Citation Nr: 18158655
Decision Date: 12/17/18	Archive Date: 12/17/18

DOCKET NO. 16-45 256
DATE:	December 17, 2018
REMANDED
Entitlement to service connection for left toe disability is remanded.
REASONS FOR REMAND
The Veteran served on active duty from April 1986 to September 2009.  
These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.
Entitlement to service connection for left toe disability is remanded
A remand is required to have the RO develop and readjudicate the Veteran’s service connection claim for a left toe disability on a de novo basis. 
An October 2009 rating decision denied, in pertinent part, the Veteran’s claim of entitlement to service connection for his left foot disability (pes planus), on the basis that this condition pre-existed his military service and that there is no evidence showing that the condition worsened because of service.  The Veteran did not perfect an appeal with respect to this issue.  As such, the decision became final.
A review of the Veteran’s medical records dated June 2015 to November 2015, shows that he was diagnosed with a hallux disability for his left foot (left toe disability) in June 2015. 
In a March 2016 application for benefits, the Veteran filed a claim of entitlement to service connection for left foot, big toe joint.  Though he did not seek to reopen the pes planus issue, the RO characterized the claim as one to reopen service connection for a left foot disorder.  The Board points out that the U.S. Court of Appeals for the Federal Circuit held in Ephraim v. Brown, 82 F.3d 399, 401 (Fed. Cir. 1996) that a newly diagnosed disorder, whether or not medically related to a previously diagnosed disorder, cannot be the same claim when it has not been previously considered.  See also Boggs v. Peake, 520 F.3d 1330 (2008).  As the Veteran did not have a left toe disability in 2009, and it was not considered in the October 2009 rating decision, the March 2016 claim was not a claim to reopen, but rather was an original claim for service connection.  Moreoever, as the Veteran has consistently in this appeal sought service connection only for the toe, and not for any other left foot disorder, the issue before the Board is limited to the left great toe disability.  For the foregoing reasons, the Board has recharacterized the claim as one of entitlement to service connection for left toe disability. 
Given that the RO developed the appeal as one requiring new and material evidence, the Board finds that the Veteran has been prejudiced by the RO’s use of the wrong standard.  Consequently, remand is warranted to have the RO readjudicate the claim on a de novo basis. 
Accordingly, the matter is REMANDED for the following action:
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The RO should develop and readjudicate the left toe disability claim on its underlying merits (de novo).  If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response.  Thereafter, return the case to the Board for further appellate consideration, if otherwise in order.
 
THOMAS H. O'SHAY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T. Trowers, Associate Counsel