Citation Nr: 21002661 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 14-39 981A DATE: January 14, 2021 ORDER New and material evidence not having been received, reopening of service connection for a puncture wound right foot is denied. REMANDED Service connection for a right shoulder and arm condition is remanded. Service connection for a right-sided neck condition is remanded. FINDINGS OF FACT 1. A July 1998 rating decision denied service connection for a right foot puncture wound on the basis that the evidence showed no in-service right foot injury or event, and no relationship between a chronic right foot puncture wound disability and active service. 2. In August 1998, the Veteran submitted a timely Notice of Disagreement (NOD) following the July 1998 rating decision. 3. An October 1998 statement of the case (SOC) confirmed the denial of service connection for right foot puncture wound. The Veteran did not timely file a substantive appeal (VA Form 9) following the October 1998 SOC, so the July 1998 rating decision became final. 4. Evidence received since the July 1998 rating decision is either duplicative or cumulative of evidence previously considered or does not relate to a previously unestablished fact of in-service right foot injury or event or a nexus between a current right foot disability and active service that is necessary to substantiate the claim for service connection for a right foot puncture wound. CONCLUSION OF LAW The July 1998 rating decision denying service connection for a right foot puncture wound became final; new and material evidence has not been received to reopen service connection for a right foot puncture wound. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103 REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the Appellant, served on active duty from October 1974 to October 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision from the Regional Office (RO), which, in pertinent part, denied service connection for a right-sided neck disorder, right shoulder and arm disorder, and denied reopening service connection for a puncture wound right foot. In March 2018, the Veteran testified at a Board videoconference hearing from the RO in Atlanta, Georgia, before the undersigned Veterans Law Judge in Washington, DC. The hearing transcript has been associated with the record. In August 2018, the Board remanded the issues on appeal for additional development, including to associate the April 2018 Disability Benefits Questionnaire (DBQ) from Atlanta VAMC with the claim file, obtain outstanding VA treatment records, obtain any outstanding service treatment records from Pope Air Force Base (AFB) Hospital from 1975 to 1978, and provide the Veteran notice of the requirements to reopen the claim for service connection for puncture wound of the right foot. The RO requested the specified clinical treatment records from Pope AFB Hospital in April 2019. Pope AFB Hospital notified the RO that a search for the requested records was conducted and no records were located for the Veteran. See April 2019, October 2019 Request for Information; see also October 2019 Final Attempt Letter. The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the August 2018 Board Remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Board finds that the duties to notify and assist regarding reopening of service connection puncture wound of the right foot have been fulfilled. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. As the Board remands service connection for a right-sided neck disorder and right shoulder and arm disorder for additional development, the Board need not address the duties to notify and assist at this time. Legal Criteria for Reopening Service Connection Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. “[N]ew evidence” means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156(a). Materiality has two components, first, that the new evidence pertains to the reason(s) for the prior final denial, and second, that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When deciding whether the submitted evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying concepts derived from the duty to assist. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Id. at 117-118. Regardless of the RO’s determination as to whether new and material evidence had been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus v. Principi, 3 Vet. App. 510, 512 (1992). Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened. Once the case is reopened, the presumption as to the credibility no longer applies. Id at 513. 1. Reopening of Service Connection for a Right Foot Puncture Wound is Denied In this case, a July 1998 rating decision denied service connection for a puncture wound of the right foot on the grounds that the evidence did not show a right foot injury or event in service or a relationship between a right foot puncture wound disability and active service. In July 1998, the Veteran was notified of the rating decision and provided notice of procedural and appellate rights. In August 1998, the Veteran submitted a timely NOD following the July 1998 rating decision. An October 1998 SOC confirmed the denial of service connection for a puncture wound of the right foot on the basis that the evidence did not show an in-service injury or event or a current right foot puncture wound disability that is related to service. The Veteran did not file a timely substantive appeal following the October 1998 SOC; therefore, the July 1998 rating decision became final as to the evidence then of record, so is not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a),(b), 20.302, 20.1103. After reviewing the evidence received since the July 1998 rating decision, the Board finds that the evidence does not qualify as new and material evidence, so is not sufficient to reopen service connection for a puncture wound right foot. Recent lay assertions from the Veteran continue to allege that his right foot disability was caused by stepping on a nail during service. The Veteran testified that he did not report the right foot puncture wound at the time of the injury or receive treatment for a right foot puncture wound in service, but that he did mention it at service separation. Additionally, the Veteran reported that he has been treated for a painful callous on the foot, but is not currently under any care for a right foot puncture wound. See September 2012 Statement, June 2014 NOD, March 2018 Board hearing transcript. These statements are not new evidence because the substance of such statements was previously considered during the prior claim, to include when service connection was denied in the October 1998 SOC. The service treatment records, which were previously considered, are silent as to evidence of a right foot injury or event in service, including a puncture wound to the right foot, as expected given the Veteran’s lay testimony that he did not report or seek treatment for any right foot puncture wound during service. While the June 1978 service separation examination report indicates that the Veteran reported foot problems at the time of separation, the military physician further identified this report as referring to athlete’s foot, which had been treated with antifungal medication. There was no mention of a history of puncture wound to the right foot, nor residuals of the same, and examination of the feet was normal at service separation. See June 1978 service treatment record. Notably, the Veteran is already service connected for tinea pedis with onychomycosis. The previously considered post-service treatment records show treatment for a calloused area under the right foot, which the Veteran asserted was related to stepping on a nail during service. Newly received VA treatment records continue to show treatment for a painful callous under the right foot, intractable plantar keratosis (IPK), and the service-connected tinea pedis, but do not show a history or findings of a right foot puncture wound. Additionally, post-service treatment notes are silent for any nexus between a right foot disability, to include right foot callus, and active service. An April 2018 DBQ completed by a treating VA physician reflects the Veteran’s report of pain in the right foot due to stepping on a nail in service; however, the VA examiner assessed no pain in the right foot upon examination and no right foot disability. See August 1998, May 2012, July 2012, May 2013, March 2014, December 2019 VA treatment records; April 2018 DBQ. Newly received VA treatment records are not material as they only tend to show continued treatment for a callus on the right foot, and do not provide evidence of a causal relationship between any right foot disability, including the right foot callus, and active service. For these reasons, the Board finds that the additional evidence received since the October 2015 rating decision is not new and material evidence; therefore, the previously denied claim for service connection for a puncture wound right foot cannot be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND 2. Service connection for right shoulder DJD is remanded. 3. Service connection for cervical DJD is remanded. The Veteran contends that service connection for a right shoulder and arm condition and right-sided neck condition is warranted. Specifically, the Veteran alleges that the right shoulder/arm condition and right neck condition are related an in-service dental procedure in 1975 that caused paralysis in the right side of his body, though he could not recall the type of dental procedure he underwent. Alternatively, the Veteran asserts that the neck and shoulder/arm conditions are related to his military duties working in Air Freight, which required loading and rolling stock, as well as going underneath the stock to make sure it was properly secured. See June 2014 NOD, March 2018 Board hearing transcript. The DD Form 214 indicates that the Veteran’s military occupational specialty was air passenger specialist. The service treatment records are silent for any evidence of a dental procedure during service, to include complications therefrom; however, service treatment notes reflect reports of symptoms of shoulder and neck pain during service. A May 1976 clinic note shows that the Veteran reported a cluster of cold symptoms, including headache and pain in the neck and across tip of shoulders. Diagnosis was nasopharyngitis, probably viral. An April 1978 treatment note reflects reports of episodic neck pain of one-week duration, described as cervical pain that extended into the trapezius and deltoid area that was precipitated by weightlifting. The pain (myalgia) was indicated to be due to weightlifting. See May 1976, April 1978 service treatment records. VA treatment records show current disabilities of cervical spine degenerative joint disease (DJD) and right shoulder DJD and impingement syndrome. See April 2018 DBQ; June 2016, July 2017, August 2020 VA treatment records. VA has not provided a medical opinion on the question of relationship between current cervical spine and right shoulder disabilities and the weightlifting injury and pain noted during service or other military duties or activities during service. In light of the Veteran’s reports that the neck and right shoulder disorders may be related to military duties involving loading and rolling stock, as well as evidence of symptoms of neck and shoulder pain during service, a VA examination medical opinion would be helpful to assess whether any current cervical spine and right shoulder disability is related to active service. Service connection for cervical spine and right shoulder disabilities are REMANDED for the following action: Schedule VA medical opinions to help address the etiology of the current neck and right shoulder disorders. The relevant documents in the record should be reviewed by the examiner and a detailed history of relevant symptoms should be obtained from the record. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The examiner should offer opinion(s): a) Is it at least as likely as not (50 percent or greater probability) that the currently diagnosed cervical spine DJD was caused by or etiologically related to service, to include military duties of rolling and loading stock during service, or symptoms of neck and shoulder pain reported in May 1976 and April 1978 during service? b) Is it at least as likely as not (50 percent or greater probability) that the currently diagnosed right shoulder DJD and impingement syndrome was caused by or etiologically related to service, to include military duties of rolling and loading stock during service, or symptoms of neck and shoulder pain reported in May 1976 and April 1978 during service? J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Moore 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.