Citation Nr: 21073829 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 10-31 526 DATE: December 10, 2021 ORDER Entitlement to service connection for a lumbar spine disability is granted. Entitlement to an effective date prior to April 19, 2010 for the award of service connection for right foot neuritis (previously tarsal tunnel syndrome) is denied. REMANDED Entitlement to an initial evaluation in excess of 10 percent for right foot neuritis is remanded. FINDINGS OF FACT 1. The Veteran's lumbar spine disability is etiologically related to service. 2. An April 2007 Board decision became final because the Veteran did not appeal the decision or file a motion for reconsideration. A June 2007 rating decision became final because the Veteran did not file a notice of disagreement and new and material evidence was not received within one year of notice of this decision. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability have been met. See 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for an effective date prior to April 19, 2010 for the award of service connection for right foot neuritis have not been met. See 38 U.S.C. §§ 511, 5108, 5110, 7104, 7252, 7266; 38 C.F.R. §§ 3.156, 3.400, 19.20, 19.52, 20.1100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1973 to September 1976. These matters come to the Board of Veterans' Appeals (Board) from a June 2009 rating decision that denied service connection for a lumbar spine disability and from a May 2011 rating decision that found that new and material evidence had not been received to reopen a previously denied claim of service connection for a right foot condition. In July 2017, the Board found that new and material evidence had been received to reopen the previously denied claim of service connection for a right foot disability and granted service connection for this disability on the merits. The Board also remanded the claim of service connection for a lumbar spine disability for further development. A September 2017 rating decision effectuated the Board's grant of service connection for a right foot disability and assigned an initial evaluation of 10 percent, effective April 19, 2010. In August 2018, the Board denied service connection for a lumbar spine disability. The Veteran appealed the decision and in June 2019, the United States Court of Appeals for Veterans Claims (Court) granted the parties' joint motion for remand and vacated the Board's August 2018 decision. In December 2019, the Board remanded the claim of service connection for a lumbar spine disability for further development. In September 2020, the Board denied service connection for a lumbar spine disability. The Veteran appealed the Board's decision and in June 2021, the Court granted the parties' joint motion for remand and vacated the Board's September 2020 decision because the Board failed to adequately address whether the duty to assist was satisfied regarding treatment records at three VA facilities. The Board finds that further development is not necessary in this case because the Board is granting the full benefit sought on appeal. Entitlement to service connection for a lumbar spine disability. The Veteran asserts that service connection is warranted for a lumbar spine disability as secondary to service-connected left foot disability. Service connection will be granted on a secondary basis for a current disability that is proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310. Service connection will be granted when the evidence supports the claim or is in relative equipoise. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. An April 1973 entrance examination documented no abnormalities with the back. Accordingly, the Board finds that the Veteran was in sound condition at entry to service. At a May 2009 VA examination, Dr. W.M. opined that, in the absence of a persistent limp or gait alteration, the Veteran's lumbar spine disability was less likely secondary to service-connected left foot disability and more likely due to the effects of aging and obesity. At a March 2018 VA examination, Dr. N.W.-S. opined that no secondary relationship was established because the 30-year gap between the Veteran's left foot injury and alleged back pain was too great. Dr. W.-S. stated that, while the Veteran's podiatrist attributed an antalgic gait due to foot pain, the Veteran did not have a typical avoidance gait. In a May 2019 letter, Nurse C.H. reviewed the Veteran's medical records and opined that it was at least as likely as not that the Veteran's lumbar spine disability was secondary to an altered gait caused by service-connected left foot disability. Nurse H. stated that the medical records showed that the Veteran's left foot disability resulted in well-documented gait disturbances since 1995. Nurse H. cited a medical article showing that limping can cause back pain because an altered gait affects the pressure distribution on the lumbar spine. At a February 2020 VA examination, Physician's Assistant (PA) R.D. opined that, in the absence of significant alteration to gait pattern, e.g., a major post-surgical limp occurring over a period of time, it was unlikely that there would be any detrimental effect to the opposite uninjured lower back. PA D. also stated that there was no objective medical evidence that service-connected left foot disability caused or aggravated a lumbar spine disability. The claims file reflects that the Veteran's service-connected left foot disability resulted in a gait abnormality. A December 1997 VA examiner stated that it was possible that the Veteran would have heel pain and heel spur because she would most likely walk differently due to service-connected left foot disability. A December 2004 VA examiner stated that the Veteran may have had a right foot disability from walking differently due to service-connected left disability. In May 2011, Dr. M.H., a VA podiatrist, opined that the Veteran had an antalgic gait secondary to pain and that it was as likely as not that the Veteran's right foot neuralgia was secondary to service-connected left foot disability. It is undisputed that the Veteran has a current lumbar spine disability and is service connected for a left foot disability. Therefore, the relevant issue is whether this current disability is secondary to service-connected left foot disability. The