Citation Nr: 21069142 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 17-15 869 DATE: November 17, 2021 ORDER Entitlement to service connection for right foot disabilities diagnosed as heel spur, disfigurement of toes, plantar fasciitis, neuroma of the sural nerve / Morton's neuroma, and fallen arch / pes planus, is granted. The petition to reopen the claim of entitlement to service connection for a right hallux disability is denied. REMANDED The issue of entitlement to an increased rating for lumbosacral strain with bulging disc annulus L4-L5 and mild spinal stenosis with degenerative disc disease, currently rated 10 percent disabling, is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise with regard to showing that the Veteran's current diagnosed right foot disabilities are causally linked to his service-connected disabilities. 2. The Veteran's claim of entitlement to service connection for a right hallux disability was denied by a November 1992 RO rating decision; the appellant was notified of the decision and did not file a notice of disagreement nor submit new and material evidence within the following one-year appeal period. 3. All evidence received since the November 1992 RO rating decision is previously of record, cumulative or redundant of evidence already of record, or does not relate to a previously unestablished fact necessary to substantiate the previously-denied claim of entitlement to service connection for a right hallux disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right foot disabilities diagnosed as heel spur, disfigurement of toes, plantar fasciitis, neuroma of the sural nerve / Morton's neuroma, and fallen arch / pes planus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The November 1992 rating decision that denied the claim of entitlement to service connection for a right hallux disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 3. The criteria for reopening the claim of entitlement to service connection for a right hallux disability have not been satisfied. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from October 1983 to April 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA), or the Agency of Original Jurisdiction (AOJ). The Veteran testified at a Board hearing in July 2021; a transcript of the hearing is of record. The Board notes that in this appeal the Veteran has pursued a petition to reopen a previously denied claim of entitlement to service connection for a right hallux disability. The Board finds that the Veteran's pursuit of the petition to reopen the claim of entitlement to service connection for a right hallux disability has additionally raised a new claim of entitlement to service connection for right foot disabilities under other various diagnoses. As discussed below, the Board finds that entitlement to service connection for various right foot disabilities can be granted in this case, but the petition to reopen the claim of entitlement to service connection for right hallux disability in particular cannot be granted. The Board has accordingly characterized the issues on appeal to most clearly distinguish between the claims granted in this decision and the claim being denied in this decision. Service Connection 1. Entitlement to service connection for right foot disabilities diagnosed as heel spur, disfigurement of toes, plantar fasciitis, neuroma of the sural nerve / Morton's neuroma, and fallen arch / pes planus, is granted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge may still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection for the claimed disorder, there must be evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Under 38 C.F.R. § 3.310, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability, by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Service connection is limited to those cases where disease or injury has resulted in a disability. In the absence of proof of a present disability for which service connection is sought, there is no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The requirement of having a current disability is met when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A disability under 38 U.S.C. § 1110 refers to functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (2018). 38 U.S.C. § 1154(a) requires that the VA give due consideration to all pertinent medical and lay evidence of record in evaluating a claim to disability benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all of the evidence record for this appeal, with an emphasis on the evidence pertinent to the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. The Veteran contends that his current disabilities of the right foot are the result of injuries during military service and/or post-service gait impairment associated with other service-connected disabilities. A March 2019 written statement from the Veteran's private chiropractor of "over twenty years" describes that treatment of the Veteran's painful hip and back disabilities "places less strain on his documented back, knee and ankle issues and helps alleviate foot pain." An August 2021 written statement from the Veteran's private podiatrist noted familiarity with the Veteran from having treated him since July 2002. The private podiatrist identifies a number of foot diagnoses and states: "In my medical opinion, I believe [the Veteran]'s injuries and chronic pain are due to his uneven gait that was a direct result of his injury while he was in the Gulf War." The diagnoses listed by the podiatrist included, in pertinent part: heel spur, disfigurement of toes, plantar fasciitis, neuroma of the sural nerve, and fallen arch. A March 2019 letter from the same private podiatrist explains: "My thinking is that since [the Veteran] was dealing with back issues, pain in both knees and symptomatic right ankle that this caused biomechanical issues in his whole body. [The Veteran] initially presented with painful plantar fasciitis right heel which did not respond to conservative treatment. He eventually needed surgery which still didn't alleviate all his pain. As a result of an altered gait pattern, [the Veteran] developed a neuroma in his right foot." A June 2014 VA examination report diagnoses the Veteran with plantar fasciitis, indicates that the Veteran did not have a hallux disability, and opines that the Veteran's right foot disability at that time was not "the same as or ... a result of the right hallux pain shown during active service." The Board notes that the June 2014 VA medical opinion is significantly less recent than the