Citation Nr: 21008625 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 16-25 309 DATE: February 17, 2021 ORDER The petition to reopen the claim of service connection for a left-hand strain is granted. Service connection for a bilateral foot disorder, to include pes planus, hammer toes, plantar fasciitis and degenerative arthritis is denied. REMANDED The issue of service connection for a left-hand strain is remanded. The issue of service connection for a stomach disorder, to include pancreatitis, gastroesophageal reflux disease, gastritis and peptic ulcer disease is remanded. The issue of service connection for thoracolumbar spine degenerative disc disease is remanded. The issue of service connection for a cervical spine disorder, to include degenerative arthritis, herniated disc and degenerative disc disease as secondary to thoracolumbar spine degenerative disc disease is remanded. The issue of service connection for a bilateral leg disorder as secondary to thoracolumbar spine degenerative disc disease is remanded. FINDINGS OF FACT 1. In March 1970, VA denied the claim of service connection for a left-hand disorder. The Veteran was informed in writing of the adverse determination, his appellate rights and did not submit a notice of disagreement (NOD). 2. The documentation submitted since the March 1970 rating decision is new and raises a reasonable possibility of substantiating the Veteran’s claim of service connection for a left-hand disorder. 3. The Veteran did not undergo an in-service event, injury or disease as to his bilateral foot disorder. CONCLUSIONS OF LAW 1. The March 1970 rating decision that denied the claim of service connection for a left-hand disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2019). 2. New and material evidence sufficient to reopen the Veteran’s claim of service connection for a left-hand disorder has been presented. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 3. The criteria to establish entitlement to service connection for a bilateral foot disorder have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(d) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 1966 to December 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of the St. Petersburg, Florida Regional Office (RO). In April 2019, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. In July 2019, the Board remanded the appeal to the RO for additional action. There was no substantial compliance with the Board’s remand directives as to the issues of service connection for a stomach disorder, thoracolumbar spine degenerative disc disease, cervical spine disorder and bilateral leg disorder. Stegall v. West, 11 Vet. App. 268 (1998). Reopening – Left Hand Strain Generally, a claim that has been denied in an un-appealed RO decision is final and may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). 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. 38 U.S.C. § 5108 (2012); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 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) (2019); Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The newly presented evidence need not be probative of all the elements required to award the claim, just probative of each element (or at least one element) that was a specified basis for the last disallowance of the claim. See Evans v. Brown, 9 Vet. App. 273, 283 (1996). In March 1970, the RO denied the claim of service connection for a left-hand disorder. The RO found that the Veteran did not have a then-current left-hand disability. The evidence in March 1970 included service treatment records (STRs), the Veteran’s December 1969 VA Application for Compensation and a February 1970 VA examination. STRs were silent for complaints or contemporaneous reports concerning the Veteran’s left hand. In his September 1967 pre-separation medical history report, the Veteran answered in the negative to the question of whether he then had, or once had swollen or painful joints, a bone, joint, or other deformity and any illness or injury other than those already noted. In the Veteran’s September 1967 pre-separation medical examination report, no upper extremity abnormalities were noted. In his December 1969 VA Application for Compensation, the Veteran reported having been treated for a left-hand disorder in August 1967 during service in Germany. The February 1970 VA examiner indicated that the Veteran did not have a left-hand disorder. The Veteran was informed of this decision and apprised of his appellate rights, but he did not submit a NOD. Therefore, the March 1970 rating decision became final. 38 C.F.R. § 20.1103 (2019). The evidence received since the March 1970 rating decision includes the Veteran’s December 2011 petition to reopen the claim; a January 2012 statement reflecting that the Veteran’s left hand was crushed between two military vehicles and that he experienced trouble closing his left hand, lifting and decreased grip strength; an August 2002 private treatment record reflecting that the Veteran’s left hand grip was weak compared to his right; a December 2003 private treatment record reflecting that the Veteran’s left hand had “good grip strength;” an October 2010 private treatment record reflecting no left hand symptoms; an October 2016 VA treatment record reflecting the Veteran’s report of experiencing left hand tingling and numbness; an April 2019 Board hearing transcript reflecting the Veteran’s testimony of having his left hand caught between a trailer hook and a hitch that “pulled all the meat and stuff off of it” and that he was treated for approximately three weeks during service in Germany; and a February 2020 VA examination reflecting a diagnosis of a left hand strain. Presuming its credibility, the private treatment records, VA treatment records and VA examination reflect left hand symptoms and a diagnosis of a left-hand strain. The evidence raises a reasonable possibility of substantiating the claim because the March 1970 rating decision denied the claim due to the Veteran not having a then-current left-hand disability which was the specified basis for the last disallowance of the claim. The evidence is new and relates to an unestablished fact – a current left-hand disorder – that is necessary to substantiate the Veteran’s claim. Therefore, the claim of service connection for a left-hand disorder is reopened. Service Connection – Bilateral Foot Disorder Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012). 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) (2019). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that his bilateral foot disorder was caused by a five-ton military vehicle having ran over his feet during service. The claim will be denied because the Veteran is not credible as to his account of having undergone an in-service event, injury or disease as to his bilateral foot disorder. STRs are silent for complaints or contemporaneous reports concerning the Veteran’s feet. In his September 1967 pre-separation medical history report, the Veteran answered in the negative to the question of whether he then had, or once had foot trouble. In the Veteran’s September 1967 pre-separation medical examination report, no foot abnormalities were noted. The STRs are highly probative evidence because they were generated with the specific view of recording the events they describe. In this respect, they are akin to official records, which generally enjoy a high degree of probative value in the law. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board’s decision). In a February 1970 VA examination not focused on the Veteran’s feet, a physical orthopedic examination of the Veteran’s feet revealed normal findings. A May 2002 private treatment record reflects the Veteran’s report of experiencing bilateral foot cramps. VA treatment records dated March 2012 and April 2012 reflect the Veteran’s report of experiencing bilateral foot pain and a diagnosis of bilateral plantar fasciitis. An April 2009 VA treatment record reflects the Veteran’s report of experiencing right foot pain and a diagnosis of right foot pes planus. An April 2010 VA treatment record reflects the Veteran’s report of experiencing trouble placing pressure on his left foot. In a May 2010 VA treatment record, the Veteran reported experiencing left foot pain and denied having undergone any trauma or treatment. A left foot radiograph revealed a small calcaneal spur and mild degenerative change of the first metatarsophalangeal joint. He was diagnosed with left foot plantar fasciitis and heel spur syndrome. The Veteran’s statement as to not having undergone any left foot trauma is highly probative. See Fed. R. Evid. 803(4) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care); Rucker, supra. A June 2010 VA treatment record reflects the Veteran’s report of experiencing left foot pain and a diagnosis of left foot plantar fasciitis. An April 2011 VA treatment record reflects the Veteran’s diagnosis of left foot plantar fasciitis, pes planus and calcaneal spurs. An April 2012 VA treatment record reflects the Veteran’s report of experiencing bilateral foot pain. An April 2016 VA left foot radiograph revealed mild degenerative change, hammertoe deformity and plantar calcaneal spur formation. In an October 2016 VA treatment record, the Veteran reported experiencing bilateral foot numbness and tingling. In his April 2019 Board hearing, the Veteran testified that a five-ton military vehicle ran over his feet during service and that he “didn’t complain about it because [he] could still use [his feet].” The Veteran’s testimony is not credible because in addition to the highly probative STRs, the Veteran denied have undergone any left foot trauma in the May 2010 VA treatment record. Curry v. Brown, 7 Vet. App. 59 (1994) (noting that contemporaneous evidence has greater probative value than the history as reported by the veteran). The February 2020 VA examiner diagnosed the Veteran with bilateral foot pes planus, hammer toes, plantar fasciitis and degenerative arthritis. A preponderance of the probative evidence is against a finding that the Veteran underwent an in-service, event, injury or disease as to his bilateral foot disorder. STRs were silent for complaints or contemporaneous reports concerning the Veteran’s feet. In his September 1967 pre-separation medical history and examination report, the Veteran answered in the negative to the question of whether he then had, or once had foot trouble and no foot abnormalities were noted, respectively. In the February 1970 VA examination not focused on the Veteran’s feet, a physical orthopedic examination of the Veteran’s feet revealed normal findings and in a May 2010 VA treatment record, the Veteran denied having undergone any left foot trauma. Therefore, service connection is not warranted and the claim is denied. REASONS FOR REMAND The remaining matters are remanded for the following actions: 1. BACKGROUND FOR THE RO ADJUDICATOR In July 2019, the Board remanded the claim of service connection for a left-hand strain for the RO to obtain relevant Federal records based on the Veteran’s April 2019 Board hearing testimony of having served in the National Guard in 1971. In new and material evidence claims, the duty to assist requires VA to assist with obtaining relevant Federal records and there is no requirement that the issue of reopening the claim be decided immediately because the issue can be remanded without reopening to obtain relevant Federal records. 38 C.F.R. § 3.159(c)(4)(iii) (2019). However, the Veteran has consistently reported having injured his left hand during service in August 1967 and not during his claimed service in the National Guard in 1971; therefore, such Federal records are not relevant to the Veteran’s claim. The Board will remand the claim to the RO for consideration of the merits because the September 2013 rating decision denied reopening the claim and the Veteran has not waived for the RO to consider the new evidence. Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010) (holding that when the Board reopens a claim after the RO has denied reopening that same claim, the matter generally must be returned to the RO for consideration of the merits). In July 2019, the Board remanded the claim of service connection for a stomach disorder for the RO to schedule a VA examination. In February 2020, the Veteran was afforded a VA intestinal conditions examination and the examiner indicated that the Veteran should have been scheduled for a VA stomach examination. Stegall, supra. In his April 2019 Board hearing, the Veteran testified to having injured his low back during a “two-week training course” with the National Guard in 1971. In July 2019, the Board remanded the claim of service connection for thoracolumbar spine degenerative disc disease for the RO to attempt to obtain the Veteran’s National Guard service treatment records. In an October 2020 letter, the RO indicated having contacted the Veteran for his National Guard information and that the Veteran had not responded. The RO did not conduct subsequent inquiries. In an October 2020 VA report of general information, the Veteran reported having served in the Individual Ready Reserve. VA must make as many requests as are necessary to obtain relevant Federal records. 38 C.F.R. § 3.159(c)(2) (2019); Stegall, supra. In his April 2019 Board hearing, the Veteran attributed his cervical spine and bilateral leg disorder as secondary to his thoracolumbar spine degenerative disc disease. The Board must remand both claims as they are inextricably intertwined with the claim of service connection for thoracolumbar spine degenerative disc disease. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009). The remand directives follow immediately below. 2. Schedule the Veteran for a VA stomach examination to obtain an opinion as to the nature and etiology of his stomach disorder. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical and non-medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. Does the Veteran have a diagnosed stomach disorder, to include pancreatitis, gastroesophageal reflux disease, gastritis and/or peptic ulcer disease? If so, was the Veteran’s stomach disorder caused by the two in-service reports of stomach trouble and in-service diagnosis of gastroenteritis? Although the examiner must review the VBMS file, his or her attention is drawn to the following: • A May 1966 service treatment record reflects the Veteran’s report of experiencing a stomach-ache for three days. The Veteran was diagnosed with gastroenteritis. • A July 1967 service treatment reflects the Veteran’s report of having vomited once per day for approximately one week. The Veteran was diagnosed with gastroenteritis. • In his September 1967 pre-separation medical history report, the Veteran answered in the affirmative to the question of whether he then had, or once had stomach trouble. The service medical examiner noted that the Veteran experienced an occasional upset stomach. • In the Veteran’s September 1967 pre-separation medical examination report, no abdomen or viscera abnormalities were noted. • In a February 1970 VA examination not focused on the Veteran’s stomach, a digestive system examination revealed normal findings, specifically, no masses, abnormalities, or tenderness. • A May 2002 private treatment record noted a prior medical history of peptic ulcer disease. • In a January 2003 private treatment record, the Veteran reported experiencing epigastric pain. He was diagnosed with esophageal reflux. • In an August 2003 private treatment record, the Veteran reported not taking Prevacid because it would not help his stomach. He was diagnosed with esophageal reflux. • An October 2003 private treatment record reflects the Veteran’s report of experiencing symptoms suggestive of esophageal reflux that occurred episodically. He was diagnosed with esophageal reflux. • A December 2003 private treatment record noted a prior medical history of gastroesophageal reflux disease. A review of systems revealed occasional gastroesophageal reflux disease symptoms. • A January 2004 private treatment record reflects a diagnosis of esophageal reflux. • A January 2008 VA treatment record noted a prior medical history of stomach ulcers and that the Veteran had been treated with Prevacid for ten years. • A January 2010 esophagogastroduodenoscopy revealed diffuse antral gastritis and no ulcer or erosion. The Veteran was diagnosed with gastritis and it was noted that the Veteran’s esophagus and duodenum were normal. • An October 2010 private treatment record reflects a prior medical history of a gastric ulcer, dyspepsia and gastroesophageal reflux disease. A review of systems revealed peptic ulcer disease. • Private treatment records dated February 2011 and April 2011 reflect a prior medical history of a gastric ulcer. • An April 2011 VA treatment record reflects the Veteran’s report of experiencing stomach pain for approximately five months. • A July 2011 private stomach antrum biopsy revealed benign antral gastric mucosa and mild chronic gastritis. • A July 2011 private esophagogastroduodenoscopy revealed stomach erythema, erosions and otherwise normal findings. The examiner ruled out peptic ulcer disease and gastritis. The Veteran was diagnosed with erosive gastritis. • A November 2011 private treatment record reflects a prior medical history of a gastric ulcer. • A March 2012 private treatment record reflects a diagnosis of reflux esophagitis. • An April 2012 VA treatment record reflects a diagnosis of reflux esophagitis and recurrent peptic ulcer disease. • An August 2012 private treatment record reflects the Veteran’s report of experiencing abdominal pain, epigastric pain, bloating and stomach belching. He was diagnosed with gastroesophageal reflux disease and epigastric abdominal pain. • A June 2013 VA treatment record reflects the Veteran’s diagnosis of pancreatitis, gastroesophageal reflux disease and gastritis. It was noted that the Veteran had not been properly diagnosed with peptic ulcer disease. • In his April 2019 Board hearing, the Veteran testified to experiencing symptoms of a stomach ulcer since 1967. 3. Attempt to obtain the Veteran’s National Guard and Individual Ready Reserve service treatment records. The RO is advised to document each attempt. THE VETERAN IS ADVISED TO COOPERATE WITH THE RO’S REQUEST FOR INFORMATION CONCERNING THE VETERAN’S SERVICE IN THE NATIONAL GUARD AND INDIVIDUAL READY RESERVE AS VA’S DUTY TO ASSIST IS NOT A ONE-WAY STREET. Hayes v. Brown, 5 Vet. App. 60, 68 (1993). (Continued on the next page)   4. Readjudicate the issues on appeal, including the claim of service connection for a left-hand strain on the merits considering all pertinent evidence and legal authority. If the benefits sought on appeal remain denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period should be allowed for response before the case is returned to the Board. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Cohen, 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.