Citation Nr: 1324626 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 11-13 971 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for left ankle inflammatory arthritis, claimed as left foot gout. 2. Entitlement to service connection for right foot gout. REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Young, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1979 to September 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which determined, in pertinent part, that new and material evidence was not received to reopen the Veteran's claim for service connection for service connection for left ankle inflammatory arthritis, claimed as left foot gout, and also denied service connection for right foot gout. The Board notes that the record contains a letter from VA to the Veteran's representative, dated in October 2012, providing the representative with a copy of the October 2012 supplemental statement of the case(SSOC) and advising that the representative had 30 days to complete and return a VA Form 646. A VA Form 646 was not submitted by the Veteran's representative. In November 2012, the RO contacted the Veteran's representative to inform the representative that a VA Form 646 had not been received and that the case would be forwarded to the Board; the Veteran's representative did not respond or submit a VA Form 646 or additional evidence in this matter. As a formal appeal was filed in this matter prior to the issuance of the October 2012 SSOC, the appeal was forwarded to the Board, and the adjudication of the appeal will proceed. As will be discussed in further detail in the following decision, the Board finds that a reopening of the claim for service connection for left ankle inflammatory arthritis, claimed as left foot gout is warranted. Thus, the Board is granting this aspect of the Veteran's appeal. The underlying claim for service connection for left ankle inflammatory arthritis, claimed as left foot gout, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. By an unappealed November 2004 rating decision, the RO, in pertinent part, denied service connection for left ankle inflammatory arthritis, claimed as left foot gout. 2. In an August 2009 rating decision, the RO determined, in pertinent part, that new and material evidence was not received to reopen the Veteran's claim for service connection for left ankle inflammatory arthritis, claimed as left foot gout, and also denied service connection for right foot gout. 3. Certain items of evidence received since the November 2004 rating decision is not cumulative and redundant, and is related to an unestablished fact that is necessary to substantiate the claim of service connection claim for left ankle inflammatory arthritis, claimed as left foot gout. CONCLUSIONS OF LAW 1. The unappealed November 2004 RO's denial of service connection for left ankle inflammatory arthritis, claimed as left foot gout, is final. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). 2. New and material evidence has been received to reopen a claim for service connection for left ankle inflammatory arthritis, claimed as left foot gout. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim to reopen a previously and finally denied claim, VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefit sought by the claimant. See Kent v. Nicholson, 20 Vet. App. 1 (2006). As discussed in detail below, the issue of whether new and material evidence has been submitted to reopen the claim for service connection for left ankle inflammatory arthritis, claimed as left foot gout, has been resolved in the Veteran's favor, any error in notice required by Kent is harmless error and analysis of whether VA has satisfied its duties to notify and assist is not in order. II. Legal Criteria Unappealed rating decisions are final with the exception that a claim may be reopened by submission of new and material evidence. When an appellant seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new and material." Second, if VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of the appellant's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). "New" means evidence not previously submitted to agency decision makers and "material" means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) held that, in determining whether new and material evidence has been received for purposes of reopening a claim, a Veteran's testimony regarding having experienced ongoing symptoms since service can be considered relevant as to the issue of nexus. In reaching this conclusion, the Court reaffirmed the notion that a veteran's testimony should not be rejected as not being material solely because he or she is a lay person, or because contemporaneous medical evidence is no longer available to corroborate it. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). III. Factual Background The Veteran contends that his left ankle inflammatory arthritis, claimed as left foot gout, was acquired due to his military service. See, e.g., the Veteran's July 2004 Claim; see also the Veteran's December 2008 Claim. A. New and Material In November 2004, the RO denied the Veteran's service connection claim left ankle inflammatory arthritis, claimed as left foot gout, because the evidence failed to show that the Veteran's condition incurred during or within one year of his military service. See November 2004 Rating Decision. The relevant evidence of record in November 2004 consisted of the Veteran's service personnel records, service treatment records (STRs), medical treatment records from the Bureau of Health Service-Dodge Correctional Institution dated March 1996 through June 1999, and VA Treatment records dated November 2001 through November 2004. See November 2004 Rating Decision. The Veteran's STRS did not show any treatment for, or diagnosis of, gout, arthritis, pain, or swelling, or either foot or ankle. The Veteran was not afforded a separation examination. See STRs. The relevant evidence received since the November 2004 rating decision consists of VA treatment records from April 2008 through May 2011, a June 2009 statement from D. M., a May 2011 statement from V. J., a May 2011 statement from D. M., photographs submitted by the Veteran in August 2011, and the transcript from a February 2012 Decision Review Officer hearing. The Veteran's STRs are devoid of treatment or complaint of foot or ankle pain or injury during service; however, the Veteran was not afforded a separation examination. See STRs. While the Veteran specifically denied a personal history or treatment of gout in September 1998, records document that the Veteran has complained of swelling of the feet as early as July 1998. See Bureau of Health Service-Dodge Correctional Institution Records. In November 2004 the RO denied Veteran's left ankle/ foot gout service connection claim because there was no indication in his STRs of treatment or complaint for a left ankle/foot arthritis or gout during service. The RO reviewed the Veteran's private treatment records and found no treatment for gout post service prior to September 2004. See November 2004 Rating Decision. In June 2009 D. M., a friend of the Veteran, submitted a statement indicating that the she has known the Veteran since the early 1980s and that he has complained about his leg and feet swelling since the time that she has known him. See June 2009 D. M. Statement. D. M. submitted a subsequent statement in June 2011 in which reiterated her 2009 statement and added that she assisted the Veteran in treating his pain and swelling symptoms. See June 2011 D. M. Statement. In May 2011, a VA resident physician denoted that he could not provide a definitive diagnosis of gout and suggested that the Veteran abstain from taking gout treatment medication in order to definitively diagnosis the Veteran if a "gout flare" occurred. See VA Treatment Records. In June 2011, the VA received a statement from V. J., the Veteran's sister, which indicated that the Veteran experienced pain and swelling of the feet upon returning home from military service. See June 2011 V. J. Statement. In February 2012, the Veteran presented sworn testimony at a hearing conducted by a Decision Review Officer at the RO. The Veteran stated that he was treated "three or four times for swelling in my feet and in my ankle" during military service. See hearing transcript at page 2. The Veteran specifically stated that his condition "started after basic training." See Hearing Transcript at page 9. The Veteran also stated that a doctor told him that he had arthritis in his feet. See hearing transcript at page 11. IV. Analysis The Board finds that new and material evidence has been received. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110 (2010). As noted above, the Veteran's service connection claim for left ankle/ foot gout was denied by the November 2004 rating decision because the evidence failed to show that his condition occurred in or was caused by service or manifested to a compensable degree within one year of separation from service. See November 2004 Rating Decision. During the Veteran's February 2012 DRO hearing, the Veteran competently testified that pain and swelling of his feet began during service, after basic training. See Hearing Transcript. As noted above, the credibility of new and material evidence is generally presumed unless evidence is inherently incredible or beyond the competence of the witness. See Justus, 3 Vet. App. 510, 513. As the Veteran is competent to report pain and swelling symptoms and the statements provided by D. M., and V. J., as detailed above, all support the Veteran's assertions that following his discharge from service, the Veteran continued to experience swelling and pain of his feet. See June 2009 D. M. Statement; see also June 2011 D. M. Statement; see also June 2011 V. J. Statement. The Veteran's testimony and the lay statements made in support of the Veteran's claim are not cumulative to the November 2004 record and the evidence raises a reasonable possibility that the Veteran's disability occurred in service. The Board finds this evidence to be new and material evidence, sufficient to reopen the Veteran's claim. ORDER New and material evidence having been received, the claim for service connection for left ankle inflammatory arthritis, claimed as left foot gout, is reopened; the appeal of this issue is granted to this extent only. REMAND In a letter dated in May 2011, VA physician Dr. E. F. provided an opinion that the Veteran "presented with classical podagra (gouty attack of the MTP area of the right great toe)." See May 2011 Dr. E. F. Letter. Dr. E. F. based his opinion on "the immediate onset of toe pain, swelling, redness" following the Veteran's discontinuing of medication used to treat gout and Dr. E. F.'s examination of the Veteran. See VA Treatment Records. In May 2011, the Veteran received treatment at Madison VA Hospital for "an almost certain episode of gouty arthritis in the great left toe." See VA Treatment Records. However, the claims file does not contain medical evidence establishing that the Veteran has a current diagnosis of left ankle inflammatory arthritis, claimed as left foot gout. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (requiring the existence of a present disability in order to establish service connection.) A VA examination is necessary to determine whether the Veteran has right and/or left foot/ankle disability that is etiologically related to his military service. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate VA examiner to determine the existence and etiology of any disability of the right foot and/or left foot and ankle that may be present, to include inflammatory arthritis or gout. The claims file must be made available to the examiner. Following a review of the relevant medical evidence in the claims file, the medical history (including that set forth above), the clinical evaluation, and any tests that are deemed necessary, the examiner is asked to opine whether it is at least as likely as not (50 percent or more likelihood) that any current disability of the right foot and/or left foot and ankle, to include inflammatory arthritis or gout, is causally related to or incurred during the Veteran's military service. The examiner is requested to provide a rationale for any opinions expressed. 2. Then, readjudicate the Veteran's issue on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should be returned to the Board for appellate review. 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). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs