Citation Nr: 21070887 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 17-53 554 DATE: November 26, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for a back disability is reopened. New and material evidence not having been received, the claim of entitlement to service connection for a neck disability is not reopened and remains denied. New and material evidence having been received, the claim of entitlement to service connection for a right foot disability is reopened. The claim of entitlement to service connection for a right foot disability is denied. REMANDED The claim of entitlement to service connection for a back disability is remanded. FINDINGS OF FACT 1. The Veteran's last claim for service connection for a back disability was denied in an April 2010 rating decision. He did not appeal that decision and it is now final. Since then, new and material evidence pertaining to that claim has been received. 2. His last claim for service connection for a neck disability was denied in an April 2010 rating decision. He did not appeal that decision and it is now final. Since then, new and material evidence has not been received. 3. The Veteran's last claim for service connection for a right foot disability was denied in a February 1970 rating decision. He did not appeal that decision and it is now final. Since then, new and material evidence pertaining to that claim has been received. 4. The preponderance of the evidence is against a finding that the Veteran's right foot disability is related to service. CONCLUSIONS OF LAW 1. The April 2010 rating decision denying service connection for a back disability is final, but the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. The April 2010 rating decision denying service connection for a neck disability is final, and the claim is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 3. The February 1970 rating decision denying service connection for a right foot disability is final, but the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 4. The criteria are not met for service connection for a right foot disability. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1965 to October 1968. This appeal is from a May 2015 rating decision. The Board notes the Veteran requested a personal hearing before a member of the Board, which was scheduled in October 2021. He did not attend the hearing and has not since provided explanation for missing the hearing, or asking that it be rescheduled. The record shows that he received a notice pertaining to his hearing at his updated address of record, and there is no indication it was not delivered. Accordingly, the Veteran is considered to have withdrawn his hearing request. Service Connection Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of 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 disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In general, VA rating decisions or Board decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.1100, 20.1103. Under legacy review, which applies to this case, a finally disallowed claim may be reopened only when new and material evidence is secured with respect to that claim. 38 C.F.R. § 3.156. "New" evidence is evidence not previously submitted to agency decisionmakers. Evidence is "material" if it 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 and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board notes that the regulation does not require new and material evidence as to each previously unproven element of a claim, merely that there is a reasonable possibility of an allowance of the claim. 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. New and material evidence having been received, the claim of entitlement to service connection for a back disability is reopened. The claim is granted to this extent only. 2. New and material evidence not having been received, the claim of entitlement to service connection for a neck disability is not reopened and remains denied. In regard to the Veteran's claim for a back and neck disability, the Veteran's initial claim for service connection for a back disability was denied in January 2009 because his STRs do not show any injury to the back. He did not appeal that decision, and it is now final. Of record at the time of this decision were his STRs and VA treatment records, and his statement that he hurt his back at the same time he hurt his service-connected shoulder. His STRs do not show a neck or back injury, but do show that he injured his shoulder in a baseball game. He had been pitching the ball and felt a sudden pain in the right shoulder and later in the right elbow. He was diagnosed with shoulder strain and there was a question as to whether there was trauma to the peripheral nerve, and told to return if his symptoms improved. He separated from service without complaints or diagnosis of the spine. His VA treatment records showed cervical stenosis and chronic low back pain, but did not show a diagnosis for his low back pain. In an April 2010 rating decision, the claim for a "back" condition was again denied. The decision indicated that his claim had been reopened because the record showed a diagnosis of cervical spine stenosis with radiculopathy, and that he had reported to VA treatment providers that he had injured his neck when attacked by a psychiatry patient during his service. However, the claim was denied because his STRs did not show any injury to the neck. He was informed that evidence was needed that showed a disability related to his service. He did not appeal that decision, and it is now final. Of record at the time of the April 2010 rating decision were VA treatment records dated through December 10, 2009, and his STRs. His VA treatment records show that he reported having an altercation with a patient during service (at the December 2008 VA examination), that he injured his neck at Walter Reed and there was a questionable peripheral nerve injury (March 2009 VA treatment), and that he had persistent symptoms in the neck since service when he was incapacitated by a psychiatric patient (at an October 2009 VA treatment appointment). At a December 10, 2009 VA treatment appointment, his doctor opined that the Veteran's cervical stenosis was likely related to service. The records do not show a back diagnosis, but in August 2009, one of his doctors noted the Veteran had symptoms of probable lumbar radiculopathy. Since the April 2010 rating decision, additional and more recent medical records have been received. They do not show a relationship between his service and his neck, nor do they suggest that his neck is related to any of his currently service-connected disabilities (right rotator cuff tendonitis/impingement syndrome, tinnitus, hearing loss). His updated VA treatment records show he was diagnosed with lumbar degenerative disc disease, which is new and material. The claim for service connection for a back disability is reopened, and will be remanded for additional development, as discussed below. In an April 2018 statement, the Veteran described being attacked by a patient while working at Walter Reed. He reported that: he was hit in the head and knocked out in the morning; later that day, he was playing baseball, and blacked out while he was throwing the baseball; and, he woke up in the emergency room and was being assessed for nerve damage. While this is a new statement, it does not provide any new evidence pertaining to the neck. The record already contained his statements regarding being attacked by a patient. He reported that he was told he had nerve damage, which had been previously reported. This evidence is not new. He asserted he lost consciousness, which is new but not material to whether there was an injury to the neck during service. This evidence does not raise a reasonable possibility of substantiating the claim. In sum, the claim for service connection for a back disability is reopened on the basis of new and material evidence showing a current diagnosis of the lumbar spine, which had not been shown before. The claim for service connection of a neck disability is not reopened and the claim must be denied. The evidence previously contained a diagnosis, his statements regarding an injury in service, and a positive nexus opinion that were considered by the AOJ (agency of original jurisdiction) and not found to show that entitlement was warranted. That decision has become final, and none of the evidence received since then is both new and material to the issue. 3. New and material evidence having been received, the claim of entitlement to service connection for a right foot disability is reopened. In regard to the right foot, a February 1970 rating decision denied service connection for the residuals of a laceration to the plantar aspect of the right foot and for severed tendons. Although his STRs do show a laceration to the bottom of his right foot, the decision noted that no residual disability was noted at the VA examination and that his STRs did not show any injury to the tendons. He did not appeal that decision and it is now final. Of record at the time of the February 1970 rating decision were his STRs and the January 1969 VA examination. His STRs show, on April 29, 1967, he sought treatment for a cut to his right foot plantar surface near the third and fourth toes from stepping on glass. He was noted to be training for a track meet. He was given sutures under local anesthesia and told to return daily for dressing change. Later that day, he was given crutches and placed on light duty. On May 6th, he returned for check of the toes. Part of the wound was turning black, and it was debrided. On May 9th, his toes were rechecked and he was told to remain in non-weightbearing positions. On May 13th, it was noted his toes were healing well, but to continue non-weightbearing. On May 17th, his toe was noted to be healing slowly and he was advised to keep his shoes and socks off as much as possible. On May 23rd, he was released. The third toe was essentially healed and the fourth appeared near the final stages. He was advised to limit weightbearing until totally healed, and to return if he had any problems. He did not report any foot trouble at separation and he was not diagnosed with any disabilities prior to separation. The VA examination showed a diagnosis of residuals of severed tendons 3rd and 4th flexors of the right foot, but noted the Veteran had full range of motion of the toes, that one cannot feel where the tendons had been repaired, and there was no scarring. Since then, he has again claimed service connection for a right foot disability due to severed tendons. The record shows he was given a VA examination in April 2015, which showed bilateral pes planus. This evidence is new and material, because the Veteran did not have a diagnosis or disabling symptoms of the right foot at the time of the February 1970 rating decision. The Board finds this is new and material evidence, and reopens the claim. 4. The claim of entitlement to service connection for a right foot disability is denied. The Board notes that the AOJ also reopened this claim, as noted in both the May 2015 rating decision and September 2017 statement of the case (SOC). Nevertheless, the question of whether new and material evidence has been received is one that must be addressed by the Board, notwithstanding any favorable decision as to this matter which may have been rendered by the RO. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). However, because the claim was reopened and readjudicated on the merits by the AOJ, the Board may proceed with consideration of the merits of this claim without prejudice to the Veteran. The Board notes that the Veteran has raised no issue with the development undertaken or the VA examination opinion of record. As mentioned above, service connection requires competent evidence showing: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The record shows that the Veteran was diagnosed with pes planus during the August 2015 VA examination. His VA treatment records show he has a history of plantar fasciitis, but that has not been shown during the appeal period, or for more than five years prior to receipt of his claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). As discussed above, his STRs show that he cut the bottom of his right foot, causing the need for stitches and crutches, and follow up treatment for about a month. He was given a VA examination in April 2015, which the Board finds adequate for adjudication as it was based on an in-person examination and a review of the records. That examiner opined that flat feet were less likely related to the injury in service. In support of his opinion, he noted the Veteran was seen during service for a cut to the foot, but there was no documentation of severed tendons. He noted the Veteran did not mention his foot at separation; rather, the records show the cut resolved without any complications or sequalae or disabling pathology. He noted that the January 1969 VA examination showed full range of motion of the toes, and the repair of the tendons could not be felt. Finally, he indicated that both feet were flat, rather than just in the right, and that the involvement of the left foot was additional support that the injury in service was not related to the current diagnosis. The Board finds the April 2015 VA examiner's opinion probative. The Veteran has not raised any objection to that examination or the resulting report. There are no other medical opinions addressing a relationship, except for the January 1969 VA examination, which also did not find a disability of the right foot related to service. The Board acknowledges the Veteran's sincere belief in a relationship between his foot and his service, but his theory was investigated by the VA examiners and found to be less likely. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Resultantly, the preponderance of the evidence weighs against service connection for a right foot disability. Accordingly, service connection is not warranted for the right foot. REASONS FOR REMAND 1. The claim of entitlement to service connection for a back disability is remanded. The Veteran's claim of entitlement to a back disability has been reopened. The record shows the Veteran has lumbar degenerative disc disease. He has reported that he was attacked in service by a psychiatric patient, and injuries from that caused his back disability. The record shows that he worked with psychiatric patients for a period of time during his active duty. The evidentiary requirement for finding there may be a relationship between a current disability and an incident in service is low, therefore a VA examination for the back, but not the neck, should be provided. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The matters are REMANDED for the following action: 1. Associate updated treatment records with the claims file. 2. After completion of the first directive, schedule the Veteran for an appropriate examination for an opinion on whether any back disability, including lumbar degenerative disc disease, is as likely as not (50/50 probability or greater) related to his service. The examiner is asked to review the record prior to the examination, to conduct a thorough examination, and to elicit from the Veteran a detailed history of his back disability. The Veteran reports that he was attacked by a psychiatric patient while working at Walter Reed, and he was knocked out. He did not report any symptoms of his back and the incident is not shown in his STRs. The examiner is asked to elicit from him details of the incident to determine whether it is as likely as not that any current disability resulted from such an injury. The Board notes that the Veteran is to be considered credible for the purposes of this examination only. All opinions must be supported with explanation. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Gibson 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.