newer private medical opinions. The VA medical opinion also does not well address the theory raised and supported by the more recent medical opinions that the Veteran's right foot disabilities are the result of the Veteran's gait impairments associated with service connected disabilities of the back, the right ankle, and both knees. The Board has considered whether a new VA medical opinion is needed to more fully inform appellate review of the claim for service connection. The Board finds that the recent private medical opinions can be read, with resolution of reasonable doubt in the Veteran's favor, as sufficiently supportive of entitlement to service connection for right foot disabilities to grant the Veteran's claim without further development. While not unequivocally clear in all regards, the written statements from the Veteran's private podiatrist, read together, essentially attribute the Veteran's set of right foot disabilities to altered gait resulting from his service-connected disabilities. The Board finds that service connection can be granted for the Veteran's pertinent set of right foot diagnoses identified by the private podiatrist. The Board notes that amongst the diagnoses listed by the private podiatrist is "Disfigurement of toes," and the Board finds that this appears to correspond to the Veteran's diagnosis of "exostosis metatarsal head 4th & 5th right foot" documented in evidence including an August 2015 VA treatment report. The Board finds that the private medical evidence supporting the claim is adequate evidence to establish entitlement to service connection in this case. The Board finds the supportive evidence of record to be no less persuasive than the contrary evidence. Accordingly, after resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for the Veteran's diagnosed right foot disabilities is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. The petition to reopen the claim of entitlement to service connection for a right hallux disability is denied. The Board notes that the AOJ adjudication of this appeal specifically denied a petition to reopen a previously denied claim of entitlement to service connection for "Right Hallux injury." The Veteran's April 2015 notice of disagreement initiating this appeal specifically reiterated a desire to establish entitlement to service connection "for Right Hallux injury." Although the Board's determination above has found that the scope of the right foot disability claim on appeal allows for consideration and award of entitlement to service connection for several diagnosed right foot disabilities for which entitlement had not previously been denied, the Board must still address the Veteran's specific petition to reopen and grant the previously denied claim of entitlement to service connection for a "Right Hallux injury." Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers, while material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. 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 Court has held that the phrase raises a reasonable possibility of establishing the claim must be viewed as enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). 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 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of 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 VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. A claimant may submit an application or claim to reopen a disallowed claim, at which time VA must provide some limited assistance. See Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334, 1341 (Fed. Cir. 2003) (VA will perform document gathering assistance even before claim is reopened); see 38 C.F.R. § 3.159(c)(1)-(3). The assertion of a new theory of entitlement to service connection for the same disease or injury that was previously the subject of a final decision does not constitute a new distinct claim for benefits, see Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008); however, evidence offered in support of a new theory of entitlement can be sufficient to warrant reopening of the claim if it meets the definitions of new and material evidence. Id. Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The Board may not then proceed to review the issue of whether the duty to assist has been fulfilled or undertake an examination of the merits of the claim. Regardless of whether the RO found new and material evidence to reopen a claim, the Board is not bound by such a determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Board will therefore undertake a de novo review of the new and material evidence determinations required to resolve the Veteran's petitions to reopen service connection claims in this case. For the reasons explained below, the Board is unable to grant the Veteran's petition to reopen the claim and the Board is unable to further analyze the merits of the underlying claim of entitlement to service connection for a right hallux disability. The Veteran's claim of entitlement to service connection for a right hallux disability was previously denied within a November 1992 rating decision. The evidence of record at the time of the November 1992 denial includes lay statements from the Veteran, his service treatment records, and post-service medical records. The basis of the November 1992 denial of service connection for right hallux disability featured the RO's finding: "That [right hallux injury] which was noted in service is only shown by history. At current VA examination there is no deformity. The toe is not tender and there is full range of motion." The Veteran did not appeal this denial. No new and material evidence pertinent to this issue was submitted within a year following the November 1992 denial of the claim. 38 C.F.R. § 3.156(b). The November 1992 RO denial is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 20.302. The November 1992 final decision was primarily based upon a finding that the Veteran did not have a current right hallux disability. Since the November 1992 final decision, additional documents and evidence received by VA show various right foot disabilities, but not a right hallux disability. Indeed, the June 2014 VA foot disability examination report specifically confirms that "[t]he Veteran does not have a current diagnosis associated with" the claimed "rt hallux condition," the Veteran "says he has no bunion," and "[a]vailable private podiatry notes do[] not diagnose hallux va[l]gus." The June 2014 VA examination's clinical findings further present no indication of a hallux disability, and this is consistent with the other medical evidence of record. No evidence of record otherwise shows a current hallux disability, and the Veteran's reports of right foot symptomatology have been medically attributed to other diagnoses, as discussed in the Board's grant of entitlement to service connection for right foot disabilities above. Accordingly, evidence added to the record after the November 1992 prior denial may be "new," but none of the new evidence is "material" to this claim. The evidence added to the record since the November 1992 prior denial presents no reasonable possibility of substantiating the claim, and such evidence is not "new and material" for the purpose of reopening this claim. Following review of the contents of the claims-file, the Board is unable to find that any item of evidence received since the November 1992 final denial is new and material to the issue of service connection for a right hallux disability. Any added material evidence is duplicative of evidence already of record, and the new evidence is not materially pertinent to elements of service connection that were unestablished at the time of the prior final denial. The prior final denial was based upon the absence of a current right hallux disability, and none of the evidence submitted after the prior final denial has shown such a current right hallux disability. The added evidence simply reiterates information that was known and considered at the time of the prior final decision and has not been in controversy in the denial of service connection for right hallux disability. Overall, the Board finds that the new evidence does not relate to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for a right hallux disability. For the above-discussed reasons, the Board concludes that the appellant has not presented new and material evidence to reopen his claim for service connection for a right hallux disability. Accordingly, this petition to reopen the claim must be denied. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND 1. The issue of entitlement to an increased rating for lumbosacral strain with bulging disc annulus L4-L5 and mild spinal stenosis with degenerative disc disease, currently rated 10 percent disabling, is remanded. The Veteran was last afforded a VA compensation examination to evaluate his back disability for rating purposes in October 2014. No examination report adequate to inform appellate review of the Veteran's service-connected back disability rating has been developed since that time, now more than six years ago. The Board finds that a remand is warranted to obtain current findings to inform appellate review with regard to the nature and severity of the Veteran's pertinent current back disability symptoms. The Board notes that the Veteran and the evidence of record have indicated the presence of symptoms and functional impairment more severe than shown in the October 2014 VA examination report and potentially meeting the criteria for a higher rating, including in the Veteran's July 2021 testimony at his Board hearing and medical records including from both (1) a July 2021 emergency room visit for back symptoms just prior to the July 2021 Board hearing, and (2) a July 2021 hospitalization for back problems after the Board hearing. VA's General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). The Board finds that a new VA examination is warranted to assess the current severity of the Veteran's back disability. The Board notes that the author of the forthcoming back disability rating examination report shall have the opportunity to comply with the Court holdings in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), and Correia v. McDonald, 28 Vet. App. 158 (2016). The Board additionally notes that discussion of the back disability issue at the July 2021 Board hearing contemplated outstanding evidence such as "any private records which would include your records involved in your work," and the Veteran stated "Yes, please," when asked to confirm that he would "like us [VA] to help try and help you if you don't have the records in a file." The Veteran's representative confirmed "Correct," and also stated: "remand would be in order, so that they can try to find the records." During the processing of this remand, the Veteran shall be afforded the opportunity to submit authorization to request records from any private providers he wishes to identify. Additionally, the AOJ shall have the opportunity to update the set of the Veteran's VA medical records in the claims-file. The matters are REMANDED for the following action: 1. Associate with the claims-file any outstanding pertinent treatment records, including additional VA treatment records (such as those that may have been created since the last such update of the claims-file). Additionally, ask the Veteran to complete a VA Form 21-4142 for any new outstanding records from private providers of pertinent medical treatment of his disabilities on appeal that the Veteran may wish VA to assist him in obtaining for the record. 2. After the record is determined to be complete, schedule a VA examination to ascertain the severity of the Veteran's service-connected disabilities of the back / thoracolumbar spine. The claims-file must be made available to, and be reviewed by, the examiner. All indicated testing should be accomplished and all symptomatology associated with the back disabilities should be identified. In addition to all findings identified on the appropriate examination forms, the examiner should determine the effective ranges of motion of the back, and present the results of range of motion tests in a written report by recording separate sets of the range of motion test results for both active and passive motion and in weight-bearing and nonweight-bearing (to the extent applicable). The VA examiner must address each of the following items: (a) The examiner's report should describe objective evidence of painful motion, if any, during each test. It is not sufficient merely to indicate whether or not pain was present during one of the required range of motion tests. If any of these findings are not possible, please provide an explanation. (b) The examiner is also asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. The Board is not permitted to accept a rationale that the examiner is unable to offer an opinion without resort to speculation based on an aversion to offering an opinion on issues not directly observed. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Barone, 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.