Citation Nr: 0633754 Decision Date: 11/01/06 Archive Date: 11/16/06 DOCKET NO. 03-28 976 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a compensable rating for post operative ingrown toenail, left great toe. 2. Entitlement to service connection for ingrown toenail, right great toe. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for back disability. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral ankle condition. 5. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for headaches. 6. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hyperopia and amblyopia of the left eye. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. N. Moats, Associate Counsel INTRODUCTION The veteran had active duty service from May 1962 to November 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2002 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in March 2003, a statement of the case was issued in August 2003, and a substantive appeal was received in September 2003. A Board hearing at the local RO was held in August 2006. The Board notes that the veteran submitted additional evidence to the Board at the August 2006 hearing. In an attached August 2006 statement, the veteran waived RO consideration of this evidence. The issues of whether new and material evidence has been received to reopen claims for hyperopia and amblyopia of the left eye and headaches are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. In statements of the record and his hearing testimony, the veteran refers to additional eye disabilities beyond hyperopia and amblyopia of the left eye, specifically glaucoma and cataracts. VA treatment records also showed testing for glaucoma. However, from the record, it is unclear whether the veteran is also seeking entitlement to service connection for these additional eye disabilities. Thus, this matter is referred to the RO for clarification as to whether the veteran is seeking a separate claim and any additional necessary action. Further, in a September 2004 statement as well as his hearing testimony, the veteran also appears to be claiming service connection for bronchial pneumonia. This issue is referred back to the RO for any appropriate action. FINDINGS OF FACT 1. The veteran's service-connected post operative ingrown toenail, left great toe, is manifested by subjective complaints of pain, and clinical findings of a fungal infection of the left great toenail; however, there are no clinical findings showing exfoliation, exudation or itching, that the disorder comprises 5 percent or more of the entire body or 5 percent or more of exposed areas affected, or evidence that the disorder requires use of systemic therapy such as corticosteroids or other immunosuppressive drugs. 2. Ingrown toenail of the right great toe was manifested during active duty service. 3. Service connection for back disability was denied by a November 2001 rating decision; a notice of disagreement was not received to initiate an appeal from that determination. 4. Evidence that raises a reasonable possibility of substantiating the claim for service connection for back disability has not been received since the November 2001 rating decision. 5. Service connection for bilateral ankle disability was denied by a November 2001 rating decision; a notice of disagreement was not received to initiate an appeal from that determination. 6. Evidence that raises a reasonable possibility of substantiating the claim for service connection for bilateral ankle disability has not been received since the November 2001 rating decision. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for the veteran's service-connected post operative ingrown toenail, left great toe, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.71(a), 4.118, Diagnostic Codes 5282, 5284, 7806 (2006) and Diagnostic Code 7806 (2002). 2. Ingrown toenail of the right great toe was incurred in the veteran's active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2006). 3. The November 2001 rating decision, which denied entitlement to service connection for back disability, is final. 38 U.S.C.A. § 7105(c) (West 2002). 4. No new and material evidence has been received since the November 2001 rating decision denying service connection for back disability; and thus, the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2006). 5. The November 2001 rating decision, which denied entitlement to service connection for bilateral ankle disability, is final. 38 U.S.C.A. § 7105(c) (West 2002). 6. No new and material evidence has been received since the November 2001 rating decision denying service connection for bilateral ankle disability; and thus, the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA). Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000), is codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002); see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a) (2005). Under the VCAA, VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R §§ 3.159(b)(1) (2005); Quartuccio v. Principi, 16 Vet.App. 183, 187 (2002). The record shows that in July 2002 and October 2003 VCAA letters, the appellant was informed of the information and evidence necessary to warrant entitlement to the benefits sought. The appellant was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet.App. 183 (2002); Charles v. Principi, 16 Vet.App. 370 (2002). The Board also notes that the VCAA letters implicitly notified the appellant of the need to submit any pertinent evidence in the appellant's possession. In this regard, the appellant was repeatedly advised to identify any source of evidence and that VA would assist in requesting such evidence. He was advised to submit information describing the additional evidence or the evidence itself. The Board believes that a reasonable inference from such communication was that the appellant must also furnish any pertinent evidence that the appellant may have and that the requirements of 38 C.F.R. § 3.159(b)(1) have been met. The Board finds that all notices required by VCAA and implementing regulations were furnished to the appellant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. The United States Court of Appeals for Veterans Claims' (Court) decision in Pelegrini v. Principi, 18 Vet.App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the RO provided VCAA notice to the veteran in July 2002, which was prior to the October 2002 rating decision. However, the July 2002 letter was insufficient in that it did not explain to the veteran what constituted new and material evidence to reopen his claims for back disability and bilateral ankle disability. Thus, after the October 2002 rating decision, the RO took action to correct this defect by sending another VCAA notice in October 2003. The VCAA letters notified the claimant of what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the need for the claimant to submit any evidence in his possession that pertains to the claim. The Board finds that any defect with respect to the timing of the VCAA notices requirement was harmless. Although the notice provided to the claimant in October 2003 was not given prior to the first AOJ adjudication of the claim, the notice was provided prior to certification of the veteran's claim to the Board. The contents of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The claimant has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. Therefore, to decide the appeal would not be prejudicial to the claimant. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 488. Further, VA believes that the Dingess/Hartman analysis must be analogously applied to increased rating claims. In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate the claim for service connection, but there has been no notice of the types of evidence necessary to establish a disability rating or effective date for the disabilities on appeal. Despite the inadequate notice provided to the appellant, the Board finds no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet.App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). In that regard, as the Board concludes below that the preponderance of the evidence is against the appellant's claims, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. In Kent v. Nicholson, 20 Vet.App. 1 (2006), the Court addressed directives consistent with VCAA with regard to new and material evidence. The Court stated that in order to successfully reopen a previously and finally disallowed claim, the law requires the presentation of a special type of evidence-evidence that is both new and material. The terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants. Because these requirements define particular types of evidence, when providing the notice required by the VCAA it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented. This notice obligation does not modify the requirement that VA must provide a claimant notice of what is required to substantiate each element of a service-connection claim. See Dingess/Hartman v. Nicholson, 19 Vet.App. 473 (2006). In other words, VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefit sought by the claimant. In addition, VA's obligation to provide a claimant with notice of what constitutes new and material evidence to reopen a service- connection claim may be affected by the evidence that was of record at the time that the prior claim was finally denied. In order to satisfy the legislative intent underlying the VCAA notice requirement to provide claimants with a meaningful opportunity to participate in the adjudication of their claims, the VCAA requires, in the context of a claim to reopen, the Secretary to look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Therefore, the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied. In this case, the July 2002 notice informed the claimant of what evidence was necessary to establish entitlement to service connection. Further, the October 2003 notice informed the veteran of what constitutes new and material evidence. Further, the RO previously denied the claims for back disability and bilateral ankle disability as there was no evidence to establish a disability occurred in or was caused by service. The October 2003 letter specifically requested evidence of a chronic disability in service or evidence of continued treatment for symptoms since service. Thus, the requirements set forth in Kent with respect to these issues have been satisfied. Furthermore, the Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service medical records, private medical records and Social Security Administration records submitted by the veteran. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. The veteran was afforded a VA examination for his post operative ingrown toenail, left great toe, in October 2002. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The examination report obtained contains sufficient information to decide the issue on appeal. See Massey v. Brown, 7 Vet.App. 204 (1994). With respect to the issues concerning the veteran's back disability and bilateral ankle disability, where there is no showing of an injury in service or a link between the veteran's current disability and his active service, a VA medical examination is not necessary. Thus, the Board finds that a further examination is not necessary. For all the foregoing reasons, the Board concludes that VA's duties to the claimant have been fulfilled with respect to the issues on appeal, other than hyperopia and amblyopia of the left eye and headaches, which are addressed in the Remand section below. II. Compensable Rating for Post Operative Ingrown Toenail, Left Great Toe. The present appeal involves the veteran's claim that the severity of his service-connected post operative ingrown toenail, left great toe, warrants a compensable rating. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet.App. 55 (1994). The veteran was afforded a VA examination in October 2002. On examination, onychomycosis was noted on all nail plates. However, there was no tinea, ulcerations, or thick calluses found. The examiner noted that both great toenails were severely ingrown, thick, and onychomycotic on both borders of both great toenails. There was no active infection noted. Musculoskeletal examination was unremarkable. The impression was chronic severe ingrown toenails involving both borders of both great toes with onychomycosis involving all nail plates. VA treatment records from May 2000 to August 2003 showed that the veteran had hypertrophic nails, probable onychomycosis, and all of his nails were debrided during treatment. The veteran testified in August 2006 that he was not having problems with his left great toe at that time because it had recently been removed, but then indicated that his toe was sore and felt tender. As there is no specific Diagnostic Code for ingrown toenails, the RO has rated the veteran's service-connected post operative ingrown toenail, left great toe, as noncompensable under 38 C.F.R. § 4.71, Diagnostic Code 5282 for hammer toe. Under this code, hammer toe is rated as noncompensable when it affects single toes, and a 10 percent rating is warranted when it involves all toes, unilateral, without claw foot. The Board recognizes that there is medical evidence of onychomycosis on all of the veteran's toes. However, the veteran is only service-connected for the left great toe and nonservice-connected disabilities, except in limited circumstances that are not applicable to the instant case, cannot be considered when rating a service-connected disability. See 38 C.F.R. § 4.14. Thus, he can only be rated for a single toe, which is not compensable under this Diagnostic Code. When evaluating the veteran's service-connected disability, the Board must also determine whether other applicable Diagnostic Codes would warrant a higher rating. Thus, the Board notes that under Diagnostic Code 5284 for foot injuries, severe foot injuries warrant an evaluation of 30 percent; moderately severe foot injuries warrant an evaluation of 20 percent; and moderate foot injuries warrant a 10 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5284. The medical evidence of record does not show that the veteran has moderate foot injuries or greater to warrant a compensable evaluation under this Diagnostic Code. As there is medical evidence of onychomycosis of the left great toe, the Board must also ascertain whether a higher rating is warranted under the schedule of ratings of skin disabilities set forth in 38 C.F.R. § 4.118. The Board notes that during the pendency of this appeal, the regulations for evaluation of skin disabilities under 38 C.F.R. § 4.118 were amended effective August 30, 2002. See 67 Fed. Reg. 49,590 (July 31, 2002) (codified at 38 C.F.R. pt. 4). When amended regulations expressly state an effective date and do not include any provision for retroactive applicability, application of the revised regulations prior to the stated effective date is precluded. 38 U.S.C.A. § 5110(g); DeSousa v. Gober, 10 Vet.App. 461, 467 (1997); VAOPGCPREC 3-2000. Therefore, as the new regulations have a specified effective date without provision for retroactive application, the regulations may not be applied prior to the effective date. As of the effective date, the Board must apply whichever version of the rating criteria is more favorable to the veteran. Under both the old or new rating criteria, dermatophytosis (fungal infection, including of the toenails or other areas) may be rated under the criteria for eczema. 38 C.F.R. § 4.118, Diagnostic Code 7813 (2002 and 2006). Under the old criteria, under Diagnostic Code 7806 for eczema, a noncompensable rating is warranted when there is slight, if any, exfoliation, exudation or itching, if on a nonexposed surface or small area; and a 10 percent evaluation is warranted when there is exfoliation, exudation or itching, if involving an exposed surface or extensive area. A 30 percent rating is warranted when the skin disability has constant exudation or itching, extensive lesions, or marked disfigurement. A maximum 50 percent evaluation is required when the skin disability has ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or is exceptionally repugnant. 38 C.F.R. § 4.118, Diagnostic Codes 7806 (prior to August 30, 2002). Under the revised criteria, disabilities under Diagnostic Code 7813 should be rated under Diagnostic Codes 7800 through 7806 depending upon the predominant disability. Since there is no evidence in the instant case of disfigurement of the head, face or neck or of scars resulting from the service- connected disability to warrant evaluation under Diagnostic Codes 7800-7805, the Board finds that Diagnostic Code 7806 should be applied. Under Diagnostic Code 7806 for dermatitis or eczema, a noncompensable evaluation is warranted when there is less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12-month period, and a 10 percent rating is warranted if at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating requires that 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas be affected, or; that systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks or more, but not constantly, during the past 12- month period. A maximum rating of 60 percent is warranted when the skin disability covers an area of more than 40 percent of the entire body or when more than 40 percent of exposed areas is affected, or; when constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required during the past 12- month period. 38 C.F.R. § 4.118, Diagnostic Codes 7806 (2006). The Board now turns to rating the severity of the veteran's service connected onychomycosis under the old and new criteria. Under the old criteria, there has been no medical finding of exfoliation, exudation or itching to warrant a compensable rating. None of these symptoms were noted at the October 2002 VA examination or in VA treatment records. Under the new criteria, based on the most recent October 2002 VA examination, the only area affected that is service- connected is the veteran's left great toenail. Thus, a 10 percent disability rating or higher is not warranted under this criteria because the veteran's onychomycosis does not affect at least 5 percent or more of the entire body or 5 percent or more of the exposed areas affected. Further, there is no indication in the record that the veteran requires intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs. Therefore, based on the above analysis, the Board finds that the veteran's service-connected post operative ingrown toenail, left great toe, has not increased in severity. Thus, the Board finds that a preponderance of the evidence is against the veteran's claim for a compensable rating. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). The potential application of various provisions of Title 38 of the Code of Federal Regulations have also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). In this regard, the Board finds that there has been no showing by the veteran that the service-connected disorder has resulted in marked interference with employment or necessitated frequent periods of hospitalization. Under these circumstances, the Board finds that the veteran has not demonstrated marked interference with employment so as to render impractical the application of the regular rating schedule standards. In the absence of such factors, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet.App. 337 (1996); Shipwash v. Brown, 8 Vet.App. 218, 227 (1995). III. Service Connection for Ingrown Toenail, Right Great Toe The veteran's is also claiming service connection for an ingrown toenail of his right great toe. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The veteran claims that his ingrown toenail of the right great toe should be service-connected like the left great toe because his right great toenail was also removed during service like the left great toenail. A November 1963 service treatment record showed ingrown toenail, but does not appear to indicate which foot. A follow up treatment record showed the next day that the nail was removed. April 1964 and August 1964 treatment record showed ingrown toe nail of the left foot, which was subsequently removed. The veteran's August 1966 examination prior to discharge evaluated his feet as clinically normal. However, in his contemporaneous medical history report, the veteran expressly indicated that he had foot trouble, but does not explicitly indicate the left foot. However, it appears from a notation on the back that the veteran may have been referring to club feet. A February 1973 VA examination diagnosed the veteran with bilateral ingrown toenails with history of mild surgery. An October 2002 examination diagnosed the veteran with chronic severe ingrown toenails involving both borders of both great toes with onychomycosis involving all nail plates. Again, VA treatment records from May 2000 to August 2003 showed that the veteran was treated in podiatry regularly for his toenails. During treatment, the records showed that the veteran had hypertrophic nails, probable onychomycosis and all of his nails were debrided. In his hearing testimony, the veteran testified that during the service, he had both toenails removed. Therefore, based on the evidence of record, the veteran does have a current ingrown toenail disability of the right great toe. The February 1973 VA examination diagnosed the veteran with bilateral ingrown toenails so there has been pertinent symptomatology over the past 30 years. The Board finds that the veteran's service medical records are unclear as to whether the veteran had his right great toenail removed while in service. There are notations of a toenail removal, which do not clearly indicate which foot. Therefore, given the veteran's current disability that has continued for 30 years and in resolving benefit of the doubt in favor of the veteran as mandated by 38 U.S.C.A. § 5107(b), the Board must conclude that service connection for ingrown toenail of the right great toe is warranted as manifesting during active service. IV. New and Material Evidence Applicable law provides that a claim which is the subject of a prior final decision may nevertheless be reopened if new and material evidence is presented or secured. 38 U.S.C.A. § 5108. A request to reopen the veteran's claims for back disability, and bilateral ankle disability was received in June 2002. New and material evidence is defined by regulation. See 38 C.F.R. § 3.156. New evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence relates to an unestablished fact necessary to substantiate the claims. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of last final decision, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet.App. 510, 513 (1992). Claims for service connection for back disability and bilateral ankle disability were denied by the RO in a November 2001 rating decision. The veteran was informed of the November 2001 rating decision, and he failed to file a notice of disagreement to initiate an appeal. Under the circumstances, the Board finds that the November 2001 rating decision became final. 38 U.S.C.A. § 7105(c). Back Disability The veteran is seeking to reopen his claim for back disability. The evidence of record pertinent to the veteran's back disability at the time of the November 2001 rating decision consisted of the veteran's service medical records, VA treatment records from May 2000 to September 2001, private treatment records submitted by the veteran dated from 1979 to 2001, and various statements by the veteran. The veteran's service medical records were silent with respect to any complaints of back pain or injury to the back. VA treatment records showed continuing complaints of chronic back pain as well as degenerative changes of the lumbar spine. Private medical records showed that the veteran injured his back in 1979 and 1993. These records indicated that the veteran suffered from lumbar strain/sprain, degenerative joint disease, degenerative disc disease and radicular muscle spasms. Nevertheless, the RO denied the veteran's claim in November 2001 because there was no evidence of any back disability occurring in service. Since the November 2001 rating decision, the following additional evidence was added to the record: VA treatment records from October 2002 to August 2003; additional private treatment records from 1979 to 2000; Social Security Administration (SSA) records; and the veteran's August 2006 hearing testimony. The VA treatment records showed continuing complaints of back pain. The records also indicated that the veteran fell off a flatbed while working sometime around September 2002, which resulted in neck, left shoulder and low back pain, although no specific disabilities were given. The records also indicated that this accident aggravated existing back problems. The additional private treatment records submitted were either silent with respect to the veteran's back disabilities or duplicative of the private records previously submitted. The veteran's hearing testimony basically indicated that he had suffered from back pain since service. However, since these medical records do not include any new diagnosis for the veteran's back disability, or any additional etiological opinions relating any current back disability to service, this evidence cannot be considered new because it is redundant of evidence already in the record at the time of the last final rating decision, specifically previous VA treatment records and private medical records. Moreover, the veteran's hearing testimony cannot be considered new because it is also redundant of statements he made prior to the last final rating decision. Further, this evidence is not material because it does not relate to an unestablished fact, such as whether the veteran had an injury to his back while in service and whether there is a nexus between any inservice back injury and the veteran's current back disability, which is necessary to substantiate the veteran's claim The SSA records submitted consisted of private MRIs done in 2002 of the shoulder, neck and lumbar spine, which were done because the veteran fell off a flat bed trailer. These records do show additional disabilities to the spine; and, thus, are not redundant of evidence submitted prior to the November 2001 rating decision. However, this evidence is not material because it does not relate to an unestablished fact, such as whether there was an injury in service to the veteran's back and whether there is a nexus between any inservice back injury and the veteran's current back disability, which is necessary to substantiate the veteran's claim. See 38 C.F.R. § 3.156(a). Accordingly, the claim of entitlement to service connection for back disability is not reopened. 38 U.S.C.A. § 5108. Bilateral Ankle Disability The veteran is also seeking to reopen his claim for bilateral ankle disability. The evidence of record prior to the November 2001 rating decision consisted of the veteran's service medical records, VA treatment records from May 2000 to September 2001, private treatment records submitted by the veteran dated from 1979 to 2001, and various statements by the veteran. The veteran's service medical records were silent with respect to any complaints of ankle pain or injury to the veteran's ankles. The only evidence of any ankle disability was an April 2001 VA x-ray of the ankles where the impression was slight degenerative bone changes of the left ankle. The RO denied the veteran's claim in November 2001 because there was no evidence of any ankle disability that occurred in or was caused by service. Since the November 2001 rating decision, the following additional evidence has been added to the record: VA treatment records from October 2002 to August 2003; additional private treatment records from 1979 to 2000; Social Security Administration (SSA) records; and the veteran's August 2006 hearing testimony. The VA treatment and additional private treatment records are silent with respect to any bilateral ankle disability, except for an October 2002 VA x-ray of the left foot, which showed mild degenerative changes at the distal tibia. Again, the veteran's hearing testimony basically indicated that he had suffered from ankle pain since service because of running and marching. However, since these records do not include any new diagnosis for the veteran's bilateral ankle disability as degenerative changes of the left were previously noted, or any additional etiological opinions relating any current bilateral ankle disability to service, this evidence cannot be considered new because it is either not applicable or redundant of evidence already in the record at the time of the last final rating decision. Also, the veteran's hearing testimony cannot be considered new because it is also redundant of statements he made prior to the last final rating decision. Further, this evidence is not material because it does not relate to an unestablished fact, such as whether the veteran had an injury to his ankles while in service and whether there is a nexus between any inservice ankle injury and any current bilateral ankle disability, which is necessary to substantiate the veteran's claim. Accordingly, the claim of entitlement to service connection for bilateral ankle disability is not reopened. 38 U.S.C.A. § 5108. ORDER A compensable rating for the veteran's service-connected post operative ingrown toenail, left great toe, is not warranted. To that extent, the appeal is denied. Service connection for ingrown toenail of the right great toe is warranted. To that extent, the appeal is granted. New and material evidence has not been received to reopen claim for service connection for back disability and bilateral ankle disability. To that extent, the appeal is denied. REMAND The veteran is also seeking to reopen his claim for hyperopia and amblyopia of the left eye. As noted in the analysis part of this decision, during the pendency of this appeal, the Court issued a decision, which held that, in the context of a claim to reopen, VCAA notice must include an explanation of 1) the evidence and information necessary to establish entitlement to the underlying claim for the benefit sought; and 2) what constitutes new and material evidence to reopen the claim as determined by the evidence of record at the time of the previous final denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Court further explained that a notice letter must describe what evidence would be necessary to substantiate the element or elements required to establish the underlying claim that were found insufficient in the previous denial. See id. In this case, the VCAA letter discussed the evidence necessary to establish a claim for service connection, the need to submit new and material evidence to reopen the veteran's claim and a description of what constitutes new and material evidence. However, with respect to this claim, it failed to specify what evidence would be necessary to satisfy the elements that were found insufficient in the previous denials. Specifically, the veteran must be informed that he must provide evidence showing that his hyperopia and amblyopia of the left eye are not congenital defects. Further, in his September 2004 statement and his August 2006 hearing testimony, the veteran claimed that his headache disability was associated with his eye disability. Thus, the Board finds that the issue of whether new and material evidence has been received to reopen the veteran's claim for headaches must also be remanded as it is inextricably intertwined with the issue of service connection of hyperopia and amblyopia of the left eye. Lastly, as previously stated in the analysis part of this decision, during the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Since the Board is remanding for additional VCAA notice under Kent, it is reasonable for the RO to give additional VCAA notice to comply with Dingess. Accordingly, the case is hereby REMANDED to the RO for the following actions: 1. The RO should send the veteran a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation of the evidence necessary to substantiate the element or elements required to establish the underlying claim that were found insufficient in the previous denials, and an explanation as to the information or evidence needed to establish a disability rating and effective date for the claims on appeal. Specifically, the veteran must be informed that he must provide evidence showing that his hyperopia and amblyopia of the left eye are not congenital defects. See Kent v. Nicholson, 20 Vet.App. 1 (2006), Dingess/Hartman v. Nicholson, 19 Vet.App.473 (2006). 2. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet.App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs