Citation Nr: 20008085 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 16-11 183 DATE: January 30, 2020 ORDER The application to reopen a previously denied claim for service connection for a bilateral foot condition is denied. FINDINGS OF FACT 1. In an April 2003 rating decision, the Veteran’s claim for service connection for a bilateral foot condition was denied. 2. No notice of disagreement (NOD) was filed and no further evidence was added to the claims file for one year after the April 2003 rating decision was mailed. 3. Since the April 2003 rating decision, the Veteran has not submitted evidence in support of his claim for service connection for a bilateral foot condition which is not cumulative or duplicative and had not previously been submitted to either the RO or the Board. CONCLUSIONS OF LAW 1. The April 2003 rating decision denying service connection for a bilateral foot condition is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2019). 2. New and material evidence has not been received to reopen the Veteran’s claim for service connection for a bilateral foot condition. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1973 to August 1973 and from April 1974 to January 1975. Because the Veteran has, at different times, pursued compensation for two very similar issues, a summary of the relevant procedural history is necessary. The Veteran first applied for service connection for an unspecified bilateral foot condition in January 2003. In April 2003 this claim was denied in a rating decision that considered evidence of in-service bilateral callous development as well as February 2003 surgery to correct hammertoe of the left foot toes 2,3,4, and 5. The Veteran did not file a notice of disagreement and no relevant evidence was added to the record within one year of the April 2003 rating decision, which therefore became final. See 38 C.F.R. §§ 20.302, 20.1103 (2019). In October 2004 the Veteran claimed compensation for a disability resulting from his February 2003 surgery on his “left baby toe” at VAMC Baltimore, MD. This claim was denied in a rating decision of March 2005 and again in a rating decision of March 2006. The Veteran did not file a notice of disagreement and no relevant evidence was added to the record within one year of the March 2006 rating decision, which therefore became final. Id. In December 2008, the Veteran filed a statement in support of claim stating he would “like to file an appeal for all the issues denied in the March 2007 rating.” While there is no March 2007 rating in the record, there was a March 2006 rating which denied compensation under 38 U.S.C. § 1151 for left foot surgery conducted at VAMC Baltimore, MD. The December 2008 statement was too late to be a timely notice of disagreement and has instead been accepted as an application to reopen the previously denied claim for service connection for compensation under 38 U.S.C. § 1151 for left foot surgery conducted at VAMC Baltimore, MD. In a December 2011 decision, the Board granted the Veteran’s application to reopen this previously denied claim and remanded it for further development. In a January 2014 decision, the Board denied the Veteran’s claim for compensation under 38 U.S.C. § 1151 for left foot surgery conducted at VAMC Baltimore, MD. A decision of the Board is final unless the Chairman of the Board orders reconsideration. See 38 U.S.C. §§ 7103(a), 7104 (2012); 38 C.F.R. § 20.1100(a) (2019). The record does not reflect an appeal to the Court of Appeals for Veterans Claims (Court), and the Chairman has not ordered reconsideration of this decision. The Board’s January 2014 decision is therefore final. In April 2015 the Veteran filed a claim for service connection for “foot disability/injury.” A June 2015 rating decision denied reopening of the Veteran’s previously denied claim for service connection for a bilateral foot condition. The Veteran filed a timely NOD on the issue of “bilateral foot condition” with an accompanying statement that referenced both his in-service symptoms and his February 2003 surgery and claimed residuals. VA provided a February 2016 Statement of the Case (SOC) which addressed the issue of “[w]hether new and material evidence was submitted sufficient to reopen the finally adjudicated claim for service connection for a bilateral foot condition.” The Veteran filed a timely Form 9, perfecting his appeal on the issue addressed in the SOC, with an accompanying statement addressing both his in-service symptoms and his February 2003 surgery and residuals. The Veteran’s April 2015 claim, restated in his July 2015 NOD, is an application to reopen his claim for service connection for a bilateral foot condition, originally denied in April 2003. While his statements make brief mention of his February 2003 surgery and related wire in his left fourth toe, these are mentioned tangentially to his discussion of the claimed bilateral foot condition, not as a separate claim for compensation under 38 U.S.C. § 1151. This decision will therefore be addressing the application to reopen a claim for service connection for bilateral foot condition, previously denied by rating decision of April 2003. As there is no current appeal on the issue of compensation under 38 U.S.C. § 1151, this will not be discussed further. 1. The application to reopen a previously denied claim for service connection for a bilateral foot condition A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). Evidence is new if it has not been previously submitted to agency decision makers. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2019). Evidence is material if, either by itself or considered in conjunction with previous evidence of record, it relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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. Id. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 14 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Furthermore, in Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the United States Court of Appeals for Veterans Claims (Court) clarified that the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that 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. Id. As noted in the introduction above, a rating decision of April 2003 denied service connection for a bilateral foot condition. As no NOD was filed and no evidence submitted within one year after the April 2003 rating decision was mailed, the rating decision became final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2018). That decision considered the Veteran’s service treatment records (STRs) including evidence of in-service development of bilateral foot callouses, post-service treatment records including the February 2003 left foot surgery, and the Veteran’s statements that his unspecified foot trouble began in service and continued after service. This decision conceded both an in-service foot condition and a currently diagnosed condition but denied service connection because there was no competent evidence of a nexus between the Veteran’s service or in-service condition and his current condition. In order to be material, new evidence would have to show some nexus between the Veteran’s service and his current condition. Since the April 2003 rating decision hundreds of pages of post-service treatment records have been added to the record, and the Veteran has submitted statements that his foot trouble began in service and continued since then. These records and statements are new, in that they were created after the April 2003 decision, so clearly had not been previously submitted to either the regional VA office or the Board. However, the Board finds that they are not material for two reasons. First, the medical records are cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim. They show a current diagnosed condition that was acknowledged in the April 2003 decision, but do not mention a nexus between this condition and his active service. The Veteran’s statements do allege a nexus between the Veteran’s in-service foot trouble and his current condition. However, this is duplicative of statements the Veteran made before the April 2003 decision. Furthermore, the Veteran is not competent to opine on the cause of his current foot condition because this is a complex medical issue that requires specialized understanding of the interactions between body systems and the ability to interpret specialized medical tests, which the Veteran is not shown to have. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Because the new evidence received since the April 2003 decision is not material, the Veteran’s application to reopen a previously denied claim for service connection for bilateral foot condition is denied. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Zimmerman 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.