Citation Nr: 21074713 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 19-08 610 DATE: December 16, 2021 ORDER Revision or reversal of the August 1998 rating decision for clear and unmistakable error (CUE) is not warranted. REMANDED Entitlement to service connection for a right ankle, to include as secondary to service-connected plantar fasciitis, is remanded. Entitlement to service connection for a left ankle disability, to include as secondary to service-connected plantar fasciitis, is remanded. Entitlement to service connection for a skin condition, to include as secondary to service-connected plantar fasciitis, is remanded. FINDINGS OF FACT 1. The August 1998 rating decision denying service connection for bilateral foot problems is final. 2. The Veteran has not identified an error of fact or law in the August 1998 rating decision that compels a conclusion, to which reasonable minds could not differ, that the results would have been manifestly different had the error not been made. CONCLUSION OF LAW The criteria for clear and unmistakable error in the August 1998 rating decision have not been met. 38 U.S.C. § 5109A (2018); 38 C.F.R. § 3.105 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1984 to February 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a hearing conducted by the undersigned Veterans Law Judge. 1. Whether revision or reversal of the August 1998 rating decision for clear and unmistakable error (CUE) is warranted. In August 1998, the RO denied the Veteran's service connection claim for a bilateral foot disability. The following March, the Veteran timely disagreed. So, in May 1999, the RO prepared a Statement of the Case (SOC), which set forth "the decision on each issue and a summary of the reasons for such decision." 38 U.S.C. § 7105(d)(1)(C) (1994). The Veteran then had "the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed" to file a Substantive Appeal. 38 C.F.R. § 20.302 (1998). In other words, the Veteran had until August 1999 to file a Substantive Appeal. When he did not respond, the August 1998 rating decision became final. 38 C.F.R. § 20.1103 (1998). The Veteran now contends that the RO clearly and unmistakably erred when it denied his service connection claim. Generally, a final rating decision may not be reversed or revised absent clear and unmistakable error (CUE). This happens when the following conditions are met. First, either (1) the correct facts in the record were not before the adjudicator, or (2) the statutory or regulatory provisions in existence at the time were incorrectly applied. Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc). Second, the error is "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated." Id. Third, the error must have "manifestly changed the outcome" of the decision. Id. It is not easy to establish CUE in a final decision; it is "a very rare and specific kind of 'error' . . . of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error." Fugo v. Brown, 6 Vet. App. 40, 43 (1993). "[I]f it is not absolutely clear that a different result would have ensued," then the error is not clear and unmistakable. Id. at 44. When raising a CUE claim, the Veteran "must provide some degree of specificity as to what the alleged error is, and unless it is the kind of error, that if true, would be CUE on its face, 'persuasive reasons must be given as to why the result would have been manifestly different but for the applied error." Eddy v. Brown, 9 Vet. App. 52, 57 (1996). Where, as here, the Veteran is not represented by counsel, the Board has a "duty to sympathetically read a veteran's pro se CUE motion to discern all potential claims." Andrews v. Nicholson, 421 F.3d 1278, 1283 (Fed. Cir. 2005). Circling back to the rating decision, the RO denied the Veteran's service connection claim because it determined that his foot problems pre-existed his service and were not aggravated by it. In August 1998, the evidentiary record consisted of the Veteran's service treatment records (STRs) and his VA examination results. See Pierce v. Principi, 240 F.3d 1348, 1354 (Fed. Cir. 2001). Here, the RO acknowledged the Veteran's foot-related complaints after entry, his subsequent plantar fasciitis diagnosis, and his medical board proceeding. In January 1985, a medical board found the Veteran unfit for service, found that his condition pre-existed service, had not been incurred in the line of duty, and had not been aggravated by military service. The Veteran signed a statement affirming that the medical board findings had been explained to him and waived his right to a hearing before the Physical Evaluation Board (PEB). The military honorably discharged him the next month. The Veteran's separation paperwork lists the reason for separation as "Physical Disability existing prior to entry determined by MedBd." Other than his service records, the only other evidence of record at the time of the decision was the Veteran's examination results. In July 1998, the Veteran underwent a bone, foot, and joint examination. There, the examiner took the Veteran's medical history, physically examined him, performed imaging studies, and diagnosed his condition. She ended up diagnosing four foot disabilities "Bilateral calcaneal spurs," "Degenerative joint disease first metatarsophalangeal joints bilaterally," "Mild flexion deformities of interphalangeal joints, great toes bilaterally," and "Intermetatarseums first and second toes bilaterally." The examiner did not render a nexus opinion. Reviewing the examination report, the RO acknowledged the examiner's calcaneal spur and degenerative joint disease diagnoses but pointed out that the Veteran's "[s]ervice records do not note either of these conditions." On this evidentiary record, the RO concluded (1) that the Veteran's bilateral foot problems pre-existed his service, (2) his service did not aggravate his disability, and (3) implicitly, that the evidence was clear and unmistakable. It's difficult to state why the Veteran thinks the RO erred, but sympathetically reading his testimony, as the Board must, he appears to contend that the RO failed to correctly apply the presumption of soundness. He denied entering service with a pre-existing foot disability at the hearing and testified that his foot problems resulted from the military issuing him the wrong boot size. In 1998, as today, veterans were presumed sound "except as to defects, infirmities, or disorders noted at [entry], or where clear and unmistakable evidence demonstrates that the injury or disease existed before [entry] and was not aggravated by such service." 38 U.S.C. § 1111 (1994). A condition is "noted" when recorded on the examination report. 38 C.F.R. § 3.304(b) (1998). When he enlisted, the entry examiner found his feet to be clinically normal and for his part, the Veteran reported no foot-related medical history. Presumptively, then, the Veteran was sound when he entered service. It's true the RO did not expressly find the Veteran sound on entry, cite the VA regulations on the presumption of soundness or even mention it by name. But it discusses the evidence it found persuasive (the medical board report) albeit opaquely"[t]he condition was . . . determined to have preceded military service." And it expressly makes the necessary findings to rebut the presumptionthe Veteran's bilateral foot problems pre-existed his service, and his service did not aggravate his disabilitysuggesting that it did, in fact, apply the required analysis. Accordingly, the Board cannot conclude that the RO incorrectly applied the law at the time of the decision. Even if the RO erred in finding the presumption rebutted, it would not rise to the level of a clear and unmistakable error. The presumption of soundness pertains to only the in-service incurrence element of a compensation claim; it "cannot fill the gap where the veteran failed to show a casual relationship between his in-service and post-service medical problems." Simmons v. Wilkie, 964 F.3d 1381, 1385 (Fed. Cir. 2020). Here, the RO considered the Veteran's examination results. When taking his medical history, the examiner specifically noted the Veteran's self-reported history of plantar fasciitis but did not diagnose him with the condition. Instead, she diagnosed him with calcaneal spurs and bilateral degenerative joint disease of the first metatarsophalangeal joints. She did not render a nexus opinion. When nexus evidence is lacking, a presumption of soundness error alone does not rise to the level of CUE because its correction would not manifestly change the outcome of the decisionthe denial of service connection. See id. at 1385. When asking for revision or reversal for a clear and unmistakable error, the Veteran bears an "extra-heavy burden" because "[a] final decision is entitled to a strong presumption of validity." Berger v. Brown, 10 Vet. App. 166, 169 (1997). Here, the Board concludes that he failed to meet this burden. Because the RO correctly applied the law at the time (or if it did not, the error would not have manifestly changed the outcome), the criteria for revision or reversal for clear and unmistakable error are not met. REASONS FOR REMAND 1. Entitlement to service connection for a right ankle disability, to include as secondary to service-connected plantar fasciitis, is remanded. 2. Entitlement to service connection for a left ankle disability, to include as secondary to service-connected plantar fasciitis, is remanded. 3. Entitlement to service connection for a skin condition, to include as secondary to service-connected plantar fasciitis, is remanded. The Secretary must provide an exam or medical opinion when it "is necessary to make a decision on the claim." 38 C.F.R. § 5103(d). A medical exam or opinion is necessary only if the record contains (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that the veteran suffered an in-service event, injury, or disease; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to decide on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The third element "requires only that the evidence 'indicates' that there 'may' be a nexus" between the Veteran's symptoms or disability and his military service. McLendon, 20 Vet. App. at 83. "This is a low threshold." Id. Here, the Veteran testified that he is "losing skin off [his] feet, has "blisters all over [his] left foot," and weak ankles. His medical records show the same or similar symptoms"scattered blister[-]like lesions" on his left foot in June 2016, a rash on his left foot and "ankles lock[ing] up" in June 2017, and an acute rash with blisters on his left foot in August 2017. And the Veteran's service treatment records (STRs) are replete with skin- and foot-related complaints during service. After exit, the Veteran testified that his skin- and foot-related symptoms continued. "The types of evidence that 'indicate' that a current disability 'may be associated' with military service include . . . evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation." Id.; see also Miller v. Wilkie, 32 Vet. App. 249, 262 (2020) ("[A] medical opinion may inform the Board about credibility."). Because the record lacks sufficient competent medical evidence to decide the claim, the Board finds the criteria for a medical examination met. Remand is further warranted to obtain the Veteran's Social Security Disability Insurance (SSDI) medical records. VA must "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit." 38 U.S.C. § 5103A(a)(1). As part of the duty to assist, VA must, in appropriate cases, obtain relevant records from a Federal department or agency, such as the Social Security Administration (SSA). 