Citation Nr: 21077412 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 19-06 576 DATE: December 29, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for left and right foot plantar fasciitis is reopened. New and material evidence having been received, the claim for entitlement to service connection for left knee condition is reopened. REMANDED Entitlement to service connection for left and right foot plantar fasciitis is remanded. Entitlement to service connection for left and right knee conditions is remanded. Entitlement to service connection for left- and right-hand finger conditions is remanded. Entitlement to service connection for a right arm and shoulder condition is remanded. Entitlement to service connection for right partial retinal tear (claimed as right partial retina tear laser surgery tearing and burning) is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. In a final decision issued in December 2013, the RO denied the Veteran's claims of entitlement to service connection for left and right foot plantar fasciitis. 2. Evidence added to the record since the last final denial in December 2013 is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claims of entitlement to service connection for left and right foot plantar fasciitis. 3. In a final decision issued in December 2013, the RO denied the Veteran's claim of entitlement to service connection for a left knee condition. 4. Evidence added to the record since the last final denial in December 2013 is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a left knee condition. CONCLUSIONS OF LAW 1. The December 2013 rating decision that denied the Veteran's claim of entitlement to service connection for left and right foot plantar fasciitis is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claims of entitlement to service connection for left and right foot plantar fasciitis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The December 2013 rating decision that denied the Veteran's claim of entitlement to service connection for a left knee condition is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 4. New and material evidence has been received to reopen the claim of entitlement to service connection for a left knee condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from December 1983 to May 1992. In August 2021 the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board notes that the RO originally treated the Veteran's claims for service connection for left- and right-hand finger conditions as well as his claim for service connection for a right knee disability as petitions to reopen as they were originally denied in an October 2015 rating decision. However, in April 2016 the Veteran filed a new claim for benefits as well as a petition to reopen and such is within the one-year appeal period extending from the October 2015 decision. Therefore, the October 2015 rating decision did not become final, and the Board has considered the Veteran's claims for service connection for left- and right-hand finger conditions and a right knee disability as original claims for service connection. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104 (a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105 (b) and (c); 38 C.F.R. §§ 3.160 (d), 20.200, 20.201, 20.202, and 20.302(a). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing 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). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). New and material evidence having been received, the claims for entitlement to service connection for left and right foot plantar fasciitis, and a left knee condition are reopened. The Board notes that the Veteran originally claimed entitlement to service connection for left and right foot plantar fasciitis, and a left knee condition in May 2013, which were denied by the RO in a December 2013 rating decision. Of record at the time of the December 2013 rating decision were copies of the Veteran's service treatment records and post-service treatment records. Regarding the Veteran's bilateral plantar fasciitis, the RO found that the Veteran's service records were silent for any complaints, treatment, or diagnosis of a bilateral foot disability. About the Veteran's left knee condition, the RO concluded that the Veteran's service records were also silent for any complaints, treatment, or diagnosis of a knee disability. Therefore, the RO denied the Veteran's claims. The Veteran was advised of the decisions and his appellate rights. No further communication regarding his claims of entitlement to service connection for left and right foot plantar fasciitis, and a left knee condition was received until March 2015, when VA received his application to reopen such claims. Therefore, the December 2013 rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 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 while evidence was received it did not pertain to the Veteran's claims for left and right foot plantar fasciitis or a left knee condition. Therefore, the December 2013 rating decision is final. See also 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). The evidence received since the December 2013 decision includes additional treatment records, lay statements, and hearing testimony. Treatment records reflect that the Veteran received treatment for bilateral plantar fasciitis as well as degenerative joint disease of the left knee. Furthermore, the Veteran testified that he believed that strain during service from running in boots and carrying heavy rucksacks caused his current musculoskeletal conditions. He also testified that his painful conditions began during service and have continued since. The Board notes that the Veteran is capable of reporting observable symptoms of an injury or illness, as well as the length of time those symptoms have persisted. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Presuming the credibility of the Veteran's statements pursuant to Justus, 3 Vet. App. at 513, and in light of the additional treatment records, the Board finds that the evidence received since the December 2013 rating decision is neither cumulative nor redundant and raises the possibility of substantiating the claims of service connection. See 38 C.F.R. § 3.156 (a). In this regard, the Veteran's claim for bilateral plantar fasciitis was denied as there was no evidence of any complaints, treatment or diagnosis in the Veteran's service records nor any evidence of a connection to service. Furthermore, the Veteran's left knee condition was denied as there was no evidence of any knee disability in service nor any evidence post-service of a left knee condition connected to service. Since such time, the Veteran and the record indicate that not only does the Veteran have current disabilities, but that his conditions are due to in-service strain and repetitive trauma. Therefore, based on the foregoing reasons, the Board finds that new and material evidence has been received and, accordingly, the claims of entitlement to service connection for left and right foot plantar fasciitis and a left knee condition are reopened. REASONS FOR REMAND Although the Board regrets the delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For below noted reasons, the Board finds that VA examinations are needed to determine the nature and etiology of the Veteran's claimed disabilities. Entitlement to service connection for bilateral hand finger conditions, bilateral plantar fasciitis, bilateral knee conditions, a right arm and shoulder condition, right partial retinal tear and sleep apnea are remanded. The Veteran contends that he suffers from bilateral hand finger conditions, bilateral plantar fasciitis, bilateral knee conditions, a right arm and shoulder condition, right partial retinal tear, and sleep apnea as a direct result of his active-duty service. Specifically, the Veteran alleges that strain and repetitive trauma during service, to include running in military issued boots and carrying heavy rucksacks caused his musculoskeletal conditions. In addition, he contends that his duties as an administrative specialist, to include continuous typing and staring at computer screens, caused his finger conditions and retinal tear. Finally, the Veteran alleges that his sleep apnea began during his active duty. The Board notes that the Veteran's service treatment records reflect that the Veteran was treated in October and November 1990 for right shoulder pain, in April 1985 for a contused left 3rd digit, and in February 1992 for possible right-hand tendonitis. The Veteran's service records are silent for any complaints, treatment, or diagnosis of eye problems to include retinal tear, sleep apnea, bilateral plantar fasciitis, or bilateral knee disabilities. However, the Veteran's records reflect that he was an administrative specialist and typing and use of computers are in keeping with his expected duties. In addition, running in military issued boots and carrying rucksacks are standard duties during training. Finally, the Veteran testified that his roommate during service told him that he snored and stopped breathing in his sleep. Post-service the Veteran's records reflect his reports of right shoulder pain as well as alleged arthritis in his hands. In addition, the Veteran's records note diagnoses of a partially torn retina, sleep apnea, bilateral plantar fasciitis, and bilateral knee degenerative joint disease. The Board finds that as the Veteran's records reflect and as he has alleged reasonable in-service causes for his alleged conditions and as he has current diagnoses and reported problems, VA examinations are needed in order to determine the likely nature and etiology of his disabilities. As such examinations are not of record, on remand they must be obtained. Due to the amount of time which will pass on remand, updated treatment records should be obtained and associated with the record. The matters are REMANDED for the following action: 1. Obtain updated treatment records. 2. The Veteran should be provided with a VA examination to determine the nature and etiology of his claimed bilateral hand finger disabilities. The claims file should be made available to the examiner. The examiner should respond to the following: Identify all manifestations of the Veteran's left- and right-hand finger disabilities, to include arthritis. (1) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's left- and right-hand finger disabilities are related to his service, to include his repetitive typing during service? (2) If arthritis is diagnosed, did such manifest within one year of the Veteran's discharge? The rationale for any opinion offered should be provided. 3. The Veteran should be provided with a VA examination to determine the nature and etiology of his claimed bilateral plantar fasciitis. The claims file should be made available to the examiner. The examiner should respond to the following: Identify all manifestations of the Veteran's bilateral plantar fasciitis. (1) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's bilateral plantar fasciitis is related to his service, to include his running in military issued boots during service? The rationale for any opinion offered should be provided 4. The Veteran should be provided with a VA examination to determine the nature and etiology of his claimed bilateral knee disabilities. The claims file should be made available to the examiner. The examiner should respond to the following: Identify all manifestations of the Veteran's bilateral knee disabilities, to include degenerative joint disease. (1) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's bilateral knee disabilities are related to his service, to include his running in military issued boots and carrying rucksacks during service? (2) If arthritis is diagnosed, did such manifest within one year of the Veteran's discharge? The rationale for any opinion offered should be provided 5. The Veteran should be provided with a VA examination to determine the nature and etiology of his claimed right arm and shoulder disability. The claims file should be made available to the examiner. The examiner should respond to the following: Identify all manifestations of the Veteran's right arm and shoulder disability. (1) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's right arm and shoulder disability is related to his service, to include his carrying of rucksacks in service? (2) If arthritis is diagnosed, did such manifest within one year of the Veteran's discharge? The rationale for any opinion offered should be provided 6. The Veteran should be provided with a VA examination to determine the nature and etiology of his partial right retinal tear. The claims file should be made available to the examiner. The examiner should respond to the following: Identify all manifestations of the Veteran's partial right retinal tear. (1) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's right retinal tear is related to his service, to include his staring at computer screens during service? The rationale for any opinion offered should be provided 7. The Veteran should be provided with a VA examination to determine the nature and etiology of his claimed sleep apnea. The claims file should be made available to the examiner. The examiner should respond to the following: Identify all manifestations of the Veteran's sleep apnea. (1) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's sleep apnea is related to or began during his service? The rationale for any opinion offered should be provided. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Unger, 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.