Citation Nr: 1803616	
Decision Date: 01/19/18    Archive Date: 01/29/18

DOCKET NO.  16-45 787	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for traumatic amputation of left and right 5th toes and right 3rd, 4th toes DIP amputated with toes fused together (previously rated as deformity of both feet with partial absence of toes residuals of burns), and, if so whether service connection is warranted.


REPRESENTATION

Appellant represented by:	Atiya T. Munroe, Attorney


ATTORNEY FOR THE BOARD

Robert Batten, Associate Counsel



INTRODUCTION

The Veteran served on active duty from July 1957 to November 1957.

This matter comes before 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 St. Petersburg, Florida. 

The issue of service connection for traumatic amputation of left and right 5th toes and right 3rd, 4th toes DIP amputated with toes fused together is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

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. In a final decision dated in March 1976, the RO denied the Veteran's claim of entitlement to service connection for residuals of burn injury, aggravated by service. 

2. Evidence added to the record since the final March 1976 decision is not cumulative or redundant of the evidence of the record at the time of the prior decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for traumatic amputation of left and right 5th toes and right 3rd, 4th toes DIP amputated with toes fused together. 


CONCLUSION OF LAW

New and material evidence has been received since the issuance of a final March 1976 decision; the criteria for reopening the claim for service connection for traumatic amputation of left and right 5th toes and right 3rd, 4th toes DIP amputated with toes fused together are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duty to Notify and Assist

As the Board's decision to reopen the Veteran's claim of entitlement to service connection for traumatic amputation of left and right 5th toes and right 3rd, 4th toes DIP amputated with toes fused together is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. However, consideration of the merits of the issues is deferred pending additional development consistent with the VCAA.

II. Reopening a Claim

Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 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. 

New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). 

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 

Regardless of the AOJ's actions, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 (2012) to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996).

III. Reopening Bilateral Foot Condition

The Board finds new and material evidence sufficient to reopen the Veteran's claim for traumatic amputation of left and right 5th toes and right 3rd, 4th toes DIP amputated with toes fused together.

A March 1976 rating decision denied the Veteran's claim for residuals of a burn aggravated by service because the evidence of the record showed that the Veteran's pre-service disability was not aggravated by the normal progress during his military service. The Veteran did not appeal, and new and material evidence was not received within the appellate period; thus the March 1976 rating decision is final. 38 C.F.R. §§ 20.200.

Since March 1976, new evidence has been added to the claims file. New evidence pertinent to this case includes a May 2011 opinion by the Veteran's private physician. The Veteran's private physician stated that until the Veteran's left toe injury in service, he was functional and active. The Veteran stated that an injury sustained in service caused the Veteran to lose function and the ability to walk without pain. The private physician opined that the Veteran's current medical condition of severe degenerative osteoarthritis of the first metatarsophalangeal joint was a direct result of an injury he sustained in a military exercise.

The May 2011 private medical opinion is new and material evidence. The medical opinion is not redundant of past evidence and therefore new. The May 2011 opinion is material because it goes to the unestablished fact of whether the Veteran's foot disabilities were aggravated by service. Therefore, the May 2011 private medical opinion is new and material evidence.

In making the determination of materiality, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the Veteran has provided new and material evidence, reopening this claim is in order. Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010).


ORDER

New and material evidence having been received, the claim of entitlement to service connection for traumatic amputation of left and right 5th toes and right 3rd, 4th toes DIP amputated with toes fused together is reopened; the appeal is granted to this extent only.


REMAND

Having reopened the previously denied claim for service connection for traumatic amputation of left and right 5th toes and right 3rd, 4th toes DIP amputated with toes fused together, the Board finds that additional development is required.

In January 2012, the Veteran underwent a VA examination to determine whether service aggravated the Veteran's bilateral foot disability that preexisted service. The examiner diagnosed the Veteran with hallux valgus, bilateral foot arthritis, and traumatic amputation of left and right 5th toes and right 3rd, 4th toes DIP amputated with toes fused together. The examiner stated that she could not provide an opinion beyond mere speculation of whether the Veteran aggravated his preexisting bilateral foot condition or if the left foot suffered a new injury. The examiner explained that the Veteran was subsequently discharged after his left foot injury and therefore there were no records as to whether the Veteran's preexisting injury had residual problems from his time in service.  

The Board finds that examiner's reasoning is not adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In addition to traumatic amputation of left and right 5th toes and right 3rd, 4th toes DIP amputated with toes fused together, the examiner diagnosed the Veteran with arthritis in both feet and hallux valgus. However, the examiner did not provide an etiology opinion addressing the Veteran's arthritis or hallux valgus. Further, the examiner did not address the Veteran's private physician's opinion that the Veteran's injury in service limited his functional ability to walk. Therefore, an addendum medical opinion is warranted to determine whether the Veteran's foot arthritis and hallux valgus are evidence of aggravation beyond the normal progress of the Veteran's preexisting foot condition.  

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). Expedited handling is requested.)

1. Obtain an addendum medical opinion from an appropriate VA medical examiner. Provide the examiner with the claims file, including a copy of this REMAND and any relevant evidence in Virtual VA or Veterans Benefits Management System (VBMS). After a complete review of the record and an examination, the examiner should respond to the following: 

a) The examiner should opine to whether the Veteran's preexisting bilateral foot disability was aggravated (permanently worsened) during, or as a result of active service. If there was an aggravation of the preexisting disability, is there clear and unmistakable (medically undebatable) evidence that this aggravation was due to the natural progress of the condition.  

b) The examiner should address whether the Veteran's hallux valgus and bilateral foot arthritis constitute aggravation beyond the natural progress of the Veteran's preexisting bilateral foot disability. 

c) The examiner should also address the May 2011 private physician opinion that the Veteran injured his left toe in service, which caused his arthritis and loss of functional ability to walk. 

d) The examiner's report must reflect consideration of the Veteran's entire documented medical history and assertions and all lay evidence. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given.

2. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order.

The Veteran has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (2012).



____________________________________________
JENNIFER HWA
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs