Citation Nr: 20021142 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 19-37 170 DATE: March 24, 2020 ORDER The petition to reopen a claim for service connection for left and right foot hallux rigidus and osteoarthritis disorders is granted. Entitlement to service connection for left foot hallux rigidus and osteoarthritis of the metatarsophalangeal joint is granted. Entitlement to service connection for right foot hallux rigidus and osteoarthritis of the metatarsophalangeal joint is granted. FINDINGS OF FACT 1. In an unappealed July 2017 Rating Decision, the Regional Office denied the Veteran’s claim for entitlement to service connection for left and right foot hallux rigidus and osteoarthritis disorders; no new and material evidence was received within one year of the notification of that decision. 2. Subsequent to the July 2017 Rating Decision, evidence was associated with the claims file that is neither cumulative nor redundant of the evidence of record; relates to an unestablished fact; and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for these disorders. 3. The evidence is at least in equipoise that the Veteran’s left and right foot hallux rigidus and osteoarthritis of the metatarsophalangeal joint is related to service. CONCLUSIONS OF LAW 1. The July 2017 Rating Decision that denied entitlement to service connection for left and right foot hallux rigidus and osteoarthritis is final. 38 U.S.C. §§ 7104(b), 7252. 2. The criteria to open the claim for service connection for the left and right foot hallux rigidus and osteoarthritis disorders have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for left and right foot hallux rigidus and osteoarthritis of the metatarsophalangeal joint have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1984 to March 1988, December 1990 to July 1991, October 2001 to September 2002, and February 2003 to March 2004. He served honorably in the U.S. Air Force, and as an Air Reserve Technician (ART) with multiple periods of active and inactive duty training. The Board thanks the Veteran for his service to our country. 1. The petition to reopen a claim for service connection for left and right foot hallux rigidus and osteoarthritis disorders is granted. Claims are to be reopened when new and material evidence is submitted. 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 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 (2010). In determining whether this low threshold is met, consideration need not be limited to consideration of 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, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. For purposes of determining whether VA has received new and material evidence sufficient to reopen a previously-denied claim, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Within one year of a July 2017 denial of service connection for the left and right foot disorders, the Veteran submitted additional medical evidence. This evidence includes duplicate treatment notes previously associated with the record as well as a February 2018 treatment note not previously associated with the record; however, the information contained within is redundant of evidence of record at the time of the July 2017 denial. As the Veteran did not appeal the denial of service connection and no new and material evidence was received within one year of the denial, the July 2017 Rating Decision is final. In September 2018, the Veteran submitted additional evidence from his spouse and acquaintances. In a lay statement from another ART, the ART stated that their job functions were the same as those of active duty servicemembers. In another statement, the Veteran’s spouse relayed that for the past 25 years his physical fitness regimen included a rigorous routine of running and strength training three times each week; she also stated that he had not injured any part of his feet. Accordingly, the Board finds that the additional evidence is neither cumulative nor redundant, and it is material since the evidence raises the possibility of substantiating the claim of service connection for the left and right foot disorders. See 38 C.F.R. § 3.156(a). As new and material evidence has been presented for the claim, it is reopened. 2. Entitlement to service connection for left and right foot hallux rigidus and osteoarthritis of the metatarsophalangeal joint is granted. The Veteran contends that service connection for his left and right foot first toe disorders is warranted. The Board agrees. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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. To substantiate a claim of service connection, there must be evidence of: (1) a current disability; (2) a disease, injury, or event in service; and (3) a nexus or causal relationship between the claimed disability and the disease, injury, or event in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In this case, in a May 2014 private treatment note, based on imaging, the Veteran’s private treatment provider rendered an impression of severe hallux rigidus, greater in the left than right foot, with advanced degenerative joint disease in the first metatarsophalangeal joint and severe exostosis of the first metatarsal head. The Veteran served as an avionics instruments systems specialist during his first active duty service period; during his career as an ART, which includes active duty periods and active and inactive duty training, his roles include aircraft guidance and control craftsman from 1988 to 2006, flight line expediter from 2006 to 2008, and flight line production superintendent from 2008. Aircraft maintenance roles have functional requirements of heavy lifting and heavy carrying of 45 pounds and more; straight pulling, pulling hand over hand, and pushing for 1/4 hour each; and walking and standing for 1 hour each, crawling and kneeling for 1/4 hour each, repeated bending for 1 hours, and climbing for 1/2 hour according to the Veteran’s 1988 civil service examination report. Environmental factors include working on slippery or uneven walking surfaces and working on ladders and workstands. As the first two elements of service connection are thus met, the issue as to whether the Veteran’s left and right first toe disorders is at least as likely as not related to service remains. In the May 2014 private treatment note, the Veteran reported longstanding lumps or bunion deformities bilaterally on the first metatarsophalangeal joint for over 20 years. He reported increasing discomfort in the left metatarsophalangeal region for the past year and that he could recall no specific recent traumatic episodes; he reported that the right foot was asymptomatic. The treatment provider advised that he use wide width high toebox footwear and informed him of a possible indication for definitive intervention later, to include surgery. In a February 2017 note, the treatment provider advised the Veteran to adjust his activity levels and reduce high-impact activities, limiting or eliminating his running regimen. The provider advised him of the potential for increasing degenerative component and possible sequelae and that future definitive intervention, likely including surgery, was anticipated. In a February 2018 note, the provider again advised that the Veteran decrease his running regimen and high impact activity levels in attempt to delay worsening of presentation and avoid surgical intervention, as well as to use wide width, high toebox increased shock absorptive footwear. In a June 2018 note, the provider stated that the Veteran’s disorder is aggravated by high impact activity such as running and again recommended discontinuation of running as well as accommodative footwear. As noted above, the Veteran’s fellow ART stated that their jobs as ARTs were the same as those of active duty service members. The Veteran’s spouse stated that he has had the same fitness regimen for the past 25 years. In September 2018 the Veteran submitted an October 2013 Air Force Instruction implementing an Air Force Policy Directive for physical fitness requirements that apply to Regular Air Force, Air National Guard, and Air Force Reserve members. He also submitted a June 2018 Air Force Reserve Command memorandum about the ART Program stating, in pertinent part, that the ART’s federal civilian position is a full-time 40-hour per week position and that ARTs are required to wear their military uniforms at all times while on federal civilian duty or military duty. Resolving any reasonable doubt in the Veteran’s favor, the Board concludes that the Veteran maintained the same fitness regimen and wore the same footwear during active duty service and active and inactive duty training periods as those linked by his treatment provider to his disorders. The Veteran reported a more than 20-year history of bilateral lumps in the metatarsophalangeal joint region. His physical fitness requirements as an ART are the same as the requirements he had to meet during periods of active duty service, and his wife stated that his fitness regimen had not changed in 25 years, a timeframe which spans multiple active duty periods and numerous active and inactive duty training periods. Additionally, the Veteran performed the same tasks, including lifting and carrying heavy loads, walking and standing for extended periods of time, and other physical actions involving weightbearing and/or pressure on the feet, while wearing the same footwear as part of his uniform, in active service and as an ART. The Board acknowledges that the Veteran’s fitness regimen and uniform requirements outside his periods of active duty service and active and inactive duty training may have contributed to his disorders; however, there is no legal requirement that an in service event or injury be the sole cause of a claimed disorder. As there is no evidence of record against the Veteran’s claim, the Board finds that the evidence is at least in equipoise that the Veteran’s left and right foot hallux rigidus and osteoarthritis of the metatarsophalangeal joint is related to service. Accordingly, service connection for the disorders is granted. The Board acknowledges that the Veteran’s contention that service connection is warranted as his fitness regimen as an ART is necessary to meet physical fitness standards required of all Airmen. The Board also acknowledges his representative’s contention that his Air Reserve Technician career should be treated as inactive duty training service under 38 C.F.R. § 3.6(d). However, as the benefits sought are herein granted in full, the Board will not address these contentions. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Vashaw, 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.