Citation Nr: 21074267 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 14-05 574 DATE: December 14, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for a bilateral foot disability is reopened; to this extent only, the claim is granted. New and material evidence having been received, the claim for entitlement to service connection for a back disability is reopened; to this extent only, the claim is granted. New and material evidence having been received, the claim for entitlement to service connection for a left knee disability is reopened; to this extent only, the claim is granted. REMANDED Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for an upper thigh disability is remanded. Entitlement to service connection for a skin disability is remanded. Entitlement to service connection for a psychiatric disability is remanded. FINDINGS OF FACT 1. The Veteran's claim for service connection for a bilateral foot disability was previously denied by a July 2002 rating decision; the Veteran did not perfect a timely appeal of that decision after a statement of the case (SOC) was issued in April 2004. 2. Additional evidence received since the July 2002 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to unestablished facts necessary to substantiate the claim for service connection for a bilateral foot disability, and raises a reasonable possibility of substantiating that claim. 3. The Veteran's claim for service connection for a back disability was previously denied by an August 2007 rating decision; the Veteran did not perfect a timely appeal of that decision after an SOC was issued in June 2008. 4. Additional evidence received since the August 2007 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for a back disability, and raises a reasonable possibility of substantiating that claim. 5. The Veteran's claim for service connection for a left knee disability was previously denied by a March 2008 rating decision; the Veteran did not appeal that decision, and VA did not actually or constructively receive documentation constituting new and material evidence for that claim within the one-year appeal period. 6. Additional evidence received since the March 2008 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for a left knee disability, and raises a reasonable possibility of substantiating that claim. CONCLUSIONS OF LAW 1. The July 2002 rating decision denying service connection for a bilateral foot disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103 (2020). 2. The August 2007 rating decision denying service connection for a back disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103 (2020). 3. The March 2008 rating decision denying service connection for a left knee disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103 (2020). 4. New and material evidence has been received to reopen the Veteran's claims for entitlement to service connection for a bilateral foot disability, for a back disability, and for a left knee disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1980 to April 1983. In December 2018, the case was remanded by an Acting Veterans Law Judge for additional development. The case has now been assigned to the undersigned Veterans Law Judge. Reopening Service Connection Claims Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. 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. In determining whether evidence is new and material, the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (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, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received 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. Shade, 24 Vet. App. at 118. If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a bilateral foot disability. The Veteran's claim for entitlement to service connection for a bilateral foot disability was previously denied in a July 2002 rating decision (characterized at that time as frozen feet) on the basis that the evidence did not show a current bilateral foot disability or a bilateral foot disability in service. Following a May 2003 notice of disagreement (NOD) to the denial of service connection for a bilateral foot disability in the July 2002 rating decision, the July 2002 rating decision became final when the Veteran did not perfect a timely appeal of that decision after an SOC was issued in April 2004. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. The evidence received since the July 2002 rating decision includes a July 2011 written submission from the Veteran (wherein he described hiking during cold weather training and stated that the itching, pain, and burning in his feet had been ongoing since service to the present day) as well as a March 2019 VA medical problem list (which indicated that the Veteran's active problems included bunion). This evidence was not before adjudicators when the Veteran's claim for service connection for a bilateral foot disability was previously denied by the Agency of Original Jurisdiction (AOJ) in July 2002, and it is not cumulative or redundant of the evidence of record at the time of that decision. It also relates to unestablished facts necessary to substantiate the claim for service connection for a bilateral foot disability, and raises a reasonable possibility of substantiating that claim. Accordingly, the claim is reopened. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a back disability. The Veteran's claim for entitlement to service connection for a back disability was initially denied in a July 2002 rating decision on the basis that the evidence did not show a current chronic back disability. Following a May 2003 NOD to the denial of service connection for a back disability in the July 2002 rating decision, the July 2002 rating decision became final when the Veteran did not perfect a timely appeal of that decision after an SOC was issued in April 2004. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. Thereafter, an August 2007 rating decision denied the Veteran's claim for entitlement to service connection for a back disability on the basis that the evidence did not show a nexus between any current back disability and his service. Following a November 2007 NOD to the denial of service connection for a back disability in the August 2007 rating decision, the August 2007 rating decision became final when the Veteran did not perfect a timely appeal of that decision after an SOC was issued in June 2008. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. The evidence received since the August 2007 rating decision includes an October 2015 written submission from the Veteran (wherein he stated that he had injured his lower back in service during a helicopter jump and had been suffering ongoing chronic pain ever since this in-service injury). This evidence was not before adjudicators when the Veteran's claim for service connection for a back disability was last denied by the AOJ in August 2007, and it is not cumulative or redundant of the evidence of record at the time of that decision. It also relates to an unestablished fact necessary to substantiate the claim for service connection for a back disability, and raises a reasonable possibility of substantiating that claim. Accordingly, the claim is reopened. 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a left knee disability. The Veteran's claim for entitlement to service connection for a left knee disability was previously denied in a March 2008 rating decision on the basis that the evidence did not show a nexus between any current left knee disability and his service. The AOJ notified the Veteran of its March 2008 rating decision, and of his appellate rights. The Veteran did not appeal the decision, nor did VA actually or constructively receive any new and material evidence within a year following the decision. Therefore, the March 2008 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. The evidence received since the March 2008 rating decision includes an October 2015 written submission from the Veteran (wherein he stated that he had injured his left knee in service during a helicopter jump and had been suffering ongoing chronic pain ever since this in-service injury). This evidence was not before adjudicators when the Veteran's claim for service connection for a left knee disability was previously denied by the AOJ in March 2008, and it is not cumulative or redundant of the evidence of record at the time of that decision. It also relates to an unestablished fact necessary to substantiate the claim for service connection for a left knee disability, and raises a reasonable possibility of substantiating that claim. Accordingly, the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral foot disability. 2. Entitlement to service connection for a back disability. 3. Entitlement to service connection for a left knee disability. 4. Entitlement to service connection for an upper thigh disability. 5. Entitlement to service connection for a skin disability. 6. Entitlement to service connection for a psychiatric disability. The Board cannot make a fully informed decision on these issues at this time because the record reflects that there are outstanding treatment records not currently associated with the claims file that may be pertinent to these claims on appeal. Specifically, a July 30, 2019 VA Form 27-0820 (Report of General Information) documents a phone call received from the Veteran wherein he stated that he was at the St. Louis VA Medical Center (VAMC) the day before (i.e., July 29, 2019) and that he "would like those visit notes to be considered with the appeal." However, the record reflects that the most recent VA treatment report of record in the claims file from the St. Louis VAMC is dated July 11, 2019 and that the most recent VA examination report of record from the St. Louis VAMC is dated July 26, 2019. On remand, all outstanding treatment records must be associated with the claims file. Regarding the claim for service connection for a bilateral foot disability, the Veteran's DD Form 214 documents that his military occupational specialty (MOS) in service was Tactical Wire Operations Specialist. There are no medical opinions currently of record which address a nexus between any current bilateral foot disability and any incident of his military service (including the cold weather training he described in his July 2011 written submission). On remand, an examination with medical opinion must be obtained. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 27 (2006). Regarding the claim for service connection for a back disability, the Veteran underwent a VA orthopedic examination in August 2011, at which time the VA examiner opined that the Veteran's currently diagnosed chronic lumbar strain was less likely as not incurred by or caused by the claimed in-service injury, event, or illness, with the rationale being that the treatment he received for his lumbar spine in service (documented in May 1982 and September 1982) consisted of "brief, self-limited episodes" with no abnormal findings or diagnosis relative to his lumbar spine on exit from the service. However, there are no medical opinions currently of record which address the Veteran's allegations of continuity of symptomatology from the time of his service to the present. On remand, a new examination with medical opinion should be obtained. Regarding the claim for service connection for a left knee disability, the Veteran underwent a VA orthopedic examination in February 2008, at which time the VA examiner opined that it was less likely than not that the Veteran's current left knee symptoms were related to his left thigh complaints treated while in service in May 1982, with the rationale being that there was a lack of evidence of any interim complaints of or treatment for any ongoing left knee symptoms since the time of his military service. The Veteran also underwent a VA orthopedic examination in August 2011, at which time the VA examiner opined that the Veteran's current left knee pain was less likely as not incurred by or caused by the claimed in-service injury, event, or illness, with the rationale being that after receiving treatment for his left knee in service (documented in May 1982) he had no recurrence and there was no entry on service discharge of any residual to the left knee. However, there are no medical opinions currently of record which address the Veteran's allegations of continuity of symptomatology from the time of his service to the present. On remand, a new examination with medical opinion should be obtained. Regarding the claim for service connection for an upper thigh disability, the Veteran's service treatment records (STRs) document that in May 1982, he complained of pain on his left thigh from the top of the patella to six inches up the thigh, and he stated that he jumped off a helicopter during landing and landed on his left leg first. There are no medical opinions currently of record which address a nexus between the Veteran's currently claimed upper thigh disability and his military service. On remand, an examination with medical opinion must be obtained. See 38 C.F.R. § 3.159(c)(4); see also McLendon, 20 Vet. App. at 27. Regarding the claim for service connection for a skin disability, the Board's December 2018 remand directed the AOJ to send the claims file to a VA clinician for a medical opinion addressing the etiology of any current skin disabilities [as an addendum to a November 2013 VA skin examination at which time tinea corpora and tinea pedis were diagnosed], and the clinician was to specifically consider pertinent STRs (including a June 1981 STR noting a rash on his legs in the groin area with a possible yeast infection, and an August 1981 STR noting an assessment of jock itch) and pertinent post-service treatment records (including a September 1987 VA treatment record noting assessments of tinea pedis, tinea versicolor, and tinea cruris, a February 1998 VA treatment record noting diagnoses of tinea cruris and tinea pedis, and a July 2001 VA treatment record noting his complaint of an itching rash on his genitals which he reported having for about 20 years). In July 2019, a VA physician opined that the Veteran's currently diagnosed dermatitis not otherwise specified (NOS), body dermatophytosis, and foot dermatophytosis were not related to his in-service episode of pediculosis pubis (documented in January 1983), with the rationale being that the currently diagnosed skin conditions were totally unrelated and caused by a totally different organism. However, the VA physician did not specifically consider the pertinent STRs or pertinent post-service treatment records outlined above, as required by the Board's December 2018 remand. On remand, an examination with adequate medical opinion must be obtained. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not substantially complied with, the Board errs as a matter of law when it fails to ensure substantial compliance). In addition to the treatment records outlined above, the examiner should also be asked to specifically consider and address a June 1994 VA treatment record noting a diagnosis of tinea pedis and documenting the Veteran's report of having a bilateral foot rash since 1980. Regarding the claim for service connection for a psychiatric disability, the Board's December 2018 remand directed the AOJ to schedule the Veteran for a VA examination to determine the nature and etiology of any current psychiatric disabilities, and the examiner was to specifically provide such an opinion for all such disabilities present during the appeal period (including depressive disorder NOS and anxiety disorder NOS which were both diagnosed in a March 2011 VA treatment record). At the Veteran's July 2019 VA psychiatric examination, the VA examining psychologist opined that the Veteran's currently diagnosed opioid use disorder and cannabis use disorder were less likely than not incurred in or caused by the claimed in-service injury, event, or illness, with the rationale being that any substance use disorder diagnosis is reflective of a pattern of excessive use of a substance which is a behavior choice made by the individual, rather than a direct result of the symptoms of any other mental health diagnosis. However, the VA examining psychologist did not provide an opinion addressing the etiology of the Veteran's depressive disorder NOS and anxiety disorder NOS (both diagnosed in March 2011 as outlined above and listed on his March 2019 VA medical problem list) or addressing the etiology of any other psychiatric disabilities diagnosed during the appeal period (including psychoactive substance-induced organic mood disorder and adjustment disorder with depressed mood, both listed on his March 2019 VA medical problem list), as required by the Board's December 2018 remand. On remand, a new examination with adequate medical opinion must be obtained. See Stegall, 11 Vet. App. at 268, 271. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for all private providers who have treated him for his claimed disabilities during the appeal period. 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. 2. Obtain the Veteran's VA treatment records from the St. Louis VAMC for the period from July 11, 2019 to the present. 3. After all requested records have been associated with the claims file, schedule the Veteran for examinations by appropriate clinicians (or telehealth interviews if in-person examinations are not feasible) to determine the nature and etiology of any current bilateral foot disability, back disability, left knee disability, upper thigh disability, skin disability, and psychiatric disability. The electronic claims file must be made available to the examiners for review in conjunction with the examinations. All necessary tests should be performed, and the results reported. (a.) For each bilateral foot disability diagnosed during the pendency of the appeal period (to include bunion), the examiner must provide an opinion as to whether it is at least as likely as not that such disability began during the Veteran's active service (or within one year of service discharge), or is otherwise related to any incident of his active service (with specific consideration given to his MOS duties and his allegations of continuity of symptomatology since service). (b.) For each back disability diagnosed during the pendency of the appeal period (to include chronic lumbar strain), the examiner must provide an opinion as to whether it is at least as likely as not that such disability began during the Veteran's active service (or within one year of service discharge), or is otherwise related to any incident of his active service (with specific consideration given to all pertinent STRs, his MOS duties, and his allegations of continuity of symptomatology since service). (c.) For each left knee disability diagnosed during the pendency of the appeal period (to include pain alone which results in functional impairment of earning capacity), the examiner must provide an opinion as to whether it is at least as likely as not that such disability began during the Veteran's active service (or within one year of service discharge), or is otherwise related to any incident of his active service (with specific consideration given to all pertinent STRs, his MOS duties, and his allegations of continuity of symptomatology since service). (d.) For each upper thigh disability diagnosed during the pendency of the appeal period (to include pain alone which results in functional impairment of earning capacity), the examiner must provide an opinion as to whether it is at least as likely as not that such disability began during the Veteran's active service (or within one year of service discharge), or is otherwise related to any incident of his active service (with specific consideration given to all pertinent STRs, his MOS duties, and his allegations of continuity of symptomatology since service). (e.) For each skin disability diagnosed during the pendency of the appeal period (to include tinea corpora, tinea pedis, dermatitis NOS, body dermatophytosis, and foot dermatophytosis), the examiner must provide an opinion as to whether it is at least as likely as not that such disability began during the Veteran's active service (or within one year of service discharge), or is otherwise related to any incident of his active service (with specific consideration given to all pertinent STRs including those dated in June 1981 and August 1981, as outlined above, his MOS duties, his allegations of continuity of symptomatology since service, and pertinent post-service treatment records including those dated in in September 1987, June 1994, February 1998, and July 2001, as outlined above). (f.) For each psychiatric disability diagnosed during the pendency of the appeal period (to include all of the following: opioid use disorder, cannabis use disorder, depressive disorder NOS, anxiety disorder NOS, psychoactive substance-induced organic mood disorder, and adjustment disorder with depressed mood), the examiner must provide an opinion as to whether it is at least as likely as not that such disability began during the Veteran's active service (or within one year of service discharge), or is otherwise related to any incident of his active service (with specific consideration given to his MOS duties and his allegations of continuity of symptomatology since service). A complete rationale for all opinions must be provided. If the clinician(s) cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician(s) must provide the reasons why an opinion would require speculation. The clinician(s) must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician(s) must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular clinician. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. B. Yantz, Counsel The Board's decision in this case is binding only with respect to the instant matters decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.