Citation Nr: 1803212 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 13-02 568 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for right foot disability (previously claimed as residuals of injury right ankle). 2. Entitlement to service connection for right foot disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his daughter ATTORNEY FOR THE BOARD S. An, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1951 to March 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO) in Houston, Texas. In October 2017, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is associated with the record. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. An August 1953 rating decision denied service connection for right foot disability; the Veteran did not appeal or submit new and material evidence within the one year period thereafter. 2. Evidence received since the August 1953 rating decision relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim for service connection for right foot disability. 3. A chronic foot disability was not shown in service or for many years later; and, the preponderance of the evidence fails to establish that the Veteran's diagnosed foot disability is etiologically related to service. CONCLUSIONS OF LAW 1. The August 1953 rating decision which denied service connection for right foot disability is final. 38 U.S.C. §7105(c) (2012); 38 C.F.R. §20.1103 (2017). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for right foot disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for service connection for right foot disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Neither the Veteran, nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Petition to Reopen Claim New evidence means 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). 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. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decision makers, and it 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. The Court interprets the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Veteran's claim of entitlement to service connection for right ankle disability was originally denied in August 1953. The Veteran did not appeal the rating decision; accordingly the August 1953 rating decision became final. See 38 C.F.R. §3.156(b). At the time of the August 1953 rating decision, the record consisted of the Veteran's military personnel records and service treatment records to include separation examination. Evidence received since the August 1953 rating decision includes VA treatment records and the Veteran's recent testimony at the October 2017 hearing describing his ankle sprain in service and the problems he experienced with his ankle since. He further explained the continuous medical treatment received for his right foot condition since separation. This information is both new and material and is therefore sufficient to reopen the previously-denied claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). In this regard, for the purpose of determining whether a claim should be reopened, the credibility of any newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim for service connection for right foot disability is reopened. III. Service Connection As described above, the Veteran seeks service connection for right foot disability which he contends is related to his ankle sprain in service, or is otherwise etiologically linked to his time in service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for arthritis if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Board observes that the Veteran was treated one time in January 1952 for complaints of weakness of the right ankle. X-rays taken at the time were negative with no other treatment for his ankle shown in service. The record reflects normal findings on clinical evaluation on separation with nothing indicated or reported by the Veteran as to his ankle or right foot. See Report of Medical Examination dated March 1953. Private treatment records of September 2009 reflect treatment for complaints of pain of the right foot with records indicating a diagnosis of porokeratosis of the right foot. See records from Dr. R.R.V. of The Podiatry Group of South Texas. The Veteran was afforded a VA examination in June 2011. After thoroughly reviewing the claims file, diagnostic tests and conducting a physical examination, the VA examiner concluded that the Veteran's diagnosed "porokereatosis foot condition has nothing to do with right ankle or active duty complaints." The examiner explained that the Veteran's right ankle is normal with age related chronic change. Citing medical literature, the examiner noted that the Veteran developed porokeratosis which generally develops in the third or fourth decade of life. The examiner further indicated that the actual injury was in 1952 which was sustained while walking and there were no residuals of the injury found post service. See June 2011 Compensation and Pension Exam Report. Private treatment records of July 2011 through November 2011 reflect treatment for right foot pain and documented degenerative joint disease of the right foot. A magnetic resonance images (MRI) of the lower extremity revealed "no acute fracture or bone destruction." Records reflect there was "no bone marrow abnormalities to suggest the presence of an acute occult bony injury." There was however, mild degenerative joint disease involving the first metatarsophalangeal (MTP) joint with slight marginal spurring. Subsequent imaging studies that same year revealed moderate changes of osteoarthritis joints of the first MTP joint. See records from The Podiatry Group of South Texas and Sendero Imaging and Treatment Center. Upon review of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for right foot disability. In so finding, the Board acknowledges that the Veteran's treatment records confirm a current diagnosis of porokeratosis as well as degenerative joint disease of the right foot, but concludes that there is no competent medical evidence relating the current disorder to active service. As the determinative issue involves the etiological connection between service and the current disability, competent medical evidence is required. In this regard, the Board finds that the June 2011 VA medical opinion constitutes the most probative medical evidence of record. The VA examiner provided a reasoned analysis of the case to support the conclusion that there is no reliable evidence linking the Veteran's current right foot condition to service. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In his rationale, the examiner pointed out that X-rays taken in service of the right ankle were normal with no evidence of arthritis. The examiner noted the absence of any complaints or treatment in service to indicate the presence of a persistent ankle condition. Although the Veteran now claims right foot disability, the examiner remarked that degenerative changes of the Veteran's right foot can be explained on the basis of primary osteoarthritis associated to the process of aging. The Board finds probative the examiner's finding that the Veteran's "foot condition has nothing to do with right ankle or active duty complaints." The Board further observes that the private treatment records demonstrate that the Veteran was treated for his complaints of foot pain and document degenerative joint disease of the right foot. However, the private treating physicians failed to provide opinions as to the etiology of such diagnosed conditions as it relates to the Veteran's service. Accordingly, the Board assigns significantly less probative weight to the private treatment records. In this regard, the VA medical opinion stands uncontradicted by any other evidence found in the record and is highly probative in determining whether the Veteran has substantiated his claim for service connection. The Board has also considered the Veteran's assertions that his right foot disability is related to his ankle injury from service or otherwise etiologically related to service. While the Veteran is competent to report symptoms which are within the realm of his personal experience, such as pain, a diagnosis that is later confirmed by clinical findings, or a contemporary diagnosis, he is not competent to independently opine as to the specific etiology of his claimed condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Likewise, the Board has considered the testimony presented by the Veteran's daughter witnessing her father's complaints of problems with his ankle possibly from 1960. See October 2017 Hearing Transcript, p. 11-12. Although the Veteran's daughter is competent to report her observations as a layperson, she has not shown that she is qualified through education, training, or experience to offer a medical opinion with respect to the onset or etiology of complex medical conditions such as the Veteran's current degenerative joint disease of the right foot. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Consequently, the Veteran and his daughter's lay assertions of nexus opinions cannot constitute evidence upon which to grant a claim for service connection in this case. Additionally, though degenerative joint disease may be considered a chronic disease for VA purposes, arthritis was not clinically shown to a compensable degree within one year following the Veteran's discharge from service as required. See 38 C.F.R. § 3.307(3). There is also no persuasive credible lay evidence that degenerative joint disease of the right foot manifested to a compensable degree within one year following the Veteran's discharge from service. Id. The evidence contemporaneous to the Veteran's service and in the years immediately following his service show that there were no abnormalities related to his right ankle or foot, and he did not complain of any problems related to arthritis or affecting his bones or joints. Further, as noted above, the earliest notation of symptoms referencing the right foot was in 2009. This objective medical evidence is dated over 50 years after the Veteran's separation from active service. Accordingly, service connection for degenerative joint disease of the right foot on a presumptive basis has not been satisfied and therefore, not warranted here. See 38 U.S.C §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claims for service connection of a right foot disability. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claims, that doctrine is not helpful to this claimant. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, service connection is not established and the claim must be denied. ORDER New and material evidence has been presented, and the claim for service connection for right foot disability is reopened. Service connection for right foot disability is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs