Citation Nr: 20056745 Decision Date: 08/27/20 Archive Date: 08/27/20 DOCKET NO. 17-44 117 DATE: August 27, 2020 ORDER New and material evidence has been presented, and the previously denied claim for service connection for a left foot condition is reopened. REMANDED Service connection for a left knee condition is remanded. Service connection for a left foot condition is remanded. Service connection for a right pinky finger scar is remanded. FINDING OF FACT The evidence received since the March 1983 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claims for service connection for a left foot condition, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received since the March 1983 rating decision that is sufficient to reopen the Veteran’s claim for service connection for a left foot condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1978 to October 1981. Reopening Claims Where a claim has been finally adjudicated, new and material evidence is required in order to reopen the previously denied claim. See 38 U.S.C. §5108; 38 C.F.R. §3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Where new and material evidence is received within one year after the initial denial, the denial is not final, and the claim remains pending. 38 C.F.R. § 3.156(b). The Veteran’s claim for service connection for a left foot condition was denied in March 1983. The Veteran did not appeal, new and material evidence was not received within one year, and the decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104; 20.202. However, evidence received since then includes lay statements and treatment records showing ongoing complaints and treatment. This evidence is presumed credible for the limited purposes of reopening the claim, and when that is done, the new information is considered to be material and is therefore sufficient to reopen the previously-denied claim. 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the claims for service connection for a left foot condition is reopened. REASONS FOR REMAND Service connection for a left knee condition, left foot condition, and a right pinky finger scar is remanded. The Veteran’s service treatment records (STRs) show he complained of and received treatment for his left knee in September 1979. He is currently diagnosed with degenerative changes of the left knee. Regarding the Veteran’s right pinky scar, his STRs show he closed a car door on his right pinky, which required seven stitches. He asserts that he has less flexibility in his pinky finger and that there is a permanent scar. Regarding the Veteran’s left foot condition, his STRs show that he entered the military with pes planus, as his August 1978 entrance examination examiner noted that he had bilateral, asymptomatic pes planus. Therefore, the presumption of soundness does not apply. However, the Veteran may bring a claim of aggravation. In such a case, any increase of a pre-existing injury or disease will be presumed to have been aggravated by active service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In this case, the Veteran’s pes planus was assessed as asymptomatic at entrance, and then, STRs show complaints of left foot pain. The evidence shows the condition became symptomatic. The remaining question is whether this change was due to service or the natural progress of the disease. The Board notes that the Veteran has not received a VA examination for his left knee condition or his right pinky finger scar. The Veteran was afforded a VA examination for his left foot condition in January 1983, but the examiner did not provide a nexus opinion as to whether his pre-existing pes planus was aggravated by his active duty service. For the forgoing reasons, VA’s duty to provide a VA examination is triggered, and a medical opinion is needed to determine if there is a link between the Veteran’s left knee condition and a right pinky finger scar and his active duty service; and to determine if the Veteran’s left foot pes planus was aggravated by his active duty service. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the etiology of his left knee condition. The examiner should answer the following question: Is it at least as likely as not (50 percent or better probability) that the degenerative changes in the Veteran’s left knee, either began during or are otherwise related to his active duty service? Why or why not? Consider all relevant lay and medical evidence, including the in-service complaints of left knee pain in September 1979. 2. Schedule the Veteran for a VA examination to determine the etiology of his right pinky scar. The examiner should answer the following question: Is it at least as likely as not (50 percent or better probability) that any current right pinky scar, either began during or is otherwise related to his active duty service? Why or why not? Consider all relevant lay and medical evidence, including the March 1980 notation of smashing the right 5th finger in a car door, laceration, and stitches. 3. Obtain a medical opinion regarding the pes planus of the left foot. The examiner should answer the following question (if a physical examination is required to answer the following question, one should be scheduled): The Veteran’s left foot pes planus existed prior to service but was asymptomatic. Service treatment records, including from July 1979 and March 1981, show complaints of new pain symptoms. Is there clear and unmistakable evidence that these pain symptoms were due to the natural progression of the disease rather than due to/aggravated by service? Why or why not? All opinions must be supported by detailed rationale. If the opinion cannot be provided without resort to speculation, the examiner should explain why, and state whether the inability is due to the absence of evidence or limits of scientific/medical knowledge. A.P. Armstrong Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fu, 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.