Citation Nr: 18146320 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 14-35 426A DATE: October 31, 2018 ORDER New and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection claim for left foot disorder. REMANDED Entitlement to service connection for left foot disorder is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. A July 1997 rating decision denied service connection for left foot fracture. This rating decision was not appealed nor was new and material evidence submitted within one year; therefore, the decision is final. 2. The evidence received since the July 1997 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for left foot disorder. CONCLUSIONS OF LAW 1. The July 1997 rating decision that denied the Veteran’s claim of entitlement to service connection for a left foot disorder is final. 38 U.S.C. § 5108, 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2018). 2. Evidence submitted since the July 1997 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 a left foot fracture. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to April 1968. This matter is before the Board of Veterans’ Appeals (Board) from an April 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans’ Law Judge and waived original jurisdiction review of all new evidence submitted at the hearing. A written transcript of the hearing has been prepared and is incorporated into the evidence of record. A waiver of AOJ consideration of VA treatment records is unnecessary since even though they were associated with the case file after the October 2014 statement of the case, the records are redundant and are cumulative of the evidence on record. 38 U.S.C. § 7105(e) (2012). Petition to Reopen Service Connection Claim In general, decisions of the RO that are not appealed in the prescribed time period are considered final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1103 (2018). A claimant may reopen a final decision by submitting new and material evidence. 38 C.F.R. § 3.156 (2018). New and material evidence is existing evidence, which has not been previously submitted to agency decision makers and 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 (2018). 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) (2018). Additionally, evidence supporting a new theory of entitlement can be new and material evidence. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Regardless of the RO’s determination as to whether new and material evidence had been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claim and to adjudicate the claim de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus v. Principi, 3 Vet. App. 510, 512 (1992). Such evidence is generally presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. The Veteran was initially denied service connection for a left foot fracture in a July 1997 rating decision because the evidence did not show that the disorder was incurred in or was aggravated during service. The Veteran was notified of the rating decision, but did not appeal the decision or submit new and material evidence within one year of the notification. As such, the July 1997 rating decision became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). Evidence received since the July 1997 rating decision includes testimony from the Veteran during his June 2018 hearing where he described the circumstances of his foot injury while he was in boot camp at Fort Dix, New Jersey. In October 2010, the Veteran submitted a statement in support of claim providing new and specific details about his foot injury, specifically that he had a cast put on his left leg and foot and that he received treatment after he left service at West Palm Beach Hospital in 2003 or 2004 and at Broward Oupatient Clinic in 2009. The Board finds that the new evidence relates to an unestablished fact necessary to substantiate the claim of service connection for left foot condition, and therefore raises a reasonable possibility of substantiating such claim. See Shade, 24 Vet. App. at 117-18. Thus, the Board finds that the additional evidence is both new and material, and that the claim for entitlement to service connection for a left foot disorder is reopened. REASONS FOR REMAND Entitlement to service connection for a left foot disorder, bilateral hearing loss, and tinnitus The Board cannot make a fully-informed decision on the issue of service connection for left foot condition because no VA examiner has opined whether the Veteran’s left foot condition occurred in or was aggravated during service. VA must afford a veteran an examination and/or obtain an opinion when it is necessary to decide the claim. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2018). In disability compensation (service connection) claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). An examination is necessary because it is established, through VA treatment records, that the Veteran has a current foot disorder. Additionally, service treatment records (STRs) note that he had a broken bone and a cast removed around the same time he alleged he broke his foot. Because there is documentation within the STRs about a broken bone and there are VA treatment records showing he has a current diagnosis, the VA must provide the Veteran an examination before deciding the claim. McLendon, 20 Vet. App. at 81-82. Additionally, under 38 U.S.C. § 5103A, VA must “make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit under a law administered by the Secretary.” 38 U.S.C. § 5103A(a)(1) (2012); see 38 C.F.R. § 3.159(c) (2018) (obligating VA to obtain relevant records from Federal department or agency). This duty to assist includes making reasonable efforts to obtain relevant records, including private records, as long as the claimant “adequately identifies” those records and authorizes the Secretary to obtain them. 38 U.S.C. § 5103A (b)(1) (2012); Loving v. Nicholson, 19 Vet. App. 96, 101-02 (2005). Recently, the United States Court of Appeals for the Federal Circuit indicated that VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). The Veteran contends that he is entitled to service connection for a left foot disorder because he broke his left foot during a 26-mile march at his Fort Dix boot camp and has experienced pain in his left foot since that incident. He also claims that he is entitled to service connection for bilateral hearing loss and tinnitus because he was a heavy vehicle operator and sat right next to the loud engine and exhaust while driving a tank. His STRs show that he was hospitalized at Walson Army Hospital in October 1966 for a broken bone. The same document noted that his cast was removed in January 1967 at Walson Army Hospital. There is no indication in the STRs that the Veteran had any hearing issues during service. Furthermore, in his October 2010 statement in support of claim, the Veteran detailed his incident and experiences during service and explained that he received left foot and hearing treatment at the West Palm Beach VA Medical Center after he separated from service. A November 2011 VA examination report reflects that the Veteran was treated at that particular VA Medical Center in 2007. Moreover, in June 1997, the Veteran signed an authorization for release of information for the West Palm Beach VA Medical Center, but there is no record of a request for these documents. There are no medical records or a response stating that there are no records from this particular medical center. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. The matters are REMANDED for the following action: 1. Obtain any outstanding VA or private treatment records (to include VA treatment records from the West Palm Beach VA Medical Center dated between April 1968 and May 2009), clearly document any response received, and associate any such records with the claims file. 2. Following completion of the above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his left foot disorder. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that Veteran’s left foot disorder is related to an in-service injury, event, or disease, including his reportedly fractured foot from a 26-mile march during boot camp at Fort Dix, NJ. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Imam, Associate Counsel