Citation Nr: 1641530	
Decision Date: 10/26/16    Archive Date: 11/08/16

DOCKET NO.  14-09 788	)	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 presented to reopen a previously-denied service connection claim for a left foot disability.

2.  Whether new and material evidence has been presented to reopen a previously-denied service connection claim for a right foot disability.


REPRESENTATION

The Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Nicole L. Northcutt, Counsel


INTRODUCTION

The Veteran had an initial period of active duty for training (ACDUTRA) from March to June 1978, with reservist service and related periods of ACDUTRA and inactive duty training (INACDUTRA) with the Army Reserve thereafter.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2011 by a Department of Veterans Affairs (VA) Regional Office (RO).  

Given that the record reflects the Veteran's treatment for several foot impairments during service, including superficial frost bite, onychomycosis, and ingrown big toenails, all affecting both feet, the Board has recharacterized the Veteran's claims to reopen as claims for bilateral foot disabilities (not only claims for cold injury residuals), so as to encompass all potentially service-related foot impairments.  

Per his request, the Veteran was scheduled to participate in a Board hearing to be conducted via video-conference in September 2016; however, he failed to appear for this scheduled hearing and has not offered any good cause for his failure to do so.  Accordingly, his hearing request is deemed withdrawn.  

As set forth below, the Board finds that evidence sufficient to reopen the Veteran's previously-denied service connection claims for foot disabilities has been presented; and the merits of the reopened service connection claims are addressed in the REMAND portion of the decision below and are REMANDED to the RO.


FINDINGS OF FACT

1.  A January 2005 rating decision denied the Veteran's initial service connection claims for bilateral foot disabilities; the Veteran did not perfect an appeal of the decision.

2.  The evidence added to the record since the January 2005 rating decision relates to elements of the claims previously found to be absent and triggers VA's duty to obtain a related VA examination and medical opinion.


CONCLUSIONS OF LAW

1.  The January 2005 rating decision denying the claims of entitlement to service connection for bilateral foot disabilities is final.  38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. § 20.1100 (2015).  

2.  The criteria for reopening the service connection claims for bilateral foot disabilities have been met.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The RO denied the Veteran's initial service connection claims for bilateral foot disabilities in January 2005, and the Veteran was apprised of his appellate rights in the notice accompanying this decision.  However, while the Veteran initiated an appeal of this denial with a notice of disagreement, he did not perfect a timely substantive appeal of this decision after being provided with a statement of the case in February 2006.  Further, no subsequent action of the RO treated this claim as if it remained in appellate status.  See Percy v. Shinseki, 23 Vet. App. 37 (2009).  Thus, the January 2005 decision became final.   See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1100.  

Nevertheless, a final denial of a service connection claim may be reopened by the submission of new and material evidence.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).  New evidence is defined as 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).

In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Id. at 118.  Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision-makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim.  Id. 

As reflected in the January 2005 rating decision, the RO denied the Veteran's service connection claim for bilateral foot disorders based on the lack of evidence indicating that the Veteran had a current service-related foot disability diagnosis, to include a diagnosis of cold injury residuals of the feet.  The Veteran disagreed with the RO's denial of his claims, and the RO then afforded the Veteran a VA cold injury protocol examination, which was performed in November 2005.  Thereafter, the RO readjudicated the case, as reflected in a February 2006 statement of the case in which the RO continued to deny the Veteran's claim based on the failure of the VA examiner to diagnosis any service-related current foot disability.  Since the issuance of this decision, newly submitted evidence includes March 2013 private treatment records reflecting the Veteran's report of in-service cold injuries of his feet, and related diagnoses of neuralgia and polyneuropathy based on the Veteran's reported symptomatology.

While these diagnoses were predicated on reported symptoms and not nerve conduction studies, this new evidence of current diagnoses of bilateral foot disabilities stemming from cold exposure relates to the reason the Veteran's claim was previously denied, namely evidence of current bilateral foot disabilities that may be linked to service.  Accordingly, this new evidence is sufficient to trigger VA's duty to obtain a related VA examination and a medical opinion regarding the potential relationship between any current bilateral foot disabilities and any period of reservist service.  Thus, the evidence is both new and material, sufficient to reopen the claim.  See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).  The reopened claim is further addressed in the remand section of this decision, below.


ORDER

New and material evidence having been presented, the claim of service connection for a left foot disability is reopened; to that limited extent, the appeal is granted.

New and material evidence having been presented, the claim of service connection for a right foot disability is reopened; to that limited extent, the appeal is granted.


REMAND

At the outset, the Board notes that the dates of the Veteran's periods of ACDUTRA and INACDUTRA during his many years of reservist service are not of record, and a complete record of all such dates must be obtained in order to confirm that the Veteran's foot impairments documented in his service treatment records were indeed incurred during a period of eligible service.  

Further, as referenced above, while the Veteran underwent a VA cold injury protocol examination in November 2005, during which no cold-injury related foot disabilities were diagnosed, the examiner did not conduct any specific diagnostic designed to determine the presence of cold injury residuals, nor any nerve conduction studies.  Moreover, while he Veteran's submitted March 2013 private treatment record reflects his report that he has undergone private neurological testing/nerve conduction studies, the test results are not of record, and efforts to obtain these relevant records must be made.  Thereafter, the Veteran should be afforded a new VA examination, with related neurological testing if the private records are not obtained, as well as a medical opinion addressing the potential relationship between any current foot disabilities and service.  Moreover, as the Veteran's service treatment records reflect his treatment during reservist service for toe impairments, namely ingrown toenails and onychomycosis, the VA examiner should address the etiology of any current similar toe impairments and their potential relationship to service.  

Accordingly, these issues are REMANDED for the following actions:

1.  Compile a complete list of the dates of all periods of ACDUTRA and INACDUTRA performed by the Veteran.

2.  Obtain any private treatment records not already of record, including any testing referenced in the March 2013 records.

3.  Then, afford the Veteran a VA examination performed by an appropriate medical professional to determine the potential relationship between the Veteran's periods of reservist service and any currently-diagnosed foot disabilities.

After reviewing the Veteran's claims file, the examiner is to state whether it is at least as likely as not (50 percent or higher probability) that any of the Veteran's foot disabilities diagnosed at the time of the examination, or any foot disabilities diagnosed during the pendency of this appeal (to include neuralgia, polyneuropathy, fungal paronychia, and tinea pedis) had their onset during a period of ACDUTRA or INACDUTRA, or are otherwise related to the Veteran's foot impairments documented in his reservist records (to include his January 1994 treatment for superficial frost bite of the feet and December 2002 treatment for bilateral ingrown big toenails and bilateral toenail fungal infections).

The examiner must provide a complete rationale for all opinions expressed.  

4.  Finally, readjudicate the reopened claims on appeal on the merits.  If the benefit sought with regard to either claim remains denied, issue a supplemental statement of the case and return the case to the Board.  

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).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112.




______________________________________________
RYAN T. KESSEL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs