Citation Nr: 1304053 Decision Date: 02/05/13 Archive Date: 04/10/13 DOCKET No. 07-00 371 DATE MAR 14 203 On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina ORDER The following correction is in a decision issued by the Board in this case on February 1, 2013 On page 7, line 14, the work "right" is deleted and the word "left" is inserted. CHERYL K, MASON Veterans Law Judge, Board of Veterans' Appeals Citation Nr: 1304053 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 07-00 371 ) 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 received sufficient to reopen a previously denied claim of entitlement to service connection for residuals of a left foot injury. 2. Whether new and material evidence has been received sufficient to reopen a previously denied claim of entitlement to service connection for residuals of a left ankle injury. 3. Whether new and material evidence has been received sufficient to reopen a previously denied claim of entitlement to service connection for residuals of a left calf abrasion. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The matter was remanded by the Board for additional development in October 2010. As discussed in further detail in the following decision, the Board finds that new and material evidence sufficient to reopen the previously denied claims of entitlement to service connection for residuals of a left foot injury, and residuals of a left ankle injury, has been received. The de novo claims for service connection, as well as the issue of whether new and material evidence has been received sufficient to reopen a previously denied claim of service connection for residuals of a left calf abrasion, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. In an unappealed April 1996 rating decision, the RO denied service connection for residuals of an injury to the left lower extremity, to include an abrasion of the left calf, a left foot contusion, and a left ankle injury. 2. The evidence associated with the claims folder subsequent to the RO's April 1996 rating decision, considered in conjunction with the record as a whole, raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for residuals of a left foot injury. 3. The evidence associated with the claims folder subsequent to the RO's April 1996 rating decision, considered in conjunction with the record as a whole, raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for residuals of a left ankle injury. CONCLUSIONS OF LAW 1. The April 1996 rating decision, which denied service connection for residuals of an injury to the left lower extremity, to include a left foot contusion and a left ankle injury is final. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. Since the April 1996 rating decision, new and material evidence has been received which serves to reopen the claim of entitlement to service connection for residuals of a left foot injury. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. Since the April 1996 rating decision, new and material evidence has been received which serves to reopen the claim of entitlement to service connection for residuals of a left ankle injury. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board finds that VA's compliance with the mandates of the VCAA is sufficient to permit review of the petition to reopen the previously denied claims of entitlement to service connection for residuals of a left foot injury and residuals of a left ankle injury, which are remanded for further development as discussed below. As the Board's determination represents a grant of the petition to reopen, a detailed discussion of the impact of the VCAA on this appeal is not necessary. In view of the outcome, any deficiencies in such notice or assistance have not prejudiced the Veteran. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Veteran. App. 103, (2005), rev'd on other grounds Mayfield v. Nicholson, 444 F.3d. 1328 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006). I. Law and Regulations In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1103 (2012). Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 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). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110; 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for the claimed disorder, there must be (1) competent and credible evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent and credible evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). II. Analysis Upon review, the issues of whether new and material evidence has been received to reopen the previously denied claims of entitlement to service connection for residuals of a left foot injury and residuals of a left ankle injury involve the application of the same law to virtually identical facts. For the sake of economy, these two issues will be addressed together. The RO denied the Veteran's original claim of service connection for residuals of a left lower extremity injury, to include a left foot disability and left ankle disability, in an April 1996 rating decision. The Veteran was notified of this decision and of his appeal rights in an April 10, 1996 letter, but did not perfect a timely appeal of that denial. When the Veteran's claim was denied in April 1996 the record contained his service treatment records. Based on this evidence, the RO denied the Veteran's claim on the basis that there was no evidence of a chronic disability "in the service medical records or [in] any other evidence reviewed." The April 1996 rating decision is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104, 20.1103 (2012). As explained, the Veteran's claim for service connection may only be reopened if new and material evidence is received. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Therefore, the Board's inquiry will be directed to the question of whether any additionally received evidence (i.e., since April 1996) raises a reasonable possibility of substantiating the Veteran's claims. The evidence associated with the Veteran's claims folder since the April 1996 rating decision includes VA treatment records, VA examination reports, statements from the Veteran and his family, and an August 2011 statement from B.W., D.O. In the August 2011 statement, Dr. B.W. reported that the Veteran "suffers from left lower extremity arthritis, instability and muscle strain." He noted that while the Veteran was stationed at MacDill Air Force Base in 1968, a "hoist broke and the load fell on his left ankle and lower extremity." Dr B.W. opined that "[i]t is at least as likely as not [that] this incident caused his current condition." This evidence is "new" in that it was not of record at the time of the April 1996 denial. The evidence is also "material" because it relates to an unestablished fact necessary to substantiate the claim, namely, that the Veteran has a current disability that is related to his military service. The Veteran's claim was previously denied because there was no evidence of a chronic disability following the Veteran's in-service injury. As noted, there is now evidence that indicates that the Veteran has left lower extremity arthritis, instability and muscle strain that is related to his in-service injury. Obviously, this evidence is new in that it was not previously of record. Moreover, this evidence relates to an unestablished fact necessary to substantiate his claim. For these reasons, the Board finds that the evidence received since April 1996 warrants a reopening of the Veteran's claim of service connection for a residuals of a left foot injury and residuals of a left ankle injury, as it is new and material evidence within the meaning of 38 C.F.R. § 3.156(a). ORDER New and material evidence has been received to reopen a claim for entitlement to service connection for residuals of a left foot injury, and, to that extent only, the claim is granted. New and material evidence has been received to reopen a claim for entitlement to service connection for residuals of a right ankle injury, and, to that extent only, the claim is granted. REMAND As discussed above, the claims for service connection for residuals of a left foot injury and residuals of a left ankle injury are reopened based on the receipt of new and material evidence. However, before addressing the merits of these claims, or the issue of whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for residuals of a left calf abrasion, the Board finds that additional development is required. As noted, Dr. D.W. has diagnosed the Veteran with left lower extremity arthritis, instability and muscle strain. The record also indicates that he has been diagnosed with a connective tissue disorder, a calcaneal spur, and plantar fasciitis. See August 2010, March 2007, and April 2009 VA treatment records. Currently, the record contains multiple medical opinions which discuss the etiology of the Veteran's calcaneal bone spur and arthritis. The record does not, however, include an opinion as to the etiology of the Veteran's plantar fasciitis or connective tissue disorder. Under these circumstances, the Veteran should be afforded a VA examination to determine the nature of his diagnosed plantar fasciitis and connective tissue disorder. See McLendon v. Nicholson, 20 Vet.App. 79 (2006); Charles v. Principi, 16 Vet.App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012). In addition, the Veteran's VA treatment records document that he has been granted disability benefits from the Social Security Administration (SSA) for "arthritis and bone spurs in his heels." See a June 2009 VA treatment record. The medical and legal documents pertaining to this grant of benefits have not been associated with the claims file; nor does it appear that an attempt has made to procure them. VA has a duty to obtain SSA records when they may be relevant to a claim. 38 U.S.C.A. § 5103A(c)(3) (West 2002); Murincsak v. Derwinski, 2 Vet.App. 363, 370-72 (1992). The possibility that SSA records could contain evidence relevant to the Veteran's claim cannot be foreclosed absent a review of those records. Quartuccio v. Principi, 16 Vet.App. 183, 188 (2002). Because the record indicates that the Veteran has been awarded benefits from the SSA, the Board finds that his appeal must be remanded in order to accord the agency of original jurisdiction (AOJ) an opportunity to procure these documents. 38 C.F.R. § 3.159(c)(2) (2012). Finally, the Veteran has been receiving ongoing treatment from the VA Medical Center (VAMC) in Columbia, South Carolina. On Remand, any of the Veteran's relevant treatment records should also be obtained and associated with his claims folder. 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 pertinent). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should take all indicated action to obtain copies of all records of the Veteran's treatment for a left ankle, left foot, or left calf abrasion by the VA Medical Center in Columbia, South Carolina dated from November 2011. These records should be incorporated into the Veteran's claims file. If no records are available, documentation stating such should be incorporated in the claims file. 2. The RO/AMC should take all indicated action to contact SSA for the purpose of obtaining copies of all decisions and records that pertain to the Veteran's claim for disability benefits from that agency. Any records so obtained should be associated with the Veteran's VA claims folder. Any notice from SSA that these records are not available should be noted in the Veteran's claims folder 3. Then, the RO should schedule the Veteran for an appropriate VA examination to determine the nature, extent, and etiology of his diagnosed plantar fasciitis and connective tissue disorder. The claims folder, including a copy of this remand, must be made available to the examiner. All diagnostic testing deemed to be necessary by the examiner should be accomplished, and the results should be annotated in the evaluation report. The examiner should opine as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that his plantar fasciitis and/or connective tissue disorder had its clinical onset in active service or is otherwise related to active service. Complete rationale should be provided for all opinions expressed. 4. Following completion of the above, re-adjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the 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 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). ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs