Citation Nr: 21071052 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 19-33 141 DATE: November 29, 2021 ORDER New and material evidence having not been received, reopening the claim of entitlement to compensation under 38 U.S.C. § 1151 for right below the knee amputation is denied. REMANDED Entitlement to a rating in excess of 30 percent for bilateral pseudophakia is remanded. Entitlement to a rating in excess of 20 percent for left patella chondromalacia is remanded. Entitlement to a rating in excess of 10 percent for bronchial asthma is remanded. Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU) is remanded. FINDINGS OF FACT 1. A November 1999 rating decision denied entitlement to compensation under 38 U.S.C. § 1151 for right below the knee amputation (claimed as amputation left leg). 2. The Veteran did not file his notice of disagreement (NOD) in a timely manner, and the November 1999 rating decision is final. 3. The evidence associated with the claims file subsequent to the November 1999 rating decision is cumulative or redundant of the evidence previously of record or is not sufficient to establish a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has not been received to reopen a claim of entitlement to compensation under 38 U.S.C. § 1151 right below the knee amputation. 38 U.S.C. §§ 5108, 7104, 7105 (2018); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from May 1970 to July 1977. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Huntington, West Virginia. Jurisdiction of this appeal is currently with the RO in Atlanta, Georgia. In connection with this appeal, the Veteran testified at a virtual videoconference hearing before the undersigned Veterans Law Judge (VLJ) of the Board in July 2021. A transcript of the hearing has been associated with the claims file. Claim to Reopen Compensation under 38 U.S.C. § 1151 The Veteran seeks reopening the previously denied claim of entitlement to compensation under 38 U.S.C. § 1151 for right below the knee amputation. Specifically, the Veteran's attorney asserted at the July 2021 Board hearing that the Veteran's right below the knee amputation was related to negligence of a VA medical center to properly diagnose an infection that eventually led to amputation. See Board hearing transcript, July 15, 2021. The Veteran testified at his July 2021 Board hearing that he had been wearing a brace on his right foot, walking a lot, and had a blister; he sought treatment at a VA medical center in Shreveport, Louisiana, and the physician's assistant who treated him failed to take a culture of his blister and improperly prescribed antibiotics without such culture. Id. The Veteran testified that his infection eventually worsened and required amputation of his right leg below the knee. Id. The Veteran's original claim for compensation under 38 U.S.C. § 1151 for right below the knee amputation was received by VA in January 1998, and was originally denied in a rating decision in November 1999. Specifically, the rating decision indicated that the evidence did not show that the Veteran's leg was removed without his consent. In this regard, the rating decision found the medical evidence showed medical official determined that the amputation was necessary and several attempts to save the Veteran's leg with conservative treatment were initially attempted. As a result, his claim was denied. Evidence considered in the November 1999 rating decision includes outpatient treatment records from the VA medical center in Shreveport, Louisiana from December 1997 to May 1999; and hospital reports from the same VA medical center from December 1997 to February 1999. In December 1999, the Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claim for entitlement to compensation under 38 U.S.C. § 1151 for right below the knee amputation was received until April 2008, when VA received a petition to reopen such claim. Therefore, the November 1999 rating decision is final. 38 U.S.C. § 7105(c) (2018); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2020). In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claims for service connection was received or was in the constructive possession of VA prior to the expiration of the appeal period stemming from November 1999 rating decision. See also Lang v. Wilkie, 971 F.3d 1348 (2020); Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Moreover, no additional service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(c). The pertinent evidence that has been received since the November 1999 rating decision includes continuing post-service treatment records and Board hearing testimony in July 2021. The Board finds that while some of the evidence added to the record is new, as it was not previously considered by VA, it is duplicative and not material as it does not specifically address the reason the claim was previously denied. Specifically, the evidence does not show that the Veteran's right below the knee amputation was as the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault of the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or, an event not reasonably foreseeable. Rather, the Board notes that the Veteran and his attorney acknowledge additional evidence regarding a nexus opinion as to the right below the knee amputation was not associated with the claims file. See Board hearing transcript, July 15, 2021. Moreover, the contentions of the Veteran and his attorney are essentially identical to the contentions asserted by the Veteran when he filed his original claim for compensation in January 1998. See VA Form 21-4138 Statement in Support of Claim, January 7, 1998; see also Board hearing transcript, July 15, 2021. Therefore, the Board finds that new and material evidence has not been presented sufficient to reopen the Veteran's claim of entitlement to compensation under 38 U.S.C. § 1151 for right below the knee amputation. Accordingly, reopening of such claim is not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Increased Rating Claims Bilateral Pseudophakia, Left Patella Chondromalacia, and Bronchial Asthma The Veteran was most recently afforded an examination for his bilateral pseudophakia in October 2018, his left patella chondromalacia in May 2019, and bronchial asthma in April 2018. At his July 2021 hearing, the Veteran testified that his bilateral pseudophakia, left patella chondromalacia, and bronchial asthma disabilities had worsened since his most recent VA examinations. As the above evidence indicates a possible worsening of that the Veteran's bilateral pseudophakia, left patella chondromalacia, and bronchial asthma disabilities since his last VA examinations, additional examinations should be afforded to gauge the current level of severity of his disabilities. Entitlement to a TDIU Regarding the TDIU issue, the Board notes that the issue of entitlement to a TDIU is inextricably intertwined with the claims remanded herein. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Hence, a determination on the claim for TDIU should be deferred pending final dispositions of the claims of entitlement to increased ratings for bilateral pseudophakia, left patella chondromalacia, and bronchial asthma. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for an examination by an examiner with sufficient expertise to determine the current level of severity of all impairment resulting from his service-connected bilateral pseudophakia. The claims file must be made available to, and reviewed by the examiner. All indicated tests and studies must be performed. The examiner must provide all information required for rating purposes. 3. Then, schedule the Veteran for an examination by an examiner with sufficient expertise to determine the current level of severity of all impairment resulting from his service-connected left patella chondromalacia. The claims file must be made available to, and reviewed by the examiner. All indicated tests and studies must be performed. The examiner must provide all information required for rating purposes. 4. Then, schedule the Veteran for an examination by an examiner with sufficient expertise to determine the current level of severity of all impairment resulting from his service-connected bronchial asthma. The claims file must be made available to, and reviewed by the examiner. All indicated tests and studies must be performed. The examiner must provide all information required for rating purposes. 5. Confirm that the VA examination reports comport with this remand, and undertake any other development determined to be warranted. (Continued on the next page) 6. Then, readjudicate the remaining claims on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case, and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.