Citation Nr: 21031238 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 16-01 226 DATE: May 21, 2021 ORDER Whether new and material evidence has been received to reopen the claim of service connection for a bilateral foot disability is granted. REMANDED Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a spine disability is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to service connection for lung cancer is remanded. Entitlement to service connection for a heart disability, to include arteriosclerotic heart disease and residuals of a pacemaker, is remanded. Entitlement to service connection for leukemia is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. Entitlement to service connection for the cause of the Veteran's death is remanded. FINDINGS OF FACT 1. In a March 2002 rating decision, service connection for a bilateral foot disability was denied; the Veteran did not file a notice of disagreement and no new and material evidence was received in the year following issuance of the rating decision. 2. Additional evidence received since the March 2002 rating decision is new and relates to an unestablished fact necessary to substantive the claim of service connection for a bilateral foot disability. CONCLUSIONS OF LAW 1. The March 2020 rating decision denying service connection for a bilateral foot disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b); 20.1103. 2. The criteria to reopen the claim of service connection for a bilateral foot disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1958 to July 1962. He also had service in the Oklahoma National Guard, including periods of active duty for training (ACDUTRA). The Veteran died in October 2013. The appellant, who is the spouse of the Veteran, was substituted as the appellant for purposes of processing the claim to completion. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Appellant testified before a Veterans Law Judge (VLJ) at a Travel Board hearing. A transcript of her testimony is of record. In March 2021 correspondence, she was informed that the VLJ who conducted her Travel Board hearing was not available to render a decision on the claims, and asked if she desired another Board hearing. She was informed that if she did not respond within thirty days, the Board would assume she did not desire another hearing. To date, no response has been received. Accordingly, the Board will assume that the Appellant does not desire another hearing. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a bilateral foot disability Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to VA. 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. 38 C.F.R. § 3.156(a). 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. Id. The Court has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The RO denied the Veteran's claim of entitlement to service connection for a bilateral foot disability in a March 2002 rating decision finding that there was no evidence of a bilateral foot disability that was related to service. Although the Veteran filed a notice of disagreement with the rating decision, he did not perfect his appeal after issuance of the June 2002 statement of the case and January 2003 supplemental statement of the case. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.1103. The evidence received since the March 2002 rating decision includes evidence that is both new and material to the claim. 38 C.F.R. § 3.156. For example, in March 2019, the Appellant submitted a medical opinion from Dr. Ellis indicating that the medical records show definite visual evidence of hammertoes that were contributed to, aggravated, and more prone to developing due to the Veteran's electrical accident at Fort Hood. This new evidence addresses the reason for the previous denial; that is, a diagnosis and possible relationship to service, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral foot disability is remanded. 2. Entitlement to service connection for bilateral hearing loss is remanded. 3. Entitlement to service connection for tinnitus is remanded. 4. Entitlement to service connection for a spine disability is remanded. 5. Entitlement to service connection for COPD is remanded. 6. Entitlement to service connection for lung cancer is remanded. 7. Entitlement to service connection for a heart disability, to include arteriosclerotic heart disease and residuals of a pacemaker, is remanded. 8. Entitlement to service connection for leukemia is remanded. 9. Entitlement to a TDIU is remanded. 10. Entitlement to service connection for the cause of the Veteran's death is remanded. The evidence indicates there may be outstanding relevant VA treatment records. In August 2013, the Veteran submitted a VA 21-4142 requesting that VA obtain records from the Muskogee VA Medical Center (VAMC) from 1990. However, VA treatment records dated prior to February 16, 2010 have not been associated with the claims file. A remand to obtain the outstanding records is required. The Appellant asserts that the Veteran's various disabilities were due to his August 5, 1957 electrical shock during ACDUTRA. While VA opinions regarding the Veteran's spinal disability, heart disability, bilateral foot disability, leukemia, and lung cancer were obtained in June 2020 and July 2020, further clarification is required. In a June 2020 opinion, a clinician stated that the Veteran was known to be service-connected for a bilateral foot disorder, heart disorder, chest pain, residuals of an implanted cardiac pacemaker, and lumbar disorder to include spinal stenosis. The clinician acknowledged that the Veteran sustained an electric shock at Fort Hood in 1957 but opined that the bilateral foot disability, chronic heart condition, spinal disability, lung cancer, and leukemia were less likely than not related to service as electric shocks were not an established etiology for the claimed conditions in the medical literature. In the July 2020 opinion, the clinician stated that there was no correlation in the medical literature between electric shocks and the claimed disabilities. Initially, the Board notes that the clinician incorrectly stated that service connection was in effect for a bilateral foot disorder, heart disorder, chest pain, residuals of an implanted cardiac pacemaker, and a lumbar disorder. Additionally, the clinician did not cite any medical literature in support of his finding and did not address the evidence indicating that the electric shock resulted in cardiac arrest and required mouth-to-mouth resuscitation. Also, a February 2019 opinion from Dr. Ellis has been submitted by the Appellant in support of the claims, and such opinion must be addressed on Remand. See 08/25/2020 Medical Opinion. While the record does not contain a diagnosis of tinnitus, the Veteran was competent to report observable symptomatology, including tinnitus. Charles v. Principi, 16 Vet. App. 370 (2002). Regarding an in-service event, the record confirms that the Veteran was knocked unconscious following an electrical shock and his military records indicate that he was awarded a Sharpshooter medal. Accordingly, the Board cannot make a fully-informed decision on the issue because no VA examiner has opined whether the Veteran's tinnitus was related to his electrical shock and/or his military noise exposure. The matters are REMANDED for the following actions: 1. Obtain all VA treatment records dated prior to February 16, 2010. If any requested records are unavailable, the Appellant should be notified of such and documentation to that effect should be added to the claims folder. 2. After records development is completed to the extent possible, forward the claims file to a VA clinician(s) to obtain addendum opinions regarding the claims. Following review of the claims file, the clinician should opine: (a.) Whether it is at least as likely as not (50 percent probability or greater) that a spinal disability had its onset during active service or is related to an event, injury, or disease during active service or ACDUTRA, to include the August 5, 1957 electrical shock? Consideration should be given to the February 2019 opinion from Dr. Ellis regarding his spinal disability. (b.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's heart disability had its onset during active service or is related to an event, injury, or disease during active service or ACDUTRA, to include the August 5, 1957 electrical shock? Consideration should be given to the February 2019 opinion from Dr. Ellis regarding his heart disability. (c.) Whether it is at least as likely as not (50 percent probability or greater) that a disability of the right or left foot had its onset during active service or is related to an event, injury, or disease during active service or ACDUTRA, to include the August 5, 1957 electrical shock? Consideration should be given to the February 2019 opinion from Dr. Ellis regarding his disabilities of the feet. (d.) Whether it is at least as likely as not (50 percent probability or greater) that leukemia had its onset during active or is related to an event, injury, or disease during active service or ACDUTRA, to include the August 5, 1957 electrical shock? (e.) Whether it is at least as likely as not (50 percent probability or greater) that lung cancer had its onset during active or is related to an event, injury, or disease during active service or ACDUTRA, to include the August 5, 1957 electrical shock? (f.) Whether it is at least as likely as not (50 percent probability or greater) that COPD had its onset during active or is related to an event, injury, or disease during active service or ACDUTRA, to include the August 5, 1957 electrical shock? (g.) Whether it is at least as likely as not (50 percent probability or greater) that tinnitus had its onset during active service or is related to an event, injury, or disease during active service or ACDUTRA, to include the August 5, 1957 electrical shock or conceded noise exposure? In formulating the opinions, the clinician should address the Veteran's August 1957 in-service electrical shock with unconsciousness and reported need for mouth-to-mouth resuscitation documented in the records. (h.) If and only if the Veteran is determined to have a foot disability related to service, state whether it is at least as likely as not (50 percent probability or greater) that any heart disability was caused by a disability of the right or left foot, to include consideration of any physical inactivity or weight gain due to such disabilities. (i.) If and only if the Veteran is deemed to have a foot disability related to service, state whether it is at least as likely as not that any heart disability was worsened beyond natural progression (aggravated) by a disability of the right or left foot, to include consideration of any physical inactivity or weight gain due to such disabilities? If the clinician finds that any heart disability was aggravated by a foot disability, the clinician should attempt to quantify the level of aggravation beyond the baseline level of heart disability. In formulating the opinions, the clinician should address the February 2019 opinion from Dr. Ellis indicating that the Veteran's decreased ability to exercise secondary to his bilateral foot disability contributed to his atherosclerotic cardiovascular disease and, therefore contributed to his death. A complete rationale should be provided for all opinions and conclusions expressed. M.W. Kreindler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Anderson 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.