Citation Nr: 23055397 Decision Date: 10/16/23 Archive Date: 10/16/23 DOCKET NO. 19-38 886 DATE: October 16, 2023 ORDER New and material evidence having been received, the claim of entitlement to service connection for hammer toes with hallux valgus, right foot, is reopened. New and material evidence having been received, the claim of entitlement to service connection for hammer toes with hallux valgus, left foot, is reopened. New and material evidence having been received, the claim of entitlement to service connection for plantar fasciitis with calluses, right foot, is reopened. New and material evidence having been received, the claim of entitlement to service connection for plantar fasciitis with calluses, left foot, is reopened. REMANDED Entitlement to service connection for hammer toes with hallux valgus, right foot, is remanded. Entitlement to service connection for hammer toes with hallux valgus, left foot, is remanded. Entitlement to service connection for plantar fasciitis with calluses, right foot, is remanded. Entitlement to service connection for plantar fasciitis with calluses, left foot, is remanded. Entitlement to service connection for pes planus, right foot, is remanded. Entitlement to service connection for pes planus, left foot, is remanded. From September 26, 2017, entitlement to an initial rating greater than 30 percent for adjustment disorder with depressed mood is remanded. From September 26, 2017, entitlement to an initial rating greater than 10 percent for chondromalacia, left knee, is remanded. From September 26, 2017, entitlement to an initial rating greater than 10 percent for instability, left knee, is remanded. Entitlement to a rating greater than 10 percent for chondromalacia, right knee, is remanded. Entitlement to a rating greater than 20 percent for instability, right knee, is remanded. FINDINGS OF FACT 1. The AOJ last denied the Veteran's claim for service connection for DM and IHD in March 2015. The Veteran did not appeal this decision, nor did he submit new and material evidence within one year of it. Therefore, the March 2015 rating decision became final. 2. Evidence received since the March 2015 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise the possibility of substantiating the Veteran's claim of entitlement to service connection for a) hammer toes with hallux valgus, right foot; b) hammer toes with hallux valgus, left foot; c) plantar fasciitis with calluses, right foot; and d) plantar fasciitis with calluses, left foot. CONCLUSIONS OF LAW 1. The March 2015 rating decision denying entitlement to service connection for a) hammer toes with hallux valgus, right foot; b) hammer toes with hallux valgus, left foot; c) plantar fasciitis with calluses, right foot; and d) plantar fasciitis with calluses, left foot, is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.104. 2. The criteria to reopen the claims for service connection for a) hammer toes with hallux valgus, right foot; b) hammer toes with hallux valgus, left foot; c) plantar fasciitis with calluses, right foot; and d) plantar fasciitis with calluses, left foot, 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 February 1993 to May 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2018 rating decision of an Agency of Original Jurisdiction (AOJ) of the U.S. Department of Veterans Affairs (VA). The Veteran testified before the undersigned in April 2022. A transcript of the hearing is in the claims file. Issue 1: Whether new and material evidence has been received to reopen the claim of entitlement to service connection for hammer toes with hallux valgus, right foot Issue 2: Whether new and material evidence has been received to reopen the claim of entitlement to service connection for hammer toes with hallux valgus, left foot Issue 3: Whether new and material evidence has been received to reopen the claim of entitlement to service connection for plantar fasciitis with calluses, right foot Issue 4: Whether new and material evidence has been received to reopen the claim of entitlement to service connection for plantar fasciitis with calluses, left foot New and Material Evidence - General Under 38 U.S.C. § 7104(b), the Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. King v. Shinseki, 23 Vet. App. 464 (2010); see DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (holding that res judicata generally applies to VA decisions). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. See 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence, 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Merits In March 2015, the AOJ denied these claims because of lack of medical nexus under both direct and secondary theories of entitlement. It based its denials primarily on a February 2015 VA examination report. In relevant part for the secondary theory, the examiner opined that the Veteran's right knee disorder did not result in an altered gait. As such, she opined that these foot disabilities were not secondary to his right knee disorder. The Veteran did not appeal the denials, nor was new and material evidence received within one year of them. Therefore, the March 2015 rating decision became final. At the time of the March 2015 denial, the record consisted, as relevant here, of service treatment records and service personnel records as well as the February 2015 examination report. In May 2018, the Veteran again claimed service connection for these disabilities. That same month, a VA medical provider reported the Veteran had an "antalgic gait," as seen in the records added to the claims file in November 2018. In December 2018, the AOJ service connected the Veteran's chondromalacia and instability of the left knee. The May 2018 VA treatment record and December 2018 grants of service connection are new. They are also material to the question of medical nexus. Reopening of the Veteran's claims for service connection for the four disabilities in Issues 1-4 based on the receipt of new and material evidence is therefore warranted. Shade v. Shinseki, 24 Vet. App. 110 (2011) (holding that the phrase "raises a reasonable possibility of substantiating the claim" in applicable regulation as "enabling rather than precluding reopening"). REASONS FOR REMAND Issue 5: Entitlement to service connection for hammer toes with hallux valgus, right foot Issue 6: Entitlement to service connection for hammer toes with hallux valgus, left foot Issue 7: Entitlement to service connection for plantar fasciitis with calluses, right foot Issue 8: Entitlement to service connection for plantar fasciitis with calluses, left foot The Board reopened these claims above. Therefore, it will remand for new examinations to determine the nature and etiology of these disabilities. Additionally, remand is warranted for outstanding treatment records. VA, through VHA, authorizes eligible Veterans to receive health care from a community provider rather than waiting for a VA appointment or traveling to a VA facility. This authorization includes the former Veterans Choice Program and current Veterans Community Care Program. Here, VA treatment records added to the claims file in November 2018 indicate the Veteran was treated by Dr. R.F. (page 30 of the 221-page file; note that multiple records were added in November 2018, so the pagination will direct the reviewer's attention), while others suggest he received treatment through the Community Care Program. The providers who treated the Veteran are unclear. Because these records appear to include treatment related to the Veteran's feet, remand is required to attempt to acquire these records. Issue 9: Entitlement to service connection for pes planus, right foot Issue 10: Entitlement to service connection for pes planus, left foot The record has raised the issue of service connection. Specifically, the February 2015 VA examination report addressed this issue. Additionally, the undersigned discussed the issue at the April 2022 hearing given the multiple foot disabilities the Veteran has for each foot. To ensure the agency construes the full scope of the Veteran's May 2018 claim, the Board has added these issues and will remand them for an examination to determine their nature and etiology. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). Issue 11: From September 26, 2017, entitlement to an initial rating greater than 30 percent for adjustment disorder with depressed mood In April 2022, the Veteran testified that his symptoms have worsened since his December 2018 VA examination. Therefore, the Board will remand for a new examination before it adjudicates this issue. Issue 12: From September 26, 2017, entitlement to an initial rating greater than 10 percent for chondromalacia, left knee Issue 13: From September 26, 2017, entitlement to an initial rating greater than 10 percent for instability, left knee Issue 14: Entitlement to a rating greater than 10 percent for chondromalacia, right knee Issue 15: Entitlement to a rating greater than 20 percent for instability, right knee In April 2022, the Veteran testified that his symptoms have worsened since his July 2018 VA examination. Therefore, the Board will remand for a new examination before it adjudicates these issues. Also, the U.S. Court of Appeals for Veterans Claims, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. The July 2018 VA examination report does not comply with Sharp because any inability to furnish such an estimate of range of motion under flareups must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Here, the examiner did not find an estimate of range of motion under flareups was predicated on a lack of medical knowledge among the medical community at large. Instead, he opined he would have to resort to speculation to opine on additional limitation of motion due to flares. As such, the AOJ should have obtained a new examination. Lastly, the Board observes the Veteran had a right knee arthroscopy in November 2021. The Board, as part of the new examination it will order, will also ask the examiner to opine whether the arthroscopy was secondary to his service-connected bilateral knee disorder. The matters are REMANDED for the following action: 1. Request the Veteran identify all VA and private medical providers, to include any authorized by the VA through Community Care Program, who have treated his bilateral feet conditions since the date of his claim in May 2018. 2. Attempt to obtain the Veteran's Community Care Program records for treatment of the Veteran's feet. (Please see the CAPRI records associated with the claims file in November 2018 and December 2021.) Arrange for these documents to be made viewable in VBMS and/or added as separate files. In short, the Board wants to ensure that all available records are viewable, not simply a notation that private records have been scanned into a VHA database. 3. Attempt to obtain the Veteran's treatment records from Dr. R.F., as detailed on page 30 of the CAPRI records consisting of 221 pages associated with the claims file in November 2018. 4. Schedule the Veteran for a VA examination with a podiatrist to determine the nature and etiology of his a) hammer toes with hallux valgus, right foot; b) hammer toes with hallux valgus, left foot; c) plantar fasciitis with calluses, right foot; d) plantar fasciitis with calluses, left foot; e) pes planus, right foot; and f) pes planus, left foot. The examiner must review the entire claims file, including this Remand. In addition to the customary examination, the examiner should opine: a) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the hammer toes with hallux valgus, right foot, began during, or was otherwise caused by, his military service? Why or why not? b) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's bilateral knee disorder CAUSED his hammer toes with hallux valgus, right foot? Why or why not? c) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's bilateral knee disorder AGGRAVATES his hammer toes with hallux valgus, right foot? Why or why not? d) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the hammer toes with hallux valgus, left foot, began during, or was otherwise caused by, his military service? Why or why not? e) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's bilateral knee disorder CAUSED his hammer toes with hallux valgus, left foot? Why or why not? f) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's bilateral knee disorder AGGRAVATES his hammer toes with hallux valgus, left foot? Why or why not? g) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the plantar fasciitis with calluses, right foot, began during, or was otherwise caused by, his military service? Why or why not? h) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's bilateral knee disorder CAUSED his plantar fasciitis with calluses, right foot? Why or why not? i) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's bilateral knee disorder AGGRAVATES his plantar fasciitis with calluses, right foot? Why or why not? j) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that plantar fasciitis with calluses, left foot, began during, or was otherwise caused by, his military service? Why or why not? k) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's bilateral knee disorder CAUSED his plantar fasciitis with calluses, left foot? Why or why not? l) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's bilateral knee disorder AGGRAVATES his plantar fasciitis with calluses, left foot? Why or why not? m) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the pes planus, right foot, began during, or was otherwise caused by, his military service? Why or why not? n) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's bilateral knee disorder CAUSED his pes planus, right foot? Why or why not? o) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's bilateral knee disorder AGGRAVATES his pes planus, right foot? Why or why not? p) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the pes planus, left foot, began during, or was otherwise caused by, his military service? Why or why not? q) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's bilateral knee disorder CAUSED his pes planus, left foot? Why or why not? r) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's bilateral knee disorder AGGRAVATES his pes planus, left foot? Why or why not? In answering questions concerning aggravation, the examiner is reminded that aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury. The examiner is advised that a finding that the Veteran's claimed disability was aggravated due to a service-connected disability, to include medication to treat that disability, does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. A complete rationale is required. 5. Schedule the Veteran for a VA examination to determine the nature and severity of his adjustment disorder with depressed mood. 6. Schedule the Veteran for a VA examination to determine the nature and severity of his bilateral knee disability. In addition to the customary examination: a) The examiner should report all ranges of motion in terms of the Veteran's active motion, passive motion, weight-bearing motion, and non-weight-bearing motion. b) The examiner is asked to describe whether pain, weakness, fatigue, or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner is requested to estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain or no limitation of function, note these in the report. The examiner should address if there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. c) Attempt to estimate the loss in range of motion for the knees from May 30, 2018 (the date of claim) to present. The Board recognizes that this is retrospective in nature, but that is what is required to adequately rate the Veteran's disability. In doing so, the examiner's opinion should be based on an estimate derived from information procured from relevant sources, including the Veteran's lay statements after he is asked to describe functional limitation, including statements made during the July 2018 VA examination of record. d) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's bilateral knee disorder CAUSED his November 2021 right knee arthroscopy with debridement of the lateral meniscus? Why or why not? e) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's bilateral knee disorder AGGRAVATES his November 2021 right knee arthroscopy with debridement of the lateral meniscus? Why or why not? In answering question (e) concerning aggravation, the examiner is reminded that aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury. The examiner is advised that a finding that the Veteran's claimed disability was aggravated due to a service-connected disability, to include medication to treat that disability, does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. A complete rationale should be provided. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Sopko, 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.