Citation Nr: 20021550 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 18-28 972 DATE: March 26, 2020 ORDER New and material evidence has not been presented, and the claim of entitlement to service connection for residuals of bilateral foot injury (claimed as bilateral foot condition) is not reopened. FINDINGS OF FACT 1. An unappealed September 2008 rating decision denied service connection for residuals of bilateral foot injury. 2. Evidence submitted since the September 2008 rating decision is either redundant or cumulative of previously submitted evidence, does not relate to an unestablished fact, or does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for residuals of bilateral foot injury. CONCLUSIONS OF LAW 1. The September 2008 rating decision which denied service connection for residuals of bilateral foot injury is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for residuals of bilateral foot injury. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the Coast Guard from September 1962 to January 1963, and in the Army from October 1963 to March 1964, and from November 1964 to February 1966. This matter is on appeal to the Board of Veterans’ Appeals (Board) from a July 2017 rating decision of a regional office (RO) of the Department of Veterans Affairs (VA). New and Material Evidence New evidence means 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). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. This is a low threshold that is meant to enable, rather than preclude, reopening. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The focus is not on whether the evidence remedies the principle reason for the previous denial, but whether the evidence, taken together, would at least trigger the duty to assist by providing a medical opinion. Id. at 117. 1. Entitlement to service connection for residuals of bilateral foot injury is not reopened. By way of history, the Veteran’s original claim for service connection for foot condition was denied in a November 1977 rating decision as no residuals of foot injury was shown. Although the Veteran alleged his feet were run over by a truck during a two-week period of active duty for training in 1963, his service medical records are negative for injury to the feet. Thereafter, the Veteran attempted to reopen his claim for foot condition, which was again denied by a September 2008 rating decision. The RO pointed out that the Veteran had no evidence of a bilateral foot injury and had normal findings on separation examination dated December 1965. The September 2008 rating decision was not appealed; new and material evidence was not received within a year. The rating decision thereby became final. In August 2016, the Veteran again attempted to reopen the previously denied claim for service connection for bilateral foot condition. Since the September 2008 rating decision, additional private treatment records and written statements from the Veteran dated November 2017, December 2017 and June 2018 have been presented. While this evidence is new, in that it was not previously considered prior to the last final denial in September 2008, the additional medical information has no bearing or relation to the specific matter under consideration, as they do not establish a medical nexus between the current condition and active service. Notably, the Veteran was afforded a VA examination in April 2018 where the examiner indicated arthritis, degenerative in both feet which was diagnosed in August 2016. The examiner indicated that the Veteran’s foot condition is now better characterized as “mild bilateral degenerative (not traumatic) osteoarthritis” and that he “also has diabetes with peripheral neuropathy which can cause bilateral foot pain.” The examiner opined that the it is less likely than not that the veteran’s foot condition is related to his service, and it is less likely that the veteran’s residuals of left foot injury occurred in or caused by the left foot pain during service. In the rationale, the examiner explained that there is no objective evidence or record of a foot injury, and even if assuming it occurred, the foot injury “was an acute or transitory injury which resolved without residual as evidence by him going on active duty for 2 years afterwards without any profiles or residual symptoms from the injury.” The examiner noted that separation physical was silent for a foot condition, and X-rays taken of the feet in August 1977 documented no arthritis. Furthermore, the Veteran’s first complaint of foot pain was in 2016, approximately 50 years after separation from service. As to the additional lay statements, the Board observes that the Veteran’s statements have not changed and are not new, in that it is a reiteration of the assertions made since his original claim which was denied in 1977. Therefore, these records are not material as it does not relate to any unestablished fact necessary to substantiate the claim. In sum, the unestablished facts that were missing at the time of the September 2008 denial of service connection have not been presented. All the evidence together does not raise a reasonable possibility of substantiating the claim for service connection. Consequently, the Board finds that new and material evidence has not been presented, and the claim for entitlement to service connection for bilateral foot injury cannot be reopened. 38 C.F.R. § 3.156(a). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.A., 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.