Citation Nr: 22005484 Decision Date: 02/02/22 Archive Date: 02/02/22 DOCKET NO. 17-14 243 DATE: February 2, 2022 ORDER The appeal of entitlement to a rating in excess of 10 percent for a deviated septum, status post fracture of the nose, is dismissed. New and material evidence having been submitted, the claim for entitlement to service connection for a foot disability is reopened and, to that extent only, the appeal is granted. New and material evidence having been submitted, the claim for entitlement to service connection for a back disability is reopened and, to that extent only, the appeal is granted. Service connection for a foot disability is denied. Service connection for a back disability is denied. FINDINGS OF FACT 1. The Veteran withdrew on the record the appeal of the issue of entitlement to a rating in excess of 10 percent for a deviated septum, status post fracture of the nose. 2. The claim for service connection for a foot disability was previously denied in an August 2005 rating decision, the Veteran did not appeal the decision, and no new evidence pertinent to the claim was received within one year from the date that the Veteran was mailed notice of the decision. 3. The claim for service connection for a back disability was previously denied in a December 2009 rating decision, the Veteran did not appeal the decision, and no new evidence pertinent to the claim was received within one year from the date that the Veteran was mailed notice of the decision. 4. The additional evidence received since the final August 2005 and December 2009 rating decisions relates to unestablished facts necessary to substantiate the previously denied service connection claims. 5. No current back, foot, or lower extremity disability began during service or is related to an in-service injury or to service in any other way. CONCLUSIONS OF LAW 1. The appeal of entitlement to service connection for a left knee disability must be dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The additional evidence presented since the final August 2005 rating decision is new and material, and the claim for service connection for a foot disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The additional evidence presented since the final December 2009 rating decision is new and material, and the claim for service connection for a back disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. The criteria for service connection for a foot disability are not met. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5107; 38 C.F.R. §§ 3.303, 3.304(b). 5. The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 5 to August 30, 1980, and from March 1981 to March 1984. This appeal is before the Board of Veterans' Appeals (Board) from a November 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office. In August 2021, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge. A transcript is included in the claims file. 1. The appeal of entitlement to a rating in excess of 10 percent for a deviated septum, status post fracture of the nose, is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. The Veteran, during the August 2021 Board hearing, withdrew the appeal of the issue of entitlement to a rating in excess of 10 percent for a deviated septum, status post fracture of the nose, expressing that he was satisfied with the rating. Therefore, there remain no allegations of errors of fact or law for appellate consideration with respect to that issue, the Board does not have jurisdiction to review it, and it is dismissed. New and Material Evidence Pertinent procedural regulations provide that "[n]othing in [38 U.S.C. § 5103A] shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in [38 U.S.C. § 5108]." 38 U.S.C. § 5103A(f). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). 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. 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). 2. New and material evidence having been submitted, the claim for entitlement to service connection for a foot disability is reopened and, to that extent only, the appeal is granted. 3. New and material evidence having been submitted, the claim for entitlement to service connection for a back disability is reopened and, to that extent only, the appeal is granted. The agency of original jurisdiction (AOJ) denied service connection for a back disability and a foot disability, to include residuals of back injury and a broken foot, in October 2004 and August 2005 rating decisions. The bases of the denials were that while service treatment records reflected that the Veteran incurred a foot laceration in June 1983, they did not reflect any in-service broken foot or back injury or conditions, or that any current foot or back disability might be related to service. The August 2005 decision was not appealed, and no new evidence pertinent to the claims was received by VA within one year from the date that the AOJ mailed notice of the decision to the Veteran. Furthermore, VA has not received or associated with the claims file any official service department records relevant to the Veteran's foot disability claim that existed and had not been associated with the claims file at the time of that decision. Therefore, that decision is final with respect to the claim of service connection for a foot disability. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 19.20, 19.52, 20.1103; see also 38 C.F.R. § 3.156(b), (c). The AOJ again denied service connection for a back disability in December 2009. While acknowledging that newly received service treatment records showed one episode of back pain on the left side after falling down on April 8, 1981, there was no other indication of treatment for a back condition in the service treatment records, and VA treatment records reflected reports of a back injury related to work in 2004, first noted in January 2009. The evidence therefore continued not to show that a back condition was the result of military service. This decision was not appealed, and no new evidence pertinent to the claim was received by VA within one year from the date that the AOJ mailed notice of the decision to the Veteran. Furthermore, VA has not received or associated with the claims file any relevant official service department records that existed and had not been associated with the claims file at the time of that decision. Therefore, that decision is final. Id.; see also Blubaugh v. McDonald, 773 F.3d 1310, 1314 (Fed. Cir. 2014). Evidence obtained since those final decisions includes a December 2018 statement and the Veteran's August 2021 testimony before the Board, through which the Veteran reported an in-service back injury of falling downstairs and not being able to stand so that he had to be taken to the hospital. He asserted that his back continued to bother him from this incident after he left service and that he received treatment for his back problems for decades as a result. The Veteran further testified that he broke his right foot when first in basic training in the Army National Guard, when in a fight, and was in a cast for 3 months, and as a result had foot problems continuing after service. Without addressing the merits of this new evidence, the Board finds that it addresses the issue of whether current back and foot disabilities are related to in-service injuries or events. See Justus v. Principi, 3 Vet. App. 510, 512-513 (1992); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Shade v. Shinseki, 24 Vet. App. 110 (2010). Therefore, new and material evidence has been submitted to reopen the Veteran's claims for service connection for foot and back disabilities. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). A veteran is presumed to be in sound condition when he or she entered into military service, except for conditions noted on the entrance examination, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. §§ 1111, 1132; 38 C.F.R. § 3.304(b); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Service connection may be also granted only for disability resulting from disease or injury incurred or aggravated while performing active duty training (ACDUTRA) or injury incurred or aggravated while performing inactive duty for training (INACDUTRA). See 38 U.S.C. § 101(22), (24); 38 C.F.R. § 3.6. However, the presumption provisions of 38 C.F.R. §§ 3.307 and 3.309, as well as the presumptions of soundness and aggravation, are inapplicable to periods of ACDUTRA and INACDUTRA. Smith v. Shinseki, 24 Vet. App. 40 (2010); Donnellan v. Shinseki, 24 Vet. App. 167 (2010). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 4. Service connection for a foot disability is denied. As reflected in his original September 2004 claim for service connection for a foot disability and his March 2017 substantive appeal, the Veteran asserts that he broke his foot in service during basic training, for which he received hospital treatment. During his August 2021 testimony before the Board, the Veteran asserted that, during his basic training at Fort Bliss, Texas, he was awakened one night, was punched in the face, got in a fight, and broke his foot when he kicked the other person in the face, and as a result was in a cast for 3 months. He testified that he believed this incident occurred in 1979. He further testified that he had "had problems ever since," that his pain was currently "in the front of [his] calf," and that his condition had been diagnosed by his doctors as neuropathy. However, the Veteran's service records reflect that his first period of ACDUTRA, or active duty of any sort, was in the Army National Guard for 2 months and 26 days, from June 5 to August 30, 1980. Thereafter, he had active duty in the Army from March 1981 to March 1984. His May 1, 1980, enlistment examination prior to his first period of ACDUTRA reflects a normal clinical evaluation of the feet, with no foot problems noted. At that time, the Veteran reported a history of both "Broken bones" and "Foot trouble"; in the explanation for his responses, there was a notation of "Sprained [right] ankle 1978." Service treatment records reflect no incidents of a broken foot. The only foot injury or condition noted was treatment in July 1983 for a cut on the right foot incurred while playing frisbee, which involved dressing and hot soaks. On December 1983 examination for separation from service, there was a normal clinical evaluation of the feet, and no foot problems were noted. Post-service VA treatment records reflect that in September 2015 the Veteran was referred to podiatry for bilateral burning pain in the ankles and plantar feet, right greater than left, for the last 15-20 years, with intermittent numbness and tingling of the bilateral ankles and toes. The pain was noted possibly to be secondary to radiculopathy or distal nerve impingement, and bilateral pes cavus was noted. The record therefore reflects that the no musculoskeletal injury or condition of the foot was incurred or manifested in service. While the Veteran has asserted incurring a right foot injuryspecifically, a broken foot for which he wore a cast for 3 monthsduring basic training, the record does not support this. Rather, it shows that he reported a history of right ankle and/or foot injury in 1978, possibly involving broken bones, at the time of his May 1980 enlistment into the Army National Guard and before any period of ADCUTRA or other active service. The record does not support a finding that the Veteran incurred a broken foot for which he wore a cast for 3 months, or any other musculoskeletal foot injury, during either his 2 months and 26 days of initial ACDURTRA, from June 5 to August 30, 1980, or at any other time during service. The only foot injury noted in these records was to the skin of the right foot, when the Veteran cut it playing frisbee in July 1983; again, December 1983 separation examination showed a normal clinical evaluation of the feet and no foot problems were noted. Therefore, while the Board acknowledges the Veteran's reports of in-service right foot injury, including a broken foot, it finds such reports inconsistent with the documented record and not credible. The record does not reflect, and the Veteran has not asserted, that his in-service cut to his right foot has resulted in any current disability. Moreover, the record, including the medical evidence therein, does not indicate that any current foot or lower extremity disability either claimed by the Veteran or noted in the medical recordto include pain, numbness, or tingling of the ankles, feet, or toes, and radiculopathy, neuropathy, nerve impingement, or bilateral pes cavusmight be related to service in any other way. While the Board notes the Veteran's general reports of foot or lower extremity problems since service, the fact that the Veteran is not credible regarding his report of an in-service foot injury weighs against his credibility in reporting continuing foot problems after service. Furthermore, such assertions are contradicted by the Veteran's own reports in the current medical records of his current foot and lower extremity problemsas reflected in September 2015 VA treatment recordshaving existed "for the last 15-20 years," and being bilateral in nature. Finally, the Board notes that, while the Veteran reported a history of right foot or ankle injury at the time of his examination for entry into service in May 1980, no musculoskeletal injury, disorder, or condition of the foot or ankle manifested in service. Therefore, the matter on appeal is appropriately analyzed on a direct service connection basis, and no additional analysis of whether the presumption of soundness has been rebutted is warranted. See 38 U.S.C. § 1111; Gilbert v. Shinseki, 26 Vet. App. 48, 52 (2012) (holding that presumption of soundness analysis is not for application in a service connection claim unless there is "evidence that a disease or injury that was not noted upon entry to service manifested or was incurred in service"). Given the above, the evidence does not even "indicate" that any current disability of the foot or lower extremity "may be associated" with any in-service event, injury, or disease, and thus no further development of the claim, such as obtaining a medical opinion, is warranted. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Therefore, the evidence weighs against a finding that any current foot disability began during service or is related to an in-service injury or to service in any other way. Accordingly, service connection for a foot disability must be denied. 5. Service connection for a back disability is denied. As discussed above, in a December 2018 statement and his August 2021 testimony before the Board, the Veteran reported an in-service back injury of falling downstairs and not being able to stand so that he had to be taken to the hospital, and that his back continued to bother him from this incident after he left service and he received treatment for his back problems for decades as a result. Specifically, he testified that, on his way to an appointment, he slipped and fell down a flight of stairs, and when he was finally able to get up he went to the emergency room for treatment. Service treatment records reflect that in April 1981, at the beginning of his three years of service, the Veteran was treated in the emergency room for back pain on the left side after falling down four steps that morning. The Veteran was noted to have back tenderness and decreased range of lumbar spine motion and decreased strength, and was not able to walk on his heels. X-rays were negative. However, while subsequent service treatment records reflect treatment for chest colds, left shoulder pain, a cyst, bee sting, clogged ear, nasal fracture, and other such conditions, they reflect no further findings or treatment relating to back problems. On December 1983 separation examination, the Veteran had a normal clinical evaluation of the spine and musculoskeletal system. In October 2002, the Veteran filed service connection claims for flash burns of the eyes and a broken nose; in September 2004, he filed his original service connection claim for a back disability. VA treatment records reflect that in January 2009 the Veteran sought to establish care and treatment for chronic medical conditions. He was treated for complaints of chronic back pain and a herniated disc, and a history of back surgeries including two laminectomies and one fusion in the lumbar area, which he related to a work-related injury in 2004. On March 2013 treatment, the Veteran was again assessed as having chronic back pain secondary to a motor vehicle collision, status post lumbar fusion surgery about 10 years prior, for which he was evaluated and treated. On treatment for back complaints in May 2017, it was again noted that the Veteran had had a back injury in 2004, including a ruptured disc at L5 and S1, for which he underwent two laminectomies and a fusion, which caused him constant pain and arthritis that was unbearable some days. Therefore, while service treatment records reflect treatment for left-sided back pain in April 1981 after falling down four steps, with back tenderness, decreased range of lumbar spine motion, and decreased strength, the evidence does not indicate that any current back disability may be related to such injury, or any other in-service event. Rather, the evidence of record, both lay and medical, overwhelmingly suggests that the Veteran's current back problems, including arthritis and disc problems, are the result of an injury in 2004, which led to two laminectomies and a fusion in the lumbar area. To the extent that the Veteran relates his current back disability to his in-service injury by suggesting that his current symptoms began at that time and continued to the present, the Board does not find such assertion credible. Again, following his April 1981 in-service injury, X-rays were negative and service treatment records, while containing treatment related to numerous other complaints and conditions, reflect no further findings or treatment relating to back problems, and on December 1983 separation examination the spine and musculoskeletal system were normal. The post-service record does not suggest any back problem until 2004. While the Veteran filed service connection claims for flash burns of the eyes and a broken nose in October 2002, he did not file a claim for a back disability until September 2004; this tends to weigh against the assertion that the Veteran experienced consistent back pain or a back condition since his 1981 in-service back injury. Moreover, importantly, the medical evidence, as well as the lay reports provided by the Veteran to his medical providers, relates the Veteran's extensive back problems to the 2004 injury, and not to service. Therefore, while the record reflects a current back disability and an in-service back injury, it does not contain medical evidence suggesting a nexus, credible evidence of continuity of symptomatology, or any other such evidence that might "indicate" that any current back disability "may be associated" with any in-service event, injury, or disease. Thus, no further development of the claim, such as obtaining a medical opinion, is warranted. See 38 C.F.R. § 3.159(c)(4); McLendon v, 20 Vet. App. 79. Given the above, the evidence weighs against a finding that any current back disability began during service or is related to an in-service injury or to service in any other way. Accordingly, service connection for a back disability must be denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Andrew Mack, 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.