Board finds that the Veteran's current disability is secondary to service-connected left foot disability. The evidence of record, to include Dr. H.'s May 2011 opinion, shows that the Veteran had a gait abnormality due to service-connected left foot disability and that the Veteran's altered gait was severe enough to cause another disability. The medical opinions of record, to include the VA examiners and Nurse H., also shows that a gait abnormality can result in a lumbar spine disability. These medical opinions, however, conflict as to severity of a gait abnormality necessary to result in a lumbar spine disability. The Board concludes that the evidence of record is in relative equipoise because the VA examiners cited no medical treatises suggesting that a major limp over a period of time was required, and Nurse M. cited a medical treatise suggesting that such severity may not be necessary. See Gilbert, 1 Vet. App. at 55. Accordingly, when weighing the conflicting evidence, and in giving the Veteran the benefit of the doubt, the Board finds that service connection is warranted for a lumbar spine disability as secondary to service-connected left foot disability. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. Entitlement to an earlier effective date for the award of service connection for right foot neuritis. Although the Veteran appealed the issue of an earlier effective date for the award of service connection for right foot neuritis, she has not asserted why an earlier effective date is warranted. An appeal of a rating decision consists of a timely filed notice of disagreement and, after a statement of the case has been furnished, a timely filed substantive appeal. See 38 C.F.R. § 19.20. A rating decision generally becomes final if a veteran does not file a notice of disagreement within one year after the date on which notice of the rating decision is mailed. See 38 C.F.R. § 19.52(a). An appeal of a Board decision consists of a timely filed action brought in Federal court. See 38 U.S.C. §§ 511, 7252. A Board decision generally becomes final if a veteran does not file an action in Federal court within 120 days after the date on which notice of the Board decision is mailed. See 38 U.S.C. § 7266. New and material evidence is generally needed to reopen a previously denied claim in a rating decision or Board decision. See 38 U.S.C. §§ 5108, 7104(b). New evidence is evidence not previously part of the actual record before agency adjudicators. See 38 C.F.R. § 3.156(a). Material evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. See id. New and material evidence is not needed to reopen a previously denied claim in a rating decision when this evidence is received prior to the expiration of the appeal period. See 38 C.F.R. § 3.156(b). No such provision, however, exists to preclude finality of a Board decision. A Board decision that is not appealed to Federal Court becomes final on the date of mailing on the face of the decision. See 38 C.F.R. § 20.1100. Moreover, a Board decision may not be reviewed by any other official or by any court except in limited statutory circumstances that do not apply to this case. See 38 U.S.C. § 511. Generally, the effective date of an award of service connection based upon receipt of new and material evidence after a previously denied claim is the date of receipt of the new claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(q)(2). Relevant to this claim, the Veteran perfected an appeal for the denial of service connection for a right foot disability, which was most recently adjudicated in an October 2002 rating decision. In a September 2006 decision, the Board found that new and material evidence was required to reopen the Veteran's claim of entitlement to service connection for bilateral flat feet, bilateral hallus limited, right foot plantar fasciitis, heel spur, neuritis/neuralgia of the left lateral dorsal cutaneous nerve and right foot condition secondary to residuals of a left foot disability, and remanded the issue so that VA could provide VCAA notice with respect to new and material evidence. The issue returned to the Board and in an April 2007 decision, the Board found that new and material evidence had not been received to reopen her claim. The Veteran did not appeal the Board decision and she did not file a motion for reconsideration; thus, the April 2007 Board decision became final. Meanwhile, in November 2006, the Veteran filed additional evidence in support of her pending foot claim and in January 2007, the Veteran filed a VA Form 21-4138 seeking service connection for "tarsal tunnel syndrome neuritis fasciitis." In a June 2007 rating decision, VA interpreted the January 2007 VA Form 21-4138 as a claim of service connection for right and left foot "tarsal tunnel syndrome and neuritis fasciitis" and denied service connection for this disability. The Veteran did not file a notice of disagreement. In September 2007, the Veteran filed a claim for increase in severity of service-connected bilateral foot condition. In a May 2008 letter, VA interpreted the September 2007 claim as an increased evaluation for service-connected left foot disability. The Veteran was instructed to contact VA if she intended to claim other conditions. The Veteran did not respond, and in an October 2008 rating decision, VA denied an increased evaluation for service-connected left foot disability. On April 19, 2010, the Veteran filed a claim of service connection for right foot disability secondary to service-connected left foot disability. In a May 2011 rating decision, VA denied the claim on the basis that new and material evidence had not been received since the April 2007 Board decision. In a July 2017 decision, the Board found that new and material evidence had been received since the April 2007 Board decision to warrant reopening the claim, and then and then granted service connection for this disability on the merits. In a September 2017 rating decision, VA effectuated the Board's decision and granted service connection for right foot neuritis (previously tarsal tunnel syndrome), effective April 19, 2010, the date of her claim. The September 2017 rating decision followed the general rule by establishing the effective date of the award of service connection based on the date of receipt of the new claim. See 38 C.F.R. § 