Citation Nr: 21073220 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-34 171 DATE: December 7, 2021 December 7, 2021 ORDER New and material evidence to reopen the claim for entitlement to service connection for left foot sesamoiditis having been found, the claim is reopened. REMANDED In addition, the following issues are remanded to the agency of original jurisdiction (AOJ) for addition development: Entitlement to service connection for a right hip disability; Entitlement to service connection for a left hip disability; Entitlement to service connection for left foot sesamoiditis; and Entitlement to service connection for right upper extremity. FINDINGS OF FACT 1. In a March 2013 rating decision, the AOJ denied the Veteran's claim of left foot sesamoiditis. That rating decision was not appealed and became final. 2. Since the March 2013 rating decision, the Veteran has submitted new and material evidence sufficient to reopen this claim. CONCLUSIONS OF LAW 1. The March 2013 rating decision is final with respect to the Veteran's claim to establish service connection for left foot sesamoiditis. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. 2. The additional evidence received since the March 2013 rating decision is new and material to the claims for entitlement to service connection for left foot sesamoiditis; therefore, the claims are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had service in the Reserves and National Guard from July 1984 to November 1984, from February 1991 to April 1991, from February 1995 to May 1995, from October 1996 to January 1997, and from July 2010 to February 2011. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran elected to have an optional Board hearing on her VA Form 9, submitted in June 2017. The RO provided a letter to the Veteran in May 2019 with her scheduled hearing; however, the Veteran did not attend her hearing. As such, the Board will consider the case on the evidence of record. The Veteran appeared and testified at a DRO hearing in November 2015. A transcript of the hearing is associated with the record . New and Material Evidence 1. Whether new and material evidence to reopen the claim for entitlement to service connection for left foot sesamoiditis has been received In a March 2013 rating decision, the AOJ denied the Veteran's claim of entitlement to service connection for left foot sesamoiditis. The claim was denied because the Veteran did not submit new and material evidence to support her claim. The last rating decision to address the Veteran's claim for service connection for left foot sesamoiditis was in April 2012 because the Veteran's condition preexisted service and was not aggravated by service. That rating decision was not appealed and became final. Generally, a claim that has been denied in an unappealed decision may not be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. VA defines "new" evidence is existing evidence not previously submitted to agency decisionmakers. "Material" evidence is 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 neither be 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. See 38 C.F.R. § 3.156(a). Regardless of what action was taken by the agency of original jurisdiction, the Board is under a statutory obligation to conduct a de novo review of the new and material issue. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id., at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Since the original denial, additional evidence was associated with the claims file, which includes VA treatment records and the Veteran's testimony. The above evidence is "new," as it was not before VA at the time of the last final rating decisions, and "material" as it raises the reasonable possibility of substantiating the previously-denied issues. Therefore, the Board finds that new and material evidence has been submitted sufficient to reopen the claim of service connection for left foot sesamoiditis. REASONS FOR REMAND 2. Entitlement to service connection for a right hip disability is remanded. 3. Entitlement to service connection for a left hip disability is remanded. The Veteran was afforded a VA examination in February 2014. The examiner opined that the Veteran's hip disabilities were due to the deconditioning of them by the use of a cane and walker, and not secondary to the Veteran's service-connected knee disabilities. However, the Veteran also raised the theory of secondary service connection due to her foot disability. See Hearing Testimony November 2015. A remand is warranted to obtain an opinion regarding secondary service connection due to the Veteran's left foot disability, which is currently on appeal. Moreover, the Veteran's medical records reflect her statements that her bilateral hip pain resulted from sexual trauma during her military service. See Capri received April 2017. As such, an opinion regarding direct service connection is also warranted. 4. Entitlement to service connection for left foot sesamoiditis is remanded. The Veteran was afforded a VA examination for her left foot disability in March 2012. The examiner opined the Veteran's left foot pain was not caused by her 2010 fall in Afghanistan because the records indicate the foot pain and sesamoid condition predated the injury, and that a bipartite sesamoid is congenital. However, the RO did not obtain an opinion regarding whether this preexisting condition was aggravated by the Veteran's military service. Wagner v. Principi, 370 F.3d 1089, 1092 (Fed. Cir. 2004). A remand is warranted to determine whether this disability clearly and unmistakably existed prior to service and the condition clearly and unmistakably was not aggravated during service. 5. Entitlement to service connection for right upper extremity numbness is remanded. The RO denied service connection for right upper extremity numbness because the evidence does not show a current right upper extremity numbness condition which began in service, was caused by an event or experience in service, preexisted and was permanently aggravated by service, was diagnosed within a year of discharge, or was proximately due to or the result of a service-connected disability. The Veteran was afforded a VA examination in May 2012, with a clarification opinion obtained in August 2012. The May 2012 VA examiner opined that the Veteran's numbness related to a flare-up of a pre-existing trapezius condition which was aggravated by the Veteran's military trauma. The August 2012 examiner opined that the Veteran's right trapezius strain had resolved, but resurgence of similar symptoms occurred after her in service injury, due to the degenerative disc disease of the cervical spine. Moreover, the Veteran's service treatment records reflect notations of right arm numbness beginning after the 2010 fall in Afghanistan. Finally, the August 2012 VA examiner diagnosed the Veteran with right arm numbness of unknown cause. Although a February 2014 VA examination found no evidence of any upper body radiculopathy or peripheral neuropathy, a clarifying opinion is necessary to determine the etiology of the Veteran's right arm numbness during the entire appeal period. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file VA treatment records from April 2017 to present. 2. Forward the Veteran's claims file to a VA examiner to determine the etiology of the Veteran's bilateral hip disability. The examiner is asked to provide an opinion for the following: (a.) Whether the Veteran's bilateral hip disability is at least as likely as not due to the Veteran's military service. The examiner is asked to consider the Veteran's statement that her bilateral hip pain is a result of sexual trauma incurred in her military service (b.) Whether the Veteran's bilateral hip disability is at least as likely as not proximately due to the Veteran's non-service-connected left foot disability. Regarding secondary service connection, the examiner is also asked to consider the Veteran's testimony that her hip pain is due to her left foot disability. (c.) Whether the Veteran's bilateral hip disability is at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the Veteran's non-service-connected left foot disability. Regarding secondary service connection, the examiner is also asked to consider the Veteran's testimony that her hip pain is due to her left foot disability. 3. Forward the Veteran's claims file to a VA examiner to determine the etiology of the Veteran's left foot disability. The examiner should indicate whether the Veteran's left foot sesamoiditis clearly and unmistakably existed prior to service. If so, was this aggravation clearly and unmistakably due to the natural progression of the disease? The examiner is asked to consider the Veteran's complaints of left foot pain due to a September 2010 fall in Afghanistan documented in her service treatment records. 4. Forward the Veteran's claims file to a VA examiner to determine the etiology of the Veteran's right upper extremity numbness. The examiner is asked to provide an opinion for the following: (a.) Whether the Veteran's right upper extremity numbness clearly and unmistakably existed prior to service. If so, was this aggravation clearly and unmistakably due to the natural progression of the disease? (b.) Whether the Veteran's right upper extremity numbness is at least as likely as not due to the Veteran's military service, specifically the September 2010 fall in Afghanistan. (c.) Whether the Veteran's right upper extremity numbness is at least as likely as not proximately due to the Veteran's service-connected degenerative disc disease of the cervical spine. (d.) Whether the Veteran's right upper extremity numbness is at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the Veteran's service-connected degenerative disc disease of the cervical spine. The examiner is asked to consider the Veteran's in service complaints of right arm numbness. 5. Thereafter, readjudicate the claims on appeal. I. M. Hitchcock Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Townsend, 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.