Citation Nr: 1134476 Decision Date: 09/15/11 Archive Date: 09/23/11 DOCKET NO. 08-12 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left foot disorder. 2. Entitlement to service connection for a left foot disorder. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Whitehead, Associate Counsel INTRODUCTION The Veteran had active service from November 1966 to November 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In May 2011, the Veteran testified before the undersigned Veterans Law Judge during a Travel Board hearing held at the RO. A transcript of that hearing has been associated with the claims file. FINDINGS OF FACT 1. In a June 2004 rating decision, the RO denied entitlement to service connection for a left foot disorder. The Veteran did not perfect an appeal of that decision. 2. Evidence received since the June 2004 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for a left foot disorder, and raises a reasonable possibility of substantiating the claim. 3. Resolving all doubt in the Veteran's favor, the Veteran's left foot disorder is etiologically related to his military service. CONCLUSIONS OF LAW 1. The June 2004 RO decision which denied the Veteran's claim of entitlement to service connection for a left foot disorder is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.104(a), 20.1103 (2010). 2. Subsequent to the June 2004 RO decision, new and material evidence has been received to reopen the claim of entitlement to service connection for a left foot disorder. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2010); 38 C.F.R. § 3.156(a) (2010). 3. The criteria for service connection for a left foot disorder have been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103(A), 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). In this case, the Board is reopening and granting the claim of entitlement to service connection for a left foot disorder. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. New and Material Evidence In this case, the Veteran asserts that he has submitted new and material evidence to reopen his claim of entitlement to service connection for a left foot disorder and that the evidence is otherwise sufficient to award service connection for this disability. The RO does appear to have reopened the Veteran's claim for service connection, as reflected in the March 2007 rating decision. However, the question of whether new and material evidence has been received to reopen a claim must be addressed by the Board regardless of any RO action. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). As a general rule, a previously denied claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to that. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When a claimant seeks to reopen a final decision, the first inquiry is whether the evidence obtained after the last disallowance is "new and material." Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means 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). The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review of such an attempt to reopen a claim. Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The Board may not proceed to review the issue of whether the duty to assist has been fulfilled, or undertake an examination of the merits of the claim. The Board will therefore undertake a de novo review of the new and material evidence issue. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). Furthermore, "material evidence" could be "some new evidence [that] may well contribute to a more complete picture of the circumstances surrounding the origin of the Veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Once evidence is deemed new and material, the Board can proceed to review the claim based on the merits and the entire evidence of record. Turning to the merits of the claim, the RO denied the Veteran's claim for service connection for a left foot disorder by way of the June 2004 rating decision. In denying the claim, the RO noted that the Veteran was treated for left foot symptomatology during his military service. However, the RO determined that the medical evidence of record did not show a relationship between his diagnosed left foot strain and his active duty service. At the time of the June 2004 rating decision, the claims file included the Veteran's service treatment records, which documented his report of a left foot injury in January 1968. These records show that his initial diagnoses were left foot strain and left foot contusion. A February 1968 service treatment record shows that an X-ray of his left foot revealed an unhealed chip fracture off the proximal head of the first metatarsal. Also of record at the time of the June 2004 rating decision was a May 2004 VA feet examination report, in which a VA examiner essentially opined that the Veteran's left foot strain was less likely than not related to his in-service injury. The Veteran filed his application to reopen his previously denied claim in June 2006. In support of his claim, he submitted an April 2006 treatment record and a May 2006 letter from his private physician, T.T.K., M.D. In these documents, Dr. T.T.K. opined that it was more likely than not that the Veteran's current left foot symptomatology was the result of his in-service left foot injury. Subsequently, the Veteran submitted additional private medical records reflecting treatment for his left foot symptomatology. A February 2004 private treatment record documents his report of bilateral foot pain and his report of wearing very inexpensive shoes. Following a February 2004 assessment, the private physician assessed the Veteran with foot pain, which he concluded was probably secondary to poor footwear. The Veteran testified as to his left foot symptomatology during the May 2011 Travel Board hearing. He essentially reported that he injured his foot during his military service. The Veteran also testified that he continued to experience left foot symptomatology following his separation from active duty. In light of the foregoing, new and material evidence has been received to reopen the claim for service connection for a left foot disorder. The new evidence, in part, consists of the February 2004 private treatment record, the April 2006 and May 2006 opinions from Dr. T.T.K., and the Veteran's competent lay statements as to a continuity of left foot symptomatology following his separation from active duty. This is clearly new it was not previously of record and not previously considered. It is also material, in that it constitutes medical and competent lay evidence as to whether the Veteran currently has a left foot disorder that is related to his military service, evidence which was not of record at the time of the June 2004 rating decision. This evidence is neither cumulative nor redundant of other evidence and raises a reasonable possibility of substantiating the Veteran's claim. Accordingly, the claim for service connection for a left foot disorder is reopened. Legal Criteria for Service Connection Service connection means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection for certain "chronic" diseases, such as arthritis, may also be established based on a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. As noted above, the Veteran claims that his currently left foot disorder is related to his military service. He claims that he injured his left foot while on active duty, and that his injury required treatment with a cast. According to the Veteran, he continued to experience left foot symptomatology after his cast was removed; however, he was told that nothing further could be done to treat his symptoms. The Veteran essentially claims that he has experienced a continuity of left foot symptomatology ever since his separation from military service. The Veteran's service treatment records have been reviewed and document treatment for a left foot injury. A January 1968 service treatment record includes his report of injuring his left foot after jumping onto a landing. These records show that a January 1968 X-ray and clinical examination revealed a small chip fracture in a bone of the foot; at that time, he was initially diagnosed with a left foot sprain. He continued to report having left foot pain, and provided a walking cast during his in-patient treatment in January 1968. A subsequent February 1968 X-ray examination revealed an unhealed chip fracture off the proximal head of the first metatarsal on the left foot; the Veteran's cast was removed and he demonstrated full ambulation. The Veteran reported having continued left foot pain in September 1968. The November 1968 separation report of medical examination shows that the clinical examination of the feet was generally normal prior to the Veteran's separation. Associated with the claims file are the Veteran's private medical records, which document his report of foot pain. A February 2004 private treatment record includes his report of bilateral foot pain and of wearing inexpensive shoes; following a physical examination, he was assessed with foot pain, probably secondary to poor footwear. The Veteran underwent a VA feet examination in May 2004. The associated examination report reflects that the claims file was reviewed by the VA examiner in conjunction with the examination. The examiner noted the Veteran's history of a hairline fracture to the left proximal head of the first metatarsal in January 1968 and treatment with a walking cast. He also noted that the Veteran's cast was removed in February 1968, at which time he had full ambulation. The Veteran reported having continued foot pain following his separation from military service; he stated that he did not seek treatment, as he was told that nothing could be done for his left foot pain. The examination report shows that the Veteran underwent physical and X-ray examinations, after which he was diagnosed with a left foot strain. The examiner essentially opined that it was less likely than not that the Veteran's foot disorder was related to his military service. He explained that the Veteran's service treatment records showed that he had full ambulation after removal of his cast and that the Veteran did not seek treatment following his discharge from military service. In support of his claim, the Veteran submitted an April 2006 private treatment record from his private physician, Dr. T.T.K. In this record, Dr. T.T.K. noted that the Veteran injured his left foot while in service, at which time he reportedly had "a hairline fracture" of his foot. He reported having continued left foot pain following his injury and denied any subsequent injury to his foot. The physical examination of the left foot revealed tenderness to palpation. Given the absence of a documented or reported history of subsequent injury, Dr. T.T.K. opined that it was more likely than not that the Veteran's in-service left foot injury was responsible for his current left foot symptomatology. Dr. T.T.K. reiterated his opinion in support of the Veteran's claim in a May 2006 letter. Here, the analysis may be stated briefly. After a careful review of the evidence of record, the Board finds that the evidence is, at the very least, in relative equipoise as to whether the Veteran's diagnosed left foot strain is related to an in-service left foot injury. As a point of relative equipoise as been reached with respect to the claimed disorder, the Board must resolve all doubt in the Veteran's favor and grant the claim for service connection. The Veteran has generally alleged the he currently has a left foot disorder that is related to an in-service left foot injury. Although the Veteran is not competent to provide an opinion as to the etiology of his claimed disorder, he is competent to report his current symptomatology and the onset of his symptoms began. Barr v. Nicholson, 21 Vet. App. 3030 (2007); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In this regard, the Veteran's service-treatment records document his report of left foot pain following an in-service injury in January 1968. A February 1968 in-service X-ray report shows the presence of an unhealed chip fracture of his left first metatarsal. Moreover, the Veteran has consistently reported that the claimed disorder began following an in-service injury and a continuity of left foot symptomatology following his separation from active duty service. The Board finds the Veteran's testimony to be credible as his contentions are supported by his service treatment records and there are no conflicting statements in the record. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The medical evidence, however, includes contradictory opinions as to whether the Veteran's left foot disorder is related to his military service. Included in the claims file are the April 2006 and May 2006 opinions from Dr. T.T.K. essentially that the Veteran's left foot disorder was due to his in-service left foot injury. In contrast, the May 2004 VA examiner opined that the Veteran's left foot strain was less likely than not related to his in-service injury. While the June 2004 VA examiner based his opinion on a clinical examination of the Veteran and a review of the service treatment records, the Board does not find the June 2004 VA examiner's opinion to be of a greater probative value. Specifically, the June 2004 VA examiner provided his opinion prior to Dr. T.T.K.'s April 2006 opinion in favor of the claim; thus, the June 2004 VA examiner's opinion does not take into account the favorable private opinion indicating an etiological relationship between the Veteran's left foot disorder and his military service. The Board also notes that the June 2004 failed to consider the Veteran's lay statements regarding the in-service onset and continuity of foot symptomatology. Given this, the Board finds that the medical evidence has placed the record in equipoise as to whether the Veteran's left foot strain is related to his military service. Accordingly, the Board must resolve this issue in favor of the Veteran. The Board has also considered the February 2004 private medical opinion that the Veteran's foot pain was probably secondary to poor footwear. However, the examiner use of the word "probably" in this case makes the examiner's opinion speculative in nature. See Bostain v. West, 11 Vet. App. 124, 127- 28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) ("may or may not" language by physician is too speculative). Therefore, the Board finds the February 2004 private opinion to be of lower probative value due to its speculative nature and the fact that there is no indication that it was offered based on review of the claims folder and pertinent medical records. Nevertheless, in light of Dr. T.T.K.'s favorable opinion, the medical evidence is still at point of equipoise that must be resolved in favor of the Veteran. After carefully reviewing all the evidence on file, the Board finds no adequate basis to reject the competent lay testimony and medical evidence of record that is favorable to the Veteran, based on a rational lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). While the evidence in this case is not unequivocal, it has nonetheless placed the record in relative equipoise. Accordingly, the claim for service connection is granted. Further inquiry could be undertaken with a view towards development of the Veteran's claim so as to obtain an additional medical opinions. However, under the benefit of the doubt rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-07 (1994). As such, the Board will exercise its discretion to find that the evidence is in relative equipoise and conclude that entitlement to service connection for a left foot disorder is warranted. Id. ORDER New and material evidence having been received, the claim for service connection for a left foot disorder is reopened. To this extent and this extent only, the claim is granted. Service connection for a left foot disorder is granted, subject to the laws and regulations governing monetary awards. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs