Citation Nr: 21067810 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 16-50 935 DATE: November 5, 2021 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for hallux valgus, claimed as residuals of contusion of the left foot, is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for a calcaneal spur, claimed as residuals of contusion of the left foot, is reopened. REMANDED Entitlement to service connection for hallux valgus, claimed as residuals of a contusion of the left foot and as secondary to arthritis of the left first toe, is remanded. Entitlement to service connection for a calcaneal spur, claimed as residuals of a contusion of the left foot and as secondary to arthritis of the left first toe, is remanded. Entitlement to service connection for a left foot disability other than hallux valgus, a calcaneal spur, and arthritis of the left great toe, claimed as residuals of a contusion of the left foot and as secondary to arthritis of the left first toe, is remanded. FINDINGS OF FACT 1. In a December 2011 rating decision, a Department of Veterans Affairs (VA) regional office (RO) denied a claim of entitlement to service connection for residuals of a contusion of the left foot on the basis that there was no medical evidence relating hallux valgus and a calcaneal spur to service. The Veteran was notified of that decision but did not appeal that decision. No evidence was received within the one-year appeal period. 2. September 2020 and January 2021 statements from a private doctor relating the left foot disabilities to an in-service injury in 1990, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of service connection for hallux valgus of the left foot. 3. September 2020 and January 2021 statements from a private doctor relating the left foot disabilities to an in-service injury in 1990, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of service connection for calcaneal spur of the left foot. CONCLUSIONS OF LAW 1. The December 2011 rating decision, which denied the Veteran's claim of entitlement to service connection for residuals of a contusion of the left foot, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.1103 (2021); 38 C.F.R. § 3.156 (2011). 2. The evidence received since the December 2011 rating decision is new and material, and the claim of entitlement to service connection for hallux valgus of the left foot is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2021). 3. The evidence received since the December 2011 rating decision is new and material, and the claim of entitlement to service connection for a calcaneal spur of the left foot is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1989 to February 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of a VA RO. In the December 2011 rating decision, a RO denied a claim of entitlement to service connection for residuals of a contusion of the left foot. In the April 2015 rating decision, the RO reopened the claim of entitlement to service connection for residuals of a contusion of the left foot and denied the claim on the merits. In January 2021, the Veteran testified at a virtual hearing held before the undersigned Veterans Law Judge, and a transcript of that hearing has been associated with the electronic claims file. In April 2021, the Board granted service connection for traumatic arthritis of the left foot metatarsal bones. The Board remanded the issue of entitlement to service connection for a left foot disability other than traumatic arthritis, to include pes planus, hallux rigidus, and hallux valgus. The Board did not specifically address whether new and material evidence had been submitted to reopen a claim of entitlement to service connection for residuals of a contusion of the left foot. Although the RO reopened the claim of entitlement to service connection for residuals of a contusion of the left foot, the Board must initially determine whether the Veteran has presented new and material evidence sufficient to reopen the previously denied claim. See Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996). The Board has a responsibility to consider whether it was proper for a claim to be reopened, and there is no harm to a veteran's ability to present the case when the Board addresses the issue of whether a claim should be reopened rather than addressing the reopened claim on the merits. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In this case, the previously denied claim only addressed two left foot disabilities hallux valgus and a calcaneal spur. Therefore, the claims for the remaining foot disabilities are new and separate claims from the previously denied claim and can be considered on a de novo basis. As noted above, the Board is reopening the claim of service connection for hallux valgus and a calcaneal spur of the left foot. The hallux valgus and hallux rigidus involve the first toe. The service-connected arthritis of the left foot involves the first toe. Pursuant to Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000), the Board will consider whether the various foot disabilities are secondary to the arthritis of the left foot. REASONS FOR REMAND In April 2021, the Board remanded the claim for a VA examination and medical opinion on whether the left foot disabilities other than pes planus were caused by service. September 2014 VA X-rays of the left foot show a large posterior enthesophyte and a small planter enthesophyte. A July 2021 VA examiner did not address whether the two enthesophytes are related to active service. Therefore, the RO did not comply with the directives of the April 2021 Board remand. Stegall v. West, 11 Vet. App. 268 (1998). An addendum to the medical opinion is necessary to address not only whether the two enthesophytes are related to active service but also whether all left foot disabilities are secondary to the service-connected traumatic arthritis of the left foot. Given that the claims are being remanded for an addendum to the VA medical opinion, the Veteran should be afforded the opportunity to identify current treatment. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all treatment for his left foot disabilities and obtain any identified records. 2. After the development in 1 is completed, the RO should arrange for the Veteran's claims file to be reviewed by the VA examiner who examined the Veteran for his left foot disabilities in July 2021 for preparation of an addendum opinion. If that examiner is unavailable, arrange for the claims file to be reviewed by an appropriate clinician. The Veteran should only be scheduled for another examination if the VA examiner or the new clinician deems it necessary. The clinician must opine on whether it is at least as likely as not that the left posterior enthesophyte is related to an in-service injury, event, or disease, including treatment of a contusion of the left foot in December 1990. The clinician must opine on whether it is at least as likely as not that the left posterior enthesophyte was (1) caused by or (2) aggravated by the service-connected arthritis of the left first toe. If the examiner finds that the left posterior enthesophyte was aggravated by the service-connected arthritis of the left first toe, then the medical professional should quantify the degree of aggravation. The clinician must opine on whether it is at least as likely as not that the left plantar enthesophyte is related to an in-service injury, event, or disease, including treatment of a contusion of the left foot in December 1990. The clinician must opine on whether it is at least as likely as not that the left plantar enthesophyte was (1) caused by or (2) aggravated by the service-connected arthritis of the left first toe. If the examiner finds that the left plantar enthesophyte was aggravated by the service-connected arthritis of the left first toe, then the medical professional should quantify the degree of aggravation. The clinician must opine on whether it is at least as likely as not that the left pes planus was aggravated by the service-connected arthritis of the left first toe. If the examiner finds that the left pes planus was aggravated by the service-connected arthritis of the left first toe, then the medical professional should quantify the degree of aggravation. The clinician must opine on whether it is at least as likely as not that the left hallux valgus was (1) caused by or (2) aggravated by the service-connected arthritis of the left first toe. If the examiner finds that the left hallux valgus was aggravated by the service-connected arthritis of the left first toe, then the medical professional should quantify the degree of aggravation. The clinician must opine on whether it is at least as likely as not that the left hallux rigidus was (1) caused by or (2) aggravated by the service-connected arthritis of the left first toe. If the examiner finds that the left hallux rigidus was aggravated by the service-connected arthritis of the left first toe, then the medical professional should quantify the degree of aggravation. 3. Thereafter, readjudicate the claims on appeal. If any benefit sought in connection with the claims remains denied, the Veteran and his representative should be provided with an appropriate Supplemental Statement of the Case (SSOC) and given the opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Cherry, 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.