Citation Nr: 18156993 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-62 616 DATE: December 11, 2018 ORDER New and material evidence having been received, the appeal to reopen the claim of entitlement to service connection for a bilateral foot condition, to include plantar fasciitis, hammertoes, hallux valgus, and pes planus (hereafter referred to simply as a “bilateral foot condition”), is granted. REMANDED Entitlement to service connection for a bilateral foot condition is remanded. FINDINGS OF FACT 1. In an unappealed July 2012 rating decision, the Regional Office (RO) denied the Veteran’s claim for service connection for a bilateral foot condition. 2. The evidence associated with the claims file subsequent to the July 2012 rating decision denying service connection for a bilateral foot condition relates to an unestablished fact and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The July 2012 rating decision is final with respect to entitlement to service connection for a bilateral foot condition. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The evidence received since the final July 2012 rating decision is new and material; therefore, reopening of the Veteran’s claim for entitlement to service connection for a bilateral foot condition is warranted. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 1973 to November 1976. Thereafter, he served in the National Guard, which resulted in multiple additional periods of active duty. These included a period from February 2003 to February 2004, during which the Veteran served in Iraq. This case is on appeal before the Board of Veterans’ Appeals (Board) from a July 2014 rating decision and August 2014 notification letter of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. New & Material Evidence The VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 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). In determining whether new and material evidence has been received, the VA must initially decide whether evidence associated with the claims file since the prior final denial is new. New evidence is that which was not of record at the time of the last final disallowance on any basis of the claim, and is not merely cumulative of other evidence that was then of record. 38 C.F.R. § 3.156(a). That analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 510-513 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Veteran’s claim for service connection for a bilateral foot condition was initially denied in a July 2012 rating decision and notification letter because the evidence did not show that his bilateral foot condition was related to events experienced in service. The Veteran did not file a notice of disagreement or submit new and material evidence within one year of that determination; therefore, it became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. Based on the record, the Board finds that the claim presented is one to reopen a previously denied claim for service connection for a bilateral foot condition. Velez v. Shinseki, 23 Vet. App. 199, 204 (2009). Since the previous final denial in July 2012, the Veteran has argued that his bilateral foot condition has a different etiology than previously thought. At the time of the prior determination, the Veteran claimed that his bilateral foot condition originated because he was issued boots that were too small during his tour in Iraq. However, the Veteran now asserts that his bilateral foot condition is related to a fall he experienced on active duty in that country. In support of this assertion, the Veteran has submitted an opinion from Dr. J.F., a private physician, who concluded that the Veteran’s fall led to his current disability. See July 2014 correspondence; see also December 2016 treatment record; see also December 2016 Form 9. This evidence is “new” because it had not been previously submitted and considered by the VA. It is also material because it relates to an unestablished fact necessary to substantiate the claim – a nexus between the Veteran’s bilateral foot condition and active service. Accordingly, new and material evidence has been received. Thus, the Veteran’s request to reopen his claim for entitlement to service connection for a bilateral foot condition is granted. 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. 110. Nonetheless, even with these new submissions, the Board finds that additional development is needed prior to adjudication of the claim. Therefore, the Veteran’s claim for service connection for a bilateral foot condition is remanded. REASONS FOR REMAND Although further delay is regrettable, the Board finds that additional development is required prior to adjudication of the remaining issue on appeal. The Veteran seeks service connection for a bilateral foot condition, alleging that it is related to an injury he sustained in service. Specifically, he traces his bilateral foot condition to a fall he suffered during his deployment to Iraq in 2003. According to the Veteran’s account of the incident, he fell approximately 10 feet from the top of a building. He indicates that he landed on a concrete pad, injuring his feet and back. The Veteran claims that he did not experience any foot problems prior to this deployment, but began suffering from foot pain soon after he returned to the United States. He was diagnosed with plantar fasciitis in February 2005, and has had to wear shoe inserts ever since. See December 2016 Form 9. Although the Veteran’s fall is not referenced in any of his service treatment records, he has submitted a July 2012 sworn statement from J.T.F., a medic who served with the Veteran’s unit in Iraq. J.T.F. indicated that the Veteran fell from a ladder when climbing to the roof of a building for guard duty. J.T.F. went on to say that he treated many soldiers in Iraq, including the Veteran. However, these incidents were often not documented because the distribution of paperwork was poor at the time. The Veteran has undergone two separate VA examinations to assess the nature and etiology of his bilateral foot condition. The first was in June 2012, the second in June 2016. However, the Board finds that these examinations are not adequate in light of the Veteran’s current complaints. Indeed, both the June 2012 and June 2016 VA examiners only considered whether the Veteran’s bilateral foot condition could have been caused by him wearing boots that were too small during his deployment. Neither addressed the possibility that the Veteran’s foot disability could have been caused by the 2003 fall recounted both by J.T.F. and the Veteran. Dr. J.F., a private physician, submitted a letter in support of the Veteran’s claim in December 2016. He confirmed that the Veteran had been diagnosed with a hammertoe deformity on the second digit of his left foot, along with a plantar plate tear of the second metatarsophalangeal joint of the left foot. The Veteran told Dr. J.F. about his 2003 fall in Iraq, stating that he experienced pain in his feet at the time, which soon resolved. However, he developed a crossover hammertoe deformity soon afterward. Based on the results of the examination, as well as the Veteran’s account of his injury, Dr. J.F. concluded that the 2003 fall led to the Veteran’s current disability. The findings reflected in the June 2012 and June 2016 VA examinations, as well as the December 2016 letter from Dr. J.F., confirm the existence of a current bilateral foot condition. Moreover, the Veteran’s account of his 2003 fall in Iraq, which was corroborated by the statement from J.T.F., provides convincing evidence of an in-service event or injury. Lastly, although the letter from Dr. J.F. suggests a nexus between the Veteran’s current bilateral foot condition and the 2003 fall, the Board does not find this opinion adequate to support a grant of service connection. Indeed, Dr. J.F. did not offer any rationale to support his conclusions. Moreover, he did not cite to any medical authorities, nor is there any indication that he reviewed the Veteran’s service or VA treatment records. As such, the Board finds that an additional examination is necessary before a determination can be made. The matter is REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his bilateral foot condition. The examiner must consider the evidence added to the claims file since the previous final denial in July 2012, including the opinion of Dr. J.F. from December 2016. The examiner must then opine whether the Veteran’s bilateral foot condition is at least as likely as not related to an in-service injury, event, or disease, to include his fall during his tour of active duty in Iraq in 2003. 2. After completing the above, and any other development deemed necessary, adjudicate the appeal. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD MJS, Associate Counsel