3.400(q)(2). As such, an earlier effective date would be warranted only if a prior rating decision or Board decision did not become final. Initially, the Board finds that the September 2007 claim did not include a claim of service connection for a right foot disability. While the September 2007 claim used the term "bilateral," the use of the terms "increase" and "service-connected" would indicate that the claim was for an increased evaluation for a left foot disability. Furthermore, a May 2008 letter provided the Veteran an opportunity to clarify the scope of her claim. By not responding, the Veteran acknowledged that VA properly interpreted the scope of the claim. Accordingly, the September 2007 claim did not include a claim of service connection for a right foot disability. While the September 2017 rating decision referred to tarsal tunnel syndrome, the November 2006 and April 2010 claims have been treated as separate, distinct claims for a right foot disability because (1) the June 2007 rating decision did not require the November 2006 claim to include new and material evidence and (2) the July 2017 Board decision stated that the last prior decision was the April 2007 Board decision. Here, if the Board considered the November 2006 and April 2010 claims as claims of service connection for separate disability, then the Board must determine whether the March 2002 claim became final by the April 2007 Board decision. If the November 2006 and April 2010 claims are for the same disability, then the Board must determine whether the November 2006 claim became final in the June 2007 rating decision. As explained below, whether the two claims are for separate disabilities or the same disability, the AOJ established the correct effective date for the award of service connection in the September 2017 rating decision. The Board finds that the March 2002 claim became final in the April 2007 Board decision. The Veteran did not appeal the Board decision, and the provisions in 38 C.F.R. § 3.156 that might preclude finality to a rating decision do not apply to a Board decision. Furthermore, the Veteran did not request reconsideration of the Board decision; thus, the April 2007 Board decision adjudicating a right foot disability secondary to a left foot disability became final. Because the April 2007 Board decision was final, the correct effective date for the award of service connection for the Veteran's right foot disability secondary to her left foot disability is April 19, 2010, or the date of her claim. Even if the Board were to find that the November 2006 and April 2010 claims were for the same disability, the Board finds that the November 2006 claim became final in the June 2007 rating decision. Assuming the November 2006 and April 2010 claims are for the same disability, then the standard of materiality would be governed by the April 2007 Board decision because that decision cannot be reviewed by the AOJ. See 38 U.S.C. § 511. Here, the Veteran did not file a notice of disagreement and while evidence was actually or constructively received during the one-year period following the June 2007 rating decision, the Board concludes that this evidence was not material. Specifically, while the evidence showed treatment for various complaints, it did not relate to a previously unestablished element of service connection, or in this case, show a nexus to service. Thus, the June 2007 rating decision became final, and the correct effective date for the award of service connection is April 19, 2010, or the date of the Veteran's claim. For the above reasons, entitlement to an effective date prior to April 19, 2010 for the award of service connection for right foot neuritis is not warranted. The preponderance of the evidence is against the claim. The benefit-of-the-doubt doctrine is not for application, and the claim must be denied. REASONS FOR REMAND Entitlement to an initial evaluation in excess of 10 percent for right foot neuritis is remanded. The Board finds that remand is required because the December 2020 VA examination is inadequate. While the December 2020 examiner stated that the Veteran's right foot neuritis resulted in mild incomplete paralysis, the examiner did not consider the functional impairment of this disability during flare-ups. Furthermore, the examiner did not appear to consider treatment records cited to in an August 2018 attachment that the Veteran asserts shows more than mild incomplete paralysis. Remand is also required to obtain outstanding treatment records. The Board notes a VA Form 21-4142 for three facilities, to include Blanchfield Army Hospital, Clarksville VA Medical Center, and Nashville VA Medical Center, was rejected because these were not private facilities. However, it is not clear whether VA attempted to obtain these records as federal records. The Veteran identified Blanchfield Army Hospital as a source of treatment for right foot disability. Additionally, while VA records from Tennessee Valley are in the claims file, it is not clear whether this source includes both the Clarksville and Nashville VA Medical Centers. Upon remand, VA should provide the Veteran with a VA Form 21-4142 to identify any outstanding private treatment for this disability. The matter is REMANDED for the following actions: 1. Obtain the Veteran's VA/federal treatment records from the Blanchfield Army Hospital, Clarksville VA Medical Center, and Nashville VA Medical Center. All requests and negative responses received should be documented in the claims file. 2. Ask the Veteran to complete a VA Form 21-4142 for private treatment for right foot neuritis. Make two requests for the authorized records from each identified provider, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected right foot neuritis. 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 consider the functional impairment of the Veteran's right foot neuritis during flare-ups and consider treatment records cited by the Veteran's attorney in an August 2018 attachment. 4. After completing the above, and any other development as may be indicated, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and her representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. Stephanie M. Owen Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ormson, Associate 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.