Citation Nr: 18151114 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-51 691 DATE: November 16, 2018 ORDER New and material evidence to reopen the claim for entitlement to service connection for hallux rigidus right great toe (previously claimed as right great toe injury) has been received; to this limited extent, the appeal is granted. REMANDED Entitlement to service connection for hallux rigidus right great toe (previously claimed as right great toe injury) is remanded. FINDINGS OF FACT 1. In an unappealed January 1994 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for a right great toe injury. 2. Presuming its credibility, the evidence received since the January 1994 Rating Decision, by itself or in conjunction with previously considered evidence does relate to an unestablished fact necessary to substantiate the claim for entitlement to service connection for hallux rigidus right great toe (previously rated as right great toe injury). CONCLUSION OF LAW The additional evidence received since the January 1994 rating decision is new and material to the claim for entitlement to service connection for hallux rigidus right great toe (previously claimed as right great toe injury), therefore the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Air Force from June 1968 to June 1976, and from June 1976 to July 1993. The matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen the claim before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). The question of whether new and material evidence has been received to reopen such a claim must be addressed in the first instance by the Board, because the issue goes to the Board’s jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson, 265 F.3d 1366; see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff’g 8 Vet. App. 1 (1995). Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for hallux rigidus right great toe (previously rated as right great toe injury). Applicable law provides that a claim which is the subject of a prior final decision may be reopened upon presentation of new and material evidence. See 38 C.F.R. § 3.156 (2017). The Board is required to address new and material claims in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the AOJ may have made with regard to a new and material claim is irrelevant. Barnett, 83 F.3d at 1383. Thus, the Board will proceed in the following decision to adjudicate new and material issues in the first instance. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as existing 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 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) (2017). 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, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). The Veteran’s original claim for service connection for right great toe injury was denied on January 1994 based on the findings of a VA examiner who opined that there was no current diagnosis of a right great toe condition. The Veteran did not file an appeal of the decision and he did not assert that there was clear and unmistakable error. Therefore, that decision became final one year after the Veteran was notified of that decision. 38 U.S.C. § 4005 (c); 38 C.F.R. §§ 3.104, 19.118, 19.153. In April 2016, the Veteran filed a petition to reopen his claim for entitlement for service connection for hallux rigidus right great toe. In a May 2016 rating decision, the AOJ considered the Veteran’s petition and denied the Veteran’s petition to reopen this claim. The AOJ denied the Veteran’s petition on the basis that the evidence submitted is new, but not material in that it does not relate to an unestablished fact necessary to substantiate the claim and/or does not raise a reasonable possibility of substantiating the claim. Since the January 1994 Rating decision, the Veteran submitted medical examinations from private facilities including private treatment records from the Gerald Champion Regional Medical Center from April 2016, June 2016, and July 2016, VA medical examinations from May 2015 through August 2016, including the Agent Orange and Gulf War Registries from July 2016, the 49th Medical Group from June 2016 and July 2016, the Lakeview Clinic from July 2016, and the New Mexico Bone Institute from August 2016. Of those records submitted, the New Mexico Bone Institute notes the current disability of hallux rigidus. The examiner followed the statements from the Veteran that the injury was related to his time in service 22 years after discharge from active duty. As noted, when determining whether or not new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Therefore, the findings of the private examination from the New Mexico Bone Institute can be presumed credible. Since the Veteran’s claim for entitlement to service connection for right great toe injury was previously denied due to the Veteran reportedly not having a disability, the fact that the private examination from the New Mexico Bone Institute found a current diagnosis does, by itself or when considered with previous evidence of records, relate to an unestablished fact necessary to substantiate the Veteran’s claim. This evidence was not of record at the time of the prior decision, relates to facts necessary to support the Veteran’s claims, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claims. The criteria for reopening the Veteran’s claims have been met. 38 C.F.R. § 3.156(a). New and material evidence to reopen the claim for entitlement to service connection for hallux rigidus right great toe (previously rated as right great toe injury) has been received; to this limited extent, the appeal is granted. REASONS FOR REMAND Entitlement to service connection for hallux rigidus right great toe (previously rated as right great toe injury) is remanded. To establish a service connection for hallux rigidus, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence 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. 38 C.F.R. § 3.303(a). Without proof of a present disability, there can be no claim, regardless of injuries or diseases sustained during active service. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record. 38 U.S.C. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case. 38 C.F.R. § 303(a). Lay evidence must be given due consideration, and shall include the facts, nature, and circumstances of the service. 38 U.S.C. § 1154(a). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). As already mentioned, the Veteran submitted additional medical evidence since January 1994 to assist his claim for entitlement to service connection. Of those records submitted, those from the 29th Medical Group, the Lakeview Clinic, and the Gerald Champion Regional Medical Center contain no mention of the right great toe injury and/or hallux rigidus. More specifically, they contain no mention of a current diagnosis or treatment of that disability. The Agency Orange Registry examination does contain evidence of a current diagnosis of a right foot bone spur as of a June 2015 examination. That examination contains no mention of continuity of symptomatology, nor a medical nexus between the current disability, and the alleged in-service injury to the toe that happened 22 years prior. The New Mexico Bone Institute notes a current disability of hallux rigidus. This private examiner took an x-ray of the hallux rigidus on the great right toe, and found no distinct fracture or dislocation. In reading the evidence in a way most favorable to the Veteran, the Veteran likely has a current diagnosis of hallux rigidus. There is no evidence that the VA examiner was not competent or credible, and as that report was based on accurate facts and objective examinations, the Board finds it is entitled to significant probative weight as to the severity of the Veteran’s disability. Nieves-Rodriguez, 22 Vet. App. 295. Regarding an in-service injury or event, the Veteran certified in his Notice of Disagreement (NOD) that his current right great toe injury “is a direct result of the injury to the right great toe on February 10, 1969.” In a January 1996 statement from the Veteran’s representative it was claimed that the Veteran “fell and sustained a traumatic hematoma to the right great toe.” The New Mexico Bone Institute noted that “the onset was gradual with injury many years ago. He had dropped a dresser drawer on it.” Regardless of whether the right great toe injury occurred as a result of a fall, or a dresser falling on it, in analyzing the case in a way most favorable to the Veteran, either would likely qualify as an in-service injury or event. Even assuming that the Veteran does have a current diagnosis of hallux rigidus, and assuming that one of the stated in-service injuries meet the requirement for entitlement to service connection, a medical opinion is still necessary to determine if the current diagnosis can be medically linked to the Veteran’s in-service injury or event. When finding the current diagnosis, the private examination from the New Mexico Bone Institute followed the statements from the Veteran that the injury was related to his time in service 22 years after discharge from active duty. And while the Veteran is credible to give insight into the nature of his hallux rigidus, a medical opinion may be deemed inadequate where the medical opinion is generally conclusory and solely based upon the history furnished by the Veteran and on unsupported clinical evidence. Reonal v. Brown, 5 Vet. App. 458, 460 (1993). A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (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 the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 8186 (2006). See also 38 U.S.C. § 5103A (d)(2) (2012); 38 C.F.R. § 3.159 (c)(4)(i). Therefore, the third criteria for entitlement to service connection for hallux rigidus right great toe is not satisfied, so the case is remanded for a medical opinion to determine if a nexus can be established between the current diagnosis and the in-service injury or event. Because the Veteran’s entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim for an entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The matter is REMANDED for the following action: 1. Obtain any relevant and outstanding VA treatment and/or private treatment records. Associate such with the Veteran’s electronic claims file. 2. Thereafter, schedule the Veteran for a medical examination to determine the nature and etiology of any disability of the right great toe, to include hallux rigidus. The examination must include a review of the Veterans claims file, and should note that this case review took place. After a review of the claims file and an examination of the Veteran, the examiner must respond to the following: (a) Does the Veteran have a current disability of the right great toe, to include hallux rigidus? If the Veteran is diagnosed with a disability of the right great toe, to include hallux rigidus, the examiner must explain how the diagnostic criteria are met and provide a full rationale of the conclusion reached. (b) For any disability of the right great toe found, to include a diagnosis of hallux rigidus, is such disability at least as likely as not related to an in-service injury or event? A complete rationale for any opinion or conclusion reached must be provided. The examiner is reminded that the term “as likely as not” means that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. After completing the requested actions, and any additional notification and/or development deemed warranted, the issue should be readjudicated in light of all the evidence of record. If a benefit sought on appeal remains denied, the AOJ should furnish to the Veteran an appropriate supplemental statement of the case (SSOC) and should afford them the appropriate time period for response. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Garrett H. Mulrain, Associate Counsel