Citation Nr: 1124096 Decision Date: 06/24/11 Archive Date: 06/29/11 DOCKET NO. 09-12 923 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been presented to reopen the claim of service connection for a left great toe disorder. 2. Entitlement to service connection for a left great toe disorder. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from February 1975 to February 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in September 2008 by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's request to reopen a previously denied claim of service connection for a left great toe disorder on the grounds of no new and material evidence. In March 2011 the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in Waco, Texas. A transcript of the hearing is in the claims file. FINDINGS OF FACT 1. In a rating decision dated in July 2002, the RO denied, in pertinent part, service connection for a left great toe disorder; after the Veteran was notified of the adverse decision and of his right to appeal, he did not appeal and the decision became final by operation of law based on the evidence then of record. 2. The evidence presented since the July 2002 rating decision relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for a left great toe disorder. 3. The record contains credible lay evidence of an injury to the left great toe during service, and of continuity of symptomatology after that injury. CONCLUSIONS OF LAW 1. The rating decision in July 2002 by the RO, denying service connection for a left great toe disorder, became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104 (2010). 2. The additional evidence presented since the July 2002 rating decision is new and material, and the claim of service connection is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010). 3. A chronic left great toe disability was incurred during active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. In this case, the Board is granting the request to reopen the claim of service connection, as well as the underlying claim of service connection for a left great toe disorder. Accordingly, any error that might have been committed with respect to either the duty to notify or the duty to assist was harmless and need not be further discussed. New and Material Evidence In a rating decision dated in July 2002, the RO denied service connection for a left great toe disorder on the grounds that there was no evidence in service treatment records (STRs) or VA treatment records of the existence of a left great toe disorder or that it was related to military service. After the Veteran was notified of the decision and of his right to appeal, he did not appeal and the decision became final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104. Although the July 2002 rating decision is final, the issue may be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108. In April 2008 the Veteran requested that his claim for a left foot, big toe disorder be reopened. In a rating decision dated in September 2008 the RO denied the claim on the grounds of no new and material evidence. New evidence means existing 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. See also Shade v. Shinseki, 24 Vet. App. 110 (2010)(regulations do not require new and material evidence as to each previously unproven element of a claim). In order that the additional evidence may be considered new and material, the evidence must relate to the basis for the prior denial of the claim. In determining whether evidence is new and material, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). Where, as here, a claim of service connection has been previously denied, a subsequent claim of service connection for the same disability may not be considered on the merits unless new and material evidence has been presented. And whether or not the RO reopened a claim is not dispositive, as it is the Board's jurisdiction responsibility to consider whether it is proper for a claim to be reopened. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial). Evidence Previously Considered The evidence considered at the time of the July 2002 rating decision consisted of STRs, which include a January 30, 1979, record of left foot pain diagnosed as avulsion; and VA vocational rehabilitation records dating from November 2001 to March 2002, which contain no mention of left foot/toe pain. Additional Evidence and Analysis The additional evidence consists, in pertinent part, of a statement from a military buddy, who says that the Veteran complained to him during service (in 1977) of left great toe pain. The pertinent evidence also includes the Veteran's sworn testimony of a sports injury to his left great toe during service; and an opinion from a VA treating podiatrist, who avers that the Veteran's current left toe disorder, in the absence of any other trauma, is related to the injury that he sustained during service. This evidence is new since it was not of record at the time of the initial decision. It is also material since it provides evidence of an injury during service and evidence of a current disorder; and suggests that the Veteran's current complaints may be related to the injury in service. New and material evidence having been presented, the Veteran's request to reopen his claim for service connection for a left great toe disorder is granted. 38 C.F.R. § 3.156. Service Connection Having reopened the claim for service connection for a left great toe disorder based on new and material evidence, the Board has jurisdiction to review the underlying service connection claim de novo, based on the whole record. For the reasons that follow the Board finds that a grant of service connection is warranted. Facts The Veteran says that he injured his left great toe during a football game during service, and maintains that his current left great toe disorder is related to that injury. STRs include a January 1979 record of complaints of left foot pain. Examination found no edema or ecchymosis, but there was pain on palpation and on standing and walking. Diagnosis was avulsion. VA treatment records dated in April 2008 document the Veteran as reporting an injury to his left great toe in 1977 while in a command sponsored game of football during service; and as complaining of chronic pain and swelling in the left great toe. The provider observed that the Veteran had a slow, uneven, but steady gait. Physical examination found tenderness in the left first metatarsophalangeal joint, but no swelling or limited motion. X-rays found moderate to severe first metatarsophalangeal joint osteoarthritis with associated osteophytosis and joint space narrowing and mild great toe interphalangeal joint degenerative disease. VA treatment records dated in June 2008 document the Veteran as complaining of left great toe pain of 8/10 in severity. The Veteran said that the toe had been painful since service, with little flexibility. Diagnosis was severe degenerative joint disease of the left metatarsophalangeal joint. Private treatment records dated in June 2008 document the Veteran as complaining of throbbing and aching pain and inability to bend his left great toe. The Veteran reported that he had jammed the toe some 30 years prior; with progressively worsening symptoms over the past 4 to 5 years. Physical examination found a palpable bony prominence to the dorsal aspect of the left first metatarsophalangeal joint, with decreased dorsiflexion, plantar flexion, and range of motion. X-rays showed marked degenerative changes about the first metatarsophalangeal joint with some bony fragmentation and loss of cartilaginous joint space. In June 2008 a buddy wrote that in 1977 the Veteran, who was then stationed at Norfolk, had visited him at his station in Jacksonville, Florida, and that during the visit the Veteran had complained about how badly his toe was hurting him. He wrote that the Veteran had told him that he had hurt his toe playing football for a Navy team. He added that as the years had gone by the Veteran had continued to complain about his toe. In a statement received in July 2008 another buddy wrote that he had been the Veteran's roommate during service from 1976 to 1978, and that he and the Veteran had played on the football team. He added that he remembered the Veteran hurting his foot at least a few times during the season. Another buddy also wrote that the Veteran was injured playing ball. A July 2008 VA treatment record by a physician's assistant reflects the Veteran as reporting that he injured his left great toe in high school. Physical examination found noticeable bony thickening at the left metatarsophalangeal joint, both dorsal and medial. Diagnosis was severe degenerative joint disease of the left great toe metatarsophalangeal joint. In an addendum dated a few days later the provider stated that there were certain inaccuracies in his earlier report. In August 2008 a VA podiatrist documented the Veteran as complaining of progressively worsening symptoms related to the first metatarsophalangeal joint. Physical examination found limited joint mobility to about 15 degrees dorsiflexion and about 2 degrees of plantarflexion of the first metatarsophalangeal joint, as well as crepitus and prominent dorsomedial eminence. The Veteran was scheduled for surgery in September. In October 2008 the VA podiatrist wrote that he had reviewed the Veteran's chart and it was clear that the Veteran's disorder was due to a previous injury. He then averred that it was his professional opinion that the Veteran had sustained the injury during service since he had subsequently had mostly sedentary jobs and no other further or distant injury. On VA examination in March 2009 the Veteran complained of pain on standing and walking. He also complained of weakness, stiffness, swelling, heat, redness, fatigability, and lack of endurance. He reported that he had injured his left foot in 1976. He said that his pain was precipitated by weight bearing, and alleviated by rest. He reported that he was a minister and able to attend to his activities of daily living. The examiner noted that the Veteran had had surgery on September 22, 2008; and that the Veteran had a "slight left limp." Physical examination found the left first metatarsophalangeal joint to be tender and without movement. X-rays showed postoperative changes from effusion of the metatarsophalangeal joint of the left great toe. The examiner then remarked that while there were eyewitnesses to the injury to the left foot during service, since there was no definitive treatment for it such as casting, splinting, or surgery until the fusion in September 2008, the original left foot injury was vague and could not be considered serious. He then averred that in the absence of chronic pain during the 27 year interim after service, there was no nexus for chronicity to associate the left foot injury in-service to the Veteran's current left hallux rigidus. During his March 2011 Travel Board hearing the Veteran testified that he was a star athlete prior to his entry into service; that on entry into service he functioned as the quarterback of his Fleet's football team; that he injured his left great toe during service in a football game; that he did not seek medical care because the team was in the midst of championship playoffs; that the toe was painful and swollen for a couple of days; that he was excited about being in the Navy; and that he simply tolerated the symptoms, which he said were ongoing and nagging. Hearing transcript (T.), 5. He testified that the swelling never really went down, and that the toe "stayed big and bulgy." He further testified that he went to college after service, and was then employed in sedentary jobs for some 15 years. T. 5-6. He also testified that he then changed vocations for work as a nurse's assistance, which he said entailed standing and walking, and which in turn led to an increase in his symptoms. T. 6. Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 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). Some chronic diseases, including arthritis, may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within one year of the date of separation from service. 38 C.F.R. §§ 3.307(a), 3.309(a). Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nichloson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed.Cir.2000) ("Fact-finding in veterans cases is to be done by the Board")). When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Analysis The evidence includes the Veteran's sworn testimony that he injured his left great toe while quarterbacking his Fleet's football team in the East Coast championship; that he was a young, 19 year old athlete; that he did not seek medical care at the time because of the enormity of the sports event; that he was excited about his service in the Navy; and that he simply put up with the pain. A statement from a military buddy, who relates that the Veteran complained in 1977 of pain in his toe, corroborates the Veteran's account of an injury to the left great toe during service. In addition, STRs confirm that the Veteran was diagnosed with and treated for an avulsion somewhere in the left foot during service. While there is no medical evidence of an injury to the left great toe, per se, during service, the Board finds no reason to doubt the Veteran's account of an in-service injury, particularly in light of the corroborative evidence from his witness. Although there is a lone entry by a physician's assistant in VA treatment records which suggests that the injury to the toe may have occurred while the Veteran was in high school, the Veteran vehemently denied this during his Board hearing; and in a subsequent addendum the physician's assistant admitted to certain inaccuracies in his earlier report; thus raising doubts about the overall accuracy of the document. Moreover, the physician's assistant's July 2008 report is at odds with the other medical evidence of record, which unanimously chronicles the Veteran as reporting that he injured the toe during service. Accordingly, the Board finds the Veteran's claim of an injury to his left great toe during service to be credible. See Washington v. Nichloson, 19 Vet. App. 362, 369 (providing that the Board, as fact finder, must determine the probative value or weight of the admissible evidence); Owens v. Brown, 7 Vet. App. 429 (1995) (providing that it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence). In addition, the record contains highly probative medical evidence that relates the Veteran's current left great toe degenerative disease to service. According to the Veteran's treating VA podiatrist, the 2008 surgery on the left first metacarpal phalangeal joint surgery was, in the absence of a subsequent injury, secondary to the injury to the toe during service. Although another VA examiner states that the long interim of chronic pain after service belies a nexus to service, the Board is not persuaded, since the Veteran has consistently reported that he worked for at least 15 years after service in sedentary jobs; thus minimizing use of the toe. This is buttressed by the Veteran's testimony that his toe pain really flared upon his occupational change to nurse's assistant, when he began to do more standing and walking; and the Board finds this assertion to be credible. The Board consequently finds, given the credibility of the Veteran's consistent statements, including his sworn hearing testimony, of problems since service, the March 2009 VA opinion appears to support the claim. That is, since it is shown that there was the presence of chronic pain during the 27 years after service, there is now a nexus for chronicity to associate the left foot injury in-service to the current left toe disability. All told, the positive medical evidence in support of a nexus to service is more probative than the medical evidence against the claim. See Evans v. West, 12 Vet. App. 22, 30 (1998) (It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same). In summary, the evidence includes the Veteran's sworn and credible testimony of an injury to his left great toe during service, and credible lay evidence of continuity of symptomatology thereafter. The evidence also confirms that he currently suffers from moderate to severe degenerative changes in the left first metacarpal phalangeal joint, and includes a highly probative medical opinion that relates the current left great toe disorder to the injury in-service; and the Board cannot find that the evidence preponderates against the claim. Therefore, and according the Veteran every reasonable doubt, service connection for a left great toe disorder is warranted. 38 C.F.R. §§ 3.102, 3.303. ORDER As new and material evidence has been presented, the claim of service connection for a left great toe disorder is reopened. Service connection for a left great toe disorder is granted. ____________________________________________ M. Sabulsky Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs