Citation Nr: 21065304 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 18-43 095 DATE: October 25, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for a bilateral foot disorder is granted. REMANDED Entitlement to service connection for a bilateral foot disorder is remanded. FINDINGS OF FACT 1. The claim of entitlement to service connection for a bilateral foot disorder was previously denied in a July 2010 rating decision. The Veteran did not perfect an appeal nor submit new and material evidence within one year, and that decision became final. 2. Evidence received since the July 2010 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim for service connection. CONCLUSION OF LAW As new and material evidence has been received since the issuance of the July 2010 final rating decision, the criteria for reopening the claim for service connection for a bilateral foot disorder are met. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1981 to September 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a June 2021 hearing. NEW AND MATERIAL EVIDENCE In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). 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. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole, and the Justus presumption of credibility no longer attaches. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Thus, evidence that is sufficient to reopen a claim may not be sufficient to grant the benefit being sought. See generally Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to 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, to include by triggering the Secretary's duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). A claim is not reconsidered, however, where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or any other official source. 38 C.F.R. § 3.156(c)(2). To establish service connection, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In a July 2010 rating decision, the RO denied service connection for a bilateral foot disability because there was no evidence that a disability had been clinically diagnosed. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the July 2010 rating decision includes service treatment records (STRs). Evidence submitted after the July 2010 rating decision includes private treatment records (PTRs) noting treatment for a bilateral foot disorder, lay statements asserting continuity of symptomatology, private medical opinions, and Board hearing testimony. The Board finds that new and material evidence has been presented. The evidence is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, for all of the above reasons, the Veteran's claims of entitlement to service connection for a bilateral foot disorder reopened. REASONS FOR REMAND Entitlement to service connection for a bilateral foot disability is remanded. Remand is required for a VA examination. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, the Veteran asserts that their bilateral foot disorder is related to service. January 2014 PTRs indicate diagnoses of bilateral foot pain, hammer toe, hyperkeratosis plantaris, metatarsalgia, bunion, and Haglund's deformity. A June 2020 private medical opinion notes hammer toe of the 2nd toe left foot, Morton's neuroma left foot, metatarsalgia left foot, and hyperkeratosis left foot. And a June 2021 private medical opinion identified bilateral metatarsalgia. The Board notes that the Veteran's STRs are silent for any complaints of or treatment for bilateral foot pain. The Veteran denied foot trouble at both their August 1981 entrance exam, and July 1985 exit examination. However, in a statement submitted in March 2018, the Veteran asserted foot pain from the constant pounding of the feet while wearing work boots in service, and that they sought treatment for thick calluses while in service as they caused difficulty walking. Also, in March 2018, the Veteran submitted a statement from their spouse who reported that they have known the Veteran since 1980, that they saw the calluses develop while the Veteran was in the military, and that podiatrists have recommended surgery and explained that the military work boots were a contributing factor to the condition. The Veteran has submitted two private medical evaluations that include positive nexus opinions; however, neither are sufficient to base a grant of service connection upon. A June 2020 opinion, as noted above, identified hammer toe of the 2nd toe left foot, Morton's neuroma left foot, metatarsalgia left foot, and hyperkeratosis left foot. The examiner found that it is as likely as not that the bilateral foot conditions are likely as not either directly related to or exacerbated beyond the natural progression of the disease by military service. First, the Board notes that the examiner indicates that the bilateral foot conditions are as likely as not related to service, but they only identified conditions of the left foot, none of the right. Additionally, it is unclear whether the opinion addresses all listed conditions, or only a specific one. Further, as rationale, the examiner only provided that military service exacerbated the structural foot deformities. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The examiner concluded their opinion with a statement indicating that current treatment has not completely alleviated the Veteran's symptoms. A June 2021 opinion, as noted above, identified bilateral metatarsalgia. The examiner opined that the Veteran's current foot diagnoses are as likely as not a direct result of military service, explaining that improper fitting boots with increased activity caused increased callus formation. The examiner stated that from the Veteran's treatment history and examination, the pain is consistent with the subjective symptoms. However, the Board notes that the diagnosis that the examiner identified is metatarsalgia. First, they did not address any of the other prior diagnoses of record. Second, they did not address metatarsalgia in the nexus opinion, but rather callus formation. Because there is evidence of currently diagnosed disabilities, an in-service event, and an indication that the current disabilities may be associated with the in-service event, remand for a VA examination is required. By this remand the Board makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Provide the Veteran with an appropriate examination to determine the etiology of the bilateral foot disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a) First, the examiner must identify all currently diagnosed foot disorders. If any previously diagnosed foot disorders, to include hammer toe, hyperkeratosis plantaris, metatarsalgia, bunion, Haglund's deformity, and Morton's neuroma are not found on examination address the prior diagnoses of record. (b) Second, for each currently diagnosed foot disorder, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the foot disorder had onset in, or is otherwise related to, active military service. (c) The examiner should consider the following: 1) the statements submitted by the Veteran and their spouse in March 2018 asserting that military work boots caused the condition; 2) the June 2020 and June 2021 private medical opinions; and 3) the June 2021 Board hearing testimony. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rogos 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.