Citation Nr: 1753584 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 14-06 507 ) 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 received to reopen a claim of entitlement to service connection for residuals of a right foot injury. 2. Entitlement to service connection for residuals of a right foot injury. REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Maddox, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1978 to June 1978 and served in other than active military service with the South Carolina Army National Guard from September 1977 to September 1998. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina which denied service connection for a right foot disability. In August 2012 the Veteran filed his notice of disagreement, and in February 2014 was issued a statement of the case and perfected his appeal to the Board. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in June 2016. A copy of the transcript is of record. FINDINGS OF FACT 1. A September 2009 rating decision denied entitlement to service connection for a right foot injury; the Veteran did not timely initiate an appeal of that decision within one year of notification. 2. Evidence received since the September 2009 rating decision is not duplicative or cumulative of evidence of record at that time, and relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for a right foot injury. 3. The Veteran's current right foot disability is not the result of a disease or injury incurred in during a period of inactive duty for training (INADUCTRA), or active duty. CONCLUSIONS OF LAW 1. The September 2009 RO decision that denied service connection for a right foot injury is final. 38 U.S.C.A. § 7105(c) (2012); 38 C.F.R. §20.1103 (2009). 2. The criteria for reopening a claim of entitlement to service connection for a right foot injury have all been met. 38 U.S.C.A. § 5108 (2012); 38 C.F.R. §3.156 (a) (2009). 3. The criteria for entitlement to service connection for a right foot injury have not all been met. 38 U.S.C.A. §§ 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. §1110; 38 C.F.R. § 3.303 (a). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017). Prior to the filing of the current claim of entitlement to service connection for a right foot injury, the Agency of Original Jurisdiction (AOJ) previously denied a claim of service connection for a right foot injury in September 2009. Generally, a claim which has been denied in an unappealed AOJ decision is final and may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §20.1103 (2017). Once the AOJ makes a determination as to a claim, it must mail to the claimant, and his or her representative if there is one, proper notice of the decision, including notice of the claimant's procedural due process and appellate rights. 38 U.S.C.A. § 7105 (b)(1) (2012); 38 C.F.R. §§ 3.103 (b)(1), 19.25, 20.1103 (2009). An appeal of an AOJ decision to the Board is initiated by the filing of a notice of disagreement (NOD) with the decision. 38 U.S.C.A. § 7105 (a) (2012); 38 C.F.R. § 20.200 (2009). An NOD is a statement, reduced to writing, which can reasonably be construed as expressing dissatisfaction with the AOJ's decision and a desire to contest the result. 38 U.S.C.A. § 7105 (b); 38 C.F.R. § 20.201 (2009). Except in the case of simultaneously contested claims (which this is not) the NOD must be filed within one year from the date of mailing of result of the initial determination. See 38 U.S.C.A. § 7105 (b)(1); see also 38 C.F.R. §§ 20.200, 20.201, 20.302 (2009). If a timely NOD is not filed, the determination becomes final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with Title 38 of the U.S. Code. 38 U.S.C.A. § 7105 (c) (2012). The exception to this rule of not reviewing the merits of a finally denied claim 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. The regulation that implements 38 U.S.C.A. § 5108 defines "new and material evidence" as evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of evidence previously of record, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2009). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. New and material evidence can be neither cumulative nor redundant of the evidence already of record and must raise a reasonable possibility of substantiating the claim. Id. Of note, under 38 C.F.R. § 3.156(b), "new and material" evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. If VA receives new evidence within the appeal period of an AOJ decision, it must make a determination as to whether the evidence is new and material and if it does not do so then the claim does not become final but rather it remains pending. See Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). In determining whether evidence is "new and material," the credibility of the evidence in question must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The AOJ denied the claim in a September 2009 rating decision and notified the Veteran of the decision and of his appellate rights in a letter that same month. No relevant evidence or notice of disagreement was received in the year following the notification. The decision is final. In the decision, the AOJ acknowledged that the Veteran had suffered an injury of his left foot in 1982 during INACDUTRA with the National Guard. It determined that there was no chronic disability subject to service connection. Thus, the unestablished facts necessary to substantiate the claim were a present disability and a nexus between service and a present disability. Relevant evidence obtained since the September 2009 rating decision includes: a June 2012 VA examination; June 2016 private treatment records providing evidence of ongoing treatment for a right foot disability; a February 2015 nexus opinion from the Veteran's private physician indicating that the Veteran's osteoarthritis was related to his May 1982 right foot injury, and a June 2016 DBQ form filled out by a private physician. As this evidence relates to the unestablished facts necessary to substantiate the claim, it is new and material and therefore the claim must be reopened. The Board observes that, with respect to the Veteran's National Guard service, the applicable laws and