Citation Nr: 18159065 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 17-10 850 DATE: December 18, 2018 ORDER The petition to reopen the claim for entitlement to service connection for a bilateral foot disorder is granted. REMANDED Entitlement to service connection for a bilateral foot disorder is remanded. FINDINGS OF FACT 1. An unappealed November 2012 rating decision denied the Veteran’s petition to reopen the claim for entitlement to service connection for a bilateral foot disorder. 2. The evidence received since the November 2012 rating decision is not cumulative or redundant of that considered previously, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for a bilateral foot disorder. CONCLUSIONS OF LAW 1. The November 2012 rating decision denying the Veteran’s request to reopen the petition for entitlement to service connection for a bilateral foot disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received since the January 2009 rating decision denying the Veteran’s petition for entitlement to service connection for a back injury. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from June 1969 to December 1971. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a bilateral foot disorder. Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as 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 C.F.R. § 3.156(a). The language of 38 C.F.R. § 3.156(a) creates a “low threshold”, and the phrase “raises a reasonable possibility of substantiating the claim” means “enabling rather than precluding reopening.” See Shade v. Shinseki, 24 Vet. App. 110 (2010). Here, the Veteran initially filed his claim for a bilateral foot disorder in June 2008, which was denied in an unappealed October 2008 rating decision. The Regional Office (RO) concluded that there was no residual or chronic bilateral foot disorder at the Veteran’s separation examination or after discharge from service, although he was treated in June 1970 for an injury to the great right foot toe and/or treatment for twisting his right foot in July 1971. This decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. He again filed a claim for a bilateral foot disorder with symptoms of pain and numbness in June 2011, which was denied in an unappealed November 2012 rating decision. Again, the RO, in part, concluded that there was no current diagnosis of a bilateral foot disorder. Since he did not appeal this decision, it too became final. Id. More recently, in January 2015, he requested that the claim for bilateral foot disorder be reopened. In May 2015, the RO determined that there was new and material evidence to reopen the claim but denied it on the merits. The pertinent evidence of record that has been received since the November 2012 rating decision includes private medical treatment records, showing that the Veteran had generalized pain to the plantar portion of his feet and that he had a history of problems with heel spurs for which he was treated with cortisone injections. See private medical treatment records from Arizona Foot Specialists, LTD. dated December 2006 (received by VA in November 2014). Additionally, VA medical treatment records reveal that the Veteran has been diagnosed with plantar fasciitis. See VA medical treatment record dated April 2015. Moreover, the VA medical treatment records are replete with complaints and treatment for bilateral foot pain. This additional medical evidence of record is new and material as it relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the evidence is new and material and the petition to reopen the claim for service connection for a bilateral foot disorder is reopened. 38 C.F.R. § 3.156. REASONS FOR REMAND Entitlement to service connection for a bilateral foot disorder is remanded. Although the claim for service connection for a bilateral foot disorder has been reopened, the evidence of record is inadequate to make a determination at this time. Specifically, medical commentary is necessary to determine the etiology of the Veteran’s diagnosed bilateral foot disorder, including plantar fasciitis and heel spurs, and, if any, its relationship to the Veteran’s active duty and in-service treatment for an injury to the great right foot toe and/or treatment for twisting his right foot. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA medical treatment records dated from June 2016 forward. 2. Contact the Veteran and request that he identify any and all outstanding private treatment records related to his bilateral foot disorder on appeal. Request that he provide, or authorize VA to obtain, these records. 3. Upon receipt of all additional treatment records, please schedule the Veteran for the appropriate VA examination to determine the nature and etiology of his bilateral foot disorder. Prior to the examination, the claims folder, including this remand, must be made available to the examiner for review of the case and this review should be noted. All necessary diagnostic testing and evaluation should be performed, and all findings set forth in detail. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed bilateral foot disorder had its clinical onset during active service or is related to the Veteran’s in-service treatment for an injury to the great right foot toe and/or treatment for twisting his right foot. The examiner must provide a comprehensive report of his/her findings, including complete rationales for all opinions expressed and conclusions reached, preferably citing the objective medical findings leading to the conclusions. Shamil Patel Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Sangster, Counsel