Citation Nr: 21031911 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 16-44 427 DATE: May 25, 2021 ORDER The petition to reopen the claim of entitlement to service connection for a back condition is granted. Entitlement to service connection for diabetes mellitus type II is denied. Entitlement to service connection for right foot diabetic ulcers, to include as secondary to diabetes mellitus type II, is denied. Entitlement to service connection for left foot diabetic ulcers, to include as secondary to service-connected diabetes mellitus type II, is denied. REMANDED Entitlement to a compensable rating for residuals of fracture, left tibia and fibula, prior to January 6, 2017; and in excess of 10 percent, thereafter, is remanded. Entitlement to service connection for left ankle disability, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for low back disability, to include as secondary to service-connected disabilities, is remanded. FINDINGS OF FACT 1. The Veteran's claim for entitlement to service connection for a back condition was denied by an August 1995 rating decision. The Veteran did not perfect an appeal of this decision, and it became final. 2. New evidence received since the time of the August 1995 rating decision, when considered with the evidence previously of record, relates to an unestablished fact necessary to substantiate the Veteran's claim and raises a reasonable possibility of substantiating the claim. 3. The preponderance of the evidence is against a finding that the Veteran's diabetes mellitus was incurred in, or is otherwise due to, the Veteran's period of active service. 4. The preponderance of the evidence is against a finding that the Veteran's diabetic ulcers of the right foot are due to the Veteran's period of active service or a service-connected disability. 5. The preponderance of the evidence is against a finding that the Veteran's diabetic ulcers of the left foot are due to the Veteran's period of active service or a service-connected disability. CONCLUSIONS OF LAW 1. An August 1995 rating decision that denied the Veteran's claim for service connection for a back condition is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.203, 20.1103. 2. The evidence received since the August 1995 rating decision is new and material, and the claim for a back condition is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The criteria for service connection for diabetes mellitus type II have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for right foot diabetic ulcers, to include as secondary to diabetes mellitus type II, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for service connection for left foot diabetic ulcers, to include as secondary to service-connected diabetes mellitus, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1972 to April 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, the Veteran was granted a 10 percent rating for residuals of a fracture of the left tibia and fibula, effective January 6, 2017, in an April 2017 rating decision. As this grant, however, did not represent a total grant of benefits sought for the entire period on appeal, the Veteran's claim for an increased rating for the residuals of a fracture of the left tibia and fibula remains pending before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). As to any additional evidence associated with the record following the April 2017 Supplemental Statement of the Case, the Veteran has waived his right to have that evidence reviewed by the RO. Therefore, the Board may proceed with a decision. Duties to Notify and Assist The VCAA, codified in part at 38 U.S.C. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. The evidence indicates that adequate notice was provided to the Veteran and that VA complied with the requirements of 38 U.S.C. § 5103 (a) and 38 C.F.R. § 3.159 (b). With regard to the duty to assist, the RO associated the Veteran's service and VA and private outpatient treatment records with the claims file. All submitted private treatment records have been associated with the claims folder. No other relevant records have been identified by the Veteran. The Veteran was provided a VA examination for his claimed diabetic ulcers, but the examiner did not provide an opinion as to direct service connection and the Veteran was not provided a VA examination for his claimed diabetes mellitus type II. The Veteran has made general assertions relating these claimed conditions to service without any other details. Service treatment records do not reflect any assessments of ulcers or diabetes mellitus type II and there is no evidence of such disabilities until decades after service. In a November 2013 conversation with RO personnel, the Veteran explained that he did not know the cause of his disabilities and that he did not serve in Vietnam. In the absence of any competent, credible evidence suggesting a possible association with service, VA is not required to further develop the claim by affording the Veteran a VA examination or by obtaining a medical opinion. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (explaining that something more than an appellant's conclusory, generalized statement is needed to trigger VA's duty to assist by providing a medical examination). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). New and Material Evidence As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured following a prior final denial of the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. 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. 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. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). A claimant need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). In an August 1995 rating decision, the RO denied the Veteran's claim for service connection for a back condition. The RO determined that there was no finding of any back impairment and an x-ray was within normal limits. The Veteran was notified of the August 1995 rating decision and did not appeal. There was no new and material evidence received by VA within the one-year period following notification of the August 1995 rating decision. As a result, the August 1995 rating decision is final. 38 C.F.R. § 20.1103. Since that final rating decision, the evidence now shows that the Veteran has a current low back disability diagnosed as degenerative arthritis. This evidence, not previously submitted to decision makers and relating to an unestablished fact necessary to substantiate the claim, raises a reasonable possibility of substantiating the claim and is new and material. 38 C.F.R. § 3.156(a). The claim for service connection for low back disability is reopened. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 391 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for diabetes mellitus type II The Veteran contends that his diabetes mellitus type II is related to his service in the U.S. Navy. VA medical treatment records show evidence of a current disability. The Veteran is diagnosed with diabetes mellitus type II. As to an in-service injury or disease, the service treatment records do not reveal any assessment or complaint related to diabetes mellitus type II. Post-service medical records indicate that the Veteran's diabetes mellitus was first diagnosed in the 2000s. The law provides that a veteran who, during active military, naval or air service, served in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed during such service to certain herbicide agents, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during service. If the Veteran was exposed to an herbicide agent during service, certain diseases, including diabetes mellitus, shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there was no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied. The Veteran's personnel records associated with the claims file, however, do not reflect service in Vietnam. Further, the Veteran has specifically denied that he served in Vietnam during his period of active service. The Board is aware that during the pendency of the Veteran's appeal that the Blue Water Navy Vietnam Veterans Act of 2019 was enacted, which created a new section of the U.S. Code, 38 U.S.C. § 1116A , which says that VA must treat a location as being "offshore" of Vietnam (and therefore falling within the presumption of herbicide agent exposure) if the location is not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting particular points. The Veteran's personnel records associated with the claims file also do not state that the Veteran served on a ship while it was docked in the waters of Vietnam and his DD-214 only indicates one month and twenty four days of foreign/sea service. Moreover, the Board notes that the Veteran has not contended that he served on a ship that was present in the offshore waters of Vietnam or that he was exposed to herbicide agents during his period of service. As such, the Board finds that the evidence does not establish that the Veteran was exposed to herbicide agents during his period of service and that entitlement to service connection for diabetes mellitus on a presumptive basis is not warranted. However, the Board will also consider whether entitlement to service connection is warranted on a on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). Unfortunately, the Board finds that the evidence of record fails to show any diabetes mellitus type II during service or for decades after service, and there is no competent evidence relating the Veteran's diabetes mellitus type II to active service. The Board notes that the Veteran's service treatment records do not report any treatment for diabetes in service and his March 1975 Physical Evaluation Board does not report a diagnosis of diabetes. A June 1975 VA examination after separation from service also does not report a diagnosis of diabetes mellitus. Though the Veteran may believe his diabetes mellitus type II is somehow related to service, he has not provided any theory as to how it is related to service and he is not otherwise competent to provide an opinion regarding its etiology as he has not been shown to have the requisite medical expertise and knowledge to address such a complex medical condition. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Unfortunately, the weight of the probative evidence of record is against the Veteran's claim for service connection for diabetes mellitus type II; as such, the Veteran's claim for service connection must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service connection for right foot diabetic ulcers, to include as secondary to diabetes mellitus type II Service connection for left foot diabetic ulcers, to include as secondary to service-connected diabetes mellitus To the extent that the Veteran has claimed service connection for diabetic ulcers as secondary to his diabetes mellitus type II, the Veteran is not service connected for diabetes mellitus type II. Accordingly, service connection on a secondary basis is not warranted. 38 C.F.R. § 3.310. Turning to direct service connection, the Veteran contends that his claimed disabilities are related to his service in the U.S. Navy. The current VA medical treatment records reveal numerous assessments of diabetic ulcers. As to any in-service injury or disease, the service treatment records do not reveal any evidence of any diabetes mellitus type II or ulcers. A 2014 VA examination report shows a diagnosis of foot ulcers that were first diagnosed in 2012. The Veteran reported that he developed foot problems recently including a blister that was infected. The examiner did not provide an opinion as to direct service connection, but noted that the Veteran did not have sores and lesions of both feet diagnosed as ulcers until he was diagnosed with diabetes mellitus in 2002. The examiner also determined that the Veteran developed foot ulcers as a result of his diabetic neuropathy. The Board finds that the preponderance of the evidence weighs against the Veteran's claim for service connection for diabetic ulcers. There is no evidence of such ulcers during service or for decades after service. In addition, the probative evidence of record indicates that the Veteran's ulcers are a result of his diabetes mellitus type II, which is not service connected. Though the Veteran may believe that his ulcers are related to his service, he has not asserted that he experienced any such ulcers during service or proximate to service, and he is not otherwise competent to express an opinion as to the etiology of diabetic ulcers of the feet. See Kahana, 24 Vet. App. 428. The Board attributes greater probative value to the medical evidence of record that has related the Veteran's ulcers as part of the diabetic process and the 2014 VA examiner's opinion who determined that the ulcers were related to the Veteran's diabetic neuropathy. The 2014 VA examiner has the requisite medical expertise and knowledge to determine whether the ulcers are related to diabetes mellitus type II. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Unfortunately, the weight of the probative evidence of record is against the Veteran's claims for service connection for diabetic ulcers of the right foot and left foot; as such, the Veteran's claims for service connection must be denied. Because the preponderance of the evidence is against the Veteran's claims, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to a compensable rating for residuals of fracture, left tibia and fibula, prior to January 6, 2017, and in excess of 10 percent from January 6, 2017, is remanded. The Veteran's residuals of fracture of the left tibia and fibula were originally evaluated under Diagnostic Code (Code) 5262 and are now evaluated under Code 5260 effective January 6, 2017. However, the Board must still consider Code 5262 when evaluating the Veteran's claim. Concerning Code 5262, the rating criteria were revised effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). Where the law or regulations governing a claim are changed while the claim is pending, the version most favorable to the claimant applies (from the effective date of the change), absent Congressional intent to the contrary. Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under the new Code 5262, applicable from February 7, 2021, malunion is to be evaluated under Diagnostic Codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest rating. The medical evidence of record has alternatively characterized the Veteran's fracture as a malunion fracture and nonunion fracture. See September 2017 podiatry note; see diagnostic study July 2019. The VA examination reports do not adequately address whether the fracture is considered a malunion or nonunion fracture. In addition, a 2017 VA examination report indicated use of a brace for the left leg, but the 2019 VA examination report made no mention of a brace. As the 2017 and 2019 VA examination reports do not adequately address the nature of the Veteran's fracture, a new VA examination should also be provided for the residuals of fracture of the left tibia and fibula. Service connection for left ankle disability, to include as secondary to service-connected disabilities, is remanded. Service connection for low back disability, to include as secondary to service-connected disabilities, is remanded. The Veteran contends that he injured his left ankle and back because of an in-service motor vehicle accident. While there is a discharge summary regarding his hospitalization from June to November 1974 at the U.S. Naval Hospital in Portsmouth, Virginia, there are no other records from that hospitalization, and no records from Riverside Hospital where the Veteran was initially treated. Efforts to obtain these records must be made. The Veteran has not been provided a VA examination for his left ankle disability. The evidence reflects a current disability; a December 2015 x-ray report shows osteoarthritis of the left ankle joint. A December 1974 service treatment record shows that the Veteran exhibited limited range of motion of both ankles, and the Veteran claims that he has had left ankle pain since his in-service motor vehicle accident. A January 2017 VA examination report shows that the Veteran also reported decreased left ankle mobility that he felt was related to his service-connected residuals of left tibia and fibula fracture. A VA examination must be provided and an opinion obtained regarding direct and secondary service connection. 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As to the Veteran's low back disability, an April 2014 VA examiner provided a negative etiology opinion. The examiner determined that if the Veteran's low back disability was related to his in-service accident, the Veteran would have sought medical treatment earlier than 1984. However, the examiner made no mention of a May 1978 VA examination report that shows that the Veteran reported pain in the lower back. A new medical opinion regarding direct service connection is required. In addition, the Veteran has indicated that his left leg shortening as a result of his service-connected tibia and fibula caused his low back pain and an opinion regarding secondary service connection is required. The matters are REMANDED for the following action: 1. Undertake appropriate efforts to obtain any inpatient records from Riverside hospital during service and the Veteran's hospitalization from June to November 1974 at the U.S. Naval Hospital of Portsmouth, Virginia. 2. Schedule the Veteran for a VA examination to determine the current severity of the Veteran's residuals of fracture, left tibia and fibula. The claims folder must be made available for review and the examiner must report all manifestations related to the Veteran's disability. The examiner must address whether the Veteran's fracture is considered malunion or nonunion. If it is a nonunion fracture, the examiner must address whether a brace is required. 3. Schedule the Veteran for a VA examination with an appropriate clinician to determine the etiology of the Veteran's left ankle disability. The claims folder must be made available for review. The examiner must address the following: (a.) Opine whether the Veteran' left ankle disability is at least as likely as not (50 percent probability or higher) related to any injury or event of the Veteran's period of active service. (b.) Opine whether the Veteran's left ankle disability is at least as likely as not (50 percent probability or higher) proximately due to any service-connected disability, to include shortening of the left lower extremity due to his service-connected residuals of fracture, left tibia and fibula. The examiner must address the Veteran's statements alleging that he injured his left ankle during his in-service motor vehicle accident and his statements regarding onset of his symptoms. A complete rationale must be provided for any opinions reached. 4. Schedule the Veteran for a VA examination with an appropriate clinician to determine the etiology of the Veteran's low back disability. The claims folder must be made available for review. The examiner must address the following: (a.) Opine whether the Veteran's low back disability is at least as likely as not (50 percent probability or higher) related to any injury or event of the Veteran's period of active service. (b.) Opine whether the Veteran's low back disability is at least as likely as not (50 percent probability or higher) proximately due to any service-connected disability, to include shortening of the left lower extremity due to his service-connected residuals of fracture, left tibia and fibula. The examiner must address the Veteran's lay statements alleging that he injured his back during his in-service motor vehicle accident and the onset of his symptoms. The examiner should consider the Veteran's reports of low back pain during his 1978 VA examination. A complete rationale must be provided for any opinions reached. Patrick M. Johnson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Seay, 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.