38 C.F.R. § 3.159(c)(2). Relevant records are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran's claim. Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010). In late August 2021, the Veteran reported that the SSA had awarded him disability benefits. He stated that his dialysis social worker helped him with the paperwork, but it is unclear from the available medical records which disability or disabilities the award was based on. To date, those records have not been associated with the claims file, nor does it appear that an attempt has been made to obtain them. "In close or uncertain cases," like here, "VA should be guided by the principles underlying this uniquely pro-claimant system." Id. at 1323. Because the Veteran's SSA records may contain evidence relevant to the claim on appeal, remand is also necessary to allow VA to request them. Finally, VA's duty to "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit" also includes "mak[ing] efforts to obtain . . . VA medical records or records of examination." 38 U.S.C. § 5103A(a)(1); 38 C.F.R. § 3.159(c)(3). Here, the Veteran testified that he received at least some of his medical care for his foot problems through the Veteran's Community Care Program. At least some of those records were scanned into the Veterans Health Information Systems and Technology Architecture (VistA) Imagingthe Veterans Health Administration's (VHA's) electronic health records imaging system. See an August 2020 VA treatment record. Unfortunately, VistA medical records are not automatically included in the record before the agency for a disability compensation claim. See Turner v. Shulkin, 29 Vet. App. 207, 217 (2018). And it does not appear that they have been added to the claims file. On remand, they should be obtained and associated with the claims file. Lang v. Wilkie, 971 F.3d 1348, 1352-55 (Fed. Cir. 2020). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the claims file. This shall include the Veteran's outside medical records scanned into VistA Imaging. If the RO finds that those records do not exist or that further efforts to obtain them would be futile, the claims file must be properly documented as to the unavailability of those records. 2. Obtain a copy of any decision to grant or deny SSA benefits to the Veteran and the medical records upon which that decision was based and associate them with the claims file. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of those records. 3. Then, schedule the Veteran for a VA examination to determine the nature and likely etiology of the Veteran's bilateral ankle disability. The claims file should be made available to and reviewed by the examiner. 4. The examiner should identify all current ankle disabilities other than the Veteran's service-connected plantar fasciitis. 5. For each disability, the examiner should provide an opinion on whether it is at least as likely as not (50 percent probability or greater) that the Veteran's ankle disability had its clinical onset during service or is due to an event or incident of the Veteran's period of active service. 6. If no identifiable disease or condition is diagnosed, the examiner should describe the Veteran's symptoms and provide an opinion on whether those symptoms cause functional impairment of his earning capacity. If so, the examiner must provide an opinion on whether it is at least as likely as not (50 percent probability or greater) that the Veteran's symptoms had their clinical onset during service or are due to an event or incident of the Veteran's period of active service. 7. The examiner must address the Veteran's contention that his symptoms onset during service and continued after discharge. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 8. Schedule the Veteran for a VA examination to determine the nature and likely etiology of the Veteran's skin disability. The claims file should be made available to and reviewed by the examiner. 9. The examiner should identify all skin disabilities associated with the Veteran's feet. 10. For each disability, the examiner should provide an opinion on whether it is at least as likely as not (50 percent probability or greater) that the Veteran's skin disability had its clinical onset during service or is due to an event or incident of the Veteran's period of active service. 11. If no identifiable disease or condition is diagnosed, the examiner should describe the Veteran's symptoms and provide an opinion on whether those symptoms cause functional impairment of his earning capacity. If so, the examiner must provide an opinion on whether it is at least as likely as not (50 percent probability or greater) that the Veteran's symptoms had their clinical onset during service or are due to an event or incident of the Veteran's period of active service. 12. The examiner must address the Veteran's contention that his symptoms onset during service and continued after discharge. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 13. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Canedy, 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.