Citation Nr: 21008199 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 15-23 082 DATE: February 12, 2021 ORDER As new and material evidence has not been received sufficient to reopen the claim of entitlement to service connection for left knee disability, the claim is denied. Entitlement to service connection for hypertension, to include on a secondary basis, is denied. Entitlement to a temporary total rating for plantar fasciitis of the left foot under the provisions of 38 C.F.R. § 4.30 based upon convalescence is denied. Entitlement to a temporary total rating for plantar fasciitis of the right foot under the provisions of 38 C.F.R. § 4.30 based upon convalescence is denied. FINDINGS OF FACT 1. A December 2011 rating decision denied service connection for a left knee disability. 2. The evidence received since the December 2011 rating decision does not relate to an unestablished fact necessary to substantiate the claim, nor does it raise a reasonable possibility of substantiating the claim for entitlement to service connection for a left knee disability. 3. The Veteran’s hypertension was not incurred in active service, nor was it caused or aggravated by a service-connected disability, to include his service-connected anxiety disorder. 4. The Veteran has not had surgical treatment with subsequent recovery for his service-connected plantar fasciitis of the left foot. 5. The Veteran underwent surgery in June 2015 for surgical correction for lateral ligamentous laxity of the right ankle; the Veteran is not service connected for a right ankle disability. CONCLUSIONS OF LAW 1. New and material evidence has not been received sufficient to reopen the claim of entitlement to service connection for left knee disability. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for a temporary total disability rating based on convalescence for plantar fasciitis of the right foot have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.30. 4. The criteria for a temporary total disability rating based on convalescence for plantar fasciitis of the left foot have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1983 to April 1984. These matters come to the Board of Veterans’ Appeals (Board) on appeal April 2014 and August 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously remanded by the Board in August 2018 for further development. Specifically, the Board instructed that any outstanding VA and private treatment records be obtained as it relates to each claimed disability and requested VA examinations and opinions with respect to the etiology of hypertension and restless leg syndrome (RLS). The Board additionally instructed that the RO send the Veteran a VCAA notice letter that provides him with notice as to the information and evidence that is required to substantiate his claims for temporary total ratings for plantar fasciitis of the left and right foot under the provisions of 38 C.F.R. § 4.30 based upon convalescence. The requested VA examinations and opinions have been obtained, and all available VA treatment records have been associated with the claims file. Additionally, in May 2019 and August 2019, the RO requested that the Veteran complete and return authorization forms to obtain private records; the Veteran did not return the authorization form but submitted private treatment records in August 2019. Furthermore, the August 2019 correspondence also notified the Veteran of the evidence needed to substantiate his claim for temporary total ratings. Thus, the Board finds that there has been substantial compliance with the August 2018 Board remand. Stegall v. West, 11 Vet. App. 268 (1998). A July 2020 rating decision granted service connection for RLS of the bilateral lower extremities as associated with his service-connected cold injuries, indicating that RLS is considered in the evaluation for peripheral neuropathy due to cold injuries of the lower extremities. The RO’s grant of service connection for RLS constitutes a full award of benefits sought on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Thus, this matter is no longer in appellate status. Id. 1. As new and material evidence has not been received sufficient to reopen the claim of entitlement to service connection for left knee disability, the claim is denied. A rating action from which an appeal is not perfected becomes final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing, and after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. In order to reopen a claim which has been denied by a final decision, new and material evidence must be received. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether that low threshold is met, consideration need not be limited to consideration of whether the newly submitted 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. In a December 2011 rating decision, the RO denied service connection for a left knee disability, indicating that the evidence did not demonstrate a left knee disability occurred in or was caused by military service. The evidence of record included service treatment records (STRs); post-service treatment records, indicating that the Veteran injured his left knee during a fall in 2010, years after his active service; and an October 2011 VA examination, during which the Veteran reported that his fall in December of 2010 was due to his arch supports for his plantar fasciitis. The Veteran was notified of the rating decision in December 2011. However, the Veteran took no further action. Therefore, the December 2011 decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.156(b), 3.160(d), 20.302, 20.1103. Since the December 2011 rating decision became final, in pertinent part, additional treatment records were received, indicating that the Veteran received ongoing treatment for his left knee since his 2010 fall and subsequent ACL repair. The Board finds that the evidence received since the prior final denial consists of evidence that is cumulative or redundant and does not relate to an unestablished fact necessary to reopen the claim. Specifically, the newly received medical evidence shows no indication that the Veteran has a left knee disability that had its onset in service or during the initial post separation year. Furthermore, the Veteran has not provided a medical nexus opinion supporting his assertion that his left knee disability is related to service or to his service connected bilateral foot disability, nor is the Veteran shown to possess the medical training necessary to render competent opinions about the etiology of a disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Although it is not clear whether the RO considered the Veteran’s left knee claim on a secondary theory of entitlement when denying the Veteran’s initial claim in the December 2011 rating decision, there is no new evidence showing that the Veteran’s left knee disability is related to his service-connected plantar fasciitis or any other service connected disability. New theories of entitlement are not a basis for reopening a claim, but if evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). The Board acknowledges that the threshold for reopening is low, but it is a threshold nonetheless, and here, the evidence obtained since the Veteran’s claim was previously denied simply does not approach that threshold. Accordingly, new and material evidence has not been received pursuant to 38 C.F.R. § 3.156(a). Inasmuch as new and material evidence adequate to reopen the previously denied claim has not been received, the Board does not have jurisdiction to consider the claim or to order additional development. See Barnett v. Brown, 83 F.3d. 1380 (Fed. Cir. 1996). The Veteran’s appeal is, therefore, denied. 2. Entitlement to service connection for hypertension, to include on a secondary basis, is denied. 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 be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person’s observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. Savage v. Gober, 10 Vet. App. 488 (1997). Service connection may also be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 446 (1995) (en banc). To establish service connection for a claimed secondary disorder, there must be medical evidence of a current disability; evidence of a service-connected disability; and medical evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-517 (1995). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (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 the claimant. For VA compensation purposes, the term “hypertension” means that the diastolic blood pressure is predominantly 90 mm. or greater, or systolic blood pressure is predominantly 160 or more. 38 C.F.R. § 4.104, DC 7101 n.1. A diagnosis of hypertension “must be confirmed by readings two or more times on at least three different days.” Id. The requirement of multiple blood pressure readings to be taken over multiple days as specified in Note (1) of DC 7101 applies to confirming the existence of hypertension. Gill v. Shinseki, 26 Vet. App. 386, 391 (2013). The Veteran contends that he has high blood pressure as a result of active service; alternatively, the Veteran contends that he has high blood pressure due to his service-connected acquired psychiatric disorder. The Veteran’s STRs are silent for any complaints, treatment, or diagnosis related to high blood pressure. The Veteran’s blood pressure readings in March 1984 and April 1984, just before his separation from service were noted as 120/80, 100/60, 116/60, and 110/60. Notably, when the Veteran separated from service in 1984, he chose not to receive a separation examination. A May 2000 VA treatment record notes that the Veteran had elevated blood pressure readings, noted as 148/94, and was advised to lose weight; no diagnosis of hypertension was provided. An April 2002 record notes a blood pressure reading of 132/62. An April 2004 VA record notes that the Veteran telephoned, reporting that, for last few weeks, he had been having increasing problems with waking up with pounding headaches, flushing, “hot flashes”, ringing in his ears, and wondered if he may be having problems with his blood pressure. He did not seek further treatment for these symptoms. A June 2004 emergency room record for a visit related to his left arm notes a blood pressure reading of 146/80. Subsequent records are absent any treatment or diagnosis for hypertension or high blood pressure until a June 2011 record, which notes that the Veteran was highly stressed over a custody battle of his children and started having chest pains that got somewhat better when he took Xanax; the record notes that the Veteran had a history of some mild hypertension. A July 2011 treatment record notes that the Veteran had a history of hypertension but was not currently on medication. He was subsequently started on medication, and VA treatment records thereafter consistently note that the Veteran’s hypertension was stable or well controlled on medication. The Veteran was afforded a VA examination for his hypertension in December 2019. The examination notes that the Veteran received a diagnosis of hypertension in 2012, when he was seen for chest pain, and subsequently treated with medication. The examiner opined that hypertension was less likely than not incurred in or caused by in-service illness, event, or injury, reasoning that there is no evidence that the Veteran’s hypertension is related to any event in the service. Additionally, the examiner opined that hypertension was less likely than not proximately due to or the result of the Veteran’s service-connected anxiety disorder. The examiner, citing medical literature, reasoned that hypertension is not triggered by anxiety, explaining that there may be short and limited episodes of hypertension from anxious moments and anxiety, but this is limited and of no real consequence. Furthermore, the examiner opined that hypertension is less likely than not aggravated beyond its natural progression by the Veteran’s service-connected anxiety disorder. The examiner, citing to the aforementioned medical literature, indicated that the Veteran’s hypertension is not related to the anxiety, and the Veteran’s hypertension is well controlled on medication without evidence of aggravation. After a review of the evidence, the Board finds that the preponderance of the evidence is against finding that the Veteran’s hypertension is related to his active service or to his service connected acquired psychiatric disorder. As previously indicated, the Veteran’s STRs are silent for any treatment or diagnosis related to high blood pressure or hypertension. Diastolic blood pressure readings throughout the Veteran’s active service were consistently below 90mm and systolic blood pressure readings were consistently below 160mm. See 38 C.F.R. § 4.104, DC 7101, Note 1. Moreover, there is neither an indication in the record that hypertension developed within one year of service, nor continuity of symptoms related to hypertension since service, and the Veteran does not contend otherwise. See 38 C.F.R. §§ 3.307, 3.309(a). The earliest medical record indicating the presence of hypertension is dated in 2011. Specifically, although the June 2011 medical treatment record indicates that the Veteran had a history of hypertension, other than the May 2000 record noting a blood pressure reading of 148/94, for which no diagnosis was provided, diastolic blood pressure readings were below 90mm and systolic blood pressure readings were measured below 160mm until June 2011. See 38 C.F.R. § 4.104, DC 7101, Note 1. Thus, the Board finds that the earliest evidence suggesting the presence of hypertension is many years after his active service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Furthermore, the only medical opinion of record addressing direct service connection is the December 2019 VA examination, in which the examiner indicated that it was less likely than not that the Veteran’s hypertension was related to active service. Although the examiner provided only a limited rationale on this point, the Board finds that the opinion is adequate for purposes of deciding the Veteran’s claim. Specifically, the examiner’s opinion was rendered after reviewing the Veteran’s reported symptoms and history of his hypertension, the pertinent medical treatment records, including his STRs, and performing an in-person examination. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). As there is no opinion to the contrary addressing direct service connection, the Board finds that the December 2019 VA examination is the most probative evidence of record. Turning to the theory of secondary service-connection, there is no probative evidence that provides any indication of the Veteran’s hypertension being caused or aggravated by his service-connected anxiety disorder or any other service-connected disability. Although the June 2011 treatment record notes that the Veteran had chest pains and a history of hypertension, no nexus opinion was provided. Indeed, the December 2019 VA examiner’s opinion is the only opinion of record on the issue, and the December 2019 VA examiner specifically found that the Veteran’s hypertension was not caused or aggravated by his anxiety disorder. The examiner reasoned that hypertension is not triggered by anxiety, explaining that there may be short and limited episodes of hypertension from anxious moments and anxiety, but this is limited and of no real consequence; the examiner further indicated that there was no evidence of aggravation of the Veteran’s hypertension as the evidence reflects that the Veteran’s hypertension was well controlled on medication. The Board finds that the December 2019 VA examination is adequate for purposes of deciding this issue. In this regard, the Board notes that the VA examiner reviewed the Veteran’s medical records, considered the Veteran’s lay statements and reported medical history; and conducted an in-person examination of the Veteran in making the determination that the Veteran’s hypertension was not caused or aggravated by his anxiety disorder, which was supported by sufficient and separate rationales on both points. Although the Bord has found that the evidence suggests the presence of hypertension as early as 2011, rather than 2012 as indicated by the examiner, this does not change the facts considered by the examiner in such a way that the opinion is rendered inadequate. For these reasons, the Board finds that the VA examination is adequate for purposes of deciding the Veteran’s claim and the most probative evidence of record on this issue. While the Veteran believes that his current hypertension is related to service, to include as secondary to his service-connected anxiety disorder, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion with regard to this condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Accordingly, his assertions as to the diagnosis or etiology of his hypertension is outweighed by the probative medical evidence of record. In sum, the competent and probative evidence shows that the Veteran’s hypertension did not manifest in service or within the one-year presumptive period and fails to establish a link between the Veteran’s service or a service-connected disability. Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for hypertension. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable, and service connection, on a direct and secondary basis, must be denied. 38 U.S.C. § 5107(b). 3. Entitlement to a temporary total rating for plantar fasciitis of the bilateral feet under the provisions of 38 C.F.R. § 4.30 based upon convalescence is denied. The Veteran contends that he is entitled to a temporary total rating for his bilateral plantar fasciitis due to surgical treatment requiring convalescence. Initially, the Board acknowledges that the Veteran’s June 2016 Notice of Disagreement indicates that he disagreed with the effective date and evaluation assigned in the August 2015 rating decision and his VA Form 9, in response to the September 2017 Statement of the Case (SOC), indicated that he was claiming an increased evaluation for his bilateral plantar fasciitis. However, neither the August 2015 rating decision nor the September 2017 SOC assigned a rating or an effective date; rather, the rating decision and SOC denied the Veteran’s claims for entitlement to a temporary total rating for plantar fasciitis of the bilateral feet under the provisions of 38 C.F.R. § 4.30 based upon convalescence. The Board notes in this regard that a January 2010 rating decision assigned a 10 percent rating for his bilateral plantar fascitis, effective July 21, 2009, and following a request for reconsideration, the unappealed December 2011 rating decision noted above, denied an increased evaluation for his bilateral plantar fasciitis. Thus, the issues of an earlier effective date and increased evaluation for bilateral plantar fasciitis are not currently on appeal, and the Board will therefore only address whether the Veteran is entitled to temporary total rating for his bilateral plantar fasciitis due to surgical treatment requiring convalescence, as these were the issues addressed in the August 2015 rating decision on appeal. A total disability rating (100 percent) is assigned under 38 C.F.R. § 4.30 when treatment of a service-connected disability results in at least one-month convalescence; surgery with severe postoperative residuals; or immobilization by cast, without surgery, of one or more major joint. 38 C.F.R. § 4.30(a). A review of the evidence reflects that the Veteran had a surgical procedure to correct lateral ligamentous laxity of the right ankle in June 2015. The records leading up to this procedure indicate that the Veteran reported increased pain and instability in the right ankle over the last few years, although he reported problems with his ankle since 1984; additionally, the records note that the Veteran denied any changes in the position of foot or a particular injury. The Veteran’s treating provider indicated only that the Veteran’s right ankle pain was due to lateral ankle ligamentous instability and that he had “right ankle late effects multiple sprains”; none of these records indicate that the Veteran received any surgical procedure related to his plantar fasciitis or other service-connected disability. Service connection is a perquisite for a disability rating, to include a temporary total rating due to convalescence. Although the Veteran is service connected for bilateral plantar fasciitis, previously rated as achilles tendonitis, thermal injury with some hyperesthesia, he is not service connected for a right ankle disability, and there is no medical evidence of record indicating that the Veteran’s right ankle disability is related to his plantar fasciitis, achilles tendonitis, or thermal injury. Furthermore, the Veteran has not had a surgical procedure of the left foot related to plantar fasciitis, achilles tendonitis, or thermal injury. To the extent that the Veteran contends that his right ankle surgical procedure is related to his service-connected plantar fasciitis, the Veteran is not competent to address the diagnosis or etiology of his disability. See Layno v. Brown, 6 Vet. App. 465 (1994). (Continued on the next page)   Therefore, the Veteran’s claim of entitlement to a temporary total rating due to convalescence for a surgical procedure of his right and left plantar fasciitis is denied. 38 C.F.R. § 4.30(a). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hite, 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.