Citation Nr: 21073673 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 18-38 368A DATE: December 9, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for a left elbow disability is reopened. To that extent only, the claim is granted. Entitlement to an effective date prior to June 22, 2015, for service connection for diabetes mellitus is denied. REMANDED Entitlement to service connection for a right foot or heel disability, to include as secondary to gout or herbicide agent exposure, is remanded. Entitlement to service connection for a left foot or heel disability, to include as secondary to gout or herbicide agent exposure, is remanded. Entitlement to service connection for a left elbow disability, to include as secondary to gout or herbicide agent exposure, is remanded. Entitlement to a rating in excess of 10 percent for a low back disability is remanded. Entitlement to a rating in excess of 0 percent for gout of the bilateral toes, as of September 14, 2017, to include the propriety of a reduction from a 10 percent rating to 0 percent, effective September 14, 2017, is remanded. Entitlement to a rating in excess of 10 percent for gout of the bilateral toes, prior to September 14, 2017, is remanded. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus is remanded. Entitlement to an effective date prior to June 22, 2015, for a 10 percent rating for a low back disability, is remanded. FINDINGS OF FACT 1. A July 2006 rating decision denied an application to reopen service connection for a left elbow disability. 2. Evidence received since the July 2006 rating decision is neither cumulative nor redundant, and, when considered with previous evidence of record, raises a reasonable possibility of substantiating the claim for service connection for a left elbow disability. 3. The Veteran filed a claim for service connection for diabetes mellitus that is date-stamped as received by VA on June 22, 2015, and there is no earlier claim or intent to file a claim of record. CONCLUSIONS OF LAW 1. The July 2006 rating decision that denied service connection for a left elbow disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence sufficient to reopen a claim of entitlement to service connection for a left elbow disability has been received and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for an effective date prior to June 22, 2015, for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Since the issuance of statements of the case regarding the claims on appeal, VA has added additional relevant evidence to the file, to include VA medical records. As the Board is remanding the claims, there is no need to discuss the lack of a waiver of Agency of Original Jurisdiction (AOJ) review. That evidence should be reviewed in a supplemental statement of the case on remand. 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left elbow disability. Generally, a claim that has been denied in an unappealed AOJ decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means 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 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). New and material evidence is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). To establish service connection for a current disability, a Veteran must show the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran essentially contends that he has a left elbow disability, to potentially include gout, due to service. VA denied the claim for service connection for a left elbow disability in a July 2006 rating decision. In that decision, the AOJ indicated that the evidence of record did not indicate that the Veteran had an elbow disability, especially because the Veteran did not appear for a scheduled VA examination. The Veteran did not appeal the decision in a timely manner and it became final. The Veteran did not submit new and material evidence within one year of notification of that decision. Reviewing the evidence submitted since the issuance of the July 2006 rating decision, at a February 2020 Board video conference hearing, the Veteran testified that he had gout in the left elbow and that a doctor had to aspirate the joint. The February 2020 testimony is new, because it was not before VA at the time of the July 2015 rating decision. When presuming the credibility of the testimony, as is required only when determining whether to reopen a previously denied claim for service connection, it is also material, because it suggests that the Veteran has a current left elbow disability. New and material evidence having been received, the claim for service connection for a left elbow disability is reopened. To that extent only, the claim is allowed. 2. Entitlement to an effective date prior to June 22, 2015, for service connection for diabetes mellitus. The general rule regarding the assignment of effective date for an award based on an original claim for VA benefits is that the effective date shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. An exception to the general rule applies if an application for benefits is received within one year from the date of a Veteran's separation from active service, and an award is made on the basis of that application. In that limited situation, the effective date of the award is made retroactive to the day following the date of separation from service. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2). Otherwise, the effective date will be the later of the date of receipt of claim or the date entitlement arose. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2). The Veteran filed a claim for service connection for diabetes mellitus that is date-stamped as received by VA on June 22, 2015. The record contains no evidence of any prior claim for service connection for that disability. At the February 2020 Board hearing, the Veteran stated a belief that service connection for the disability should have been made effective the day after separation from service, because the disability was caused by his exposure to herbicide agents in service. On review of all evidence, both lay and medical, the Board finds than an earlier effective date is not warranted. The record indicates that the Veteran served in Vietnam and that VA established service connection for diabetes mellitus due to presumed herbicide agent exposure during service. However, the assignment of the June 22, 2015, effective date is based on the earliest date of receipt of a claim for service connection for diabetes mellitus. There is no dispute as to the date of receipt of that claim for compensation. The Board finds that there is no evidence of record prior to June 22, 2015, that can be interpreted as a claim, formal or informal, for service connection for diabetes mellitus. That date of receipt of the claim was more than one year following the Veteran's separation from service. Therefore, the appropriate effective date is the date of receipt of the claim for benefits for diabetes mellitus. The Board can find no basis for the assignment of any earlier effective date. Accordingly, the Board finds that the preponderance of the evidence is against the claim for an earlier effective date for service connection for diabetes mellitus. Therefore, the appeal must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a right foot or heel disability is remanded. 2. Entitlement to service connection for a left foot or heel disability is remanded. In an August 2015 VA medical examination report, a VA examiner diagnosed bilateral pes planus. The examiner did not provide any opinion as to whether the disability was related to service. Remand is necessary to schedule an additional examination. 3. Entitlement to service connection for a left elbow disability is remanded. The Veteran has reported having a current gout disability in the left elbow. Remand is necessary to schedule an examination to determine the nature and etiology of any such disability. 4. Entitlement to a rating in excess of 10 percent for a low back disability is remanded. 5. Entitlement to a rating in excess of 0 percent for gout of the bilateral toes, as of September 14, 2017, to include the propriety of a reduction from 10 percent is remanded. 6. Entitlement to a rating in excess of 10 percent for gout of the bilateral toes, prior to September 14, 2017, is remanded. 7. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus is remanded. At the February 2020 Board hearing, the Veteran asserted that the the service-connected disabilities had increased in severity since the Veteran was most recently examined by VA. The Veteran should be provided an opportunity to report for VA examinations to ascertain the current severity and manifestations the service-connected disabilities. 8. Entitlement to an effective date prior to June 22, 2015, for a 10 percent rating for a low back disability is remanded. Finally, because a decision on the issue of a higher rating for a low back disability could significantly impact a decision on the issue of an earlier effective date for a higher rating for that disability, the issues are inextricably intertwined. Remand of both claims is required. Regarding all of the claims, at the February 2020 Board hearing, the Veteran testified that he had received treatment for the disabilties after service at medical facilities at the McCully Barracks in Stuttgart, Germany, and Scott Air Force Base. The Veteran also reported receiving current treatment at the Fort Belvioir Hospital Dumfries clinic. Remand is required to allow VA to request any outstanding medical records. The matters are REMANDED for the following action: 1. Obtain any outstanding treatment records from the McCully Barracks (Stuttgart, Germany), Scott Air Force Base, and Fort Belvoir Hospital, to include the Dumfries Clinic. Document all requests for information and all responses in the claims file. 2. Schedule the Veteran for an examination with a VA rheumatologist who has not previously examined the Veteran in conjunction with this claim to determine the natures and etiology of the claimed left elbow disability and the current severity of gout. The examiner should note that the Veteran is presumed to have been exposed to herbicide agents during service in Vietnam. In reviewing the record, the examiner should note the service medical records, the post-service treatment records, and the lay evidence, to include the Veteran's written statements. Regarding the service-connected gout, currently diagnosed as gout of the bilateral toes, the examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner should also state whether any other joints have been affected by gout. A complete rationale should be provided for all opinions and conclusions expressed. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. After an examination, an interview with the Veteran, and a review of the claims file, the examiner is asked to provide the following: (a.) List all left elbow disabilities noted during the pendency of the appeal, dating to June 2015. If the examiner finds that any diagnoses are no longer present or disagrees with any prior diagnoses, the examiner should note those diagnoses and offer clinical reasons for such findings. (b.) Opine whether it is at least as likely as not (50 percent probability or greater) that any left elbow disability diagnosed during the pendency of the appeal is related to the service or any incident during service, to include presumed herbicide agent exposure. (c.) If any arthritic disability of the left elbow is diagnosed, opine as to whether it is at least as likely as not (50 percent) that any left elbow arthritis (1) began during service, (2) manifested within one year after the Veteran's June 2005 separation from service, or (3) was noted during service with continuity of the same symptomatology since service. (d.) Opine whether it is at least as likely as not (50 percent or greater probability) that any left elbow disability diagnosed during the pendency of the appeal is proximately due to or the result of the service-connected disabilities or any treatment of the service-connected disabilities, to include diabetes mellitus, hypertension, low back disability, tinnitus, bilateral hearing loss, and gout. (e.) Opine whether it is at least as likely as not (50 percent or greater probability) that any left elbow disability diagnosed during the pendency of the appeal has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities or any treatment of the service-connected disabilities, to include diabetes mellitus, hypertension, low back disability, tinnitus, bilateral hearing loss, and gout. (f.) List all joints affected by gout, and all joints in which there is any residual disability due to gout, to include arthritis. (g.) For every joint affected by gout, provide ranges of motion, and state whether there is any additional loss of function due to painful motion, weakened motion, excess motion, incoordination, fatigability, or on flare up. 3. Schedule the Veteran for an examination with a VA orthopedist who has not previously examined the Veteran in conjunction with this claim to determine the natures and etiologies of the claimed bilateral foot disability and the current severity of a low back disability. The examiner should note that the Veteran is presumed to have been exposed to herbicide agents during service in Vietnam. In reviewing the record, the examiner should note the service medical records, the post-service treatment records, and the lay evidence. Regarding the service-connected low back disability, the examiner should provide a full description of the disability and report all signs and symptoms necessary for rating the disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. A complete rationale should be provided for all opinions and conclusions expressed. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. After an examination, an interview with the Veteran, and a review of the claims file, the examiner is asked to provide the following: (a.) List all foot disabilities noted during the pendency of the appeal, dating to June 2015, to include bilateral pes planus diagnosed in an August 2015 VA medical examination report. If the examiner finds that any diagnoses are no longer present or disagrees with any prior diagnoses, the examiner should note said diagnoses and offer clinical reasons for such findings. (b.) Opine whether it is at least as likely as not (50 percent probability or greater) that any disability of either foot diagnosed during the pendency of the appeal is related to the Veteran's service or any incident of that period of service, to include presumed herbicide agent exposure in service. (c.) If any arthritic disability of either foot is diagnosed, opine as to whether it is at least as likely as not (50 percent or greater probability) that any foot arthritis (1) began during service, (2) manifested within one year after the Veteran's June 2005 separation from service, or (3) was noted during service with continuity of the same symptomatology since service. (d.) Opine as to whether it is at least as likely as not (50 percent or greater disability) that any disability of either foot diagnosed during the pendency of the appeal is proximately due to or the result of the service-connected disabilities, to include diabetes mellitus, hypertension, low back disability, tinnitus, bilateral hearing loss, and gout. (e.) Opine as to whether it is at least as likely as not (50 percent or greater disability) that any disability of either foot diagnosed during the pendency of the appeal has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities, to include diabetes mellitus, hypertension, low back disability, tinnitus, bilateral hearing loss, and gout. 4. Schedule the Veteran for a VA diabetes mellitus examination to determine the current severity of diabetes mellitus. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner should opine whether diabetes requires the regulation of activities, defined as the avoidance of strenuous occupational and recreational activities. The examiner should state whether diabetes results in episodes of ketoacidosis or hypoglycemic reactions requiring twice a month visits to a diabetic care provider or hospitalizations, and should state the number of hospitalizations per year. The examiner should state whether diabetes results in progressive loss of weight and strength. The examiner should state whether there are any other complications of diabetes, such as neurologic or visual. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.M. Gillett 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.