regulations permit service connection only for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA), or injury incurred or aggravated while performing INACDUTRA. See 38 U.S.C.A. § 101 (22), (24); 38 C.F.R. § 3.6. The Veteran currently has a diagnosis of pes planus and osteoarthritis of his right foot. His service treatment records show that he was treated for an abrasion on his right heel in May 1982 after his foot was caught in a steel track door during a period of INACDUTRA. The treatment records show that the Veteran had a two cm long superficial laceration which was cleaned and treated, and resulted in no loss of range of motion. The Veteran's reports of medical examinations from August 1985 and September 1989 show that the Veteran did not suffer from any issues with his right foot. The Veteran testified during his hearing that after his foot was treated and x-rayed in service, it was still sore and he now suffers from foot tendinitis, callus formation, and pes planus. He stated that his foot condition started in service, has been off and on since 1982, and that when his foot started to get weak and ache he filed his initial claim. The Veteran also stated that he broke his foot about five or six years ago which required that he wear a boot. Medical treatment records from the SSA note an injury to the Veteran's right foot in about 1999 when a lift came down on his foot while the Veteran worked at Martex Fibers. The Veteran was provided a VA examination in June 2012. The examiner noted that the Veteran suffered a moderate soft tissue injury to his right heel which resolved without chronic residuals. The examiner opined that the Veteran's current right foot disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner concluded that the Veteran's current foot complaints differ from his military injury which was limited and appears to have resolved without chronic residuals. The Veteran provided a February 2015 nexus statement from his private physician who opined that the Veteran's diagnosed right foot osteoarthritis was probably related to his May 1982 in-service injury based on the Veteran's medical history and x-ray. In June 2016, the Veteran submitted a DBQ form filled out by a private physician. The physician documented degenerative traumatic arthritis of the ankle, noting that it was related to the right foot disability. The physician provided a description of the injury as "Patient had a right foot and ankle crush injury when he was in service years ago: and included the comment "Post-traumatic osteoarthritis of knees, bilateral." The Board finds the June 2012 VA examination report to be the most probative evidence of record. The examiner reviewed the claims file, examined the Veteran, and provided a sound rationale supporting his conclusion that the current condition was less likely than not incurred or caused by the claimed in service injury, event or illness. The private physician evidence provides no more than a conclusory statement of nexus without supporting rationale. The June 2012 examiner's explanation that the in-service injury was a moderate soft tissue injury which resolved without chronic residuals is consistent with the service treatment records which showed no evidence of residual issues of the right foot in the Veteran's reports of medical history and examination, and is thus assigned more probative weight than the private opinion. The June 2016 DBQ discussed the Veteran's current right foot issues, and knee and ankle problems attributed to those foot issues, but failed to opine as to the etiology of the right foot disability and is therefore afforded no probative value. The Board acknowledges the Veteran's contentions regarding his right foot disability. However, while the Veteran has asserted his belief that his right foot disability was the result of his May 1982 in-service injury, such an etiological opinion requires medical expertise as it is complex in nature and not capable of lay observation. See Jandreau, 492 F.3d at 1377. Where he lacks such expertise, his opinion is not probative. Additionally, while the Veteran has asserted that he has suffered from the right foot injury off and on since he originally injured it in May 1982, the Board finds these assertions are outweighed by the evidence of record. The Veteran's reports of medical examination post 1982 are silent as to any complaint of a right foot injury, and there is no evidence of any complaint of a foot disability since service, other than a work related accident in 1999, until the time the Veteran filed his claim in 2009. The evidence of record shows that the current right foot disability is etiologically different from the injury sustained in service, and that the in-service injury had resolved by the time the Veteran was discharged. Therefore, the evidence of record does not establish a continuity of symptomatology since service. Finally, the evidence of record is silent as to any manifestation of the Veteran's diagnosed osteoarthritis to at least ten percent within a year from his discharge from service as the first noted diagnosis of osteoarthritis does not occur until more than ten years after the Veteran's discharge from service, and there is no documented complaint or treatment for osteoarthritis within a year from discharge. Therefore, presumptive service connection for a right foot disability is not warranted. In summary, the medical evidence does not support a finding that the Veteran's current right foot disability is at least as likely as not the result of his May 1982 in service foot injury. As discussed, the medical evidence indicates that the Veteran's right foot injury had resolved prior to discharge from service and is not etiologically related to his current right foot pes planus and osteoarthritis. The Board finds that the preponderance of evidence is against the claim and the appeal must therefore be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. ORDER The claim of entitlement to service connection for a right foot disability is reopened, and to that extent only, the appeal is granted. Entitlement to service connection for a right foot disability is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs