Citation Nr: 18155599 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-11 398 DATE: December 4, 2018 ORDER New and material evidence having been received, the issue of service connection for bilateral first great toe pain is reopened. FINDINGS OF FACT 1. An April 2005 rating decision denied the Veteran’s claim of service connection for bilateral first great toe pain; she did not appeal that denial or submit new and material evidence within one year of the notification of that decision, and the April 2005 rating decision became final. 2. The evidence added to the record since the April 2005 rating decision is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral toe pain. CONCLUSIONS OF LAW New and material evidence has been received, and the claim for bilateral 1st great toe pain is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from January 1970 to June 1971, with additional periods of service in the Reserves and National Guard from 1975 to 1984. The Board sincerely thanks her for her service. The Veteran filed her initial claim for a bilateral foot disability in June 2004. She received notification of denial of her claim by letter in April 2005. She did not appeal the decision or submit new and material evidence within one year, and therefore the decision became final. The record at the time of the Regional Office’s (RO) denial contained the Veteran’s STRs, military personnel file, and a VA Examination Report from July 2004. The RO found that the Veteran’s bilateral toe pain neither occurred during nor was caused by her service. Following the April 2005 denial, the Veteran filed a new informal claim in July 2012. In a March 2013 rating decision, the RO declined to reopen the Veteran’s service connection claim for bilateral toe pain based on a lack of new and material evidence. I. New and Material Evidence In general, RO decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.200. However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. “New” evidence is existing evidence not previously submitted to agency decision makers. “Material” evidence is 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 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). The Court of Appeals for Veterans Claims has held that the phrase “raises a reasonable possibility of establishing the claim” must be viewed as enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As explained above, the April 2005 rating decision constituted a final decision regarding the Veteran’s claim for service connection. Since the April 2005 denial, the Veteran has submitted several statements regarding her disability. In her July 2012 claim, the Veteran’s representative described a foot condition caused by wearing combat boots and stated “[the Veteran] did visit the Doctor for this while on active duty.” In a VA 21-526 Application for Compensation filed in September 2012, the Veteran asserted “I started having foot problems from wearing the military issued boots,” and that she had been given permission to wear alternative footwear at the time. The Veteran repeated similar assertions in a May 2013 correspondence. The Form 9 filed in March 2016 also contained the Veteran’s assertion that although she did not go to the doctor at the time, she and her fellow service members “all had foot issues because of the combat boots.” The Board acknowledges the Veteran’s assertions as to the cause and progression of her foot disability, but this theory of entitlement is not new. In the 2005 rating decision, the RO acknowledged in reasoning for its denial that the Veteran “reported that this pain originated in the 1980s and has progressively gotten worse,” and “feel[s] this [pain] is related to boot wear in the military.” As such, these claims are duplicative and cannot serve as the basis for reopening the claim. However, the Veteran’s statement in her September 2012 VA 21-526 that “I was given permission to wear my class ‘A’ footwear,” is new and pertinent to an unestablished fact necessary for her claim; namely, an in-service injury. This detail was not of record at the time of the 2005 denial. Additional new evidence includes a March 2015 podiatry consult report. The report diagnosed the Veteran with diabetes mellitus, varus foot, and hammer toe. Varus foot and hammertoe are new relevant diagnoses not present at the time of the prior denial. The 2005 rating decision only referred to “bilateral 1st great toe pain” and relied on the VA Examiner’s report that “there is very little functional impairment.” The Board finds that new and material evidence has been received to reopen the claim for service connection for a bilateral foot disability. The Veteran’s statement regarding her in-service footwear and the March 2015 diagnoses relate to unestablished facts necessary to substantiate the claim. They were not on file at the time of the previous denial. Therefore, new and material evidence has been received that raises a reasonable possibility of substantiating the Veteran’s claim that her bilateral toe pain is service-connected, and the claim is reopened. REMANDED The issue of entitlement to service connection for bilateral 1st great toe pain is remanded. REASONS FOR REMAND The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a bilateral foot disability because there is no competent medical opinion of record addressing whether the Veteran’s current condition is at least as likely as not etiologically related to her service. Prior medical evidence such as the 2004 VA examination refers only to bilateral toe pain and occurred prior to the current diagnoses of varus foot and hammertoe. Accordingly, a remand for a new VA examination to address the etiological question for the current foot disability is warranted. The matter is REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should undertake appropriate action to obtain any outstanding records pertinent to the Veteran’s claims, to include outstanding non-VA treatment records. 2. After the action requested in paragraph (1) is completed, schedule the Veteran for a VA examination to determine the nature and etiology of any current foot disabilities, to include varus foot and hammertoe. The examiner is requested to provide an opinion concerning whether it is at least as likely as not (50 percent or greater probability) that any current disability, to include varus foot and hammertoe, is related to service, including due to the wearing of military combat boots. The examiner should specifically address the Veteran’s diagnoses of varus foot and hammer toe and the Veteran’s contention that she was granted permission to use special footwear during service due to toe pain. A full rationale is to be provided for all stated medical opinions. If an opinion cannot be made without resort to   speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. McCormick, Associate Counsel