Citation Nr: 1637098 Decision Date: 09/22/16 Archive Date: 09/30/16 DOCKET NO. 10-04 041 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a left foot disability, to include a toenail disability. 2. Entitlement to service connection for a left foot disability (in addition to peripheral neuropathy), to include a disability of the toenail (claimed as jungle rot and foot fungus), and to include as due to exposure to an herbicide agent. 3. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, and to include as due to exposure to an herbicide agent. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from September 1966 to September 1968, from October 1968 to October 1972, and from December 1990 to June 1991. The Veteran served in Vietnam from March 1967 to March 1968. This case is before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). All documents on the Virtual VA paperless claims system and the Veterans Benefits Management System (VBMS) have been reviewed, including a copy of the transcript of the July 2016 Board hearing presided over by the undersigned Veterans Law Judge. The Board acknowledges that the Veteran characterized his claim for service connection for the left foot as a claim for "left foot injuries (jungle rot)." See April 2008 claim. However, because the Veteran is specifically claiming VA compensation benefits for symptoms that he observes as occurring underneath his left foot toenail, as described in the July 2016 Board hearing, the Board must first consider whether to reopen the previously denied claim for service connection for a left foot toenail disability because the December 1972 rating decision considered residuals of a toenail disability. The matter of service connection for a right foot disability (other than peripheral neuropathy), to include a right foot toenail disability, was raised in the July 2016 Board hearing by the Veteran but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Thus, the Board does not have jurisdiction over this matter and refers it to the AOJ for appropriate action. The issues of entitlement to service connection for a left foot disability and for hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In a December 1972 rating decision, the RO denied the claim for service connection for a left foot toe disability, based on the determination there was no present disability. 2. The Veteran did not submit a notice of disagreement for the December 1972 rating decision, and there was no evidence or information received within one year of its issuance that was new and material to the claim for service connection for a left foot toe disability. 3. The additional evidence received since the December 1972 rating decision was not previously considered in that decision and raises a reasonable possibility of substantiating the claim for service connection for a left foot toe disability. CONCLUSIONS OF LAW 1. The December 1972 rating decision, which denied the claim for service connection for a left foot toe disability, is final. 38 U.S.C. § 4005(c) (1970); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1972). 2. The additional evidence received since the December 1972 rating decision is new and material to the claim for service connection for a left foot toe disability, and the claim is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Because the Board is reopening the previously denied claim for service connection for a left foot toe disability, discussion concerning compliance with the duties to notify and assist is not necessary. Applications to Reopen the Claim for Service Connection If a decision is issued, and not appealed, it becomes final. A claim may only be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108. 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) (applying to claims to reopen that are filed after August 29, 2001). Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide a medical examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010); see McLendon v. Nicholson, 20 Vet. App. 79 (2006). If new and material evidence is received within the remainder of the appeal period after a decision, the evidence will be considered as having been received in conjunction with that decision. 38 C.F.R. § 3.156(b). VA is required to determine whether evidence received during the appeal period is new and material. Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). If VA finds that new and material evidence is presented during this period, the decision does not become final. Id. In a December 1972 rating decision, the RO denied the claim for service connection for a left foot toe disability, based on the determination there was no present disability. After the Veteran was notified of the adverse decision, the Veteran did not submit a notice of disagreement with the decision. Moreover, no new and material evidence was submitted within a year of the December 1972 rating decision. Therefore, the December 1972 rating decision became final based on the evidence of record at the time. 38 U.S.C. § 4005(c) (1970); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1972). At the time of the December 1972 rating decision, the evidence of record included the Veteran's service records and the Veteran's statements. The additional evidence presented since the December 1972 rating decision includes the Veteran's and his wife's competent testimony that he recurrently observes the symptom of brittle toenail and recurrent "jungle rot" or "foot fungus" underneath the toenail. See July 2016 Board hearing transcript at p. 6-8; January 2010 Form 9. The credibility of this testimony is presumed for the purposes of reopening the claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Competent evidence that tends to indicate that the Veteran has a current left foot toe disability is pertinent evidence that was absent at the time of the December 1972 rating decision, and this evidence raises a reasonable possibility of substantiating the claim. Thus, the Board finds that new and material evidence has been submitted. The claim for service connection for a left foot toe disability is reopened. Although the evidence is sufficient to reopen, it is not sufficient to grant the claim. The Board finds that additional evidentiary development is required. This is addressed in the remand below. ORDER Because new and material evidence has been received, the claim for service connection for a left foot toe disability is reopened. REMAND The Veteran contends that he has a left foot disability ( in addition to peripheral neuropathy, service connection of which has heretofore been granted), which he claims to be jungle rot or foot fungus, that is related to service, to include related to an in-service occurrence of ingrown toenail and exposure to herbicides and walking through rice paddies in Vietnam. The Veteran and his wife have testified as to the symptom of brittle toenail and recurrent "jungle rot" underneath the toenail since service. See July 2016 Board hearing transcript at p. 6-8. The Board also notes that the evidence shows that the Veteran reported left toenail symptoms as early as November 1972. The Veteran also has confirmed service in Vietnam and therefore is presumed to have been exposed to herbicides. For these reasons, Veteran should be afforded a VA examination to determine the nature and etiology of a left foot disability, to include a left foot toenail disability. McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran contends that his diagnosed hypertension is related to service, to include as due to herbicide exposure in Vietnam. The Veteran also contends that he was diagnosed with hypertension within one year of being discharged from active duty service period from December 1990 to June 1991. See January 2010 Form 9. Attempts should be made to obtain any outstanding treatment records showing such a diagnosis. The Board also notes that elevated blood pressure is shown in the Veteran's service treatment records, though such elevated blood pressure readings are not high enough to warrant the presumption of service connection under 38 C.F.R. § 3.307(a)(3). For these reasons, a VA medical opinion should be obtained to determine the etiology of the Veteran's hypertension. McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board also notes that the matters raised in the July 2016 Form 21-526EZ are currently pending adjudication by the AOJ. Therein, the Veteran contended that his hypertension is secondary to ischemic heart disease. Therefore, the Board remands the issue of service connection for hypertension as intertwined with the matter pertaining to ischemic heart disease that is pending at the AOJ. Accordingly, the case is REMANDED for the following action: 1. Please contact the Veteran and request that he provide information as to any outstanding treatment records, VA or non-VA, relevant to his left foot and toe symptoms and hypertension, specifically to include information regarding the provider that he states diagnosed hypertension within one year after separation in June 1991 from his third period of active duty service. The Veteran should be asked to authorize the release of any outstanding pertinent non-VA medical records. All attempts to fulfill this development should be documented in the claims file. 2. Please obtain all outstanding relevant VA treatment records. 3. After completing the above development, schedule the Veteran for a VA examination to determine the nature and etiology of a left foot disability (other than peripheral neuropathy), to include a toenail disability. Make the claims file available to the examiner for review of the case. The examiner should review all records associated with the claims file (including Virtual VA and VBMS) and should note that this case review took place. After reviewing the claims file, the examiner is asked to please provide an opinion as to the following: a. The nature and diagnosis(es) of the Veteran's left foot disability (other than peripheral neuropathy), to include a toenail disability, at any point during the appeal period (April 2008 to present), to include whether there are any residuals of the in-service ingrown toenail. Please note that if there are no active left foot/ toe symptoms on VA examination, the examiner should still provide an opinion as to the nature and diagnosis(es) of the Veteran's symptoms. The examiner's attention is invited to the Veteran and his wife's testimony as to the symptom of brittle toenail and recurrent "jungle rot" or "foot fungus" underneath the toenail. See July 2016 Board hearing transcript at p. 6-8; January 2010 Form 9. b. Regarding any diagnosed disability above, please provide an opinion as to whether it is at least as likely as not (probability of 50 percent) that a left foot disability, to include a toenail disability, is etiologically related to service, to include as a result of presumed exposure to herbicides and due to walking through rice paddies in Vietnam. The examiner's attention is invited to the competent testimony as to the recurrent nature of his left foot and toenail symptoms since service. See July 2016 Board hearing transcript at p. 10-11 (testifying that though medication made the symptoms manageable, they did not clearly up totally). The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. After completing the above development, obtain a VA medical opinion from a physician of appropriate expertise to determine the etiology of the Veteran's hypertension. Make the claims file available to the examiner for review of the case. The examiner should review all records associated with the claims file (including Virtual VA and VBMS) and should note that this case review took place. Please note that the issue of service connection for hypertension is intertwined with the matter pertaining to ischemic heart disease that is pending at the AOJ. The examiner is asked to please provide an opinion as to whether it is at least as likely as not (probability of 50 percent) that the Veteran's hypertension first manifested in service or is otherwise is etiologically related to any period of active duty service, to include as a result of presumed exposure to herbicides in the Veteran's first period of active service. The Veteran served on active duty from September 1966 to September 1968, from October 1968 to October 1972, and from December 1990 to June 1991. The examiner's attention is invited to findings of elevated blood pressure shown during periods of active duty service. See December 1990 Cardiovascular Screening Summary (BP 138/92); December 1990 Report of Medical Examination (BP 138/92); April 1991 Redeployment Physical Examination (BP 120/90); May 1991 Report of Medical Examination (BP 120/90 and 130/84); February 1979 Report of Medical Examination (BP 130/94); August 1987 service treatment record (BP 130/90). The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 5. Thereafter, adjudicate the claims on appeal, and furnish the Veteran and his representative a supplemental statement of the case if a matter is not resolved to the Veteran's satisfaction. Provide an opportunity to respond before the case is returned to the Board. The appellant 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 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 2014). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs