Citation Nr: 20021115 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 18-13 569 DATE: March 24, 2020 ORDER New and material evidence has been presented, and the claim of entitlement to service connection for bilateral foot tarsal condition is reopened; the appeal is granted to this extent only. REMANDED Entitlement to service connection for bilateral foot tarsal condition is remanded. FINDINGS OF FACT 1. A June 1975 rating decision denied service connection for bilateral foot tarsal condition. The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of the notice of that rating decision. 2. The evidence received since June 1975, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral foot tarsal condition. CONCLUSIONS OF LAW 1. The June 1975 rating decision, which denied the Veteran’s claim of entitlement to service connection for bilateral foot tarsal condition, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2019). 2. The evidence received since the June 1975 rating decision is new and material, and the claim of entitlement to service connection for bilateral foot tarsal condition is reopened. 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 in the United States Navy from June 1971 to July 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied reopening the claim for entitlement to service connection for bilateral foot tarsal condition, finding that new and material evidence had not been submitted. Notwithstanding determinations by the RO that new and material evidence has or has not been received to reopen the Veteran’s claim, it is noted that on its own, the Board is required to determine whether new and material evidence has been presented. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (holding that the Board has a legal duty under 38 U.S.C. §§ 5108 and 7104, to address the question of whether new and material evidence has been presented to reopen a previously denied claim); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Whether new and material evidence sufficient to reopen the claim of entitlement to service connection for bilateral foot tarsal condition has been received. Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2019). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a) (2019). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Id. There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 117-18. The June 1975 rating decision denied the Veteran’s claim because the RO determined his condition pre-existed service and was not aggravated in service. The evidence considered included service treatment records, private treatment records, and a lay statement by the Veteran. The Veteran did not file a notice of disagreement or submit new and material evidence within one year of the rating decision. As such, the June 2015 rating decision became final. The Veteran filed his claim to reopen in January 2015. Since the June 1975 rating decision, VA treatment records and a lay statement from the Veteran’s sister were added to the claims file. These are new in that they were not of record at the time of the prior rating decision. Specifically, the lay statement from the Veteran’s sister is material because it indicates the Veteran had no problems with his feet and was active in sports and other activities before service. This statement raises a reasonable possibility of substantiating the claim. Therefore, the claim of entitlement to service connection for bilateral foot tarsal condition is reopened. REASONS FOR REMAND Entitlement to service connection for bilateral foot tarsal condition is remanded. The Veteran asserts his bilateral foot tarsal condition did not pre-exist service, and is the result of a foot injury during boot camp. In the alternative, he asserts if his bilateral foot tarsal condition pre-existed service, that it was aggravated beyond its normal progression by service. The Veteran has a current diagnosis of tarsal coalition in both feet. The Veteran's entrance examination did not indicate a diagnosis of any foot disorders. The Veteran was first diagnosed in service. He reported foot pain during boot camp and was subsequently treated for his foot condition and discharged from service as unfit for duty. The RO reasoning for determining the Veteran’s bilateral foot tarsal condition pre-existed service included the Service Department’s determination that the condition was not incurred in or aggravated by military service, the absence of trauma to the feet during service, and the short amount of time the Veteran served on active duty. However, to date, the Veteran has not yet been afforded a VA examination. There is no medical evidence of a diagnosis of a foot condition before service and no medical opinion determining whether the Veteran’s bilateral foot tarsal condition pre-existed service or was aggravated by service. Therefore, the Veteran should be afforded a VA examination and a medical opinion must be obtained. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his bilateral foot tarsal condition. The VA examiner should provide the following findings and opinions: A. Please clarify whether the Veteran’s bilateral foot tarsal condition is: (i) a congenital or developmental defect, (ii) a congenital or developmental disease, or (iii) acquired in nature. For VA purposes, a “defect” is defined as a structural or inherent abnormality or condition that is more or less stationary in nature and is generally incapable of improvement or deterioration. In contrast, a “disease” is capable of improvement or deterioration. The examiner must offer the opinion in the terms as listed above. Please provide a complete rationale for your opinion. B. If the bilateral foot tarsal condition is a congenital or developmental disease, is there clear and unmistakable evidence that the Veteran’s bilateral foot tarsal condition pre-existed service? If there is clear and unmistakable evidence that the bilateral foot tarsal condition pre-existed service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing bilateral foot tarsal condition did not undergo an increase during service. If there was an increase in the severity of the Veteran’s bilateral foot tarsal condition, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. C. If the bilateral foot tarsal condition is a congenital or developmental defect, is it at least as likely as not (50 percent probability or greater) that it was subject to a superimposed disease or injury during the Veteran’s active service (i.e., aggravated)? If so, describe the resultant disability. D. If the bilateral foot tarsal condition is acquired, is there clear and unmistakable evidence that the Veteran’s bilateral foot tarsal condition pre-existed service? If there is clear and unmistakable evidence that the bilateral foot tarsal condition pre-existed service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing bilateral foot tarsal condition did not undergo an increase during service. If there was an increase in the severity of the Veteran’s bilateral foot tarsal condition, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. E. If the Veteran’s acquired bilateral foot tarsal condition did not pre-exist service, please opine as to whether it is at least as likely as not that the Veteran’s acquired bilateral foot tarsal condition is causally or etiologically due to service. In rendering this opinion, the examiner should consider and address the following: a) The July 1971 report from the Service Department’s Medical Survey Board reporting the Veteran’s medical history before service. b) The May 1975 Statement in Support of Claim wherein the Veteran reports having no foot pain before service. c) The May 1975 Application for Compensation or Pension wherein the Veteran reports he injured his feet during service from strenuous walking. d) The September 2016 Notice of Disagreement wherein the Veteran reports he did not have a foot condition before service. e) The December 2016 lay statement from the Veteran’s sister wherein she describes the Veteran’s health before and after service. All opinions expressed should be accompanied by supporting rationale. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Papacalos, Law Clerk 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.