Citation Nr: 20003255 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 18-00 690 DATE: January 14, 2020 ORDER New and material evidence having been received, the claim of entitlement to service connection for heel spurs is reopened. Entitlement to service connection for hammertoes, chronic pain of the toes and foot scarring is granted. REMANDED Entitlement to service connection for a foot disability other than hammertoes, chronic pain of the toes and foot scarring, is remanded. FINDING OF FACT 1. In July 2009, the Regional Office (RO) denied the Veteran’s claim of entitlement to service connection for heel spurs; he did not appeal this decision, nor did he submit new and material evidence within one year. 2. Additional evidence associated with the claims file since the July 2009 rating decision is not cumulative and redundant of the evidence of record at the time of the prior denial; it relates to unestablished facts necessary to substantiate the claim for service connection for a foot disability, to include heel spurs, and it raises a reasonable possibility of substantiating the claim. 3. Resolving reasonable doubt in the Veteran’s favor, his hammertoes, chronic pain of the toes and foot scarring is at least as likely as not related to the foot injuries documented in service that resulted from wearing undersized boots. CONCLUSION OF LAW The criteria for service connection for hammertoes, chronic pain of the toes and foot scarring are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.156, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 2001 to November 2001 and again from March 2003 to August 2004. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision by the Philadelphia, Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA). As discussed below, the Board is reopening the Veteran’s previously-denied service-connection claim for heel spurs, and expanding the claim for consideration as to whether service connection may be awarded for any foot disability. Cf. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (U.S. 2009). As discussed below, the evidence of record is sufficient to establish service connection for bilateral hammertoes, toe pain and foot scarring. However, additional evidentiary development is necessary before an informed decision can be made with respect to the Veteran’s other diagnosed foot disabilities. Application to Reopen Previously Denied Claim In July 2009, the RO denied the Veteran’s claim for service connection for heel spurs. The Veteran did not appeal this determination by the RO, nor did he submit additional evidence within one year of notice of the July 2009 decision. As such, the February 2009 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In June 2015, the Veteran filed a service-connection claim for a bilateral foot condition. See June 2015 Application for Disability Compensation and Related Compensation Benefits, VA Form 21-526EZ. If a claim of entitlement to service connection has previously been denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. 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). The evidence VA is required to review for newness and materiality is that which has been submitted by the claimant since the last final disallowance of the claim on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996). The prior evidence of record is important in determining newness and materiality for the purposes of deciding whether to reopen a claim. Id. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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). Furthermore, in determining whether this low threshold is met, the VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include activating the Secretary’s duty to assist. Shade, 24 Vet. App., at 118. The Veteran’s heel spurs claim was denied primarily because the Veteran had not demonstrated a current disability or nexus sufficient for VA compensation purposes. See February 2009 Rating Decision Narrative. In January 2016, during the pendency of his appeal, the Veteran underwent a VA medical examination, at which time, the examiner documented bilateral heel pain and recorded the Veteran’s complaints of bilateral foot pain, since 2003, impacting his heel and forefoot. See January 2016 VA Examination Report. In November 2017, also during the pendency of his appeal, the Veteran underwent a VA medical examination in which the VA examiner noted that the Veteran suffered pain at the bottom of his feet from his heels to his toes, which was worse after walking. See November 2017 VA Examination Report. This additional evidence relates to whether the Veteran has a current bilateral foot disability, causing him to experience symptoms in his heels, sufficient for VA compensation purposes. The evidence is new, material, and serves to reopen the Veteran’s claim. As noted above, the Board has expanded this reopened claim to include consideration as to whether service connection may be awarded for any current foot disability. Entitlement to service connection for hammertoes, chronic pain of the toes and foot scarring is granted. The Veteran contends that his foot disabilities developed as a result of wearing undersized boots during his military service. See November 2015 VA 21-4138 Statement in Support of Claim; June 2015 Lay Statement from K.A. The evidence of record supports a finding that the Veteran has diagnoses of hammertoes, chronic pain of the toes and foot scarring that developed as a result of wearing undersized boots during his military service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a) See also October 2015 Private Treatment Records; January 2016 VA Examination Report. The lay evidence in favor of the Veteran’s claim includes statements describing the Veteran’s symptoms. The Veteran’s supply sergeant described her attempts to provide the correct sized desert boots for the Veteran during active service and noted that the Veteran was forced to wear combat boots that were two sizes two small in width and that had been designed to be rigid for a colder climate. See February 2015 Lay Statement from K.A. She emphasized the difficulty the Veteran experienced with his undersized boots, recalling that the Veteran had sliced the sides open on a pair of desert boots in an unsuccessful attempt to modify these boots to fit the dimensions of his feet. Id. A March 2017 statement from the Veteran’s medic reported similar observations, stating that the Veteran was unable to get larger, tan desert boots and had to wear black combat boots that were too small. See March 2017 Lay Statement from T.P. She also noted that the Veteran had blisters on top of his feet and that the Veteran suffered pain in his arches and heels due to this ill-fitting footwear. Id. An April 2017 lay statement from the Veteran’s spouse reports that the Veteran discussed the pain caused by his undersized boots at length and had even been brought to tears on account of the pain from his undersized boots. See April 2017 Lay Statement from the Veteran’s spouse. Turning to the medical evidence, concerning scarring, the Veteran was first seen during active duty service for complaints of pain on the top of his left foot, on account of his boots rubbing the top of his feet raw. See August 2003 Service Treatment Records. The January 2016 VA examiner attributed the Veteran’s current scarring to his service, reporting that the Veteran “does have two small scars on the dorsum of his feet that do appear consistent with improperly sized boots.” See January 2016 VA Examination Report. Based on the examiner’s report and consistent with the lay evidence, the Board finds that the Veteran’s foot scarring is related to his service. Concerning hammertoes and chronic pain of the toes, the Veteran has submitted probative medical evidence from his private physician, M.S., that connects these disabilities to the Veteran’s service. See October 2015 Private Nexus Opinion. The Veteran’s private physician provided an in-person examination to the Veteran, took a medical history from him, and reviewed the Veteran’s service treatment records and a lay statement from the Veteran’s supply sergeant, K.A. Id. M.S. observed that the Veteran has suffered “chronic pain of his feet since he was in the service in 2003 in Iraq.” Id. She noted that the Veteran “was evaluated by the service physician who diagnosed blisters on his feet.” M.S. determined that the Veteran “had significant problems due to army’s inability to provide appropriate fitted footwear during the war,” that “since then he has had chronic pain,” and that as a result of his undersized boots, “he developed hammertoes.” Id. M.S. formally assessed the Veteran with “hammertoes of both feet and chronic pain of toes of both feet” and concluded “it is with a reasonable degree of medical certainty that I think the chronic pain and foot deformities are related to improperly fitted footwear during the war when the patient was in the service.” Id. The Board places significant weight on M.S.’s examination of the Veteran, as M.S. personally examined the Veteran and reviewed the relevant service treatment records. Based on M.S.’ report and consistent with the lay evidence, the Board finds that the Veteran’s hammertoes and chronic toe pain is related to his service. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In sum, service connection is granted for bilateral hammertoes, chronic pain of the toes and foot scarring. To this extent only, the appeal is granted. REASONS FOR REMAND Entitlement to service connection for a foot disability other than hammertoes, chronic pain of the toes and foot scarring is remanded. The Veteran received his most recent VA examinations for foot conditions in January 2016 and November 2017. The examiners reported that the Veteran had evidence of current diagnoses of pes planus, hallux valgus, and hallux rigidus, and degenerative changes in the joints of his feet; both examinations also revealed complaints of heel pain. See January 2016 VA Examination Report; November 2017 VA Examination Report. The Veteran’s medic also remarked that she believed the Veteran may have had a diagnosis of plantar fasciitis. See March 2017 Lay Statement from T.P. The negative medical nexus opinions obtained from VA examiners lack sufficient supportive medical explanation or rationale. Indeed, the November 2017 relied on a lack of medical evidence connecting the Veteran’s undersized boots to any permanent foot condition; however, as discussed above, such evidence does exist, as the Veteran has provided a private medical opinion that connects some of the Veteran’s foot disabilities to wearing undersized boots in service. See November 2017 VA Examination Report; October 2015 Private Nexus Opinion. The January 2016 medical opinion relies in large part on an absence of documented diagnoses of hallux valgus or pes planus deformities during service. With respect to other disabilities, the negative nexus opinion was more conclusory than explanatory in nature. A prior August 2015 opinion is similarly based largely on an absence of documented diagnosis for 10 years since service. For these reasons, a new examination is necessary to clarify the nature and etiology of the Veteran’s foot disabilities. The matters are REMANDED for the following action: 1. Associate all outstanding VA treatment records with the Veteran’s claims file. 2. Schedule the Veteran for a new VA examination for his bilateral foot disability. The record must be made available to, and reviewed by the examiner, and the examiner should take a history from the Veteran as to the progression of his disabilities. Any indicated evaluations, studies, and tests should be conducted. 3. Following a review of the entire record, to include the Veteran’s lay statements concerning onset and continuity of symptomatology, the examiner should address the following questions: a. Please clarify all current disabilities of the Veteran’s feet other than hammertoes and foot scarring. b. For each foot disability identified, is it at least as likely as not (i.e., a 50 percent or greater probability) that such disability had its onset in, or is otherwise related to his period of active duty service, to specifically include wearing undersized boots? c. Notwithstanding the answer provided to question (b) above, for each foot disability identified, is it at least as likely as not (i.e., a 50 percent or greater probability) that the disability was caused or aggravated beyond its natural progression by the Veteran’s service-connected hammertoes or foot scarring? In this regard, the Board emphasizes that causation and aggravation are two separate inquiries, and both must be answered. d. In offering any opinion, the examiner must consider the full record, to include the Veteran’s service and post-service treatment record, as well as the Veteran’s lay statements regarding the onset and continuity of symptoms. A complete rationale, supported by sound medical reasoning, must be provided for all opinions provided. (Continued on Next Page) 4. Thereafter, and after any further development deemed necessary, the issues on appeal should be readjudicated. If the benefits sought on appeal are not granted, the Veteran should be provided with a Supplemental Statement of the Case and afforded the appropriate opportunity to respond. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hennessy, 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.