Citation Nr: 18143143 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 14-34 743A DATE: October 18, 2018 ORDER The previously denied claim of entitlement to service connection for bilateral flatfoot is reopened. The previously denied claim of entitlement to service connection for hammer toes of the right foot is reopened. The previously denied claim of entitlement to service connection for hammer toes of the left foot is reopened. REMANDED Service connection for bilateral flatfoot is remanded. Service connection for hammer toes of the right foot is remanded. Service connection for hammer toes of the left foot is remanded. Service connection for a left foot or ankle disability (other than flatfoot and hammer toes) is remanded. FINDINGS OF FACT 1. Evidence that became available following an unappealed July 1977 rating decision denying service connection for flat feet is not cumulative or redundant of the evidence previously available, relates to a necessary but previously unestablished fact, and raises a reasonable possibility of substantiating the claim. 2. Evidence that became available following an unappealed July 1977 rating decision denying service connection for hammer toes, to include of the right foot, is not cumulative or redundant of the evidence previously available, relates to a necessary but previously unestablished fact, and raises a reasonable possibility of substantiating the claim. 3. Evidence that became available following an unappealed July 1977 rating decision denying service connection for hammer toes, to include of the left foot, is not cumulative or redundant of the evidence previously available, relates to a necessary but previously unestablished fact, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The July 1977 rating decision is final, but service connection for bilateral flatfoot is reopened based on new and material evidence. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 3.160, 20.302, 20.1103 (2018). 2. The July 1977 rating decision is final, but service connection for hammer toes of the right foot is reopened based on new and material evidence. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 3.160, 20.302, 20.1103 (2018). 3. The July 1977 rating decision is final, but service connection for hammer toes of the left foot is reopened based on new and material evidence. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 3.160, 20.302, 20.1103 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1963 to September 1966. This matter is on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA). Previously denied claims of service connection for bilateral flatfoot, right hammer toes, and left hammer toes were reopened, but service connection once again was denied, in it. The Board of Veterans’ Appeals (Board) must determine whether reopening is warranted notwithstanding what the agency of original jurisdiction did. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237 (1995). In addition, the rating decision also denied service connection for a broken left foot. The Board has recharacterized that issue to include the left ankle as well as the left foot and to include disabilities other than residuals of a break (and other than flatfoot and hammer toes) based on statements made by the Veteran. While he requested a videoconference hearing, he failed to appear for it as scheduled. His request therefore is deemed withdrawn. 38 C.F.R. § 20.704(d). Preliminary Matters VA has duties to notify and to assist a claimant seeking VA benefits. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. Discussion of them is unnecessary, however, as the Veteran’s previously denied claims of service connection for bilateral flatfoot, hammer toes of the right foot, and hammer toes of the left foot are reopened. As these determinations are favorable to him, any notification or assistance errors made ultimately were harmless. Reopening Previously Denied Claims In general, rating decisions that are not appealed are final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.160(d), 20.302(a), 20.1103. A claim denied in a final rating decision shall be reopened for readjudication if there is new and material evidence. 38 U.S.C. § 5108. New evidence is evidence not previously available. Material evidence is evidence that, by itself or when considered with previous evidence, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether a reasonable possibility of substantiating the claim is raised is low, with consideration to be given to triggering VA’s duty to assist. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1-3. Bilateral Flatfoot, Hammer Toes of the Right Foot and of the Left Foot Service connection for flat feet and for hammer toes, whether on the right foot or on the left foot, was denied in a July 1977 rating decision. At that time, the only available evidence were the Veteran’s service treatment records. They were noted to show complaints of flat feet, which was deemed congenital and to have existed prior to service. It was determined that there had been no aggravation during service. The determination for hammer toes, even though service treatment records were silent as to them, was that they also existed prior to service and were not aggravated during service. Notification of the rating decision as well as of appellate rights was mailed to the Veteran at his address of record (the one specified when he filed his claim in May 1977), but it was returned undelivered in August 1977, as was an earlier notification concerning the submission of additional evidence in support of his claims. The burden is on the appellant to keep VA apprised of his whereabouts. Hyson v. Brown, 5 Vet. App. 262 (1993). The Veteran did not do so. As such, VA did what it could to notify him of the July 1977 rating decision but these efforts were unsuccessful. The law in effect at the time was that the failure to provide notification of appellate rights does not extend the period for filing an appeal. 38 C.F.R. § 19.110 (1977). Here, the Veteran did not file a timely appeal of the rating decision. He also did not submit new and material evidence within the period for filing an appeal such that reconsideration of any of the determinations made in it was necessitated. 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242 (2010). Thus, the rating decision is final. Evidence that became available after it includes VA and private treatment records, a March 2014 VA medical examination, and statements from the Veteran. This evidence is material because it relates to a necessary fact which was unestablished in the July 1977 rating decision. For hammer toes of the feet, VA and private treatment records, and the VA medical examination, reveal a diagnosis. The Veteran’s statements include his reports that his in service duties affected his toes. For bilateral flatfoot, they include his reports that his feet started to get painful during service. He is competent to make these reports. Layno v. Brown, 6 Vet. App. 465 (1994). His credibility is presumed in the reopening context. Justus v. Principi, 3 Vet. App. 510 (1992). His statements go to aggravation or incurrence (see below). Considering the previous evidence, new evidence, and additional evidence VA has a duty to assist in procuring (see below), there is a reasonable possibility of substantiating the claim. Reopening thus is warranted. REASONS FOR REMAND 1. Bilateral Flatfoot Except for any defects noted, a veteran is presumed to be in sound condition upon entrance into service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Noted means identified upon medical examination. 38 C.F.R. § 3.304(b). At his September 1963 entrance examination, the Veteran’s feet were found to be normal. His lower extremities were assigned a score of 1, indicating no limitations, on their respective PULHES factor. He thus is presumed to have had sound feet when he entered service. To rebut this presumption, clear and unmistakable (obvious or manifest) evidence demonstrating that an injury or disease both existed prior to service and was not aggravated by service is required. Id. Whether there is such evidence regarding bilateral flatfoot currently is unclear regarding each point. Service treatment records characterize the Veteran’s condition as congenital, but the basis for this was not provided. They also include his report of having feet problems for three years prior to service. He reported being born with flat feet at the March 2014 VA medical examination. The aforementioned was cited as support for the conclusion in the examination opinion that the Veteran’s bilateral flatfoot preexisted his service. No further explanation was provided, however. A discussion of congenital flatfoot, whether a defect or a disease, versus acquired flatfoot would be particularly useful to the Board in this regard. 38 C.F.R. § 4.57; Quirin v. Shinseki, 22 Vet. App. 390 (2009). No explanation was provided for the further conclusion that the Veteran’s bilateral flatfoot was not aggravated during his service either. Such is particularly important, as he has reported that his feet started to get very painful then. A new opinion, in sum, is needed. 2-3. Hammer Toes of the Right Foot and of the Left Foot For hammer toes of the right foot and of the left foot, a new opinion also is needed. The conclusion in the March 2014 VA medical examination opinion was that they were not related to the Veteran’s service because none were found upon his separation from service. Although this is true and is a factor for consideration, there is no requirement for a condition to be found at separation or at any other time during service for it to be service-connected. Service treatment records further reveal multiple entries about metatarsalgia and calluses/blisters on his feet, though not his toes, consistent with his report about the effect of his duties. This was not addressed, and no further explanation was provided. To ensure the new opinion (as well as the new opinion for bilateral flatfoot) is fully informed, attempts first should be made to procure any outstanding treatment records. This includes updating those obtained from VA facilities and private Dr. G.G. as well as soliciting those from any other identified private source. 4. Left Foot or Ankle Disability The available evidence does not include a diagnosis of any left ankle disability. However, a June 2013 VA treatment record shows that the Veteran has significant arthritis changes and hallux valgus in his left foot. He reported at the time that he broke that foot a few years prior and that it could not be fixed. Otherwise, he has reported injuring his left foot during service and being told to live with it. He further reported that the result was a curvature to one side causing pain and periods of incapacitation. Service treatment records do not reflect any specific left foot injury, but they do reflect that the Veteran twisted his left ankle in January 1965. X-rays were negative and cellulitis was diagnosed. To date, the Veteran has not had a VA medical examination. Scheduling him for one is needed based on the aforementioned. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing an indication of nexus between a current disability and an in-service injury, disease, or event as a low threshold). This matter is REMANDED for the following action: 1. Follow established procedure for obtaining: (a) any relevant VA treatment records concerning the Veteran dated from May 2014 to present and (b) any outstanding relevant private treatment records, whether from Dr. G.G. or otherwise. 2. After completing paragraph 1, arrange for a VA medical opinion to be rendered concerning the Veteran’s bilateral flatfoot as well as the hammertoes of his right foot and left foot. Whether another examination is needed is left to the examiner’s discretion. The examiner shall review the claims file and opine as to the following: (a) Is the Veteran’s bilateral flatfoot a congenital defect (more or less static in nature), a congenital disease (capable of improving or deteriorating), or an acquired condition? (b) If the Veteran’s bilateral flatfoot is a congenital defect, is it at least as likely as not (a 50 percent or greater probability) that there is a superimposed disease or injury related to his service? (c) If the Veteran’s bilateral flatfoot is a congenital disease, was it aggravated (permanently worsened beyond natural progression) during his service? (d) If the Veteran’s bilateral flatfoot is an acquired condition, is it at least as likely as not that it began during his service or otherwise is related to his service? (e) Is it at least as likely as not that the hammer toes of the Veteran’s right foot began during his service or otherwise are related to his service? (f) Is it at least as likely as not that the hammer toes of the Veteran’s left foot began during his service or otherwise are related to his service? A detailed explanation is required for each answer. In this regard, the examiner is advised that discussion of 38 C.F.R. § 4.57/other medical principles as they relate to the medical and lay (non-medical) evidence and of medical literature, with citations, would be of assistance to the Board. The examiner also is advised that the Veteran’s reports thus far are set forth in this remand. 3. Also after completing paragraph 1, schedule the Veteran for a VA medical examination concerning his left foot and ankle. It shall include a review of the claims file as well as an interview and assessment of him by the examiner. The examiner then shall identify all left foot (other than flatfoot and hammer toes) and ankle disabilities, whether diagnosed or based on symptoms such as pain resulting in functional impairment, manifested by the Veteran. Next, the examiner shall indicate whether it is at least as likely as not (a 50 percent or greater probability) that each left foot or ankle disability began during the Veteran’s service or otherwise is related to his service. A detailed explanation is required for each answer. In this regard, the examiner is advised that discussion of medical principles as they relate to the medical and lay (non-medical) evidence and of medical literature, with citations, would be of assistance to the Board. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). His failure to help procure treatment records or to report for a scheduled VA medical examination, for example, may impact the decision made. 38 C.F.R. § 3.655 (2018). The Veteran also is advised that he has the right to submit additional argument or evidence, whether himself or through his representative. Kutscherousky v. West, 12 Vet. App. 369 (1999). All remands by the Board, including this matter, or the United States Court of Appeals for Veterans Claims finally are to be handled expeditiously. 38 U.S.C. §§ 5109B, 7112 (2012). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Becker, Counsel