Citation Nr: 1303683 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 09-12 380 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for discoloration of the right great toenail. 2. Entitlement to service connection for toenail fungal infection, both feet. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from February 2003 to June 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for fungal infection of the toenails, claimed as infected toenails. The Board notes that a November 2005 rating decision denied service connection for discoloration of the right big toe. When describing her condition to the VA examiner in 2005, the Veteran noted that her right toenail became blue in service and sloughed off, leaving an odd shaped nail since then. The examiner noted there was no evidence to support a current diagnosis on the examination. While the Veteran claimed service connection for an infected toenail on her claim filed in December 2007, her description of the disability to medical providers and in her notice of disagreement reflects the same complaints as mentioned in her original claim. However, as noted in her notice of disagreement, after being told her problems were due to tight shoes, she was finally referred for a podiatric consult where a fungal infection of the toenails was diagnosed. In light of the above, the Board finds that the final 2005 rating decision denying right great toenail discoloration and the 2008 rating decision denying fungal infection of the nails are based upon the same factual basis as it concerns the right great toenail. Accordingly, as the right great toenail claim was previously and finally denied, new and material evidence is required to reopen that claim. See Boggs v. Peake, 520 F.3d 1330, 1335 (Fed.Cir.2008) (a misdiagnosis cannot be the basis for a new claim). Thus, the issue has been amended as listed on the cover page. Although the RO decided the claim on the merits, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). Because the Board is reopening the claim, the Board does not believe the Veteran will be prejudiced by deciding her case at this time on a new and material basis. Bernard v. Brown, 4 Vet. App. 384 (1993). For the reasons explained below, the issue of entitlement to service connection for infected toenails is REMANDED to the RO via the Appeals Management Center (AMC). VA will notify the Veteran if further action is required on her part. FINDINGS OF FACT 1. A November 2005 rating decision denied service connection for right great toenail discoloration as there was no evidence of the condition in service or currently; the Veteran did not appeal that decision and it became final. 2. The evidence received since that denial includes evidence that is neither cumulative nor redundant, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of entitlement to service connection for right great toenail discoloration. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Given the Board's favorable disposition to reopen the claim for service connection for right great toenail infection, the Board finds that no discussion of VCAA compliance is necessary at this time. Analysis Service connection for discoloration of the right big toe was denied in a November 2005 rating decision. The Veteran did not appeal that decision. A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium) (holding that the "presumption of credibility" doctrine continues to be precedent). 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(a) (2012). Furthermore, the Court of Appeals for the Federal Circuit has indicated that evidence may be considered new and material if it contributes "to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision." Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998). The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The evidence of record at the time of the November 2005 rating decision included the Veteran's April 2005 claim for service connection for discoloration of the right great toenail, service treatment records, and the report from a May 2005 VA general medical examination. Service treatment records revealed no complaints or findings concerning her toenails. During the May 2005 VA examination, the Veteran stated the onset of this occurred during active duty, when the right great toenail became blue and sloughed off, with an odd shaped nail since then. The examiner noted there was no evidence to support a diagnosis at the time of the examination. The evidence received since the November 2005 decision included VA treatment records. In April 2006 she complained of second and third toenails on both feet turning black and coming off since being in Kuwait in 2004. She brought 2 toenails from her left foot in to show the clinician. Physical examination revealed no discoloration but there was some evidence of thick yellow nails on both fifth toes. The assessment was nail trauma and she was advised to make sure she had plenty of room in her shoes to keep toes from banging against the end of the shoes. In a January 2008 VA treatment report she presented with complaints of black toenails "again". She stated the toenails are painful and fall off. The assessment was questionable mycotic nails and a podiatry consult was ordered. In March 2008, the Veteran complained of thick discolored nails and a great toenail that keeps coming off ever since her time in service. Examination of the right foot revealed thick nails on the right foot with the great toe having a new nail growing in. It was noted the nail was thickened and darkly discolored with some dystrophy. The assessment was onychomycosis. Upon review of the record, the Board finds the medical evidence is new as it was not previously of record, and is material as it shows a current diagnosis pertaining to the Veteran's right great toe complaints. As noted above, the basis for the prior denial included the lack of a current disability at the time of the May 2005 VA examination. Accordingly, as the new evidence addresses the basis for the prior denial of the claim, the Board finds that the claim for service connection for right great toe discoloration is reopened. ORDER New and material evidence having been received, the claim for service connection for discoloration of the right great toenail is reopened. REMAND Reopening the claim for service connection for discoloration of the right great toenail does not end the inquiry; rather, consideration of the claim on the merits is required. Moreover, the claim filed in 2007 also expanded the issue to include the nails of both feet, not just the right great toe. During the May 2005 VA examination, it was noted that the onset of the discolored great toenail was during military service related to hitting her toes in the boots. She stated the toenail became blue and sloughed off and since that time she has had an odd shaped nail. Examination revealed no obvious thickening or coloration deformity. She was assessed with subungual hematoma affecting the right great toe apparently based on history, as the examiner noted there was no evidence to support a diagnosis at that time. In April 2006, the Veteran was seen in a VA outpatient clinic complaining of second and third toenails on both feet turning black and coming off. Physical examination revealed no discoloration but there was some evidence of thick yellow nails on both fifth toes. The assessment was nail trauma and she was advised to make sure she had plenty of room in her shoes to keep toes from banging against the end of the shoes. In a January 2008 VA treatment report she presented with complaints of black toenails "again." She stated the toenails are painful and fall off. In March 2008, the Veteran complained of thick discolored nails and a great toenail that keeps coming off ever since her time in service. Examination of the right foot revealed thick nails on the right foot with the great toe having a new nail growing in. It was noted the nail is thickened and darkly discolored with some dystrophy. The assessment was onychomycosis. No opinion relating this condition to service was provided. As the Veteran is competent to report symptoms such as her toenail becoming discolored and falling off in service, and there is evidence of a current disability related to the toenails, the Board finds that a VA examination is necessary, to include obtaining an opinion as to whether the current condition is possibly related to service. 38 C.F.R. § 3.159(c). Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who treated her for her toenail complaints since discharge from service. After securing the necessary release, the RO/AMC should request any relevant records identified. In addition, obtain relevant treatment records from the VA Medical Center in Charleston, South Carolina, dated since March 2008. 2. Schedule the Veteran for a VA foot examination to identify and determine the nature of any current disability of the toenails, to include onychomycosis, and to obtain an opinion as to whether such is possibly related to service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted and the results reported. Following review of the claims file and examination of the Veteran, the examiner should clearly identify all current disorders of the toenails. The examiner should then provide an opinion as to whether it is more likely, less likely, or at least as likely as not (50 percent probability) that any identified toenail disorder, including onychomycosis, in each foot arose during service or is otherwise related to service. In rendering the opinion, the examiner should consider the Veteran's contentions of having her right great toenail turn blue and fall off during service. 3. After the development requested above has been completed to the extent possible, the record should again be reviewed. If the benefit sought on appeal remains denied, then the Veteran and her representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. 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. 2012). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs