Citation Nr: 18143486 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 16-26 693 DATE: October 19, 2018 ORDER New and material evidence having been received, the service connection claim for equinous and hammertoes with degenerative joint disease (claimed as bilateral foot injury) is reopened. Entitlement to service connection for equinous and hammertoes with degenerative joint disease (claimed as bilateral foot injury) is granted. FINDINGS OF FACT 1. In a final decision issued in January 2013, the Board of Veterans’ Appeals (the Board) denied the Veteran’s claim of entitlement to service connection for equinous and hammertoes with degenerative joint disease (claimed as bilateral foot injury); evidence received since that decision is not cumulative or redundant of evidence then of record and does raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for equinous and hammertoes with degenerative joint disease (claimed as bilateral foot injury). 2. Resolving reasonable doubt in the Veteran’s favor, the Veteran’s equinous and hammertoes with degenerative joint disease (claimed as bilateral foot injury) is related to service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for entitlement to service connection for equinous and hammertoes with degenerative joint disease (claimed as bilateral foot injury). 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156 (a), 20.1103. 2. The criteria for entitlement to service connection for equinous and hammertoes with degenerative joint disease (claimed as bilateral foot injury) have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from March 1953 to March 1955. This matter came before the Board through an appeal of the September 2014 rating decision by the Regional Office (RO) which denied the reopening of the claim for service connection for a bilateral foot disorder. The Veteran and his wife previously appeared for a Board hearing in November 2011 and a transcript has been provided from that hearing. The Veteran had requested an additional hearing, but the Veteran then withdrew that request. See Letter from Veteran dated September 2018. Service Connection 1. New and material evidence The Veteran first raised the issue of joint problems and arthritis in April 2004, but did not file a claim at that time. He formally filed a claim for service connection for equinous and hammertoes with degenerative joint disease (claimed as bilateral foot injury) in January 2009. See Statement in Support of Claim dated January 2009. The Regional Office denied the claim in an April 2009 rating decision, finding there was no evidence of an in-service incurrence or nexus. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran submitted a Notice of Disagreement and perfected an appeal which went before the Board. The Board denied the claim in its January 2013 decision finding that the preponderance of the evidence did not support the Veteran’s claim. In its decision, the Board pointed to the lack of medical evidence showing an in-service incurrence and a lack of both medical and lay evidence showing a nexus. Subsequently, the Veteran filed to reopen the claim for service connection for a bilateral foot injury in February 2014. See Veteran Supplemental Claim dated February 2014. The RO denied the petition in a September 2014 rating decision, finding no new and material evidence had been received relating to the previously unestablished in-service incurrence and nexus elements. See Shedden, supra. The Veteran initiated an appeal and it is now before the Board. The Board must independently assess whether new and material evidence has in fact been submitted in order to assume jurisdiction over the merits of this claim. See Jackson v. Principi, 265 F.3d 1366, 1369-70 (Fed. Cir. 2001). ‘New’ evidence is generally defined as existing evidence not previously submitted to agency decision makers, and ‘material’ evidence is defined 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). The evidence must not be cumulative or redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. Id. Since the January 2013 Board decision, new medical evidence has been received. Particularly, a June 2014 letter written by a private physician dated June 10, 2014 states that the Veteran is a patient of his and that the Veteran suffers from bilateral foot pain, which the Veteran states is from jumping out of half-tracks on a regular basis while in service. This letter is new evidence relating to an in-service incurrence and a nexus to the Veteran’s current disability. Furthermore, it is medical evidence from a private physician which addresses an issue specifically raised in the January 2013 Board decision that is, whether an in-service event occurred for service connection purposes. Therefore, a reasonable possibility of substantiating the claim has been raised and the claim is reopened. 38 C.F.R. § 3.156(a). 2. Entitlement to service connection for equinous and hammertoes with degenerative joint disease (claimed as bilateral foot injury) is granted. A veteran is entitled to VA disability compensation if there is a disability resulting from a personal injury suffered or diseased contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran asserts that his bilateral foot injury was caused by regularly jumping off half-tracks while in service. At the outset, the Board notes that the Veteran’s service medical records may have been destroyed in a 1973 fire at the National Personnel Records Center (NPRC). When the NPRC informs VA that records were lost in the 1973 fire, or when there is other evidence in the file that a claimant’s service records have otherwise been lost or destroyed, VA has a heightened duty to assist a claimant in developing a claim. Russo v. Brown, 9 Vet. App. 46, 51 (1996); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). The Veteran has current diagnoses of pes cavus, hammer toes, and calcaneal spurs-right. See May 2012 VA Examination. Therefore, the dispositive issues are whether there is an in-service event or injury and whether there is a nexus between the in-service event or injury and the current disability. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran asserts that the in-service event that caused his bilateral foot disabilities was jumping off half-tracks on a regular basis while active duty. Due to the NPRC fire, there are no service treatment records or military personnel records available. The record contains several lay statements from the Veteran in which he asserts that he was required to jump off of half-tracks routinely while on active duty. See Hearing Testimony; VA 21-4138 Statement in Support of Claim. During his hearing, the Veteran testified that he “was made to jump off of half-tracks, which when [he] hit the ground it would jar [his feet]. [He’d] feel it through [his] whole body.” Hearing Testimony, at 3. The Veteran also testified that he went to sick call numerous times for his feet and that following service he made attempts to see the VA about his feet, but that he had trouble getting an appointment. Hearing Testimony, at 3-4. The Veteran also complained of foot pain to his medical providers and, on multiple occasions, the Veteran stated that his foot pain stemmed from service. See VA Examination dated May 2012; VA Medical Records dated May 2010; VA Medical Record dated April 2009. The Veteran’s wife also provided testimony during the hearing in which she also stated that the Veteran suffered from foot pain while in service. Specifically, she stated that “when he was in the military when he had to do any parades and that his feet would just bother him something terrible.” Hearing Transcript, at 12. The wife also provided a letter for the record in which she recalled that the Veteran complained every night about his feet when he would return from base camp. See Statement in Support of Claim dated July 2014. In making all determinations, the Board must consider fully the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). A layperson is also competent to provide a nexus opinion in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Here, the Veteran is competent to report that he suffered an injury to his feet while he was in service. His wife is also competent to report that she visibly saw him suffering due to foot pain while he was in military service. Furthermore, the wife and the Veteran married in March 1954 and thus were married while he was in-service. The Veteran’s statements are also credible as many of them were made to medical providers in the course of obtaining a medical diagnosis and treatment. The Veteran’s wife’s statements are also credible because she provided specific instances in which she recalled the Veteran suffering from foot pain while on active duty. The Board assigns both the Veteran’s statements and the wife’s statements some probative weight because they provide specific details about how the Veteran incurred the in-service injury as well as the consistent symptoms that he demonstrated while in the service and afterwards. Furthermore, the Board assigns the Veteran’s statements regarding his continuing pain greater probative weight because the Veteran made those statements to medical providers during the course of treatment which the Board finds to be much more reliable in terms of veracity. The Board acknowledges that many of these statements were made during the pendency of this claim and therefore the Veteran and his wife may have had a bias in making those statements, but the Board also points to the Veteran’s lay statements made in April 2004 which were made prior to formally filing a claim for a bilateral foot injury. As discussed above, the Veteran first raised the issue of joint problems and arthritis in April 2004 in his claim for hearing loss, but did not file a claim for his bilateral foot injury at that time. See VA 21-526 dated April 2004. Given the Veteran’s statements and his wife’s statements, the Board finds that there was an in-service event incurrence for service connection purposes. As it pertains to nexus, a VA examination was conducted in May 2012 at which the VA examiner opined that the Veteran’s foot injuries are less likely than not related to an in-service injury, event, or disease because the records do not show complaints of feet issues until 2003. The examiner opined that any condition incurred during service in 1952 and 1953 are too remote to be connected to the Veteran’s current disabilities. See May 2012 VA Examination. The Board finds that the VA examination has probative value because the examiner’s opinion is based upon the existing records and the Veteran’s lay statements. A June 2014 letter from a private physician was also submitted in which Dr. J.M. stated that the Veteran was one of his patients and that the Veteran suffered from bilateral foot pain. Dr. J.M. reported that the Veteran alleges that he has had issues with his feet since service because he was required to jump out of half-tracks regularly. See Letter from Dr. J.M. dated June 2014. The Board finds that the opinion of Dr. J.M. has some probative weight because he indicates that the Veteran is a patient of his and his opinion is consistent with the Veteran’s lay statements. However, the Board cannot assign this opinion greater probative value because Dr. J.M.’s opinion is based on the Veteran’s allegations rather than on objective findings. In weighing the May 2012 VA examination, the Board finds that the absence of service treatment records that may be due to the 1973 fire affects the weight that may be afforded because the VA examiner did not have those records to rely upon. However, the Veteran’s lay statements and his VA treatment records indicate continuous treatment for foot pain and injuries since 2003. In examining all of the evidence of record, the Board finds that the evidence is in relative equipoise as to whether the Veteran is entitled to service connection for equinous and hammertoes with degenerative joint disease (claimed as bilateral foot injury). Resolving reasonable doubt in the Veteran’s favor, service connection for   equinous and hammertoes with degenerative joint disease (claimed as bilateral foot injury) is granted. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Bognar, Associate Counsel