Citation Nr: 0812626 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 06-13 522 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for hammer toes of both feet, and if so, whether the reopened claim should be granted. 2. Whether new and material evidence has been received to reopen a claim for service connection for a right eye disability, and if so, whether the reopened claim should be granted. 3. Whether new and material evidence has been received to reopen a claim for service connection for a left eye disability, and if so, whether the reopened claim should be granted. 4. Entitlement to service connection for a respiratory disability. 5. Entitlement to an initial compensable disability rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD T. L. Reynolds, Counsel INTRODUCTION The veteran served on active duty from September 1948 to June 1952. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The veteran presented personal testimony at a Travel Board hearing chaired by the undersigned Veterans Law Judge in January 2008. A transcript of the hearing is associated with the veteran's claims folder. The Board notes that the veteran submitted additional medical records subsequent to the January 2008 hearing, which have not been reviewed by the RO. The veteran included a waiver of initial RO consideration of those records. Therefore, a remand is not required. In April 2008, the Board granted the veteran's motion to advance this case on the docket due to his age. The issues of entitlement to service connection for respiratory and bilateral eye disabilities and entitlement to an initial compensable disability rating for bilateral hearing loss are addressed in the remand that follows the order section of this decision. FINDINGS OF FACT 1. In an unappealed September 2001 rating decision, the RO denied the veteran's claims for service connection for hammer toes of both feet and eye disability. 2. The evidence associated with the claims file subsequent to the September 2001 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claims, is not cumulative or redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claims. 3. Hammer toes of both feet are etiologically related to service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claims of entitlement to service connection for hammer toes of both feet and bilateral eye disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). 2. Hammer toes of both feet incurred as a result of active duty. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As explained below, the Board has determined that new and material evidence has been submitted to reopen the veteran's claims for service connection for hammer toes of both feet and bilateral eye disability and that the evidence of record is sufficient to establish the veteran's entitlement to service connection for hammer toes. Therefore, no further development of the record is required with respect to the matters decided herein. I. Claims to Reopen Legal Criteria Generally, a claim which has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as evidence not previously submitted to agency decision makers. 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Bilateral Foot Disability The veteran originally filed a claim for service connection for bilateral hammer toes in August 2000. In a September 2001 unappealed rating decision, the RO denied the veteran's claim based on its determination that a chronic foot disorder was not present in service and no current foot disorder was related to service. In rendering this decision, the RO rejected a statement providing a nexus opinion from S. Patel, MD, because it was not supported by objective medical evidence. Evidence received after the September 2001 decision includes additional statements from Dr. Patel, in which he opines that the flexion contractures of the toes of both feet are due to wearing ill-footed boots during his first 3 years of active duty. Also added to the record is the transcript of the veteran's hearing before the undersigned. He testified that during service he was provided combat boots that were too small and that it took him 3 years to obtain properly fitting boots. He also testified that his foot problems began in service and have continued since then. Additional evidence also includes a lay statement from the veteran's wife, who is also a certified nurse, and lay statements from the veteran's sisters in which they recall the veteran complaining about foot problems since his return home from service. This evidence is not cumulative or redundant of the evidence previously of record. Moreover, this evidence is sufficiently supportive of the claim to raise a reasonable possibility of substantiating the claim. Accordingly, new and material evidence has been received and the claim of entitlement to service connection for a bilateral hammer toes is reopened. Bilateral Eye Disability The veteran originally filed a claim for service connection for an eye disability in August 2000. In a September 2001 unappealed rating decision, the RO denied the veteran's claim based on its determination that a chronic eye disorder was not present in service or currently shown. The evidence then of record included the report of examination for discharge showing that the veteran was found to have no disability of either eye and no post-service medical evidence showing that he was found to have a disability of either eye. Evidence received after the September 2001 decision includes a private examination report from Daynes Optical which reflects diagnoses of mild cataracts in each eye and nasal pterygium of the right eye. The treating optometrist noted that the veteran's history was significant for exposure in the military. He stated that that the pterygium was possibly due to exposure while in the military. Also added to the record are more detailed statements from the veteran concerning his alleged eye trauma in service and resulting blisters in his eyes. A lay statement from someone who served with the veteran and recalls the veteran experiencing eye blisters in service has also been added to the record. The foregoing evidence is not cumulative or redundant of the evidence previously of record and is sufficiently probative to establish a reasonable possibility of substantiating the claim. Accordingly, reopening of this claim is also in order. II. Service Connection for Hammer Toes of Both Feet Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2007); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis In a multiple statements, the veteran he reported that while in service he was issued combat boots that were a size too small for his feet. He requested replacement boots but since there was a shortage of supplies, replacement boots were not given to him. He noted that in 1951 his boots wore out in the area of his toes. He contends that his toes are malformed and he constantly has pain while walking due to the combat boots issued during military service. The majority of the veteran's service medical records are unavailable with the exception of his discharge examination report and hospital admission cards created by the Office of the Surgeon General, Department of the Army. These records are absent any notation indicating that the veteran was treated for a foot condition while in service. Under such circumstances, there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Because the majority of the veteran's service medical records, if they existed, remain absent from the file, the Board's analysis has been undertaken with the heightened obligation set forth in Cuevas and O'Hare in mind. It is further noted, however, that the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). In this case, following a review of all of the evidence, the Board has no reason to doubt the veteran's contentions with respect to his foot problems in service and his wearing of combat boots that were too small. The record also contains private medical records reflecting current diagnoses hammer toes of both feet Additionally, the veteran has provided a statement from Dr. Patel, opining that the flexion contractures of the toes of his feet are related to service. There is no contrary medical opinion of record. Therefore, as all elements necessary for service connection have been met, the Board concludes that service connection for hammer toe deformities of both feet is warranted. ORDER New and material evidence having been received, reopening of the claim of entitlement to service connection for hammer toes of both feet is granted. New and material evidence having been received, reopening of the claim of entitlement to service connection for a bilateral eye disability is granted. Service connection for hammer toes of both feet is granted. REMAND With respect to the veteran's claim of service connection for a respiratory disability, during his January 2008 personal hearing, he indicated that he had sought private medical treatment as well as VA treatment. He also indicated that an X-ray study was performed on his lungs. Development to obtain these potentially pertinent records is in order. With respect to the veteran's claim for service connection for bilateral eye disability, the Board has found the veteran's testimony to be credible. While there is medical evidence suggesting that the veteran has a current eye disability due to service, the medical evidence currently of record is not sufficient to decide this claim. Given the competent medical evidence of a current disorder, the reports of symptoms in service, and of a continuity of symptomatology; the Board finds that the veteran should be afforded VA examination to determine the etiology of all currently present acquired eye disorders. Turning to the veteran's bilateral hearing loss claim, he contends that his service-connected bilateral hearing loss is more severe than reflected in the initial rating assigned. The Board notes that the most recent VA audiological examination was performed in August 2005. The "duty to assist" requires a "thorough and contemporaneous medical examination" that is sufficient to ascertain the current level of disability, and accounts for its history. Floyd v. Brown, 9 Vet. App. 88, 93 (1995). This medical examination must consider the records of prior medical examinations and treatment in order to assure a fully informed decision. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). In light of the length of time since the veteran's last examination, the Board is of the opinion that he should be afforded a new examination addressing the severity of his service-connected bilateral hearing loss. In addition, while this case is in remand status, the RO or the Appeals Management Center (AMC) should provide the veteran any additional required notice. Accordingly, this case is REMANDED to the RO or the AMC in Washington, D.C., for the following actions: 1. The RO or the AMC should request the veteran to provide a copy of any outstanding medical records pertaining to post-service treatment or evaluation of any of the disabilities at issue or the identifying information and any necessary authorization to enable VA to obtain a copy of the records on his behalf. 2. The RO or the AMC should undertake appropriate development to obtain any pertinent evidence identified but not provided by the veteran. If the RO or the AMC is unsuccessful in its efforts to obtain any evidence identified by the veteran, it should so inform the veteran and his representative and request them to submit the outstanding evidence. 3. Then, the RO or the AMC should make arrangements for the veteran to be afforded a VA examination to determine the nature and etiology of each currently present eye disorder. With respect to each currently present acquired eye disorder, the examiner should provide an opinion as to whether there is 50 percent or better probability that the disorder began in service, or is otherwise etiologically related to service. The examiner should provide the rationale for each opinion expressed. 4. The RO or the AMC should also make arrangements for the veteran to be afforded a VA audiological examination to assess the severity of his service- connected bilateral hearing loss disability. 5. Thereafter, the RO or the AMC should review the claims folder and ensure that the requested development has been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 6. The RO or the AMC should also undertake any other indicated development. 7. Thereafter, the RO or the AMC should readjudicate the issues on appeal in light of all pertinent evidence and legal authority. If the benefits sought on appeal are not granted to the veteran's satisfaction, the RO or the AMC should issue to the veteran and his representative a supplemental statement of the case and afford them the appropriate opportunity for response before the claims file is returned to the Board for further appellate consideration. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is otherwise notified but he has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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. 2007). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs