Citation Nr: 1713827 Decision Date: 04/27/17 Archive Date: 05/05/17 DOCKET NO. 08-02 354 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for diabetes mellitus, type II. 2. Entitlement to service connection for a disorder of the right foot. 3. Entitlement to service connection for a disorder of the left foot. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD G.C., Associate Counsel INTRODUCTION The Veteran served on active duty from August 1974 to October 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied service connection for a right foot fibroma, and an April 2007 rating decision of the San Juan, Puerto Rico, RO, in which the RO declined to reopen the Veteran's claim for diabetes mellitus, type II, and denied his claim for service connection for a left foot disorder. In November of 2011, the Board remanded the claims for additional development. Since that time, the RO has substantially complied with the remand directives, and the Board may properly proceed with the decision below. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). In February 2015, the Veteran requested a hearing before a Veterans Law Judge (VLJ). The Veteran failed to appear at his hearing scheduled for July 2016, and he has not requested another hearing. His hearing request is thus deemed withdrawn. 38 C.F.R. § 20.704(d). FINDINGS OF FACT 1. A June 2003 rating decision denied service connection for diabetes mellitus, type II; the Veteran did not appeal. 2. Additional evidence received since the RO's June 2003 decision is new to the record, but does not relate to an unestablished fact necessary to substantiate the merits of the claim, nor does it raise a reasonable possibility of substantiating the claim of service connection for diabetes mellitus. 3. The Veteran's right foot disability did not have clinical onset in service and is not otherwise related to active duty. 4. The Veteran does not have a currently diagnosed left foot disorder. CONCLUSIONS OF LAW 1. The June 2003 rating decision that denied service connection for diabetes mellitus, type II, is final. 38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. § 3.104(a) (2016). 2. Evidence received since the June 2003 rating decision in relation to the Veteran's claim for entitlement to service connection for diabetes mellitus, type II, is not new and material, and, therefore, the claim is not reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2016). 3. The Veteran does not have a right foot disability that was incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). 4. The Veteran does not have a left foot disability that was incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C.A. § 5103A (c)(2). All records pertaining to the condition at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159 (c)(3)). In this case, the Veteran has not identified any such treatment records, and it appears that all pertinent and available treatment records have been obtained. Therefore, no additional development is warranted. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The Veteran has been afforded a VA examination regarding his service connection claims, as discussed below, and an etiological opinion has been obtained. The Board finds this examination to be adequate. The Board has not requested a VA examination and opinion with regard to the petition to reopen the previously denied service connection claim, as with a claim to reopen the statutory duty to assist does not arise if new and material evidence has not been presented to reopen the claim. Anderson v. Brown, 9 Vet. App. 542, 546 (1996). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). II. Legal Criteria & Analysis A. Petition to Reopen In a June 2003 rating decision, the RO denied the Veteran's claim for service connection for diabetes mellitus, type II. The Veteran did not perfect an appeal of that decision, and new and material evidence was not received within one year of its issuance, so the decision became final. 38 U.S.C.A. § 7105 (West 2014); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103 (2016). In January 2007, the Veteran sought to reopen this claim, and in a rating decision dated in April of 2007, the RO declined to reopen on the basis that no new and material evidence had been submitted. Under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2016); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Relevant regulations define "new" evidence as evidence not previously submitted to VA agency decision makers and "material" evidence as 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) (2016). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is, in fact, new. This analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C.A. § 5108 (West 2014) require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Here, as indicated above, the last final denial pertinent to the claim for service connection for diabetes mellitus, type II was the June 2003 rating decision. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The Veteran filed his original application for service connection for diabetes mellitus, type II in October 2002; the RO denied the claim in a June 2003 rating decision, finding that the Veteran had not established that he treated for or was diagnosed with diabetes mellitus, type II during his military service and that his diabetes mellitus was not otherwise related to service. The Veteran now again asserts that he has diabetes mellitus, type II which is related to service. In particular, the Veteran maintains that his diabetes mellitus, type II was due to his service (see statement in support of claim dated in January 2007 and appellate attorney brief dated in March 2017). As a result, the Veteran contends that service connection for diabetes mellitus, type II is warranted. Evidence of record in June 2003 includes the Veteran's service treatment records, review of which reflect no diagnosis or treatment of diabetes mellitus, type II. Post-service medical records of record at the time of the June 2003 decision include records from the San Juan VAMC dated from October 2002 through May 2003. These records indicate that the Veteran suffers from diabetes mellitus, type II, but contain no evidence as to the etiology of the Veteran's condition. Furthermore, the Veteran's DD-214 was of record in June 2003 and contains no evidence of in-country service in Vietnam. Relevant evidence added to the record since the June 2003 denial includes records of subsequent VA medical treatment he has received for diabetes mellitus, including a diabetes education consult in March of 2008, a referral to the VA diabetes clinic in November of 2009, and a cardiovascular assessment dated in August of 2008 wherein the Veteran is presented as a 58 year old male with diabetes mellitus type II since 1990. In addition, the Veteran's newly received Social Security disability determination documents include a statement by the Veteran that he is a chronic diabetic. The Board finds that the evidence, in the form of the March 2008 diabetes education consultation, the November 2009 diabetes clinic referral, and the statement of diabetic history dated in August of 2008, are "new" in the sense that they were not previously considered by agency decision makers. The Board, however, finds that the newly submitted evidence is cumulative and duplicative of evidence previously considered and is thus not "material" for purposes of reopening the Veteran's claim. In this regard, the Board notes that, at the time of the June 2003 rating decision, the RO denied the Veteran's claim for service connection because there was insufficient evidence to establish that the Veteran's diabetes mellitus was incurred in or etiologically related to service. Newly submitted evidence fails to address facts that were unestablished at the time of the June 2003 determination - namely, any evidence which could show that the Veteran's diabetes was incurred in service or is otherwise etiologically linked to his time on active duty. See Shade v. Shinseki, 24 Vet. App. 110 (2010). There is no new etiological opinion of record, nor is there any evidence that provides information the Board was not previously aware of. Further, the new evidence is not indicative of service in Vietnam or of an in-service occurrence or any etiological link to service. The Board thus finds that the evidence does not add to the record in a way that it should be considered new and material. The Board finds, therefore, that the identified evidence does not relate to an unestablished fact necessary to substantiate the Veteran's claim, nor does it raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a) (2016). Thus, new and material evidence has not been submitted, and the criteria for reopening the previously denied claim of service connection for diabetes mellitus, type II are not met. B. Service Connection Claims Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2016). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d) (2014). Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307 (a)(3); 3.309(a) (2016). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107 (b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). i. Service Connection for a Right Foot Disorder The Veteran contends that he has a current right foot condition due to his military service. Relevant medical evidence of record consists of the Veteran's service treatment records and treatment records from private and VA providers, as well as a VA examination conducted in December of 2014. Review of the service treatment records reflects that the examining physician noted an injury to the Veteran's knee in January of 1975, and swelling from a cut to the Veteran's right leg in February of 1975. At his October 1976 Report of Medical History, the Veteran stated he was in good health, and at his separation medical examination, although his diagnostic history included skin disease and leg cramps, the Veteran's skin, feet and lower extremities were noted to have no abnormalities. Post-service VA treatment records reflect that the Veteran was seen in April 1998, April 1999, March 1999, September 1999 and April 2000, with complaints of plantar fibromatosis, including a right foot MRI in April of 1999 confirming said plantar fibromatosis. In March of 2000, the Veteran was noted to have a soft tissue mass posterior to his right tibial artery, and in April of 2000, the Veteran underwent a right tarsal tunnel decompression procedure. In February of 2001, a right ankle MRI was conducted, revealing an abnormal soft tissue density along the posterior tibial tendon, but no tumors were noted in what was an otherwise unremarkable study. In addition, records reflect a visit to the VA podiatry clinic in August of 2002, where a right foot plantar mass was noted, and an orthopedic visit in January of 2003 reflects incisional pain due to right foot fibromas, but the Veteran was doing well. In October of 2005, the Veteran underwent a right foot excisional biopsy, resulting in a diagnosis of right foot fibroma. Also of note is an accident in April of 2010 for which the Veteran presented to the emergency room with trauma to the right ankle. Specifically, treatment notes describe the incident as a heavy fence falling on the Veteran, and an orthopedic note in May of 2010 reflects the Veteran's complaints of right foot pain and swelling. Indeed, in December of 2010, the Veteran was found to have a lesion of the right medial malleolus. In July of 2000, the Veteran filed for Social Security disability benefits due to plantar fibromatosis and diabetes mellitus. In the benefits questionnaire, the Veteran reported having had tumors removed from his feet, as well as pain. Further, included in the Veteran's Social Security records packet are private treatment notes from a doctor in Puerto Rico, who states in April of 2003 that the Veteran reported having had surgery twice on his right foot for the removal of tumors. The doctor noted that the Veteran also reported that pain in his right foot was worse upon standing and walking. Also, a private radiology report of the right foot dated in April of 2003 indicates no abnormalities. As mentioned above, the Veteran underwent a VA examination in December of 2014, in which the examiner indicated that the Veteran's claims file had been reviewed. The Veteran reported his foot condition started with right foot fibromas in 1999. The Veteran further stated he had had three surgeries in 2000, 2001 and another date he was unable to recall. The Veteran complained of limping, pain up to the knee, and being unable to walk unassisted. The Veteran also stated he has constant pain even in non weight-bearing situations. He stated he had a motor vehicle accident while in service, which resulted in a foot dislocation and eventually the development of fibromas. The examiner indicated he reviewed significant diagnostic testing results, including an MRI of the right ankle dated in October 2010, which indicated Achilles tendinosis, a small intra-articular body tibiotalar joint, and remote injuries to the anterior taliofibular and deltoid ligaments. The examiner indicated that the Veteran has moderately severe right foot fibromas, a condition which chronically compromises the Veteran's weight-bearing and requires such support as a cane and diabetic shoe. Upon completion of a thorough medical record review and an in-person assessment, the examiner concluded that the Veteran's current right foot disorder was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner's conclusion is supported by a complete rationale. Specifically, the examiner explained that the Veteran's current right foot condition is less likely than not related to the right leg laceration with cellulitis documented in service treatment records in 1975, as there is no evidence in medical literature that cellulitis in a leg causes fibromas. Further, the examiner noted that there is no evidence of treatment of fibromas until 1998, 23 years after the Veteran's military service. The Board has considered that the Veteran has asserted that his most recent examination was inadequate. He argues, through his representative, that part of examiner's rationale in arriving at his conclusion is too vague. Specifically, the contention is made that the examiner's statement that "there is no evidence in medical literature that a cellulitis in a leg causes fibromas" is too vague, as the examiner fails to clarify which medical literature she was referencing. However, "there is no reasons or bases requirement imposed on examiners." Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012). "[E]xamination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion.") Monzingo v Shinseki, 26 Vet. App. 97, 106 (2012). Here, the Board finds that the examiner determined that the Veteran's claimed disability is not related to his service, and her opinion is accompanied by a sufficient rationale, as discussed above. Given the foregoing, there is no basis to find that this report is inadequate, or that a remand for another opinion is required. See 38 C.F.R. § 3.159(d) (2016); See also Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Prejean v. West, 13 Vet. App. 444, 448- 9 (2000). The Board concludes, therefore, that a decision on the merits at this time does not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). Upon review of the evidence, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a right foot condition, and the claim must be denied. While the Veteran was treated for injuries to the leg and knee in service, they were acute and transitory and resolved fully; after service, the Veteran did not treat for his claimed right foot fibroma condition until over 20 years after separation from service. Furthermore, while the Veteran relates his right foot condition to a motor vehicle accident in service, neither service treatment records nor VA and private medical records reflect such an accident. Indeed, there is no medical opinion of record which relates the Veteran's right foot condition to his military service. In addition, the Board finds the December 2014 VA opinion to be highly probative evidence against the claim, as discussed above. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the only evidence in favor of the Veteran's claim is his own statements concerning his belief that he has a right foot disorder that began in or is otherwise due to service, as well as service treatment records which indicate injury to his right leg and treatment. However, the Board finds that this evidence is heavily outweighed by the medical evidence from the December 2014 VA examiner's opinions, which are based on the Veteran's reported history, the medical records, and the examiner's medical expertise and current medical knowledge. In arriving at her opinions, the examiner considered the Veteran's contentions as well as his assigned diagnosis of right foot fibromatosis but nevertheless concluded that the Veteran does not have a right foot disorder related to service. In so finding, the examiner explained that the Veteran's symptoms, having first been diagnosed and treated over 23 years after service, are less likely than not related to the Veteran's in-service injuries. With regard to the Veteran's contentions, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, it falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although the Veteran is competent to report the presence of certain symptoms, the claimed disability is not the type of condition that is amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that specific findings are needed to properly assess and diagnose this disorder, and determine its etiology. Id.; see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Veteran's service treatment reports and the post-service medical records were discussed by the December 2014 VA examiner, who considered the Veteran's contentions but rendered an etiological opinion that the Veteran's right foot condition neither resulted from nor was aggravated by service. The examiner explained the medical reasons why the Veteran's version cannot be supported. Given the foregoing, the Board finds that the medical evidence outweighs the Veteran's contentions. Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997). Given these findings, the Board concludes that the Veteran has not demonstrated a diagnosed right foot condition that may be service connected. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) (holding that a "determination of 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."). With no persuasive evidence of a nexus to service, the analysis ends, and service connection for a right foot disorder must be denied. In reaching these conclusions, the Board acknowledges the assessment of right foot fibromas assigned by his VA treatment provider, and his surgical treatment received in 1999, 2000 and 2001. However, as discussed at length above, the Board finds compelling the conclusions of the December 2014 VA examiner. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ii. Service Connection for a Left Foot Disorder The Veteran contends that he has a current left foot condition due to his military service. Specifically, the Veteran reports that his left leg swells up due to tumors which had previously been operated on, along with pain and a recurrence of fibromas. Relevant medical evidence of record consists of service treatment records and post-service medical records, as well as Social Security disability benefit application documents. Review of the Veteran's service treatment records reflects no injuries, disease or treatment involving the Veteran's left foot. As mentioned above, the Veteran's service treatment records do reflect treatment for a right foot injury. Also previously noted was that at his October 1976 Report of Medical History, the Veteran stated he was in good health, and at his separation medical examination, his feet and lower extremities were noted to have no abnormalities. As for post-service medical treatment records, the first record involving the left foot is an April 2000 VA treatment visit, wherein his chest pain was reported to radiate down his left arm and left leg. However, there is no record of further follow-up treatment or evaluation of the left leg until a hypertension note dated in July of 2004, where the Veteran reported a new lipoma on the left foot. Subsequent treatment notes dated in August of 2006, October of 2008 and March of 2010 all note that the Veteran's left foot was inspected and found to be normal, and no diagnosis of any left foot disorder was assigned at the December 2014 VA examination. The Board believes the Veteran has logically confused the condition of the left foot, as the symptoms and treatment he contends to have received on the left foot is absent from the medical record, and further, approximates the symptoms and treatment he has received for his right foot. Indeed, in his Social Security disability application documents, the Veteran reports a history of surgeries to the left foot for tumor removal, but the record reflects that the only foot which the Veteran has been operated on is his right. Therefore, the Board believes the Veteran's claim for entitlement to service connection of a left foot condition may have been intended as a claim for his right foot only. Nevertheless, as the Veteran has timely appealed his claim for service connection for a left foot disorder, and has not withdrawn this claim, the Board will proceed with its adjudication. The Board acknowledges the lay testimony of the Veteran, but finds that the objective evidence does not show that the Veteran has a left foot disability for which service connection may be granted. Although the Veteran has maintained that his claimed left foot condition should be service-connected, this assertion is inconsistent with other more probative evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). In reaching this conclusion, the Board has carefully considered the Veteran's lay assertions. The Board acknowledges that, as a lay witness, the Veteran is competent to report his medical history and observable symptomatology. See, e.g., Layno, 6 Vet. App at 469-70 (noting that personal knowledge is "that which comes to the witness through the uses of his senses-that which is heard, felt, seen, smelled, or tasted."). Nevertheless, determining the potential cause of a left foot condition is beyond the scope of lay observation. See id. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328 (1997). In the absence of evidence of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Significantly, an inspection of the left foot dated in March of 2010 indicates that it is normal. Further, no diagnosis of any left foot disorder was assigned at the December 2014 VA examination. There is no diagnosis or treatment of any condition of the left foot in the medical record at any time during the appeal period, nor is there a diagnosis or treatment of any condition of the left foot in service. The Board acknowledges that the Veteran's own lay statements may in some instances be sufficient to establish a current diagnosis. Indeed, in Jandreau, the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d 1372. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Here, however, the Veteran has reported left foot pain, swelling and a history of surgeries which is not supported by the medical record. These statements do not serve to establish a diagnosis. Moreover, to the extent that the Veteran has current pain in his left foot, the Court has stated that "pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted." Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (dismissed in part and vacated in part on other grounds), Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). Therefore, absent any evidence of a current left foot condition, the Board finds that a preponderance of the evidence is against service connection for a left foot disability, the benefit of the doubt doctrine does not apply, and the claim must be denied. ORDER New and material evidence to reopen a claim of service connection for diabetes mellitus, type II has not been received; the petition to reopen the claim is therefore denied. Entitlement to service connection for a right foot disorder is denied. Entitlement to service connection for a left foot disorder is denied. ____________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs