Citation Nr: 18156150
Decision Date: 12/07/18	Archive Date: 12/07/18

DOCKET NO. 16-51 618
DATE:	December 7, 2018
ORDER
The application to reopen the claim for service connection for a right foot disability is granted.  To this extent only, the appeal is granted.
REMANDED
Entitlement to service connection for a right foot disability is remanded.
FINDING OF FACT
The evidence received since the September 2002 rating decision regarding service connection for a right foot disability is not cumulative or redundant and raises a reasonable possibility of substantiating the Veteran’s claim.  
CONCLUSION OF LAW
New and material evidence having been submitted, the service connection claim for a right foot disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from June 1991 to May 1993.  He received the Army Service Ribbon, National Defense Service Medal, and Marksman Rifle Badge (M-16).
The Veteran’s claim for service connection for a right foot disability was initially denied in a September 2002 rating decision.  The Regional Office (RO) did not provide reasons for the denial; however, the Veteran did not appeal this decision or submit new evidence within one year of the denial.  The September 2002 decision thereby became final.  
The Veteran subsequently filed claims to reopen in October 2003, June 2005, and January 2009.  The RO issued rating decisions in July 2009 and November 2009.  The Veteran submitted a notice of disagreement in October 2010. See EF v. Derwinski, 1 Vet. App. 324, 326 (1991) (noting that VA’s duty to assist extends to a liberal reading of all documents).  Instead of issuing a statement of the case, the RO issued another rating decision in June 2011.  The Board finds that the current appellate period begins on October 22, 2003—the date of the Veteran’s claim to reopen.  In determining whether new and material evidence has been submitted, the Board has considered the evidence submitted since the October 2003 claim to reopen.
Since the September 2002 decision, the Board finds that evidence submitted is new and material.  Specifically, the Veteran has submitted a new theory of entitlement—that his right foot disability is secondary to his service-connected left knee disability.  The Board finds that this new theory reasonably raises the possibility of substantiating the Veteran’s claim for service connection, and the Board will reopen the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (noting 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 the claim).  
REASONS FOR REMAND
Service Connection for a Right Foot Disability
The Veteran underwent a VA examination in July 2009.  However, the examiner did not address whether the Veteran’s right foot disability could be caused or aggravated by compensating for functional or mechanical effects of his left knee disability with his right foot.  Thus, on remand, the RO should obtain a new opinion that addresses whether the Veteran’s right foot disability is caused or aggravated by his left knee disability. See Hayes v. Brown, 5 Vet. App. 60 (1993) 
The matter is REMANDED for the following action:
Schedule the Veteran for an examination to ascertain the nature and etiology of his right foot disability.  Any indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished.  The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion, and the examination report should include a discussion of the Veteran’s documented medical history and assertions.
The examiner should offer comments, an opinion and a supporting rationale that addresses whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s right foot disability is caused or aggravated by his left knee disability.  
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The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered.  If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so.
 
A. S. CARACCIOLO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	W.V. Walker, Associate Counsel