Citation Nr: 21072729 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-48 250A DATE: December 6, 2021 ORDER As new and material evidence has not been submitted, the claim to reopen the issue of entitlement to service connection for a right ankle disorder is denied. Entitlement to service connection for a right foot disorder is denied. FINDINGS OF FACT 1. Evidence submitted since the August 1998 final Board of Veterans' Appeals (Board) decision does not cure a prior evidentiary defect and does not raise a reasonable possibility of substantiating the claim. 2. The Veteran's right foot disorder was not shown as chronic in service or within one year of separation; continuity of symptomatology has not been established; and the disorder is not otherwise etiologically related to an in service injury or disease. CONCLUSIONS OF LAW 1. The criteria to permit reopening the Veteran's claim for entitlement to service connection for a right ankle disorder based on new and material evidence have not been met. 38 U.S.C. §§ 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection of a right foot disorder have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from July 1979 to May 1983. This matter comes before the Board on appeal of an October 2013 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right ankle disorder Generally, an unappealed AOJ or Board denial is final under 38 U.S.C. § 7105(c). A claim for service connection may be reopened, however, if new and material evidence is received. 38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140 (1991). Per 38 C.F.R. § 3.156, "new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead the factfinder should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In this case, the AOJ initially denied the Veteran's claim of entitlement to service connection for a right ankle disorder in a March 1997 decision, which the Veteran ultimately appealed to the Board. The Board denied the Veteran's claim in an August 1998 decision. The Veteran did not appeal this decision, and it became final. 38 U.S.C. §§7104 (b); 7252. In denying the Veteran's claim, the Board noted that his service treatment records were silent for complaints of or treatment of an ankle injury, his post-service records were devoid of evidence of chronic residuals, and there was no medical evidence of a current right ankle disorder. Since the August 1998 Board denial, the Veteran has submitted an October 2013 statement in support of his claim, describing his in service right foot injury and stating he started favoring an angle of foot alignment, so the ankle got sore. No further lay evidence has been submitted in support of the claim, and the medical treatment records subsequently attached to the claims file are silent with regard to a right ankle disorder. In the August 1998 denial, the Board addressed the Veteran's decision review officer hearing testimony that he turned his ankle in service and had experienced symptoms since separation, as well as a separate statement indicating he fractured his ankle as a teenager and reinjured it during service. The Board also discussed letters written by the Veteran's aunt, mother and brother noting the Veteran walked with a limp after returning from service. While a new theory of entitlement cannot be the basis to reopen a claim under 38 U.S.C. § 7104(b), if the evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). In this case, although the Veteran has offered a new theory regarding the etiology of his claimed right ankle disorder, the new evidence he presents is essentially a statement reporting recurrent right ankle pain since service. Similar claims were previously made and considered by the Board during the August 1998 final denial; thus, the more recent statement is cumulative of evidence submitted previously. Finally, as discussed below, the Board has denied entitlement to service connection for a right foot disorder, rendering a theory of entitlement based on secondary service connection inapplicable. As such, the Board concludes that new evidence that has a reasonable possibility of substantiating the Veteran's claim has not been received and reopening the claim must be denied. 2. Entitlement to service connection for a right foot disorder The Veteran asserts that his current right foot disorder, diagnosed as degenerative arthritis, is due to his active service, specifically an in service right foot injury. Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish service connection, the evidence must show competent evidence of (1) a present disability, (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the veteran. 38 U.S.C. § 5107(b). A valid service connection claim requires competent evidence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). However, the presence of a disability at any time during the claim process or relatively close thereto can justify a grant of service connection, even where such disability has become asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). A claimant bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Certain chronic diseases, such as arthritis, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Moreover, if a disease listed in 38 C.F.R. § 3.309(a) is shown to be chronic in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Id. However, if evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013) (quoting 38 C.F.R. § 3.303(b)). A claimant "can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a)." Id. at 1337. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall afford the benefit of the doubt to the claimant. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.102, 4.3. When a claimant seeks benefits and the weight of the evidence amounts to relative equipoise, the claimant shall prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Therefore, a preponderance of the evidence must weigh against the Veteran's claim in order for service connection to be denied. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). The Veterans service entry, motor vehicle operator, and separation examinations are silent for right foot issues. August 1982 service treatment records indicate the Veteran received medical care after his right foot was slammed in a door one week earlier. The treating clinician noted that his was superficial with a minimal amount of drainage and no obvious signs of infection. He was prescribed an antibiotic and instructed not to wear boots for 10 days. Nine days later, he was seen again, and the treating clinician noted a callous had formed inside the laceration which was preventing healing. The callous was debrided and the Veteran was instructed to keep the wound clean. During a June 1997 decision review officer hearing, the Veteran described an incident in which he "smashed" his right foot and was given a wooden walking shoe. He stated, "I was on light duty for my foot for quite a while [be]cause my toes were smashed, I could hardly put any weight on it." The Veteran indicated this incident occurred when a box secured with ropes and pulleys fell on his right foot and "busted it wide open." He further stated regarding his toe injury, "it healed; it doesn't bother me now." The Veteran underwent January 2012 imaging after complaining of right foot pain. The interpreting clinician noted the that bones were intact, joints preserved and soft tissues unremarkable, but observed degenerative arthritis of the first metatarsophalangeal joint. February 2013 VA podiatry records indicate the Veteran reported right foot pain with no parasthesia or anaesthesia, present since his in service accident. The treating podiatrist noted that x-ray imaging revealed degenerative arthritis of the first metatarsal and that upon examination there was sharp and present pain when weight bearing at the fourth and fifth toes, which "also show some DJD on review." The Veteran was afforded a VA foot examination in June 2012, during which he reported catching his foot in a door during service, which required suture repair of a laceration. He indicated that the pain did not resolve and reported he currently experienced constant pain in the right foot. The examiner observed normal alignment of all toes in the right foot with normal sensation and no sign of a foot disorder besides subjective tenderness to palpation. The examiner provided an opinion regarding service connection but referenced the incorrect foot. In October 2013 correspondence, the Veteran stated that he injured his right foot and toes during airborne training, which caused great difficulty walking. He stated that upon his return to Camp Lejeune one week later he went to the hospital to have the wound cleaned and treated before being placed on light duty and given a wooden shoe until he could return to wearing boots. The Veteran indicated that over the years he had had trouble walking as well as pain and burning in the right foot, and stated his abnormal gait causes his shoes to wear unevenly. The Veteran submitted June 2017 Florida Department of Corrections medical records indicating he complained of numbness in his last two toes of the right foot. He reported a sudden onset of pain occurring 10 years prior and was treated with acetaminophen. The AOJ obtained an addendum opinion from a Veterans Health Administration doctor in July 2017. After reviewing the pertinent evidence, the physician noted that the medical description of the August 1982 injury was that of a superficial laceration of the right foot with no skeletal structures seen or involved. Based on this, he concluded that such a condition would have been due to a minor form of trauma, with insufficient force generalized to affect the skeletal structures and thereby produce later degenerative changes. Observing that the remainder of his service treatment records were silent for complaints of or treatment for right foot problems, the physician stated that from a medical point of view the Veteran experienced a minor, self-limiting condition which resolved, as would be expected of such an injury. He indicated it was therefore unlikely that complications from such an injury would be expected to resurface later in life, and that the lack of causal connection was supported by records indicating the Veteran did not seek additional treatment until some 30 years after the incident. The physician noted that the degenerative changes were confined to the first metatarsal joint, while the Veteran reported several toes affected by the injury, arguing that the absence of arthritis in multiple toes also weighed against a causal relationship. The physician concluded that the Veteran's right foot degenerative changes were less likely than not a result of his in service injury and were likely the consequence of cumulative "wear and tear" changes seen over time since the foot is a weight bearing joint. Upon review of the record, the Board finds that the most probative evidence is the July 2017 VA addendum opinion. The Board acknowledges that the probative value of this opinion is lessened somewhat by the examiner's failure to address the arthritis in the fourth and fifth toes noted by the treating VA podiatrist in 2012. However, as this arthritis was also not observed by the physician initially reviewing the Veteran's 2012 x-ray, this may indicate a difference of opinion among experts reviewing the same film. The Board finds the remainder of the examiner's opinion regarding lack of chronicity or continuity of symptomatology, as well as the unlikeliness of a nexus between the in service injury and current disorder, to be highly probative. The remainder of the opinion was based on a thorough review of the claims file, is factually accurate, and includes sound reasoning as well as a more plausible etiological origin for the Veteran's right foot disorder. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes there is no competent opinion to the contrary. The only evidence in the Veteran's favor are his lay statements alleging continuous symptoms since service. The Board finds the statements regarding recurrent right foot pain since slamming it in a door in service to have little probative value. Although he has made this claim on several occasions, he also reported a sudden onset 10 years earlier during a June 2017 evaluation and indicated during a decision review officer hearing that his toe injury was caused by a falling crate and had resolved, stating "it doesn't bother me now." The fact that the Veteran has recalled the circumstances surrounding the onset and continuity of his right foot symptoms differently on separate occasions tends to demonstrate either a failure of memory, or a lack of integrity, and in either event it weakens and impairs the value of his statements. See State v. Spadafore, 220 S.E.2d 655, 661 (W. Va. 1975). See also Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009) (notwithstanding the declarant's intent to speak the truth, statement may lack credibility because of faulty memory). The Board also notes that the Veteran's right foot arthritis is a chronic disease under 38 C.F.R. § 3.309. However, there is no evidence that this disorder began during service or within a year of his separation. As noted by the July 2017 medical expert, the Veteran was treated for a superficial laceration and was not diagnosed with degenerative arthritis until 2012. Even if the Board found the Veteran's statements regarding recurrent right foot pain since service credible, he is not competent to associate such symptoms with the manifestation of arthritis in service or within one year of separation, as the issue is medically complex and requires medical training as well as knowledge of the internal workings of the human body. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board finds more probative the 2017 expert opinion that, given the superficial nature of the Veteran's in service injury, his disorder is more likely due to natural wear and tear. As noted above, the Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan, 573 F.3d at 1287. While the Board concedes that the Veteran currently manifests a right foot disorder and experienced an in service injury to the same, the most probative and competent evidence is against finding that the current disorder at least as likely as not first manifested in or is otherwise due to his active service. His statements asserting a continuity of symptomatology are outweighed by the probative opinion and objective medical evidence to the contrary. See Layno v. Brown, 6 Vet. App. 465 (1994) (the Board must weigh lay statements against the entirety of the evidentiary record). As a preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application, and it must be denied. Gilbert, 1 Vet. App. at 53-54. A. ADAMSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. C. Schumacher, 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.