Citation Nr: 1320478 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 94-03 894 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for hammertoes. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for left foot metatarsalgia. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a dental disability. 4. Entitlement to a waiver of $15,379.00 in debt created by overpayment. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from July 1963 to June 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In an August 1992 rating decision, the Veteran's claim of entitlement to service connection for hammertoes was denied. The Veteran's claim was subsequently denied by the Board in October 1996. In August 1997, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion remanding this issue, among others, back to the Board for further adjudication. The issue was subsequently remanded by the Board in June 1998. Upon further development, the claim was again denied by the Board in September 1999. The Court again granted a Joint Motion to remand this matter back to the Board in November 2000. In March 2005, the Veteran testified at a Board hearing at the RO. The claim was then remanded in February 2006. In September 2007, the Veteran testified at an additional Board hearing at the RO in Louisville, Kentucky. Written transcripts of these hearings have been prepared and incorporated into the evidence of record. In January 2008, the Board denied 22 of the 23 issues on appeal. This included the issues of entitlement to service connection for a bilateral eye disability and hammertoes, as well as the issues of whether new and material evidence had been submitted to reopen claims of entitlement to service connection for left foot metatarsalgia and a dental disability. The Veteran appealed the Board's decision to the Court, and in November 2010, the Court issued a decision vacating and remanding these issues back to the Board for further development. The Board's January 2008 decision also denied a number of other issues, including claims of entitlement to service connection for: (1) a left thumb disability; (2) left-side pain; (3) enlarged breasts; (4) a lipoma of the anterior neck; (5) fibrositis, myositis, muscle spasms and arthritis involving the bilateral knees, ankles, feet and toes; (6) a disability of the legs and heels; (7) a lumbar spine disability; (8) a disability of the arms, hands and fingers; (9) a disability of the head, face, nose and chest; (10) a hiatal hernia and gastroesophageal reflux disease (GERD), (11) a cervical spine disability; (12) a growth of the lower part of the back (13) onychomycosis of the right great toenail; (14) a skin disease of the feet; (15) and special monthly compensation based on the need for aid and attendance. The claims of entitlement to increased disability ratings for peripheral neuropathy of the lower extremities, bilaterally, and entitlement to clothing allowance, were also denied. The Court affirmed the Board's decision regarding these 17 issues, and as such, they are no longer before the Board. In May 2011, the remaining claims on appeal were remanded so that the Veteran could be provided proper notice on how to develop his claims. He was also to be afforded a VA examination to determine the etiology of his claimed hammertoes. In October 2012, the Appeals Management Center (AMC) granted service connection for a bilateral eye disability and assigned a disability evaluation of 100 percent. Since this grant constituted a full grant of the benefits sought on appeal, this claim is no longer in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). The issue of entitlement to a waiver of $15,379.00 in debt created by overpayment is the subject of the Remand section of this decision. FINDINGS OF FACT 1. The evidence is at least in equipoise, suggesting that hammertoes of the left foot manifested as a result of the Veteran's service-connected left foot hallux valgus. 2. The Veteran's hammertoes of the right foot did not manifest during, or as a result of, active military service, and they are not secondary to a service-connected disability. 3. The claim of entitlement to service connection for left foot metatarsalgia was denied in a June 2002 rating decision; while the Veteran submitted a timely notice of disagreement, he subsequently withdrew his appeal in December 2002. The June 2002 decision is, therefore, final. 4. Evidence received since the June 2002 rating decision is new, but it does not address an unestablished fact necessary to substantiate the merits of the claim of entitlement to service connection for left foot metatarsalgia or raise a reasonable possibility of substantiating the claim. 5. The claim of entitlement to service connection for a dental disability was denied in a June 2002 rating decision; while the Veteran submitted a timely notice of disagreement, he subsequently withdrew his appeal in December 2002. The June 2002 decision is, therefore, final. 6. Evidence received since the June 2002 rating decision is new, but it does not address an unestablished fact necessary to substantiate the merits of the claim of entitlement to service connection for a dental disability or raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for hammertoes of the left foot have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). 2. The criteria for establishing entitlement to service connection for hammertoes of the right foot, to include as secondary to a service-connected disability, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). 3. The June 2002 rating decision denying the claim of entitlement to service connection for left foot metatarsalgia is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2012). 4. New and material evidence has not been received and the claim of entitlement to service connection for left foot metatarsalgia remains closed. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 5. The June 2002 rating decision denying the claim of entitlement to service connection for a dental disability is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2012). 6. New and material evidence has not been received and the claim of entitlement to service connection for a dental disability remains closed. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In claims to reopen, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and to provide the veteran with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. In this case, letters provided to the Veteran in August 2004, March 2006, August 2006 and September 2011 informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. The September 2011 letter also included the criteria for reopening a previously denied claim, the criteria for establishing service connection, and information concerning why the claims were previously denied. While all required notice was not provided to the Veteran until after the initial adjudication of his claims, the claims were subsequently readjudicated, no prejudice has been alleged, and none is apparent from the record. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service treatment records. Also, the Veteran has received multiple VA examinations in this case, including most recently in December 2012. VA has obtained these records as well as the records of the Veteran's outpatient treatment with VA. Copies of the Veteran's private treatment records and Social Security Administration (SSA) records have also been incorporated into the claims file. Additional VA treatment records have also been associated with the Veteran's electronic claims file (Virtual VA). Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not yet been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In March 2005 and September 2007, the Veteran was provided an opportunity to set forth his contentions during a hearing before two of the undersigned. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that a Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the hearings of record, the issues on appeal were listed and information was solicited from the Veteran regarding the occurrence of injuries and onset and nature of his symptomatology as well as the functional impact the claimed disabilities have on his daily life and employment. The Veteran was advised of the reasons for the previous denials and of the type of evidence that could be identified or submitted to further substantiate the claims. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted or was not subsequently obtained. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claims. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. Additionally, the Board finds there has been substantial compliance with its most recent remand directives. The Board notes that the Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). The record indicates that the Appeals Management Center (AMC) provided the Veteran with additional notice and scheduled him for additional VA examinations. The AMC later issued a rating decision and a Supplemental Statement of the Case (SSOC). Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Service Connection for Hammertoes Relevant Laws and Regulations Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Also, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. See 38 C.F.R. § 3.310(b); Libertine v. Brown, 9 Vet. App. 521, 522 (1996); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). An appellant's own conclusion, stated in support of his claim, that his present disability is secondary to his service-connected disability is not competent evidence as to the issue of medical causation. See 38 C.F.R. § 3.159 (2011); see also Grivois v. Brown, 6 Vet. App. 136 (1994). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that " [w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Analysis The Veteran contends that he is entitled to service connection for hammertoes. While the evidence regarding hammertoes of the left foot is at least in equipoise, the preponderance of the evidence of record demonstrates that hammertoes of the right foot did not manifest during, or as a result of, active military service, nor are they secondary to a service-connected disability. The Board notes that the record contains evidence of multiple foot conditions and numerous foot complaints, both dermatologic and orthopedic in nature. According to an August 1963 in-service treatment record, the Veteran had athletes foot. A May 1966 in-service treatment record notes a bunion of the left foot and hallux valgus of the great toe. Another May 1966 record notes that the Veteran's bunion had existed for the past 3 months. A December 1966 record again notes a bunion of the left foot, and the Veteran was restricted to no crawling, stooping, running, jumping, prolonged standing or marching. It was noted that the Veteran was to be provided with wider shoes. According to the Veteran's June 1966 separation examination report, the feet were not examined. The Veteran did endorse foot trouble in his report of medical history associated with this examination, and the examining physician noted a history of a bunion on the "right" foot. The records make no mention of hammertoes. The Veteran's in-service medical records fail to reflect treatment for hammertoes or a diagnosis of this condition. According to a September 1968 VA examination report, the Veteran did have a minimal degree of hammertoes of both feet. This condition was not related to military service or a now service-connected foot disability. The Veteran is currently service-connected for onychomycosis, tinea pedis of the bilateral feet, bunion, first metatarsal, of the left foot with hallux valgus and peripheral neuropathy of the lower extremities. Subsequent records from the 1990s forward reflect that the Veteran has continued to seek treatment for his feet. However, X-rays taken upon VA examination in January 1991 noted that the feet were within normal limits. There was evidence of a left foot bunion of the 1st metatarsal phalangeal joint with mild hallux valgus. However, there was no finding of hammertoes at this time. The record does contain a VA examination report dated February 1993 (although the date was changed to 1994 with an ink pen) diagnosing the Veteran with mild hammertoes associated with hallux valgus of the left foot. However, no rationale or discussion was provided as to how the examiner came to the conclusion that the hammertoes were related to hallux valgus. A February 1996 VA examination report notes that the Veteran had hammertoes of the left foot on examination and that the examiner stated it was impossible for him to tell if such disability was related to the Veteran's active duty service. A May 1996 VA examination report also notes the Veteran's hammertoes of the left foot and the examiner noted that it was difficult to determine the etiology of these, but that he did not believe that they were secondary to the hallux valgus. An October 2001 VA examination report shows that after physical examination, the examiner diagnosed the Veteran with mild, completely reducible and asymptomatic hammertoes of the left foot. The examiner noted that the Veteran's hammertoes were not etiologically related to his service-connection bunion or hallux valgus. Again, no rationale was provided. The record also contains a private foot evaluation dated July 2002. It was noted that the Veteran had "foot deformities possibly secondary to Agent Orange exposure." The report fails to disclose the exact nature of the Veteran's "foot deformities" and the examining physician failed to provide any rationale as to how these "deformities" were related to Agent Orange. Subsequent evidence of record continues to note hammertoes, but none of these records relate this to military service. According to an April 2006 VA examination report, the Veteran had bilateral bunions and hammertoes. However, further review of the examination report reflects that the Veteran had a swollen bunion over the left toe. Examination of the right foot was noted to reveal scaling of skin on the heels and lateral soles with no cracking. The Veteran was afforded an additional VA examination of the feet in October 2011. The examiner indicated that the Veteran reported noticing hammertoes during military service. The examiner reviewed the Veteran's claims file and determined that the Veteran suffered from hammertoes that were diagnosed after service in 1968. The examiner explained that the Veteran developed painful feet in service and was found to have hallux valgus and bunions. The examiner noted that hallux valgus could be associated with hammertoe deformities. Given these relationships, and the fact that the Veteran had hammertoes identified in association with his bunions as early as 1968, it appeared "very likely" that his bilateral hallux valgus, which was identified in service, was associated with his hammertoes. An addendum was requested to the above opinion, and in November 2012, the VA examiner explained that it was less likely than not that the Veteran's right hallux valgus was secondary to his already service-connected left hallux valgus. The examiner explained that X-rays of the right foot taken in February 1996, November 2009 and October 2001 were all negative for hallux valgus. No such diagnosis was assigned as part of the October 2011 VA examination either. The examiner recognized that a record from June 1966 did reflect a right bunion. However, in retrospect, this appeared to have been an erroneous entry, as the records reflected extensive notation of a left bunion. In summary, the examiner concluded that it did not appear that the Veteran has or ever has had a diagnosis of a right foot bunion. As such, any relationship to his left foot disability would be deemed less likely than not. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence regarding hammertoes of the left foot is at least in equipoise. According to a February 1993 VA examination report, the Veteran had hammertoes associated with hallux valgus of the left foot. The Board recognizes that no supporting rationale was provided in association with this opinion and that the Court has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). However, the subsequent negative VA examination opinions of May 1996 and October 2001 also failed to provide a rationale. Finally, the October 2011 VA examiner concluded that it was "very likely" that the Veteran's hammertoes were associated with hallux valgus. Therefore, while there is both positive and negative nexus evidence in this case, the Board will resolve reasonable doubt in favor of the Veteran and grant service connection for hammertoes of the left foot. However, the preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for hammertoes of the right foot. The Veteran's service treatment records are entirely silent for a diagnosis of hammertoes of the right foot. Hammertoes were diagnosed several years after service and the record contains no competent and credible evidence suggesting that hammertoes manifested during, or as a result of, active military service, or, that this was a chronic condition since separation from active duty. In order to show a 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." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2012). A recent decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. Feb. 21, 2013). Hammertoes are not identified under 38 C.F.R. § 3.309(a). Likewise, the preponderance of the evidence of record demonstrates that hammertoes of the right foot are not secondary to a service-connected disability. According to a May 1996 VA examiner, he did not "believe" there was a relationship between the Veteran's hammertoes and his hallux valgus. The October 2001 examiner also concluded that these things were not etiologically related. While the minimal probative value of these opinions has already been discussed, the November 2012 VA examiner explained that there was no evidence of right foot hallux valgus. While the October 2011 VA examiner concluded that the Veteran's bilateral hammertoes were associated with bilateral hallux valgus, this opinion is of questionable credibility. The examiner suggested that the record revealed evidence of bilateral hallux valgus. However, as explained in the November 2012 addendum, there was no evidence of the Veteran ever having suffered from hallux valgus of the right foot. A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). As such, the preponderance of the evidence of record demonstrates that hammertoes of the right foot did not manifest during, or as a result of, active military service, nor are they secondary to a service-connected disability. The Board recognizes that the Veteran believes he is entitled to service connection for hammertoes of the right foot. He has submitted a vast number of statements dating back to April 1992 in support of this claim. In some of these statements, he has indicated that he noticed hammertoes during military service. While the Veteran would be competent to testify to deformities of the toes during military service, the Board does not find this assertion to be credible. The Veteran was seen on multiple occasions for left foot pain during military service, but there was no mention of symptomatology involving the right foot or hammertoes of either foot. While the Veteran's separation examination did note a right, rather than a left, bunion, this appears to have been in error since a review of the service treatment records consistently reflect problems with the left lower extremity. Finally, according to the October 2001 VA examiner, the Veteran was under the mistaken impression that hammertoes referred to the shape of the toe pads themselves, calling into question what he reportedly witnessed in service. As such, the Board does not find any assertion of right foot hammertoes during active duty to be credible. As a final matter, the Board notes the Veteran's persistent argument that as a combat Veteran, he is to be afforded special consideration. The "combat presumption" means that in the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). The phrase "engaged in combat with the enemy" requires that the Veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. VAOPGCPREC 12-99 (October 18, 1999); Gaines v. West, 11 Vet. App. 353 (1998). The Veteran is misinterpreting the combat presumption to suggest that any involvement in combat renders the Veteran eligible for service connection for any claimed disability in the future. Careful reading of the presumption, however, clearly indicates that incurrence of an injury must be "consistent" with the circumstances, conditions, or hardships of such service. The Veteran has submitted no evidence of any actually injury of the right foot during military service or any circumstance consistent with the development of hammertoes. As such, the combat presumption is not applicable in this case. Resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for hammertoes of the left foot is warranted. See 38 U.S.C. § 5107(b). However, since the preponderance of the evidence is against the claim of entitlement to service connection for hammertoes of the right foot, the provisions regarding reasonable doubt are not applicable. See id. As such, the claim is granted only as it regards the left foot. New and Material Evidence Claims Relevant Laws and Regulations In a June 2002 rating decision, the Veteran's claims of entitlement to service connection for metatarsalgia and a dental disability were denied. The Veteran was notified of this decision and he submitted a timely notice of disagreement to the denials. However, in December 2002, the Veteran submitted a statement expressing his desire to withdraw all pending appeals. As such, the June 2002 rating decision became final. See 38 U.S.C.A. § 7105(c). A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has emphasized that the final sentence of 38 C.F.R. § 3.156(a), especially the phrase "raise[s] a reasonable possibility of substantiating the claim," does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Court has elaborated on what constitutes "new and material evidence." New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans, 9 Vet. App. at 273. Left Foot Metatarsalgia The pertinent evidence regarding this issue received prior to the June 2002 rating decision included service medical records which showed various foot complaints in service (for which the Veteran is separately service-connected) and an October 2001 VA examination report which found no evidence of metatarsalgia on examination. It was also noted that even if there were evidence of metatarsalgia, it would not be etiologically related to his service-connected bunion or hallux valgus. The Veteran's claim was subsequently denied because the medical evidence of record did not demonstrate that it was at least as likely as not that the Veteran's metatarsalgia was etiologically related to his military service or another service-connected disability. Evidence received since the June 2002 rating decision includes VA treatment records, private treatment records, VA examination reports, and numerous statements and testimony from the Veteran. None of these records reflect a diagnosis of metatarsalgia of the left foot. The record contains a VA examination report dated April 2006 regarding a foot fungus. No diagnosis of metatarsalgia is noted in this report. A VA examination of the feet was also performed in July 2009. The Veteran was diagnosed with gout and tinea pedis, but again, no diagnosis of metatarsalgia was assigned. In fact, the record reflects that the Veteran underwent a VA examination of the feet as recently as October 2011. According to this examination report, the Veteran suffered from hallux rigidus and hammertoes. He did not suffer from metatarsalgia. The Veteran has also submitted two video cassette tapes showing a documentary type film regarding Vietnam and Agent Orange, as well as the Veteran reading evidence about his claim to the camera. While the documentary itself was new evidence, the Veteran reading what is already of record was merely duplicative of evidence and statements incorporated into the claims file. The Board has also considered the numerous statements provided by the Veteran in support of his claim. However, his mere allegation of suffering from this condition is nothing new. The Veteran has asserted the existence of this condition since his original claim. Much of the above evidence is considered new in that it was not of record at the time of the previous June 2002 rating decision. However, none of this evidence reflects that the Veteran has since been diagnosed with metatarsalgia of the foot or that any such condition would be etiologically related to the Veteran's military service or a service-connected foot disability. Therefore, this evidence fails to raise a reasonable possibility of substantiating the Veteran's claim and it is not material. The Board has also considered whether the evidence submitted since the June 2002 rating decision, taken together, could at least trigger the duty to assist by providing a medical opinion. See Shade, 24 Vet. App. at 117. However, in the present case, the Veteran's feet have in fact been examined for another claimed condition, and again, there has been no finding of metatarsalgia. Without some evidence of the claimed disability, VA's duty to assist has not been triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The claim of entitlement to service connection for metatarsalgia of the left foot remains closed. Dental Disability Regarding the Veteran's claim of service connection for a dental disability, the pertinent evidence received prior to the June 2002 rating decision included service medical records which showed treatment of carious teeth and an extraction and VA treatment records which showed gum disease. In the June 2002 rating decision, the RO noted that under the provisions of 38 C.F.R. § 3.381(a), service connection for treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and for periodontal disease will be considered solely for the purpose of establishing eligibility for outpatient dental treatment. Based on this regulation, the RO denied the Veteran's claim. Evidence received since the June 2002 rating decision includes additional VA treatment records, private treatment records, VA examination reports and numerous statements and testimony from the Veteran. An April 2006 VA examination report reveals that the Veteran was diagnosed with dry mouth, which he alleged was due to the medications he was taking for his service-connected disabilities. The examiner, however, opined that the Veteran's dry mouth was not secondary to any medications he was taking, noting that none of the service medical records or post-service medical records showed complaints of dry mouth related to medication. The examiner stated that it was his opinion that none of the Veteran's past or present dental problems were due to medication induced dry mouth. A December 2006 VA dental note also reflects a diagnosis of moderate periodontitis. The Veteran was most recently afforded a VA dental examination in December 2012. The examiner noted that the Veteran did have cavities restored while enlisted, and several years later, he had several teeth removed. However, the examiner explained that the teeth were removed because of poor oral hygiene and neglect on the Veteran's part. His in-service fillings had no impact on his subsequent loss of teeth or his claim of it causing a temporomandibular joint (TMJ) problem. In fact, the examiner concluded that the Veteran did not have a TMJ problem. The examiner also noted that the Veteran's missing teeth had been replaced with a removable partial denture made at the VA and that he had a stable bilateral occlusion and functioned well with eating. The Board has again considered the great deal of lay statements provided by the Veteran in support of his claim, including the video tapes he has submitted. However, the Veteran has not provided VA with any evidence to suggest that he suffers from a dental disability that would warrant service connection under 38 C.F.R. § 3.381(a). In fact, during his September 2007 hearing, when asked whether he had ever suffered an injury or damage to his teeth during military service, the Veteran explained that what happened was that he had dental work done to his mouth. While the above evidence is certainly new, none of this evidence is material to the Veteran's claim. The evidence fails to show a dental disability other than carious teeth, missing teeth, dental or alveolar abscesses or periodontal disease, which is etiologically related to his active duty service or a service-connected disability. In fact, the only etiological evidence pertaining to the Veteran's current dental disabilities relates them to poor hygiene on the part of the Veteran and not to military service or a service-connected disability. As such, the new evidence further undermines the Veteran's claim and does not raise a reasonable possibility of substantiating it. The Board has again considered whether the evidence submitted since the June 2002 rating decision, taken together, could at least trigger the duty to assist by providing a medical opinion. See Shade, 24 Vet. App. at 117. However, in the present case, the Veteran has already been provided two VA dental examinations which revealed nothing but evidence contrary to the Veteran's claim. The record contains no evidence to further trigger VA's duty to assist. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The claim of entitlement to service connection for a dental disability remains denied. ORDER Service connection for hammertoes of the left foot is granted. Service connection for hammertoes of the right foot is denied. New and material evidence having not been received, the Veteran's claim of entitlement to service connection for left foot metatarsalgia remains closed. New and material evidence having not been received, the Veteran's claim of entitlement to service connection for a dental disability remains closed. REMAND Waiver In January 2008, the Board remanded the issue of entitlement to a waiver of $15,379.00 in debt created by overpayment. This issue was remanded so that a statement of the case regarding this matter could be issued. See Manlincon v. West, 12 Vet. App. 238 (1999). According to a November 2008 RO communication, this issue was to be returned to the Debt Management Center so that a statement of the case could be prepared and the Veteran allowed an opportunity to respond. A review of the record does not reflect that a statement of the case has yet to be issued, and as such, this issue is again remanded for compliance with the Board's prior remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms). Accordingly, the case is REMANDED for the following action: 1. The RO should ensure that the Veteran is issued a statement of the case on the claim for a waiver of $15,379.00 in debt created by overpayment. The RO should furnish to the Veteran a VA Form 9 (Appeal to the Board of Veterans' Appeals) and clearly advise him of the need to file a timely substantive appeal if he wishes to perfect and complete an appeal of this issue, and afford him the appropriate opportunity to do so. 2. The RO must retain the claims file until the Veteran perfects an appeal of the denial of the above-referenced claim for a temporary total disability rating, or the pertinent time period expires, whichever occurs first. 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). (CONTINUED ON NEXT PAGE) 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). __________________________ SHANE A. DURKIN Veterans Law Judge Board of Veterans' Appeals ___________________________ T. MAINELLI Acting Veterans Law Judge Board of Veterans' Appeals ____________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs