Citation Nr: 0814024 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 05-40 455 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Whether new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for a right foot disability. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD C. C. Dale, Associate Counsel INTRODUCTION The veteran had active service from May 1976 to December 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2003, the RO denied the veteran's claim of entitlement to service connection for a bilateral foot disability. Subsequently, in a June 2004 decision, the RO granted service connection for a left foot disability. The veteran did not file a timely substantive appeal in response to the September 2003 decision. FINDINGS OF FACT 1. By rating decision in April 2003, the RO denied the veteran's claim for service connection for a right foot disability; a timely substantive appeal was not received. 2. Certain evidence received since the April 2003 rating decision is 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 raises a reasonable possibility of substantiating the claim of service connection for a right foot disability. 3. The veteran's right foot disability was not manifested during her active duty service or for many years after separation from service, nor is a right foot disability otherwise related to such service. CONCLUSIONS OF LAW 1. The September 2003 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002). 2. New and material evidence has been received to reopen the veteran's claim of entitlement to service connection for a right foot disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). 3. A right foot disability was not incurred in or aggravated during the veteran's active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Before addressing the merits of the claims, the Board is required to address the duty to notify and duty to assist imposed by 38 U.S.C.A. §§ 5103, 5103(A) and 38 C.F.R. § 3.159. VA has a duty to notify a claimant and her representative, if any, of the information and evidence needed to substantiate a claim. This notification obligation was accomplished by way of letters from the RO to the veteran dated in June 2003, July 2003, November 2004, and December 2004. These letters effectively satisfied the notification requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing the veteran about the information and evidence not of record that was necessary to substantiate the claim; (2) informing the veteran about the information and evidence VA would seek to provide; (3) informing the veteran about the information and evidence she was expected to provide; and (4) requesting the veteran provide any evidence in her possession that pertains to her claim. Additionally, the March 2006 letter provided notice of how VA assigns disability ratings and effective dates and complies with the holding of Dingess v. Nicholson, 19 Vet. App. 473 (2006). Although the March 2006 letter was not timely received, the denial of the service connection claim in the instant decision makes the timing error non-prejudicial. Regarding a petition to reopen a finally decided claim, the VCAA requires VA to provide the veteran with notice of the evidence necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, in a December 2004 letter, the RO provided notice to the veteran regarding what information and evidence is needed to substantiate service connection and new and material evidence claims (including notice in the December 2004 letter of the evidence necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial of service connection for a right foot disability). However, in light of the Board's reopening of the veteran's service connection claim based on a finding that new and material evidence was submitted, further notice is not required because the full benefit sought by the veteran as to this issue of having her claim reopened is granted in the instant decision. Second, VA has a duty to assist a veteran in obtaining evidence necessary to substantiate a claim. The service medical records and VA treatment records are associated with the claims file. Additionally, the veteran was afforded a VA examination in connection with her claim. In her December 2005 Substantive Appeal, the veteran contends that the RO failed to obtain VA treatment records under her married name for treatment following active service. Through a July 2003 VCAA letter, the RO informed the veteran that she was required to provide information about where to obtain medical records concerning her medical treatment. In response, the veteran reported, in an August 2003 consent form, that she had been treated at the VA Medical Center in Buffalo, New York for her foot problems since 1994. The veteran did not submit any more information regarding treatment for her foot condition until her substantive appeal. Given that the veteran was notified that she was required to submit information regarding her treatment and that the RO obtained VA medical records based on the information provided by the veteran, the Board finds that the RO fulfilled its duty to assist in obtaining VA treatment records. In her December 2005 Substantive Appeal, the veteran argues that relevant service medical records showing treatment of her right foot are missing from the Landstuhl Army Hospital. The veteran does not mention an in-service injury or treatment for her feet in Germany anywhere else in the record. However, VA treatment records dated June 2003, show that the veteran reported that she injured her feet in service at Fort Polk, Louisiana. Fort Polk, Louisiana service medical records are available. Numerous other service medical records are associated with the claims file. There is no indication anywhere in the record that the service medical records obtained by the RO were not complete. Again, the veteran was notified through a July 2003 letter that she needed to show an in-service event that is related to her current disability. As such, the Board finds that no additional development is necessary in this regard. The Board finds that all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained and the case is ready for appellate review. Analyses New and Material Evidence The veteran seeks to reopen her service connection claim for a right foot disability for new and material evidence. The Board finds that new and material evidence has been submitted and grants the claim to reopen for new and material evidence. When a claim to reopen is presented under section 5108, VA must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). For purposes of the present appeal, new evidence means existing evidence not previously submitted to agency decisionmakers. 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. 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). In September 2003, the RO denied the veteran's claim of entitlement to service connection for a bilateral foot disability because there was no evidence in service showing a bilateral foot disability. Subsequently, in a June 2004 decision, the RO granted the veteran service connection for a left foot disability. As part of her October 2004 attempt to reopen the claim, the veteran submitted a statement from her attending podiatrist relating her current right foot condition to her active service based upon her reported history. The record also includes a VA examination report, not considered in the last final decision, stating that her right foot condition is not related to her present left foot condition, and VA treatment records, dated June 2003, possibly relating her current right foot condition to active service. The attending podiatrist's statement, VA examination report, and June 2003 VA treatment records are plainly new, because they were not previously of record. They are also material, because they suggest that the veteran has a right foot disability that was caused by some incident of active service - competent medical evidence of a nexus which was not previously of record. As new and material evidence has been received, the claim of entitlement to service connection for a left foot condition is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Service Connection The veteran seeks to establish service connection for her right foot condition. The Board finds that the preponderance of the evidence is against the claim, and the appeal will be denied. 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; 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). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Alternatively, the nexus between service and the current disability can be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). The preponderance of the informed evidence is against the claim. The veteran's service medical records show that she was treated for a fracture in her left foot during active service. The only service medical records pertaining to her right foot are July 1977 treatment records showing that she complained of a painful blister on her right heel caused by her boots. The veteran denied having foot trouble in her December 1978 pre-separation medical history questionnaire. Likewise, her December 1978 separation examination report reflects that her feet were clinically evaluated and found to be normal. The separation examination, including the veteran's pre- discharge physical examination questionnaire, are of high probative value in determining whether she had right foot symptoms up until the time of her discharge from active service. Because these records were generated with a view towards ascertaining the appellant's then-state of physical fitness, they are akin to statements of diagnosis and treatment and are of increased probative value. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (Observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). VA treatment records show that the veteran has sought treatment for a right foot condition for nearly the past 15 years - i.e., beginning in 1983, or approximately five years after her separation from active service. There are three medical opinions concerning the etiology of the veteran's right foot condition. The first is a May 2004 VA examination. The examination report confirmed that the veteran had residuals in her right foot from past bunion surgeries. While the examiner noted that the veteran reported "unequivocally" that both her left and right foot were injured in service, he observed without further comment that the veteran's service medical records "only show that her left foot was addressed." The examiner opined that it was not at least as likely as not that the veteran's right foot condition is related to any left foot condition from active service. The second opinion is a VA treatment note dated July 2004 stating that the veteran has a history of pain in her right toe since active service and that "more likely than not" the right foot should be service connected for the hallux abducto valgus condition. There is no rationale accompanying the opinion, nor does the author of this treatment note indicate that the veteran's service medical records only indicate treatment for a left foot injury. Similarly, in a VA treatment record dated June 2003, a treatment provider noted that the veteran reported "ongoing foot problems possibly related to initial foot fractures (i.e., more than one fracture) in the service." Both the June 2003 and July 2004 VA treatment notes are not informed. The record clearly shows that the veteran had only a right heel blister during military service, and not a right foot fracture. The Board must determine how much weight is to be attached to each medical opinion of record. See Guerrieri v. Brown, 4 Vet. App. 467 (1993). Factors for assessing the probative value of a medical opinion include the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. 444, 448-9 (2000). In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Greater weight may be placed on one medical professional's opinion over another, depending on factors such as reasoning employed by the medical professionals and whether or not, and the extent to which, they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). Both VA treatment records from June 2003 and July 2004 are based on the veteran's reported medical history. Medical history provided by a veteran and recorded by an examiner without additional enhancement or analysis is not competent medical evidence. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). However, VA cannot reject a medical opinion simply because it is based on a history supplied by the veteran and that the critical question is whether that history was accurate. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); see, e. g., Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (reliance on a veteran's statement renders a medical report incredible only if the Board rejects the statements of the veteran); McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing circumstances when a VA examination is required). The treatment notes linking the veteran's claimed right foot disorder to service are based solely on the veteran's self- report, which is not supported by the veteran's service medical records. The veteran denied having foot trouble in her December 1978 pre-separation medical history questionnaire. Likewise, her December 1978 separation examination report reflects that her feet were clinically evaluated and found to be normal. Thus, the veteran's reported medical history of a right foot injury does not match her service medical records, and VA treatment records do not indicate that the examiners had access to the veteran's service medical records. VA treatment records from June 2003 show that the veteran reported an injury to her feet occurred at Fort Polk, Louisiana. Service medical records confirm that the veteran complained of left foot pain and was later diagnosed with a fractured bone in her left foot. She was treated at the Fort Polk emergency room for her injury. Also, of importance is the fact that over 15 years passed between the veteran's active service and her first treatment for her right foot condition. The Court of Appeals for Veterans Claims held that the fact that there was no record of any complaint, let alone treatment, involving the veteran's condition for many years could be decisive. See Maxson v. West, 12 Vet. App. 453, 459 (1999). (CONTINUED ON NEXT PAGE) ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a right foot condition, to this extent only, the claim is granted. Service connection for a right foot condition is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs