Citation Nr: 21020938 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 16-11 952 DATE: April 8, 2021 ORDER New and material evidence having not been received, the claim for service connection for gout is not reopened, and the appeal is denied. New and material evidence having not been received, the claim for service connection for cervical spine/right arm disability is not reopened, and the appeal is denied. New and material evidence having been received, the claim for service connection for a low back disability is reopened, and to this extent only, the appeal is granted. New and material evidence having been received, the claim for service connection for bilateral pes planus is reopened, and to this extent only, the appeal is granted. REMANDED Entitlement to service connection for a low back disability, to include degenerative disc disease, is remanded. Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for sinusitis is remanded. FINDINGS OF FACT 1. The claim for entitlement to service connection for gout was denied in a December 2012 decision. 2. No new and material evidence has been submitted since the December 2012 Regional Office decision that relates to an unestablished fact necessary to grant the claim for service connection for gout. 3. The claim for entitlement to service connection for a cervical spine/right arm disability was denied in a prior rating decision dated in January 1999, and the Veteran did not appeal that decision or submit relevant evidence in the requisite subsequent one-year time period. 4. No new and material evidence has been submitted since the January 1999 rating decision that relates to an unestablished fact necessary to grant the claim for service connection for a cervical spine/right arm disability. 5. The claim for entitlement to service connection for a low back disability was denied in a prior Board of Veterans’ Appeals (Board) decision dated in February 1988, and the Veteran did not perfect an appeal to the United States Court of Appeals for Veterans Claims (Court or CAVC). Therefore, that decision became final. 6. The evidence received since the February 1988 Board decision is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim for service connection for a low back disability. 7. The claim for entitlement to service connection for bilateral pes planus was denied in a prior Board decision dated in February 1988; the Veteran did not perfect an appeal to the Court and therefore that decision became final. 8. The evidence received since the February 1988 rating decision is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim for service connection for bilateral pes planus. CONCLUSIONS OF LAW 1. The December 2012 decision regarding the claim for service connection for gout is final. 38 U.S.C. §§ 7103, 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103. 2. The criteria to reopen the claim for service connection for gout are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The January 1999 rating decision regarding the claim for service connection for a cervical spine/right arm disability is final. 38 U.S.C. §§ 7103, 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103. 4. The criteria to reopen the claim for service connection for a cervical spine/right arm disability are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The February 1988 Board decision regarding the claim for service connection for a low back disability is final. 38 U.S.C. §§ 7103, 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103. 6. The criteria to reopen the claim for service connection for a back disability are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. The February 1988 Board decision regarding the claim for service connection for bilateral pes planus is final. 38 U.S.C. §§ 7103, 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103. 8. The criteria to reopen the claim for service connection for bilateral pes planus are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1969 to July 1971 and from February 1974 to September 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Board acknowledges that the Veteran filed a claim for a right arm disability. However, in support of his claim, he submitted medical records showing a cervical spine disability with his right arm symptoms. Therefore, the Board has recharacterized the issue on appeal to include entitlement to service connection for a cervical spine/right arm disability. Initially, the Board notes that service connection for a back disability and bilateral pes planus were denied in an April 1987 rating decision, which the Veteran appealed to the Board, and which the Board subsequently denied in a February 1988 decision. The AOJ also denied the Veteran’s claim for right arm disability in January 1999. The Board further notes that in December 2012, the AOJ denied service connection for gout. The Veteran did not appeal these decisions. As such, the Board will consider the propriety of reopening the claims. New and Material Evidence Board decisions are generally final as of the date of issuance and mailing. 38 U.S.C. § 7103; 38 C.F.R. § 20.1100. Generally, a claim that has been denied in an unappealed rating or Board decision may not thereafter be reopened and allowed. 38 C.F.R. § § 20.1100, 20.1103. The exception to this regulation 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 is defined as existing evidence not previously submitted to agency decisionmakers. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). VA must review all the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the action of the AOJ, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C. § 5108 and § 7104 to address the question of whether new and material evidence has been received to reopen the claims for service connection. This matter goes to the Board’s jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). 1. Whether there is new and material evidence to reopen the claim for entitlement to service connection for gout. The Veteran initially filed a claim for service connection for gout in April 2012. As noted above, the AOJ notified the Veteran of its decision to deny entitlement to service connection for gout in December 2012. The notification indicates that the Veteran’s service treatment records (STRs) do not show an event, disease, or injury in service related to gout. The Veteran did not appeal this decision or submit any evidence in the subsequent year. However, in September 2013, the Veteran submitted a second claim for service connection for gout. There is no evidence accompanying the Veteran’s second claim. A September 2013 rating decision deferred a decision on the Veteran’s second gout claim. A July 2014 rating decision denied reopening of the claim. In August 2014, the Veteran sought “reconsideration” for his gout claim. In the March 2015 rating decision, which is the present decision on appeal, the AOJ notified the Veteran that his claim for service for gout was considered reopened, but he did not submit any additional evidence for consideration, and there was nothing warranting a change in the prior decision. Therefore, the previous denial was confirmed. After a review of the record, the Board finds that reopening the claim for service connection for gout is not warranted. At the time of the December 2012 denial of service connection for gout, the relevant medical evidence of record included the Veteran’s STRs and outpatient VA treatment records showing a diagnosis of, and treatment for, gout. The December 2012 AOJ decision denying the claim became final because there was no appeal filed within a year, nor was any new or material evidence submitted within the requisite time frame. The Board finds that the September 2013 claim does not constitute new and material evidence because it does not contain substantive evidence, such as lay statements, treatment records, or a nexus opinion. Since the December 2012 decision, additional VA treatment records have been added to the claims file. These records are new, as they were not of record at the time of the December 2012 AOJ decision. However, the treatment records are not material as they are duplicative of what was of record in December 2012. They continue to show that the Veteran has a diagnosis of, and is receiving treatment for, gout. In order for the claim to be reopened, the evidence must not only be new, it must also be material, and specifically relate to an unestablished fact necessary to substantiate the claim and raise a reasonable possibility of substantiating the claim. The December 2012 decision notified the Veteran that what was missing was an in-service event, disease, or injury related to gout. To date, the Veteran has not submitted any evidence suggesting an in-service event related to gout, nor do the additional VA outpatient treatment records show an in-service event, disease, or injury. In summary, the new outpatient medical records post-December 2012 do not relate to an unestablished fact necessary to substantiate the claim, or do not raise a reasonable possibility of substantiating the claim. The Board emphasizes that it is sympathetic to the Veteran. However, the previously disallowed claim for gout cannot be reopened because the additional post-service medical evidence is not new and material evidence, and the Veteran has not submitted any new and material evidence to warrant reopening of the claim. 2. Whether there is new and material evidence to reopen the claim for entitlement to service connection for a cervical spine/right arm disability. At the time of the January 1999 AOJ denial of service connection for a cervical spine/right arm disability, the relevant evidence of record included the Veteran’s service treatment records (STRs), a May 1995 VA examination report, an August 1998 VA examination of the joints, and private treatment records. The basis of the denial was that there was no evidence that “this condition neither occurred in nor was caused by service.” Indeed, on VA examination in May 1995, the Veteran stated that he had weakness/loss of use of his arm because of a stroke occurring in approximately 1992 (17 years post-service). An MRI dated in May 1996 indicates the Veteran’s neck and right arm complaints were caused by intervertebral foramen narrowing. The record does not show that the Veteran perfected an appeal to the Board as to the January 1999 rating decision. Thus, it is final. Since the January 1999 rating decision, the Veteran underwent a general VA examination in October 2000. The Veteran’s treatment records have also been updated. The evidence is new, as none of it was of record at the time of the prior denial. However, it is not material as it does not relate to an unestablished fact necessary to substantiate his claim. On examination in October 2000, the Veteran again identified his arm and cervical spine symptomatology. He further discussed an acute episode of right arm weakness post-service which had gotten severe. He did not report any in-service injury and the other evidence of record does not establish any in-service injury or event of which his cervical spine/right arm disability may be related to. The evidence also does not relate to the so-called “nexus” element. Accordingly, the claim for entitlement to service connection for a cervical spine/right arm disability is not reopened. The application to reopen the claim is denied. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).   3. Whether there is new and material evidence to reopen the claim for entitlement to service connection for a low back disability; whether there is new and material evidence to reopen the claim for entitlement to service connection for bilateral pes planus. At the time of the February 1988 Board denial of service connection for a back disability and bilateral pes planus, the relevant evidence of record included the Veteran’s STRs, testimony in October 1987, a February 1987 VA examination, and outpatient treatment records. The record does not show that the Veteran perfected an appeal to the Court; thus, the February 1988 Board decision is final. Since the Board decision, the Veteran underwent the following VA examinations: one for his feet in February 1990, one for his back and feet in May 1995, one for his feet in July 1998, and a general VA examination in October 2000. The Veteran’s post-service treatment records, both from VA and private providers, have also been updated. The evidence is new, as none of it was of record at the time of the prior denial. Furthermore, the evidence is material because it bears on the reason for the prior denial, in that the evidence purports to link the Veteran’s back and foot disabilities to service. As such, the evidence also raises a reasonable possibility of substantiating the claim. See Shade, 24 Vet. App. at 117. The Board also presumes the credibility of all newly submitted evidence for the purpose of determining if such evidence is new and material evidence sufficient to reopen the claim. Justus, 3 Vet. App. at 513. Accordingly, the claims for entitlement to service connection for a back disability is reopened. The claim for entitlement to service connection for bilateral pes planus is also reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). To this extent only, the appeal is granted. REASONS FOR REMAND 1. Entitlement to service connection for a back disability is remanded. The Veteran has not been afforded a VA examination for his back claim since approximately October 2000. The Board finds that an examination is warranted in this case, as the Veteran contends that his back disability is related to a fall during his first period of service, and there is no etiology opinion of record. The Board notes that the Veteran is service connected for a right knee disability, which is related to an injury sustained during the same fall he contends hurt his back. Therefore, an etiology opinion of the Veteran’s back disability must be obtained on remand that addresses his contention. 2. Entitlement to service connection for bilateral pes planus is remanded. The Board acknowledges the Veteran’s contention that he had flat feet upon entrance to active duty. However, the entrance examinations of record do not document any foot disability. Therefore, the Board finds that a VA examination is warranted to address the Veteran’s contention that his pes planus was caused by marching, rucking, and running in boots during service. There is no etiology opinion of record on which the Board can make an informed decision. 3. Entitlement to service connection for sinusitis is remanded. The Veteran has also not afforded a VA examination for his sinusitis claim. The Board notes that the Veteran’s STRs show several complaints of sinus congestion. Therefore, a remand is required to obtain a nexus opinion. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his low back disability. If an in-person examination cannot be conducted, an examination by other means should be afforded. The examiner should address the following: (a.) The examiner must address the Veteran’s contention that his back disability was caused by the same fall that caused his service-connected knee disability, and his reports that his back pain has persisted since service. (b.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran’s back disability is etiologically related to, incurred in, or caused by the Veteran’s military service, including a fall while carrying another soldier on his back; (c.) Whether it is at least as likely or not (50 percent probability or greater) that the Veteran’s degenerative disc disease was manifest within a year of separation from service; (d.) Whether the Veteran’s low back disability was at least as likely as not caused by his service-connected right knee disability; (e.) Whether the Veteran’s low back disability was at least as likely as not aggravated by his service-connected right knee disability. A complete rationale for any medical opinion rendered must be provided. 3. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his bilateral pes planus. If an in-person examination cannot be conducted, an examination by other means should be afforded. The examiner should address the following: (a.) The examiner must address the Veteran’s contention that his foot disability was caused by running, rucking, and marching during service, and his report that his foot pain had its onset during service and persisted. (b.) Given the Veteran’s reports regarding his flat feet existing prior to service, the examiner is asked to opine whether the Veteran’s bilateral pes planus clearly and unmistakably existed prior to service – why or why not; (c.) If the bilateral pes planus did clearly and unmistakably exist prior to service, provide an opinion as to whether the preexisting bilateral pes planus clearly and unmistakably (obviously, manifestly, and undebatable) was not aggravated during his active duty service – why or why not; (d.) If bilateral pes planus did not clearly and unmistakably exist prior to service, the examiner is asked to opine whether it is at least as likely as not (50 percent or greater) that the Veteran’s bilateral pes planus disability is etiologically related to, incurred in, or caused by the Veteran’s military service, including running in boots. (e.) The examiner must also opine as to whether it is at least as likely or not (50 percent probability or greater) that the Veteran’s osteoarthritis of the feet was manifest within a year of separation from service. 4. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any sinusitis. If an in-person examination cannot be conducted, an examination by other means should be afforded. The examiner should address the following: (a.) The examiner must address the diagnosis of sinusitis in the September 2000 VA examination, and the STRs showing complaints of sinus congestion and cold symptoms, including in October 1970, January 1971, February 1971, April 1971, May 1971, September 1974, October 1974, and January 1975. (b.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran has a diagnosis of sinusitis that is etiologically related to, incurred in, or caused by the Veteran’s military service, including in-service complaints of sinus congestion. A complete rationale must be provided for all expressed opinions. A clearly stated rationale must not be based solely on lack of documentation or records. The reasons for any opinion must include a discussion of the relevant evidence. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why. MARTHA R. LUBOCH Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Smith, 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.