Citation Nr: 1322758 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 10-49 540 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for a right foot disability and if so whether the claim should be granted. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from January 1944 to May 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Although the RO has determined that new and material evidence had been submitted to reopen the appellant's claim, the Board must determine on its own whether new and material evidence has been submitted to reopen this claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Veteran requested a hearing before the Board in his December 2010 VA Form 9. The RO informed the Veteran that his requested hearing had been scheduled for June 2013. The Veteran cancelled his hearing prior to the scheduled hearing date. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). The issue of entitlement to service connection for a right foot disability is addressed in the REMAND that follows the ORDER section of this decision. FINDINGS OF FACT 1. Reopening of the claim for entitlement to service connection for a right foot disorder was denied in an unappealed, June 2009 Board decision. 2. Evidence received since the June 2009 Board decision includes evidence that is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for a right foot disorder. CONCLUSION OF LAW New and material evidence has been received to reopen the claim for service connection for a right foot disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Criteria Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 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 previously of record, and 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) recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Factual Background and Analysis The Veteran's claim for service connection for a right foot disorder was denied in an unappealed Board decision issued in September 2004 because the evidence failed to show that his current right foot disorder was related to service. Thereafter, the Veteran filed applications to reopen his claim in February 2005 and August 2006, which were denied in November 2005 and September 2006 rating decisions, respectively. The Veteran perfected an appeal of the September 2006 rating decision that denied his claim to reopen. In the most recent June 2009 Board decision, the Board denied the Veteran's application to reopen the previously denied claim for service connection for a right foot disorder because new and material evidence had not been presented. The Board noted that there was still no medical evidence linking the Veteran's current right foot disorder to service. The Veteran did not appeal this decision. The Veteran's current claim to reopen was filed in September 2009. Since the June 2009 Board decision, the Veteran submitted a September 2009 opinion from his VA treating physician, which indicates that the Veteran's "case" had been reviewed. The physician relayed the Veteran's report that he incurred a right foot injury during service when his foot slipped on a metal ladder. The physician opined that the Veteran's right foot problem was as likely as not due to his trauma while serving in the Navy during World War II. The Board finds that the September 2009 VA opinion relating the Veteran's current right foot disorder to his naval service is new and material. In this regard, the Board notes that this medical evidence directly addresses the reason the claim was denied in the last final Board decision, namely no medical evidence indicating that the claimed disorder was related to the Veteran's naval service. The medical evidence is not cumulative or redundant of the evidence previously of record. Moreover, the medical evidence is sufficient to raise a reasonable possibility of substantiating the claim. Accordingly, reopening of the claim for entitlement to service connection for a right foot disorder is in order. ORDER New and material evidence having been received, reopening the claim of entitlement to service connection for a right foot disability is granted. REMAND As discussed above, the claims file now includes evidence of a currently diagnosed right foot disorder, a medical opinion attributing the Veteran's current right foot disorder to a claimed in-service injury, and the Veteran's competent lay statements regarding a continuity of right foot symptomatology ever since he sustained a right foot injury during service. Given this evidence, the Board has determined that a VA examination is warranted in order to determine the nature and etiology of his claimed right foot disorder. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim, to include any more recent VA treatment records. 3. Thereafter, the RO or the AMC should arrange for the Veteran to be scheduled for a VA examination by a physician with sufficient expertise to determine the nature and etiology of all right foot disorders present during the period of the claim. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner. Based on review of the pertinent medical history, examination of the Veteran, and with consideration of sound medical principles, the examiner should provide an opinion with respect to each right foot disorder present during the period of the claim as to whether it is at least as likely as not (a 50 percent or better probability) that the disorder is related the Veteran's active service. For purposes of the opinion(s) the examiner should assume that the Veteran is a credible historian. The rationale for each opinion expressed must also be provided. 3. The RO or the AMC also should undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be furnished a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). As noted above this case has been advanced on the Board's docket. It must also be handled in an expeditious manner by the RO or the AMC. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs