Citation Nr: 19129261 Decision Date: 04/16/19 Archive Date: 04/15/19 DOCKET NO. 18-08 523 DATE: April 16, 2019 ORDER The petition to reopen the claim of entitlement to service connection for a right foot injury is granted. Entitlement to service connection for a right foot injury is granted. FINDINGS OF FACT 1. The December 2014 rating decision denied the claim of entitlement to service connection for a right foot injury; the Veteran was notified of the decision and apprised of his right to appeal, but he did not appeal in a timely fashion or submit new and material evidence within one year of notice of the decision. 2. The evidence received since the December 2014 rating decision is neither cumulative nor repetitive of facts that were previously considered. 3. Resolving reasonable doubt in the Veteran’s favor, his right foot disability is at least as likely as not related to his in-service right foot injury. CONCLUSIONS OF LAW 1. The December 2014 rating decision that denied entitlement to service connection for a right foot injury is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.201, 20.302, 20.1103. 2. The evidence received since the December 2014 rating decision is new and material for the purpose of reopening the claim of entitlement to service connection a right foot injury. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for a right foot injury are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Navy from September 1976 to September 1981. These matters are on appeal from an August 2016 rating decision. 1. Whether new and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for a right foot injury. The Veteran seeks service connection for a right foot injury. The claim was previously considered and denied in a December 2014 rating decision. The Veteran did not appeal the decision and it became final. 38 C.F.R. § 20.1103. A review of the claims file reflects that the Veteran did not submit any additional evidence within one year of the rating decision. See 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009). As such, the Veteran’s claim may be reopened only if new and material evidence has been secured or presented since the last final rating decision. 38 U.S.C. § 7105. As general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 20.1105. Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, the veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). At the time of the prior decision, the record included the claim, the service records, and VA treatment records. In essence, at the time of the prior decision, there was no accepted evidence of a nexus between the Veteran’s in-service right foot injury and his current right foot disability. The evidence received since the December 2014 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. The Veteran submitted a positive nexus opinion from his podiatrist. This new evidence addresses the reason for the previous denial; that is, the absence of a nexus. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened. 2. Entitlement to service connection for a right foot injury. The Veteran contends that his right foot disability was caused by his in-service right foot crush injury. The Board concludes that the Veteran has a current disability that is related to his in-service right foot injury. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran has been diagnosed with chronic heel pain that requires the use of orthopedic supports. The Veteran sustained an injury to his right heel in June 1980 when a tree fell on his foot. He was evaluated by the orthopedic clinic in July 1980 and diagnosed with a probable right calcaneal fracture and a deep laceration of the right heel pad. Thus, the question becomes whether the current disability is related to service. On this question, there are probative opinions in favor of and against the claim. In June 1992, the Veteran underwent a VA foot examination. The Veteran endorsed pain and tenderness with prolonged standing. Increased pain caused him to limp on his right foot. The examination was within the normal limits. The VA examiner did not provide an etiological opinion. The Veteran was afforded another VA examination in April 2014. The VA examiner indicated that the Veteran was diagnosed with possible achilles tendonitis in 1983. The Veteran reported a calcaneal fracture in service, but the VA examiner could not locate the fracture in the Veteran’s service treatment records. The VA examiner opined that the Veteran’s right foot disability was less likely than not related to active service. She acknowledged that the Veteran injured his foot in-service, but indicated that the Veteran’s injury during his active service was acute. X-ray studies did not show any signs of degenerative changes. The Veteran underwent his most recent VA examination in June 2016. The VA examiner diagnosed soft tissue heel trauma that occurred in 1980. The Veteran endorsed heel pain since his in-service injury and a loss of sensation from the lateral plantar surface of heel at the fat pad. He explained that he was given a heel cup support for his right heel years prior to the examination. His support broke 5 years prior the examination and he started having pain in his heel 3 years ago. The Veteran indicated that he experienced right foot pain with standing and walking for long periods. The VA examiner indicated that he could not provide a etiological opinion without resorting to speculation. He explained that the Veteran’s current condition was related to the loss of his heel supports and could be corrected with the distribution of new supports. The VA examiner indicated that other etiologies needed to be evaluation before a determination could be made. The etiology of the Veteran’s symptoms could range from plantar fascitis to a lumbar back condition. In June 2017, the Veteran’s private podiatrist, Dr. J.S., provided a etiological opinion. The Veteran had been seen since February 2017, and his heel pain had not improved with numerous treatments. Dr. J.S. concluded that the Veteran’s heel pain was chronic and related to heel pad thinning and displacement, which was more likely than not related to his June 1980 crush injury. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current right foot disability is related to his active service. The Veteran is competent and credible to report right heel pain since his in-service injury. Additionally, the opinion of Dr. J.S. is more probative than the negative opinions of record because Dr. J.S. is a specialist and is the Veteran’s treating physician.   Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a right foot injury is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. R. Watkins, Counsel