Citation Nr: 18156756 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 15-35 680 DATE: December 11, 2018 ORDER New and material evidence having been received, the claim for service connection for left foot arch disorder is reopened. REMANDED The issue of entitlement to service connection for cervical spondylosis has been remanded. The issue of entitlement to service connection for left foot arch disorder has been remanded. The issue of entitlement to service connection for left hip disorder has been remanded. FINDING OF FACT 1. A claim for service connection for left foot arch disorder was denied by the RO in April 2008 and no new and material evidence pertinent to this claim was received by VA within one year from the date that the RO mailed notice of this adverse determination to the Veteran; this rating action was the last final denial as to this issue on any basis before the present attempt to reopen the claim. 2. Evidence received since the April 2008 rating decision is new and raises a reasonable possibility of substantiating the underlying claim for service connection for left foot arch disorder. CONCLUSION OF LAW The April 2008 rating decision that denied service connection for left foot arch disorder is final; new and material evidence has been received sufficient to reopen this previously denied and unappealed claim. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156(a), 20.1103 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty with the United States Navy Reserve from August 26, 1991 to September 6, 1991, from May 1, 1996 to September 30, 1996, from November 12, 1996 to February 15, 1997, from August 12, 1998 to September 2, 1999 and from February 24, 2003 to July 31, 2003. A Travel Board hearing was held in August 2016 and a transcript is of record. New and Material Evidence The Veteran seeks to reopen a previously denied claim for service connection for left foot arch disorder. Once a decision becomes final, absent submission of new and material evidence, a claim may not thereafter be reopened or readjudicated by VA. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a); Suttman v. Brown, 5 Vet. App. 127, 135 (1993). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means 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 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Moreover, if it is determined that new and material evidence has been submitted, the claim must be reopened and considered on the merits. Elkins v. West, 12 Vet. App. 209 (1999). In determining whether evidence is new and material, the credibility of the new evidence is, preliminarily, to be presumed. If the additional evidence presents a reasonable possibility that the claim could be allowed, the claim is accordingly reopened and the ultimate credibility or weight that is accorded such evidence is ascertained as a question of fact. 38 C.F.R. § 3.156; Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In an April 2008, rating decision, the RO denied service connection for left foot arch disorder on the basis that there was no evidence that such a disorder occurred in or was caused by any eligible period of military service. The April 2008 rating decision became final because no notice of disagreement or new and material evidence was submitted within one year of the date on which it was issued. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). This rating action was the last final denial as to this issue on any basis before the present attempt to reopen the claim. However, the evidence received since then is both new and material to the claim. Such evidence consists of the Veteran’s testimony from the August 2016 Board hearing where he testified that his left arch disorder is related to his cervical spine disorder. This new theory of entitlement, in conjunction with VA’s duty to assist, requires reopening. Shade, 24 Vet. App. at 117. REASONS FOR REMAND The Veteran contends that his cervical spondylosis had its onset during military service as a result of an in-service injury. At his August 2016 Board hearing, he testified that he sustained a severe blow to the head while playing basketball during a period of annual training in September 1991. He lost consciousness and received sutures for a gash in his head at St Joseph’s Hospital and returned to the Reserve Center. The Board finds that the evidence currently of record is insufficient to decide this claim and that further evidentiary development is therefore needed before a decision can be reached on the merits. Service treatment records confirm that on September 4, 1991, the Veteran was treated for a laceration above the right eye when his eyeglasses were broken while playing basketball. There was no profuse bleeding and no indication of loss of consciousness. He was transported to a private facility for further care. Another entry shows that the Veteran’s sutures were removed on September 8. The wound was clean with no sign of infection and healing well. There is no indication that the Veteran had a need for continued or ongoing medical care due to any acute symptoms in the immediate years after the injury occurred. Subsequently dated entrance, annual and reserve retention examinations between 1992 and 2005 show the Veteran specifically denied a history of head injury and silent as to any neck problems. Presently, the Veteran has a diagnosis of cervical spondylosis confirmed by CT scan in October 2013. In this case, the Veteran has provided both evidence of a current diagnosis and an incident in service which requires further explanation or development. VA has not afforded him an appropriate examination with medical opinion as to whether his cervical spondylosis is in any way related to service. Therefore, a medical opinion is needed. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). With regard to the left foot arch and left hip disorders, the Veteran now claims that both disorders are related to his cervical spine spondylosis. However, because the development and outcome of the pending cervical spine claim may impact the left foot arch and left hip claims, they are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a veteran’s claim for the second issue). Thus, adjudication of these claims must be deferred until after completion of the actions requested below. The Board cautions that while the post-service evidence is silent with respect to confirmed diagnoses of a left foot arch or left hip disorders, the Veteran’s complaints of pain might constitute a disability if the pain results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that pain causing functional impairment can constitute a current disability). Therefore, any examination should include consideration of whether the Veteran has pain that reaches the level of a functional impairment for which service connection may be granted. The matters are REMANDED for the following action: 1. Obtain all clinical records, both VA and non-VA, pertaining to treatment of the Veteran for cervical spondylosis, left arch disorder and left hip disorder that are not already in the claims file. The Board is particularly interested in any treatment that he may have received from St. Joseph’s Hospital in September 1991 as referenced in service treatment records and his August 2016 hearing testimony. If these records are not available, it should be clearly stated in the claims file. 2. After any additional records are associated with the claims file, schedule the Veteran for appropriate VA examination to determine the onset and etiology of his claimed cervical spondylosis, left foot arch disorder, and left hip disorder. The electronic claims file should be made available for review in connection with these examinations. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted, and the results included in the examination report. The examiner must utilize the appropriate Disability Benefits Questionnaires (DBQ). He/She must explain the underlying rationale for all opinions expressed, citing to supporting factual data/medical literature, as deemed indicated. If the examiner cannot render an opinion without resorting to mere speculation, a full and complete explanation for why an opinion cannot be rendered should be provided. With respect to cervical spondylosis: The examiner should provide an opinion regarding whether the Veteran’s cervical spondylosis is at least as likely as not, (i.e., a 50 percent probability or greater) had its clinical onset during, or is otherwise associated with, his service. The examiner is asked to consider the Veteran’s in-service injury as the possible onset of, or precursor to cervical spondylosis. Specifically, he/she should discuss the likelihood that cervical spondylosis would have resulted from the documented in-service injury. If cervical spondylosis cannot be regarded as having had its onset during active service, the examiner should explicitly indicate so and provide an appropriate explanation. With respect to the left foot arch and left hip: The examiner should identify all current left foot arch and left hip disorders or whether any complaints of left foot arch and left hip pain alone have resulted in functional impairment. He/She should then provide an opinion regarding whether any diagnosed disorder or such functional impairment is at least as likely as not, (i.e., a 50 percent probability or greater) caused by his cervical spondylosis or ii) is aggravated (i.e. permanently worsened beyond its natural progression) by cervical spondylosis. If no aggravation is found, the examiner should specifically indicate so and explain why that is. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.R. Bryant