Citation Nr: 21008822 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 15-05 584 DATE: February 18, 2021 ORDER New and material evidence having been received, the petition to reopen the claim for service connection for a bilateral ankle disability is granted. New and material evidence having been received, the petition to reopen the claim for service connection for a spine condition is granted. New and material evidence having not been received, the petition to reopen the claim for service connection for a heart condition is granted. Entitlement to service connection for a bilateral foot condition is granted. REMANDED Entitlement to service connection for a bilateral ankle condition is remanded. Entitlement to service connection for a spine condition is remanded. Entitlement to service connection for a heart condition is remanded. FINDINGS OF FACT 1. A September 2013 rating decision by the Agency of Original Jurisdiction (AOJ) denied service connection for a bilateral ankle disability, a spine condition, and a heart condition. The Veteran did not appeal this decision or submit new evidence within one year of denial. 2. New evidence received since the September 2013 denial of service connection for conditions of the ankles, spine, and heart is material because it is neither cumulative nor redundant of prior evidence, related to unestablished facts necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims. 3. The probative evidence of record is at least in equipoise that the Veteran’s bilateral foot condition is related to his active duty service. CONCLUSIONS OF LAW 1. The September 2013 prior denial of service connection for bilateral ankle condition, spine condition, and heart condition is final. 38 U.S.C. § 7104(b); 38 C.F.R. §§ 20.1100(a), 20.1104. 2. The criteria for reopening the claims for entitlement to service connection for disabilities of the bilateral ankles, spine, and heart have been met. 38 U.S.C. §§ 5104, 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1100, 20.1103. 3. The criteria for entitlement to service connection for a bilateral foot condition have been met. 38 U.S.C. §§ 1110, 1154; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from February 1968 to February 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2013, June 2015, and October 2016 rating decisions of Regional Offices (ROs) of the Department of Veterans Affairs (VA). As a preliminary matter, the Board notes that in the Veteran’s January 2015 substantive appeal, the Veteran initially requested a hearing before a Veteran’s Law Judge. However, the Veteran’s representative submitted correspondence in August 2018 indicating that the Veteran wished to rescind his request for a hearing. Therefore, the Board finds that his hearing request has been withdrawn. 38 C.F.R. § 20.704(e). By way of history, the Board denied the Veteran’s entitlement to service connection for a bilateral foot condition in a September 2013 rating decision. The Veteran appealed this claim to the Board, which issued a denial in September 2018. The Veteran then appealed this denial to the United States Court of Appeals for Veterans Claims (Court). During the pendency of that appeal, the parties jointly agreed to vacate the September 2018 Board decision and remand the above issues for additional development, as noted in the July 2019 Joint Motion for Remand (JMR) and the August 2019 Court order. This claim was returned to the Board at in compliance with the Court order, and in March 2020 was remanded to the AOJ for further evidentiary development. The evidentiary development requested is now complete and the claim has now been returned to the Board for consideration of the Veteran’s appeal. New and Material Evidence In general, decisions of the AOJ that are not appealed within one year of notice of the decision are final. See 38 U.S.C. §§ 5104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A final claim that was disallowed may only be reopened if new and material evidence is received. 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 U.S.C. § 5108; 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, 117 (2010). Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In other words, a "claim should be reopened if, in light of the other evidence of record and further VA assistance, [the] newly submitted evidence relates to an unestablished fact and raises a reasonable possibility of substantiating the claim." Mitchell v. McDonald, 27 Vet. App. 431, 440 (2015). For the purposes of reopening, all new evidence received is presumed credible unless it is inherently or patently not credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Duran v. Brown, 7 Vet. App. 216, 220 (1994). 1. New and material evidence having been received, the petition to reopen the claim for service connection for a bilateral ankle disability is granted. 2. New and material evidence having been received, the petition to reopen the claim for service connection for a spine condition is granted. 3. New and material evidence having not been received, the petition to reopen the claim for service connection for a heart condition is granted. In a September 2013 rating decision, the RO denied service connection for disabilities of the ankles, spine, and heart on the basis that the Veteran did not have current disabilities that occurred in or were caused by service. The Veteran did not appeal this decision or submit new evidence within one year of denial. New evidence received since the September 2013 denial of service connection for conditions of the ankles, spine, and heart is material because it is neither cumulative nor redundant of prior evidence, related to unestablished facts necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims. Specifically, the Veteran submitted treatment records showing cervical spondylosis, cervical disk displacement, a bilateral ankle disability, and coronary artery disease. The Veteran also submitted a new theory of secondary service connection for a heart disability. The Board finds that the evidence added to the record since the September 2013 denial 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. Consequently, the Board finds that new and material evidence has been received to reopen the previously denied claims of entitlement to service connection for disabilities of the spine, bilateral ankles, and heart. Service Connection Direct service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, the three-element test for service connection requires: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For the first element, pain without an underlying diagnosis may constitute a current disability if the pain results in functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018). Additionally, certain chronic diseases, including arthritis, will be presumed related to service if they were noted as chronic in service; or if they manifested to a compensable degree within a presumptive period (usually one year) following separation from active duty service; or if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a)(3). When considering such a claim for service connection, the Board must consider on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)). The mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In adjudicating the merits of such claims, reasonable doubt that exists because of an approximate balance of positive and negative evidence concerning any point will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 4. Entitlement to service connection for a bilateral foot condition is granted. The Veteran contends that his bilateral foot condition is related to his active duty service. As an initial matter, the Board acknowledges that the Veteran has been diagnosed with bilateral pes planus, hallux valgus, and degenerative joint disease. See e.g., November 2017 VA examination; September 2014 private treatment record. As such, the first element of service connection, a current disability, has been met. The Veteran’s service treatment records (STRs) reflect no treatment for or complaints of a bilateral foot condition. The Veteran’s separation examination did not note any abnormalities or defects associated with his feet. See February 4, 1970 report of medical examination. However, according the military personnel records, the Veteran’s military occupational specialty (MOS) was a parachute rigger or paratrooper. See DD-214. Further, the Veteran has submitted multiple lay statements to the record detailing his experience during his service as a paratrooper; not only the physical toll of the jumps themselves but also the training prior. The Veteran stated “[m]y training was all about being combat ready. From the time I entered the military until I got out, it was constant running, double time, jumping, exercise in full gear with my Army boots on, and field drills. Like many veterans on jump status, I avoided going to sick call while on active duty so as not to be taken off jump status, and because it was frowned upon by command. As a soldier, I was young and learned to endure the pain. It was not uncommon to take aspirin or pain pills and keep going. The aches, pains, muscle spasms, all seemed like an everyday part of life while in the military.” See August 22, 2018 correspondence. The Veteran also submitted a lay statement wherein the he indicated that he had surgery on both feet in 1981 which resulted in “wire in both of my feet, holding them together.” As such, the Board finds that an in-service injury or event, as alleged by the Veteran in relation to his paratrooping duties, is consistent with the terms and circumstances of his service. Giving the Veteran the benefit of the doubt, the Board finds this second element of service connection has been met with competent, credible evidence of record. Thus, the issue turns upon whether there is evidence of a nexus between the claimed in-service event or injury and the present disability, to include whether his condition is caused by or aggravated by his service-connected disabilities. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this regard, the Veteran submitted a letter from his private treatment provider, Dr. J. G., in July 2014. Dr. J. G. wrote that the Veteran’s current diagnoses included pes planovalgus with osteoarthritis of multiple foot joints. Further, Dr. J. G. also noted that the Veteran has a history of hallux valgus, which he has had surgically corrected. The private treatment provider stated “[p]es planus and hallux valgus can be a congenital issue, but can also be progressed rapidly and significantly secondary to activity and shoe gear. Such activities may include athletic events, running, and jumping. These activities can inflame joints and cause pain and early progression to osteoarthritis. It is reasonable to expect, with [the Veteran’s] history of pain progression during his enlisted time, that his time spent in the service did impact directly the progression of his pedal deformities.” Pursuant to a Board remand following the Court’s order vacating their previous denial, the AOJ also obtained an addendum medical opinion addressing the etiology of the Veteran’s bilateral foot condition in October 2020. The October 2020 VA examiner first opined that there is no evidence that the conditions were congenital, as they were not diagnosed until 2014. Further, the October 2020 VA examiner stated that the Veteran’s bilateral foot conditions were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner reasoned that the Veteran’s “[e]ntry exam shows no evidence of pes planus, hallux valgus, or degenerative joint disease (DJD) of the foot. In addition, the separation exam is also silent for these conditions. There is no evidence that these conditions were congenital as they were not diagnosed until 2014. There is no evidence that the two years the Veteran spent in the military caused these conditions after separation in 1970. He went an additional 44 years without being diagnosed with pes planus, DJD, or hallux valgus.” The Board acknowledges that the October 2020 VA examiner found that the Veteran's conditions were not related to his service. However, in applying the benefit of the doubt in favor of the Veteran, the Board finds that the evidence is in relative equipoise that the Veteran's bilateral foot disabilities are related to his active duty service. Further, the Board notes that the examiner noted the Veteran had no history of injury to his feet in service; however, the lay statement submitted by the Veteran reflect that there was a credible reason for him to avoid reporting a medical condition, injury, or pain, while in service as a paratrooper on jump status. Additionally, the Board finds the July 2014 private opinion to be of significant probative value in determining the Veteran's current bilateral foot disabilities are related to his active service. The Board notes that the probative value of medical opinion evidence is based on the medical experts' personal examination of the patient, their knowledge, and skill in analyzing the data, and their medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Here, the private physician showed knowledge of the Veteran's background and based the opinion on the Veteran's lay contentions, the physician's medical knowledge, review of his records, as well as medical literature. Additionally, the opinion rendered is consistent with the medical evidence of record. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Therefore, the Board concludes that the probative evidence of record is at least in equipoise for the claim and the benefit of the doubt doctrine has been applied; as such, the Veteran claim for service connection for a bilateral foot disability is granted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). REASONS FOR REMAND 1. Entitlement to service connection for a bilateral ankle condition is remanded. The Veteran contends that his current bilateral ankle condition is related to his active military service, to include his service as an airborne infantryman paratrooper and the training, jumps, and physical labors he was required to complete as such. The Veteran asserts that he began experiencing ankle problems during his active service, namely, his ankles weakened over several parachuting jumps, and that he now has difficulty walking and his current bilateral ankle condition as a result. See e.g., October 24, 2017 NOD. Additionally, the Veteran contends that in the alternative, his current bilateral ankle condition is a result of or has been aggravated by his back disability and bilateral foot disability. See e.g., June 2016 supplemental claim. In connection with his claim for service connection for a bilateral ankle condition, the Veteran was afforded a VA examination in October 2016. Regarding etiology of the Veteran’s claimed ankle conditions, the October 2016 VA examiner opined that the Veteran’s bilateral ankle condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the VA examiner stated “[i]n review of the service medical records, Veteran was not seen to have ankle conditions, only noted ankle conditions were in 2014.” The Board finds the October 2016 VA examiner’s opinion to be inadequate. The Board finds the examiner's direct service connection opinion to be conclusory and based on a lack of corroborating medical evidence in the Veteran’s service treatment record. While the lack of contemporaneous treatment records is a factor that can be considered, it cannot be the sole basis for the opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Further, medical opinions that rely solely on the absence of evidence in service treatment records are inadequate. See id. Additionally, the Veteran has raised a theory of entitlement to service connection for a bilateral ankle disability via secondary service connection. The October 2016 VA examination report did not address the theory of secondary service connection, and as such, is incomplete. As such, the Board finds that an addendum medical opinion is necessary in order to adequately address the Veteran's contentions regarding etiology of his current bilateral ankle disability. 2. Entitlement to service connection for a spine condition is remanded. The Veteran contends that his current spine disability is a result of his active duty service. Specifically, the Veteran contends that his chronic spine condition is related to his years of service as an airborne infantryman paratrooper and the training, jumps, and physical labors he was required to complete as such. See e.g., August 22, 2018 correspondence; July 25, 2017 statement in support of claim (VA 21-4138); June 27, 2016 supplemental claim. The Veteran was afforded a VA examination in conjunction with his claim for service connection in November 2017. Regarding etiology, the November 2017 VA examiner opined that the claim condition was less likely than not a result of an in-service injury, event, or illness. As rationale, the November 2017 VA examiner stated that there was “[n]o pathology to render a diagnosis at present time, and there is no medical evidence on records reviewed to support the Veteran’s claim of spine condition due to or related to gastroenteritis or parachute jumps.” In the August 2020 decision by the Court, mentioned above, the Court determined that the November 2017 VA examination and accompanying report was inadequate as the finding of no current disability, as well as no evidence, including the Veteran’s own lay statements, reflecting treatment or diagnosis of a spine disorder was inaccurate. The Court specifically referenced a lay statement made by the Veteran where he reported that he had “metal plates” put into his back as a result of his spine disability. Further, upon review of the record, the Veteran did in fact submit a statement in August 2018 indicating that he has a current diagnosis of spinal stenosis which has led to two different operations (in 2012 and 2015), including a spinal fusion, where a metal plate was installed in the lower part of the Veteran’s back. The Veteran also asserted that he experiences diminished level of physical activity, tingling in his upper extremities, limited range of motion in his back and neck, and chronic pain. See August 22, 2018 correspondence. Accordingly, a remand is appropriate for an addendum medical opinion in compliance with the Court’s order and to fully account for the Veteran’s lay statements regarding his claimed spine condition. 3. Entitlement to service connection for a heart condition is remanded. The Board cannot make a fully-informed decision on the issue of a heart condition because no VA examiner has addressed the nature and etiology of the Veteran’s current heart disorder, which has been diagnosed as hypertension, myocardial infarction, and coronary artery disease. The matters are REMANDED for the following action: 1. Obtain a medical opinion regarding the etiology of the Veteran's current bilateral ankle disability. The claims file should be made available to the examiner. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the medical opinion. The VA examiner is asked to opine as (a) whether it is at least as likely as not that the Veteran's current bilateral ankle disability is related to his active duty military service, to include his many jumps as a paratrooper; and (b) whether is it at least as likely as not that the Veteran's bilateral ankle disability is (i) caused or (ii) aggravated by the Veteran's newly service-connected bilateral foot disability and/or claimed spine condition. Aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. 2. Obtain an addendum medical opinion regarding the etiology of the Veteran's claimed spine condition. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the medical opinion. The VA examiner is asked to opine as to whether it is at least as likely as not that the Veteran's spine condition is related to his active duty military service, to include his many jumps as a paratrooper. The examiner should address the Veteran's lay statements regarding his spinal stenosis and multiple surgeries on his spine. See VBMS, document labeled Correspondence, receipt date 08/22/2018, pages 2-4 of 4. 3. Schedule the Veteran for a VA heart examination. The examiner is to identify any current heart disability. As to each disability, the examiner is to opine as to whether it is at least as likely as not that such is related to service or a service-connected disability, to include medication required for the same. Joshua Castillo Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. M. Lowman, 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.