Citation Nr: 21021523 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 19-23 925 DATE: April 13, 2021 ORDER Entitlement to service connection for a right ankle disability is denied. The application to reopen the claim of entitlement to service connection for a lumbar spine disability is denied. REMANDED Entitlement to service connection for a vascular disability, other than ischemic heart disease, to include vasovagal syncope is remanded. FINDINGS OF FACT 1. The Veteran does not have a right ankle disability. The Veteran does not have disease or residuals of injury to the right ankle. 2. In September 2017, the Regional Office denied the Veteran’s claim for entitlement to service connection for a lumbar spine disability and the Veteran did not express disagreement or submit new and material evidence within one year. 3. Evidence received since the September 2017 rating decision is not new and material. CONCLUSIONS OF LAW 1. A right ankle disability was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The September 2017 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103 3. New and material evidence has not been received to reopen the claim of service connection for a lumbar spine disability. 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 November 1987 to December 1988. Service Connection Service connection may be established for disability resulting from personal injury or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1131. To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511–12 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Right ankle disability The Veteran’s post-service private treatment records make no mention of a right ankle disability. The only listing of right ankle problems clearly shows this was due to foot issues not due to any right ankle disability. See April 2013 private treatment records. A VA examination dated in July 2019 is of record. The examiner reported the Veteran stated he had a diagnosis of arthritis of the right ankle, made about four months ago. The Veteran contended arthritis was due to right ankle sprain during service. He reported right ankle sprain in July 1988. He was seen and treated with medication and an ankle brace during service. He had continuous care and treatment for his right ankle following separation from service. The Veteran reported constant aching right ankle pain, precipitated with prolonged walking/standing. There was pain on dorsiflexion and plantar flexion, but all range of motion testing was normal, including after observed repetitive use or during flare-ups, there were no factors causing functional loss, and no other abnormalities noted on examination. An X-ray of the right ankle dated in July 2019 was normal. There was no finding of any significant problem on diagnostic testing. For passive range of motion, there was also objective evidence of pain on passive range of motion testing. The examiner accidentally checked a box indicating right ankle sprain diagnosed at the time of the examination. However, the remarks section clarifies this was left ankle fracture, noting status-post left ankle fracture with plantar calcaneal spur. The examiner also indicated that this was an incidental finding on the examination unrelated to the Veteran’s right ankle claim. The opinion reads no objective evidence to support a claim of arthritis of the right ankle. X-ray is negative for arthritis in the right ankle. No diagnosis rendered. The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran would be competent to report pain as well as being told by a medical professional that he had arthritis. The Veteran has not stated why he believes he has an ankle disorder, except for the vague statements regarding being under medical treatment for an ankle disorder since service. The Veteran has been given opportunities to provide such treatment records but has not done so. Further, the Veteran’s statements are not credible on this matter. For example, he reported arthritis when diagnostic testing (X-ray) showed normal results. On the same basis, the statements to the effect that he had treatment continuously are also not credible as the medical records submitted show no treatment at all. With regards to pain, the Veteran is competent to report pain and such is credible and has been shown on examination, but there was no limitation of motion nor any other noted functional impairment. Therefore, the Veteran does not have a disability within the meaning of VA compensation law. In reaching this conclusion, the Board uses the definition of disability as noted in Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991), which stated: this definition comports with the everyday understanding of disability, which is defined as an inability to pursue an occupation because of physical or mental impairment. See also Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. Apr. 3, 2018) (Disability refers to the functional impairment of earning capacity, not the underlying cause of said disability.). Here, there is no functional impairment caused by a right ankle pain disability or symptoms thereof reported in a VA examination or in treatment records during the relevant period. The Veteran has not report pain causing limitation of motion or other functional impairment. Further, there is no disease or injury to account for the pain. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection. The benefit-of-the-doubt doctrine does not apply, and the claim must be denied. New and Material Evidence A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 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). Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. The evidence that is considered in determining whether new and material evidence has been submitted is that evidence received by VA since the last final disallowance of the Veteran’s claim on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996). Regardless of whether the RO reopened a claim, it is a jurisdictional requirement that the Board reach its own determination as to whether new and material evidence has been presented. The Board is required to consider the issue of finality prior to any consideration on the merits. 38 U.S.C. §§ 5108, 7104(b); see Barnett v. Brown, 8 Vet. App. 1 (1995). 2. Lumbar disability The Veteran’s previous claim was one for spinal back pain, which was denied in a rating decision dated in September 2017. The rating decision acknowledged existence of current disability caused by pain and in-service report of lumbar symptoms, but that no causal relationship (nexus) had been found. Notice was sent to the Veteran on September 25, 2017. The Veteran submitted an intent to file form in June 2018 and a VA 21-526EZ, Fully Developed Claims Form on September 15, 2018 alleging he had lumbar arthritis. Here, no Notice of Disagreement (NOD) was filed within one year after the September 25, 2017 notice letter. NODs filed after March 24, 2015 must be on the required NOD form. 38 C.F.R. § 20.201; see 79 Fed. Reg. 57,660 (Sept. 25, 2014). The documents submitted were not on this standard form. In addition, the Board has considered whether this should be addressed as a new claim based on lumbar arthritis being separate and distinct form lumbar pain, based on proper and distinctly diagnosed diseases or injuries. Boggs v. Peake, 520 F.3d 1330, 1334–37 (Fed. Cir. 2008). Here, private treatment records post-dating the Veteran’s statement has been obtained, and none of these records mention a finding of lumbar spine arthritis. See, e.g., February 2020 private treatment record (noting back pain disorder, not arthritis). Therefore, there is no proper and distinct diagnosed disease or injury. Finally, new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Here, there was no new and material evidence submitted within one year, as only documents indicating the Veteran was submitting additional claims (including for lumbar spine arthritis) were received, as well other miscellaneous communications unrelated to the lumbar spine. The claim was denied in September 2017 due to a lack of nexus. Treatment records obtained after this do not report any causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current back pain. All the other evidence obtained or submitted is either unrelated to the back pain or contains either reports of continued disability or are statements from the Veteran that there was a relationship to service. Both in-service complaints of lumbar disorder and current lumbar problems were acknowledged in final rating decision. The Veteran’s statements of a relationship are not new, as there are redundant of the statements prior to the final rating decision. No nexus opinion was been obtained At the time of the previous denial in a rating decision dated in September 2017, treatment records did show treatment for back pain and the Veteran had in-service complaints of back pain. The Veteran filed the current claim in September 2018, specifically as one for lumbar arthritis. As already noted, there is no evidence of arthritis in treatment records and the evidence continues to show only back pain. Nothing in these documents is new and material. They do not establish a causal relationship (nexus). The Veteran did not submit a NOD within one year of the September 2017 notice letter. No new and material evidence was received within one year of the 2017 notice letter. 38 C.F.R. § 3.156(b). For these reasons, the September 2017 rating decision became final as to the issue of service connection. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. No evidence is new and material and does not serve as a basis for readjudication. Given the above, the Board concludes there is no evidence that is both new and material and the claim is not reopened. REASONS FOR REMAND 1. Cardiovascular disability, other than ischemic heart disease, to include vasovagal syncope. On enlistment, the Veteran was not noted to have a heart disorder. The Veteran was discharged after a Medical Board, with the Report of the Medical Board indicating pre-existing syncopic disorder, existed prior to entry, and was not aggravated. However, the same report indicates episodes occurred infrequently prior to service, about once a year, but happened weekly during service. Multiple VA examinations have occurred to determine the etiology of a disorder, specifically to include a vasovagal syncope disorder. None of these have addressed the core issue, including after being specifically instructed by the Board. Most recently, the Board remanded the matter in October 2020 because a January 2020 VA examination report was inconsistent. It found the Veteran’s history was suggestive of vasovagal syncope, but the examiner stated this was beyond the scope of examination and did not provide a clear opinion regarding that disorder. The examiner found that the medical evidence was insufficient to demonstrate pre-existence (this contradicted the opinion provided, which stated no aggravation, which would necessitate pre-existence). The remand noted that the Veteran should be presumed sound upon entrance to service, i.e., that the Veteran did not experience syncopal episodes upon entrance. The VA opinion obtained in October 2020 stated the examiner agreed with the January 2020 VA examination and the Veteran did not have active or chronic diagnosed cardiac pathology. However, a DBQ submitted by a treating medical professional dated in November 2019 reported cardiac murmur, heart dysthymias, and heart palpitations causing shortness of breath and that the Veteran had been found to have systolic heart murmur. Additionally, the Veteran has hypertension, according to private treatment records, and a private echocardiograph report dated in June 2010 found left ventricular hypertrophy with abnormal ventricular diastolic compliance and tricuspid valve regurgitation. Private opinions have been submitted, but they report only that systolic heart murmur was developed this condition on active duty, without making any comment or finding of pre-existence of the disorder prior to service, or make references to being aggravated by other service-connected disabilities without explanation. Under the circumstances, the matter must be returned to the AOJ for compliance with the Board's prior remand instructions. The matters are REMANDED for the following action: Obtain an addendum opinion to determine the etiology of the Veteran’s current disability, specifically vasovagal syncopal episodes. The examiner is asked to opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s vasovagal syncopal episodes began in service or are otherwise etiologically related to service. The examiner must address all the heart and vasovagal syncopal episodes noted in the evidence of record, to include those noted on the private echocardiograph report dated in June 2010 and the November 2019 disability benefit questionnaire (DBQ). It should be noted that because the Veteran’s enlistment examination does not note syncopal episodes and because the January 2020 examiner was unable to determine that clear and unmistakable evidence demonstrates their pre-existence to service, it should be presumed that the Veteran did not experience syncopal episodes prior to entrance. A complete rationale must be provided for all opinions rendered. In particular, is there a pathology to account for the complaints? Is there a disease to account for the complaints? Is there a relationship to the service-connected psychiatric disorder? H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Yoffe, 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.