Citation Nr: 21027151 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-62 962 DATE: May 4, 2021 ORDER The request to reconsider the claim of entitlement to service connection for a right foot disability is granted. The request to reconsider the claim of entitlement to service connection for a degenerative lumbar spine (lower back) is granted. The request to reconsider the claim of entitlement to service connection for a chronic left knee disability is granted. The request to reconsider the claim of entitlement to service connection for a right knee disability is granted. REMANDED Entitlement to a service connection for a right foot disability is remanded. Entitlement to a service connection for a degenerative lumbar spine (lower back) is remanded. Entitlement to a service connection for a chronic left knee disability is remanded. Entitlement to a right knee disability to include as secondary to the chronic left knee disability is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for right breast disability is remanded. FINDINGS OF FACT 1. In an unappealed February 2002 rating decision, the RO denied the Veteran's claims of entitlement to a service connection for her right foot and degenerative lumbar spine disabilities. 2. Evidence received since the February 2002 decision includes relevant service treatment records. 3. In an unappealed February 2012 rating decision, the RO denied the Veteran's claims of entitlement to a service connection for her chronic left knee and right knee (to include as secondary to the left knee). 4. Evidence received since the February 2012 decision includes relevant service treatment records. CONCLUSIONS OF LAW 1. As pertinent evidence received since the February 2002 denial includes official service department records not previously considered, the criteria for reconsideration of the claim for service connection for a right foot disability are met. 38 U.S.C. §§ 5108 (2018); 38 C.F.R. §§ 3.156 (c) (2020). 2. As pertinent evidence received since the February 2002 denial includes official service department records not previously considered, the criteria for reconsideration of the claim for service connection for a degenerative lumbar spine disability are met. 38 U.S.C. §§ 5108 (2018); 38 C.F.R. §§ 3.156 (c) (2020). 3. As pertinent evidence received since the February 2012 denial includes official service department records not previously considered, the criteria for reconsideration of the claim for service connection for a chronic left knee disability are met. 38 U.S.C. §§ 5108 (2018); 38 C.F.R. §§ 3.156 (c) (2020). 4. As pertinent evidence received since the February 2012 denial includes official service department records not previously considered, the criteria for reconsideration of the claim for service connection for a right knee disability on a secondary basis are met. 38 U.S.C. §§ 5108 (2018); 38 C.F.R. §§ 3.156 (c) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from August 1978 to November 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2015 and March 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). Reconsideration of Claims-Right Foot, Lumbar Spine, Left Knee, and Right Knee In a February 2002 rating decision, the RO denied entitlement to service connection for the Veteran's right foot and degenerative lumbar spine disabilities. Thereafter, a February 2012 rating decision denied service connection for chronic disability of the left and right knee (to include as secondary to the left knee). The Veteran did not appeal either of these decisions. Further, it does not appear any additional evidence was physically or constructively associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Consequently, these decisions became final. The evidence received since the February 2002 and 2012 rating decisions includes service treatment records and VA medical records that show the Veteran did experience symptoms in reference to her right foot, degenerative lumbar spine, chronic left knee and right knee on a secondary basis while in service. Pursuant to 38 C.F.R. § 3.156(c), if at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. Such records include (i) service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the appellant by name; (ii) additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and (iii) declassified records that could not have been obtained because the records were classified when VA decided the claim. In this case, the Board finds that the VA did receive or associate with the claims file relevant official service department records that were not a part of the claims file when they first decided the claims. Therefore, the claims must be reconsidered without regard to the prior final denials. REASONS FOR REMAND Regarding the right foot and lumbar spine disabilities, the Veteran was last afforded a VA general medical examination in August 2000, before VA obtained her service treatment records. Therefore, the Board finds that the Veteran should be afforded new examinations to determine the nature and etiology of any currently present right foot and lumbar spine disabilities. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that when VA undertakes action to provide an examination or obtain a medical opinion, it must ensure that one is provided or obtained that is adequate for purposes of the determination being made). Regarding the knee disabilities, the Veteran has not yet been afforded a VA examination. Given the evidence of current disabilities and the Veteran's contentions of knee pain since service, the Board finds that a VA knee examination is warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, regarding the claim for compensation under 38 U.S.C. § 1151, the Veteran asserts that she developed right breast tissue damage after treatment for her left breast at a VA medical center. The Veteran specified that a needle came out of its port during a chemotherapy session and spilled into her right breast. She subsequently suffered from pain, burning and itching, discoloration, and discharge warranting surgery at a private hospital. Considering the foregoing, the Board finds that an examination and opinion is warranted. McLendon, 20 Vet. App. at 79, Current treatment records should be identified and obtained before a decision is made in this case. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding, pertinent VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with the appropriate expertise to determine the nature and etiology of any currently present right foot disability. The claims file must be made available to and reviewed by the examiner. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. After examining the Veteran and reviewing the record, the examiner should address the following: Indicate whether the Veteran's right foot noted as 'mild club foot' on the enlistment examination is a congenital defect or congenital disease. For VA adjudication purposes, "disease" generally refers to a condition considered capable of improving or deteriorating, whereas "defect" generally refers to a condition not considered capable of improving or deteriorating. (As an example, VA considers sickle cell anemia as congenital "disease" for VA purposes, whereas refractive error is considered a congenital "defect.") If the Veteran's right foot disability is a congenital defect, the examiner should indicate whether it was subject to a superimposed disease or injury during her service. The examiner should specifically address the evidence of record, to include the August 1978 to November 1993 service treatment records, which note the Veteran's complaints of constant pain, and swelling of her right foot during active duty. If the Veteran's right foot disability is a congenital disease, the examiner should indicate whether it pre-existed service. If so, the examiner should state whether there was an increase in the severity during service. If the evidence reflects such an increase, the examiner should indicate whether any increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology. Based on the examination of the Veteran and review of the record, the examiner must identify any other disabilities related to the right foot during the pendency of appeal and approximate thereto. Then, for each right foot disability identified, the examiner should provide an opinion as to whether it is as likely as not (50 percent or better probability) that any such disability had its onset during the Veteran's active service or is otherwise etiologically related to service. The examiner should also provide an opinion as to whether it is at least likely as not (50 percent or better probability) that the Veteran's right foot disability was caused or aggravated due to service. In forming opinions, the examiner must consider the Veteran's lay statements regarding her symptoms prior to, during, and since service. The rationale for all opinions expressed must be provided. 3. Then, schedule the Veteran for a VA examination by an examiner with the appropriate expertise to determine the nature and etiology of any currently present lumbar spine disability. The claims file must be made available to and reviewed by the examiner. Any studies, tests, and evaluation deemed necessary by the examiner should be performed. Based on an examination of the Veteran and review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any current present lumbar spine disability is etiologically related to or caused by active service. In forming opinions, the examiner must consider the Veteran's lay statements regarding her symptoms prior to, during, and since service. The rationale for all opinions expressed must be provided. 4. Then, schedule the Veteran for a VA examination by an examiner with the appropriate expertise to determine the nature and etiology of any left and right knee disabilities. The claims file must be made available to and reviewed by the examiner. Any studies, tests, and evaluation deemed necessary by the examiner should be performed. Based on an examination of the Veteran and review of the record, the examiner should provide the following opinions: a) whether it is at least as likely as not (50 percent or better probability) that any current present chronic left knee disability is etiologically related to or caused by active service. b) whether it is at least as likely as not that any current present right knee disability is etiologically related to or caused by active service and/or caused or aggravated by a chronic left knee disability. In forming opinions, the examiner must consider the Veteran's lay statements regarding her symptoms prior to, during, and since service. The rationale for all opinions expressed must be provided. 5. Then, schedule the Veteran for a VA examination by an examiner with the appropriate expertise to determine the nature and etiology of any right breast disability. The claims file must be made available to and reviewed by the examiner. Any studies, tests, and evaluation deemed necessary by the examiner should be performed. Based on an examination of the Veteran and review of the record, the examiner should provide an opinion as to whether the Veteran has an additional disability (residuals/breast surgery) which was caused or aggravated by any VA medical treatment/care. If not, the examiner should specifically indicate so in the report. For any additional disability diagnosed, was there any carelessness, negligence, lack of proper skill, error in judgement or fault on the part of the VA in furnishing care? If the examiner is of the opinion that any current breast disability was caused by VA medical care, it should be stated as to whether the event was reasonably foreseeable because of the VA treatment/care. The examiner must consider the Veteran's lay statements. The rationale for all opinions expressed must be provided. 6. Confirm that the VA examination reports and medical opinions provided comport with this remand and undertake any other development determined to be warranted. 7. Then, readjudicate the issues on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Roya Bahrami Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C.Ivan Franklin 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.