Citation Nr: 21024128 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 18-14 145 DATE: April 22, 2021 ORDER Whether new and material evidence has been submitted to reopen a claim for service connection for a right ankle or right heel disability is granted. REMANDED Entitlement to service connection for a right ankle or right heel disability is remanded. Entitlement to an increased rating for a cervical spine disability, currently rated at 10 percent, is remanded. Entitlement to an increased rating for a right shoulder disability, currently rated at 20 percent, is remanded. Entitlement to an increased rating for left lower extremity radiculopathy, currently rated at 10 percent, is remanded. Entitlement to an increased rating for a right knee disability, rated at 0 percent prior to December 16, 2014, and rated at 10 percent since December 16, 2014, is remanded. Entitlement to an increased rating for a left knee disability, currently rated at 10 percent, is remanded. FINDINGS OF FACT 1. In a September 2010 rating decision, the regional office denied the Veteran’s claim for entitlement to service connection for a right ankle disability; the Veteran did not appeal this decision or submit new and material evidence within a year of its issuance. As such, the September 2010 rating decision is final. 2. Subsequent evidence received since the September 2010 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim for a right ankle or right heel disability. CONCLUSIONS OF LAW 1. The September 2010 rating decision, which denied entitlement to service connection for a right ankle disability, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103. 2. New and material evidence has been submitted to reopen the claim of service connection for a right ankle or right heel disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1981 to August 1981, from August 1984 to February 1997, and from January 2003 to January 2010. In January 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. New and Material Evidence Generally, a claim that has been denied in an unappealed regional office (RO) decision or a Board decision 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. New evidence is defined as 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). The provisions of 38 C.F.R. § 3.156(a) create a low threshold for the reopening of claims. The Court of Appeals for Veterans Claims (Court) noted that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which does not require new and material evidence as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a right ankle or right heel disability The Veteran’s claim for service connection for his right ankle condition was denied in a September 2010 rating decision. At that time, the RO denied the Veteran’s claim because while there was a record of treatment in service for the Veteran’s right ankle condition, there was no permanent residual or chronic disability shown by his medical records or demonstrated in a VA examination. The RO noted that the Veteran’s service treatment records showed that he was treated for a right ankle sprain in March 1995. The Veteran did not appeal this decision within one year, nor submit new and material evidence within one year, and as such, the decision became final. In December 2011, the Veteran filed a supplemental claim for compensation including his claim to reopen service connection for a right ankle disability. In a provisional September 2013 rating decision, the Veteran’s claim was denied. After that decision, the RO received additional evidence in October 2014 and January 2015. The Veteran’s claim was denied again in a February 2015 rating decision. In the February 2015 rating decision, the RO indicated that the claim was reopened; however, the evidence continued to show that the condition was not incurred in or aggravated by military service. The Veteran submitted a notice of disagreement in July 2015. In February 2018, in a statement of the case (SOC), the RO denied the Veteran’s claim again. The RO determined that there was insufficient evidence to show a current diagnosis. The Veteran appealed his claim to the Board in a March 2018 Form 9. As the Veteran has timely appealed his claim since his December 2011 claim, the most recent prior final denial is the September 2010 rating decision. At the time of the September 2010 denial, the RO was in receipt of evidence including the Veteran’s service treatment records, VA examinations, and lay statements from the Veteran. The evidence since the September 2010 denial includes medical records from Grand Junction VA Medical Center showing that the Veteran reported problems with his right achilles tendon in May 2015. At that time, the Veteran reported problems since 2007 and described having surgery on the right heel during service. The examination confirmed mild tenderness to palpation over the right metatarsophalangeal joint, and the examiner noted a prior surgical scar. The examiner diagnosed achilles calcification status post-surgery. Records from June and October 2015 show that the Veteran was seen by a podiatrist prior to surgery to remove a Haglund’s deformity (right heel). Podiatry records from 2016 and 2018 diagnose status post Haglund’s surgery, and document intermittent pain to the right heel. The record also includes testimony from the Veteran during his January 2021 Board hearing. At that hearing, the Veteran testified that when he submitted his claim for a right foot condition, the RO looked at the question of the bone growth instead of to what degree there was pain, or limited range of motion going on with his foot. In particular, the Veteran has clarified that there is and was pain associated with his right heel. The Veteran made it clear that while his claim has been categorized as service connection for right ankle, he is contending that his right heel has problems. The Board finds that the aforementioned evidence was not previously considered by the agency decisionmakers and is not cumulative or redundant, as the content of this evidence is different than the previously submitted evidence on which the September 2010 decision was predicated. Further, the recently submitted evidence relates to an unestablished fact necessary to substantiate the claim; specifically, the evidence relates to the first prong of service connection: whether the Veteran has a current disability. Accordingly, for all of the above reasons, the Veteran’s claim is reopened. As such, the new evidence meets the low reopening standard of Shade. REASONS FOR REMAND 1. Entitlement to service connection for a right ankle or right heel disability is remanded. The Veteran contends that he has a right heel disability that is related to his active service. The Board notes that during the Veteran’s January 2021 hearing, the Veteran clarified that he is claiming a heel disability, rather than an ankle disability. As such, the issue should be recategorized as a claim for a right heel disability going forward. The RO has acknowledged that the Veteran’s service treatment records show that he was treated in March 1995 for a right ankle sprain. In addition, the Veteran underwent a VA examination in June 2010 wherein the Veteran reported suffering from pain, and he was diagnosed with Haglund’s deformity. The examiner also noted that the Veteran could not walk on his right foot for too long. As noted above, the Veteran’s medical records from Grand Junction VA Medical Center show that the Veteran reported problems with his right achilles tendon in May 2015. At that time, the Veteran reported problems since 2007 and described having surgery on the right heel during service. The examination confirmed mild tenderness to palpation over the right metatarsophalangeal joint, and the examiner noted a prior surgical scar. The examiner diagnosed achilles calcification status post-surgery. Records from June and October 2015 show that the Veteran was seen by a podiatrist prior to surgery to remove a Haglund’s deformity (right heel). Podiatry records from 2016 and 2018 diagnose status post Haglund’s surgery, and document intermittent pain to the right heel. At the Veteran’s January 2021 hearing, he testified that when he submitted his claim for a right foot condition, the RO looked at the question of the bone growth instead of to what degree there was pain, or limited range of motion going on with his foot. In particular, the Veteran has clarified that there is and was pain associated with his right heel. The Board finds that the issue of entitlement to service connection for a right heel disability needs to be remanded for additional development. The Veteran has reported right heel pain on numerous occasions; however, the RO has continued to find that he does not suffer from a disability. The U.S. Court of Appeals for the Federal Circuit has found that the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” Saunders v. Wilkie, 886 F.3d 1356, 136768 (Fed. Cir. 2018). The Board notes the June 2010 examination at which time the Veteran reported pain associated with his heel, which prevented him from being able to walk on his right foot for too long, as well as his January 2021 testimony reporting pain associated with his right heel. The Veteran’s medical records throughout the appeal period confirm that the Veteran suffers from pain in his right heel. In addition to the Veteran’s reports of pain, the Board also notes that the Veteran’s May 2015 records indicate a diagnosis of achilles calcification status post-surgery. As such, whether due to pain that causes functional impairment, or a diagnosed heel disability, the record reflects that the Veteran has a current condition. In light of the above, the record should be further developed in order for the Veteran’s claim to be properly adjudicated. The VA must obtain an examination in service connection claims when there is an indication that the current disability may be associated with the Veteran’s service and there is a lack of sufficient evidence to decide the claim. See McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In the present case, the Veteran’s most recent VA examination is dated June 2010 and contains no opinion as to the etiology of the Veteran’s right ankle or heel disability. In addition, the Veteran’s service treatment records contain treatment for a right ankle disability. As such, a remand is warranted for a supplemental VA opinion. 2. Entitlement to an increased rating for a cervical spine disability, currently rated at 10 percent, is remanded. The Veteran testified at his January 2021 Board hearing that while his VA examination noted pain and numbness in both of his arms, the RO failed to follow up on any potential radiculopathy. The Veteran’s representative indicated that the Veteran should be awarded separate ratings for cervical radiculopathy. The Veteran testified that he suffers from pain every day, and wakes up with right arm numbness every day. The Veteran also testified that he has a lack of feeling in his hands. For example, if he places his hands in the dryer, he is not able to tell if the clothes are still wet or not. If he walks outside with no gloves, he cannot feel cold in his hands, and only feels it higher up. If he raises his hands for any reason, like to hold the phone to his ear, his thumbs will go numb. In addition, the Veteran testified that he has pain in his elbows, and had these same pains when he first had the operation on his neck. The muscles in his beck will start to stress out if he turns his head too quickly. The Veteran’s record reflects that most recently he was afforded a cervical spine disability benefits questionnaire (DBQ) in December 2014. During that DBQ, the Veteran’s sensory examination produced all normal results, including normal sensation to light touch in his hands and fingers on the right and left side. The examination also indicated that the Veteran did not have radicular pain, or any other signs or symptoms due to radiculopathy. Nonetheless, the Veteran has testified to increased pain and a lack of feeling in his hands. As the Veteran has reported additional symptoms, the Board finds a remand is warranted in order to obtain a new VA examination. 3. Entitlement to an increased rating for a right shoulder disability, currently rated at 20 percent, is remanded. The Veteran contends that he should be awarded a higher rating for his right shoulder disability. The Veteran testified at his January 2021 hearing that his bicep tendon is tearing away from the cartilage. If he wears something on his shoulder, he has to adjust it because it causes a burning sensation down his right arm. He also reported experiencing the same burning sensation if he overdoes things; if he raises his right arm, he gets pain in his shoulder. The Veteran also testified that he has issues when performing a lot of activity with his right arm, his dominant arm, but he just grins and bears it. His wife testified that if he overworks his arm, he loses strength in the arm. The Veteran reported feeling like he will drop something when he goes to grab it due to weak grip strength. The Veteran testified that this could be related to his neck radiculopathy. In August 2013, the Veteran underwent a shoulder and arm condition DBQ. At that time, the Veteran had normal muscle strength and there were no notations of loss of strength. The Board finds that since the Veteran’s August 2013 DBQ, the Veteran has reported a worsening of his symptoms, possibly interrelated to his cervical spine disability. As such, a remand in order to obtain a new VA examination is warranted. 4. Entitlement to an increased rating for left lower extremity radiculopathy, currently rated at 10 percent, is remanded. The Veteran contends that he should be awarded a higher rating for his left lower extremity radiculopathy. The Veteran testified at his January 2021 hearing that he experiences numbness on the interior part of his leg, but that this has only happened a few times. He testified that he experiences pain through his whole leg and that he experiences a burning going down his low back, and down his abdomen to his groin. He also testified that he was not sure if this was a muscular issue or a neurological issue. In August 2013, the Veteran underwent a neurological DBQ as part of his lumbar spine examination. At that time, the examination only indicated mild intermittent pain in the lower extremity due to radiculopathy. The aforementioned symptoms reported at the Veteran’s Board hearing were not addressed in the Veteran’s prior medical examination. In consideration of the above, a new VA examination is warranted, and the claim should be remanded. 5. Entitlement to an increased rating for a right knee disability, rated at 0 percent prior to December 16, 2014, and rated at 10 percent since December 16, 2014, is remanded. 6. Entitlement to an increased rating for a left knee disability, currently rated at 10 percent, is remanded. The Veteran contends that he should be awarded higher ratings for his left and right knee disabilities. The Veteran testified that since his December 2014 VA examination, he has been issued two knee braces. He also testified that if he squats to pick something up, he had no strength to get up and would end up falling back. He testified that he worked as a custodian, and when he cleans toilets, he goes down on one knee so as not to fall down. He also reported problems going up and down stairs, and a bursitis issue on the inside of his left knee. The Veteran explained that if he were to walk upstairs without a brace, he can fall if he is not watching where he is going. The Veteran explained that he was not sure if his lumbar spine disability was causing his knee weakness. He reported that his knees give out, occurring more frequently in the left leg, but the same thing had been happening to his right leg over the last two months. In December 2014, the Veteran underwent a DBQ for his knee and lower leg conditions. Since that examination, the Veteran has provided the above testimony, and it is possible that his symptoms have worsened. As such, the Veteran should be awarded a new VA examination to assess the current severity of his symptoms. The matters are REMANDED for the following action: 1. Associate with the claims file any updated VA treatment records or private records related to the Veteran’s disabilities on appeal. 2. Obtain a VA opinion from an appropriate clinician regarding the Veteran’s right ankle or right heel disability. (a.) The examiner should identify all current right foot problems or diagnoses, to include any current right ankle or right heel disabilities. The examiner should note that the Veteran’s pain may constitute a disability in itself if such pain contributes to functional loss. (b.) If a right ankle or heel disability is diagnosed, the examiner should opine as to whether the Veteran’s right heel or ankle disability is at least as likely as not (a 50 percent probability or greater) related to his active service, to include the Veteran’s March 1995 ankle sprain. The examiner should consider the Veteran’s lay statements, as well as his medical record. 3. Schedule the Veteran for appropriate VA examinations by competent medical professionals to address the current nature, symptoms, and severity of his: 1) cervical spine disability, 2) right shoulder disability, 3) left lower extremity radiculopathy, and 4) right and left knee disabilities. The entire record must be made available to, and be reviewed by the examiner(s). The examiner(s) should take a history from the Veteran as to the progression of his respective disabilities. Any indicated evaluations, studies, and tests should be conducted. (a.) With respect to the Veteran’s left lower extremity radiculopathy, the examiner should consider all neurological symptoms and determine whether the overall level of severity is mild, moderate, or severe. (b.) With respect to the Veteran’s cervical spine disability, the examiner should consider any neurological impairments, as well as any neurological impairment which may be affecting the Veteran’s other disabilities, including his right shoulder. The examiner should take a history from the Veteran as to the progression of his service-connected spine disability, to include his reports of neurological manifestations including radicular symptoms. (c.) With respect to the Veteran’s cervical spine, shoulder, and knee disabilities, the examiner should ask the Veteran to report any range of motion loss during flare-ups or following repeated use. The Veteran should be asked to identify the frequency, severity, and duration of flare-ups, if any. Even if the Veteran is not experiencing a flare-up at the time of the examination, the examiner must elicit relevant information as to his flare-ups and ask him to describe the additional functional loss, if any, he suffers during flare-ups or following repeated use, to include any loss of range of motion. (d.) If the examination does not occur during a flare-up or following repetitive use, based upon the evidence of record, and the information elicited on examination, the examiner should estimate range of motion loss during a flare-up and/or after repetitive use, if any. If an estimate cannot be provided based on the information provided by the Veteran and the contemporaneous medical evidence available, the examiner should state so clearly and provide a detailed explanation as to whether such estimates would be unknowable to the medical community to any degree of medical certainty, in spite of such evidence. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vosburgh, 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.