the following: a. Whether the Veteran's left shoulder disability clearly and unmistakably existed prior to his active duty service. b. If the answer to a) is yes, whether the Veteran's left shoulder disability was clearly and unmistakably not aggravated (i.e., not permanently worsened beyond the natural progression) during or as a result of service. c. If the answer to a) or b) is no, whether it is as likely as not (a probability of 50 percent or greater) that any current left shoulder disability had its origin in service or was related to the Veteran's active service. Although an independent review of the claims file is required, the Board calls the clinician's attention to the following: a. May 1989 service treatment records noting the Veteran's reports of left shoulder pain and of a left humerus fracture thirteen years prior. b. A June 1995 VA x-ray noting questionable mild subluxation of the left A/C joint. c. The Veteran's report during the April 2017 VA examination regarding the onset and continuity of his symptoms. d. The Veteran's testimony during the June 2021 hearing regarding the May 1989 injury and his current symptoms. The rationale for any opinion expressed should be provided. Note that a lack of documented treatment, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why this is so. 5. Ensure that the directives specified in this remand have been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998) (Continued on the next page) 6. Then, readjudicate the claims, including the TDIU claim. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ryan Frank, 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.