Citation Nr: 18150085 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-45 248 DATE: November 14, 2018 ORDER New and material evidence having been received, the claims of entitlement to service connection for degenerative joint disease of the bilateral great toes, bilateral pes planus, and a bilateral ankle disability are reopened and, to that extent only, the appeals are granted. REMANDED Entitlement to service connection for degenerative joint disease of the bilateral great toes (also claimed as a bilateral foot disability) is remanded. Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for bilateral ankle disabilities, to include achilles tendonitis, to include as due to a bilateral foot disability, is remanded. Entitlement to service connection for metatarsalgia (claimed as closed fracture of the calcaneus) is remanded. Entitlement to service connection for plantar fasciitis is remanded. FINDINGS OF FACT 1. A March 2005 rating decision denied claims of entitlement to service connection for degenerative joint disease of the bilateral great toes and bilateral pes planus; the Veteran did not appeal that decision in a timely manner and no new and material evidence was submitted within one year of the rating decision. 2. An October 2006 rating decision denied a reopening of the claims of entitlement to service connection for degenerative joint disease of the bilateral great toes and bilateral pes planus; the Veteran did not appeal that decision in a timely manner and no new and material evidence was submitted within one year of its issuance. 3. Evidence received since the March 2005 and October 2006 rating decisions as to the claims of entitlement to service connection for degenerative joint disease of the bilateral great toes and bilateral pes planus is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the Veteran’s claims. 4. A September 2007 rating decision denied the Veteran’s claim of entitlement to service connection for bilateral ankle disabilities; the Veteran did not appeal the September 2007 rating decision in a timely manner and no new and material evidence was submitted within one year of its issuance. 5. Evidence received since the September 2007 rating decision as to the claims of entitlement to service connection for bilateral ankle disabilities is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the Veteran’s claim. CONCLUSIONS OF LAW 1. The March 2005 and October 2006 rating decisions that denied the Veteran’s claims of entitlement to service connection for degenerative joint disease of the bilateral great toes and bilateral pes planus are final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2004). 2. New and material evidence has been received to reopen the claims of entitlement to service connection for degenerative joint disease of the bilateral great toes and bilateral pes planus. 38 U.S.C. § 7105; 38 C.F.R. § 3.156. 3. The September 2007 rating decision that denied the Veteran’s claim of entitlement to service connection for bilateral ankle disabilities is final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007). 4. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral ankle disabilities. 38 U.S.C. § 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1974 to April 1975. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Claims to Reopen The RO denied the Veteran’s claims of entitlement to service connection for degenerative joint disease of the bilateral great toes and bilateral pes planus in a March 2005 rating decision, finding in each instance that there was insufficient evidence to establish a relationship between the disabilities and his active service. See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303; Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). The Veteran did not appeal the rating decision or submit material evidence within one year of the notification of the decision. Therefore, the decision became final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2004). The Veteran’s claims were denied again in October 2006 on a finding that evidence submitted since the March 2005 rating decision was not new and material. Also in the October 2006 rating decision that continued the denials of the Veteran’s bilateral toes and pes planus claims, the RO denied entitlement to service connection for newly-claimed disabilities of the bilateral ankles. The denial of the Veteran’s bilateral ankle disability claim was continued in a subsequent rating decision less than one year later, in September 2007. The Veteran did not appeal the October 2006 rating decision as to the reopening of his bilateral toe and pes planus claims, nor did he appeal the September 2007 rating decision that denied his service connection claim for bilateral ankle disabilities. Therefore, those decisions also became final. The Veteran filed a request to reopen all the above claims in April 2013, along with the additional service connection claims for plantar fasciitis and metatarsalgia address below, which were again denied in June 2014. While the RO continued denials of service connection for all the Veteran’s claims in a July 2016 Statement of the Case (giving rise to the present appeal), it is unclear whether the RO reopened the previously denied claims. Regardless of the RO’s actions, the Board must itself determine whether new and material evidence has been submitted. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Generally, if a claim for service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decision makers. 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). The threshold to reopen the claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). In establishing whether new and material evidence has been received, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board finds that new and material evidence has been submitted sufficient to reopen all the Veterans claims that were previously denied in the March 2005, October 2006, and September 2007 rating decisions. This evidence includes additional medical treatment records, lay statements, and May 2014 VA examinations addressing the Veteran’s various claims, including radiology reports and additional nexus opinions regarding whether his asserted disabilities were due to his military service. As the new evidence raises a reasonable possibility of substantiating the Veteran’s claims, these claims are reopened. In evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the entire record, and the Justus presumption of credibility no longer attaches. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Thus, evidence that is sufficient to reopen a claim may not be sufficient to grant the benefit being sought. See generally Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). As explained below, the Board has determined that additional development is necessary before the merits of the service connection claims can be addressed. REASONS FOR REMAND While the Board regrets further delay, the Veteran’s claims for entitlement to service connection for degenerative joint disease of the great toes, metatarsalgia, pes planus, plantar fasciitis, and bilateral ankle disabilities must be remanded for additional development. As noted above, the Veteran asserts that the disabilities for which he seeks service connection were the result of injuries to his feet sustained during his active military service. His service treatment records (STRs) note treatment in July 1974 for arch strain. His remaining STRs, including an April 1975 separation examination, are negative for any complaints, treatment, or diagnosis of foot problems. The Veteran was first afforded a VA examination for his pes planus claim in February 2005. While the examiner confirmed a diagnosis of pes planus, a negative etiological opinion was provided, resulting in the RO’s initial denial of the claim in March 2005. Upon VA examination again in May 2014, the examiner noted no evidence of a current pes planus disability at any time. Moreover, the examiner noted that the Veteran’s plantar fasciitis had resolved. As such, no etiological opinion was provided for either disability. The Board notes, however, that in addition to the February 2005 pes planus diagnosis, VA treatment records during the period on appeal do reflect diagnoses of both bilateral pes planus and right plantar fasciitis in April 2016. As to the Veteran’s additional claims, while the examiner confirmed diagnoses of degenerative joint disease of the bilateral great toes and metatarsalgia, no etiological opinion was provided other than stating that it was likely that some of his “right foot and toe pain” was due to radiculopathy related to a low back disability. The Board notes that the Veteran’s metatarsalgia claim was originally a claim for service connection for a purported closed fracture of the calcaneus, and that the examiner did provide an opinion as to a calcaneus fracture. However, metatarsalgia and a calcaneus fracture are two distinct disabilities. The examiner’s comments regarding neurological disability do not fully address the issues related to claimed orthopedic disability. Finally, a VA ankle examination was also afforded to the Veteran in May 2014 to address his claim that bilateral ankle disabilities, to include Achilles tenonitis, are related to his bilateral foot problems. The examiner opined that his ankle pain was also likely due to radiculopathy from his low back disability since it “would be unusual to cause pain and problems as severe as he has in his bilateral feet from an ankle sprain or arch strain which occurred in 1974.” The Board notes, however, that this is the opposite of the Veteran’s actual contention. Additionally, while the examiner noted no “pathology to render a diagnosis,” the United States Court of Appeals for the Federal Circuit recently held that the term “disability” as used in 38 U.S.C. 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In other words, where pain alone results in functional impairment, even with no underlying diagnosis, it can constitute a disability. Thus, new VA examination(s) should be afforded to the Veteran to determine whether any diagnosed foot disability – to include pes planus, plantar fasciitis, metatarsalgia, and degenerative joint disease – is related to his active service, to include his in-service episode of strained arches and lay evidence of ongoing bilateral foot pain since his military service. In addition, a new VA ankle examination should be afforded to determine whether the Veteran’s ankle pain is related to his active service, to include as secondary to a foot disability. The matters are therefore REMANDED for the following actions: 1. Ask the Veteran to identify any remaining outstanding treatment records relevant to his claims. All identified VA records should be added to the claims file, to include any additional records dated since June 2016. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, the Veteran should be afforded appropriate VA examinations to determine the nature of any foot disability diagnosed during the appeal period – to include pes planus, plantar fasciitis, metatarsalgia, residuals of a calcaneus fracture, and degenerative joint disease of the great toes – and to obtain opinions as to whether such is related to service. The claim file should be reviewed by the examiner. All necessary tests should be conducted and the results reported. The examiner should elicit a full history from the Veteran and consider the lay statements of record. It is noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current disability of the foot is related to an in-service injury, event, or disease. The examiner’s attention is directed to the Veteran’s in-service treatment for arch pain, his history of treatment and diagnoses of pes planus, plantar fasciitis, metatarsalgia, and degenerative joint disease, (including in VA treatment records dated since his last VA examination in May 2014) and the lay evidence of record that the Veteran has had foot pain since his military service. A rationale for all opinions expressed should be provided as the Board is precluded from making any medical findings. 3. After records development and the above VA foot examination request is completed, the Veteran should be afforded a VA ankle examination to determine the nature of any ankle disability – to include any pain causing functional loss – and to obtain an opinion as to whether such is related to service. The claim file should be reviewed by the examiner. All necessary tests should be conducted and the results reported. The examiner should elicit a full history from the Veteran and consider the lay statements of record. It is noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to the following: a) Whether it is at least as likely as not (i.e., 50 percent or greater probability) that any ankle disability (to include pain causing functional loss) is related to active service. b) Whether it is at least as likely as not (i.e., 50 percent or greater probability) that any ankle disability (to include pain causing functional loss) is (i) caused by or (ii) aggravated (i.e., worsened) beyond its natural progression by any foot disability. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Scarduzio, Associate Counsel