Citation Nr: 20003129 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 17-14 288 DATE: January 14, 2020 ORDER The application to reopen the previously denied service connection claim for residuals of contusion to the great right toe is granted. Entitlement to service connection for residuals of contusion to the great right toe is granted. FINDINGS OF FACT 1. The evidence received since the prior denial relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for residuals of contusion to the great right toe. 2. Resolving reasonable doubt in the Veteran’s favor, residuals of contusion of the great right toe is etiologically related to active service. CONCLUSIONS OF LAW 1. New and material evidence to reopen the claim for service connection for residuals of contusion to the great right toe have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (2018). 2. The criteria for entitlement to service connection for residuals of contusion to the great right toe have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1974 to August 1994. 1. The application to reopen the previously denied service connection claim for residuals of contusion to the great right toe. Generally, a claim which has been denied in an unappealed agency of original jurisdiction (AOJ) 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 which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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). Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. In August 2001, the AOJ denied the Veteran’s claim to reopen entitlement to service connection for residuals of contusion of the great right toe on the basis that there was no evidence of a current condition related to military service. The evidence of record at that time included a February 2001 letter, requesting medical evidence in support of his claim. By letter dated August 2009, the Veteran was notified of this decision and his appellate rights. See August 2001 Notification Letter. However, the Veteran did not appeal or submit new and material evidence within the one-year appeal period after notice of the decision was provided. Therefore, that decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. Evidence submitted since the August 2001 final rating decision includes VA treatment records, private treatment records pertaining to podiatry treatment, and private nexus opinions discussing the link between his in-service injury and his current disability. The Board finds that the information provided, and evidence associated with the Veteran's claims file is sufficient to permit reopening his claim. The evidence relates to an unestablished fact needed to establish service connection (i.e., nexus). Therefore, the Board finds that new and material evidence has been received and the criteria to reopen the Veteran’s claim of service connection for residuals of contusion to the great right toe is met. 2. Entitlement to service connection for residuals of contusion to the great right toe. The Veteran seeks entitlement to service connection for residuals of contusion to the great right toe as a result of his in-service injury. The Veteran asserts that since his in-service injury, where a file cabinet fell on his right foot in January 1994, he has had chronic pain in his great right toe. Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The requirement that a current disability exist is satisfied if the claimant had a disability at the time the claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran has sought service connection for residuals of his right great toe since his separation from active duty service. The Veteran’s STRs reflect that on January 1994, a file cabinet fell on his foot, which required removal of his right hallux toenail and stitches. His December 2003 medical imaging revealed flexion deformity of the toes. He also sought treatment from a private podiatrist, which concluded that the Veteran has a thickened and painful right hallux toenail. See March 2018 Private Medical Opinion. An x-ray showed a fairly large exostosis arising from the distal phalanx beneath the thickened nail. Id. At issue in this case is whether there is a nexus between the Veteran’s current right toe disability and his in-service injury. In September 1994, the Veteran underwent a VA examination to assess the nature and etiology of his claimed great right toe disability. The examiner opined that his claimed disability was less likely as not related to his military service as the Veteran had no residual abnormality from his contusion of great right toe. The Veteran had a second examination in February 2017, where the examiner opined that his claimed disability was less likely as not related to his military service because there was no specific diagnosis and no evidence of a fracture in his x-rays. However, for both opinions, they did not consider additional disability involving the exostosis beneath the right hallux toenail rationale. In contrast, the Veteran submitted a private medical opinion and two supplemental opinions, establishing a nexus between the Veteran’s right toe condition and his January 1994 injury. The podiatrist opined that based on the Veteran’s medical treatment records and service treatment records, the exostosis from beneath his right hallux toenail that required surgery in March 2013, resulted from the Veteran’s in-service injury. See February 2013, November 2014, and September 2015 Private Medical Opinions. In reviewing the medical evidence of record, the Board places less probative weight on the VA examinations as the opinions were conclusory and did not consider the abnormal finding of the exostosis from beneath his right hallux toenail. The Board places more weight on the February 2013, November 2014, and September 2015 private medical opinions. The private opinion was rendered by a medical professional with the expertise to opine on the matter at issue in this case. The Veteran’s physician provides a causal relationship between his foot injury during service to his current disability. The examiner also provided a rationale that took into consideration the Veteran's service treatment records and post-service treatment records. Additionally, the Veteran’s lay statements regarding the symptomatology of his in-service injury and chronic right toe pain are competent and credible. According to the Veteran’s October 2019 hearing testimony, the Veteran has had problems with his great right toe since his initial surgery in January 1994. His contentions are supported by his medical treatment records. Throughout his medical records, the Veteran has reported chronic pain and discomfort in his great right toe. The Board finds that the Veteran has submitted credible lay evidence indicating chronic pain resulting from an in-service injury of his right toe that has continued since service. As the evidence for and the evidence against the Veteran’s claim is in relative equipoise, the benefit of the doubt must be applied in favor of the Veteran. In light of the credible testimony provided by the Veteran, and in conjunction with the private medical opinion establishing a nexus between the Veteran’s service and his great right toe condition, the Board finds in favor of the claim for service connection. 38 U.S.C. § 5107(b); see Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also 38 C.F.R. § 3.102. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’..., the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”) Therefore, the claim for service connection for residuals of contusion of the great right toe is granted. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Adeleke, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.