Citation Nr: 21074508 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 16-32 237 DATE: December 15, 2021 ORDER New and material evidence has not been received to reopen the claim of entitlement to service connection for a bilateral ankle disability. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. A May 2011 rating decision denied service connection for a bilateral ankle disability. The Veteran did not appeal that decision, and new and material evidence was not received within one year of notice of its issuance. 2. Evidence received since the May 2011 rating decision is cumulative or redundant of the evidence previously of record and does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a bilateral ankle disability. CONCLUSIONS OF LAW 1. The May 2011 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material has not been received to reopen the claim of entitlement to service connection for a bilateral ankle disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1980 to April 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a hearing in March 2019 and March 2021, but he failed to report, and no request for postponement has been received. Thus, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d). In July 2021, the Board remanded the appeal for further development. Notably, during the pendency of this appeal, a September 2021 rating decision awarded service connection for bilateral pes planus and plantar fasciitis. These issues are accordingly not in appellate status 1. New and material evidence has not been received to reopen the claim of entitlement to service connection for a bilateral ankle disability. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 C.F.R. § 5108. "New" evidence means existing evidence not previously submitted to agency decisionmakers. "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(a). In determining whether evidence is "new and material," the credibility of the new evidence must be 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." See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead one should ask whether the evidence could reasonably substantiate the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. However, a new theory of entitlement does not automatically reopen a previously denied claim. See Bingham v. Nicholson, 421 F.3d 1346, 1348-49 (2005); see also Boggs v. Peake, 520 F.3d 1330, 1336 (Fed. Cir. 2008) (new theory of causation for same disease or injury that was subject of previously denied claim cannot be basis of new claim). The Veteran's claim of entitlement to service connection for a bilateral ankle disability was denied in a May 2011 rating decision based on the lack of a nexus to military service. The Veteran did not appeal this decision, and new and material evidence was not received within one year of its issuance. Accordingly, the May 2011 rating decision is final, and new and material evidence is required to reopen the claim. See 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(b), 20.1103. Evidence received since the most recent final May 2011 rating decision includes updated VA treatment records, Social Security Administration records, and military personnel records. This evidence is new, in that it was not previously considered in the May 2011 denial, but it is not material, as it does not demonstrate that an ankle disability is related to military service, a service-connected condition, or that it manifest to a compensable degree within one year after service. Instead, the medical records merely document the continued diagnosis, symptoms of pain and treatment of the condition, which is cumulative and redundant information that is not in dispute. Regarding the additional military personnel records associated with the claims file, the records do not contain any information or evidence relevant to, or which would substantiate, the claim. Thus, they are not relevant, and reconsideration of the claim is not warranted. 38 C.F.R. § 3.156(c). Notably, the Veteran has not presented any new argument for service connection or any statement in support of reopening the claim. The Board acknowledges that the Veteran's representative raised a new etiological theory (secondary service connection) to reopen the claim during the pendency of this appeal. See November 2021 Appellate Brief. However, a new etiological theory does not constitute a new claim. Velez v. Shinseki, 23 Vet. App. 1999 (2009); Ashford v. Brown, 10 Vet. App. 120, 123 (1997); Roebuck v. Nicholson, 20 Vet. App. 307 (2006). 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 under section 5108. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). In this case, such evidence has not been presented. Accordingly, as the evidence submitted since the May 2011 final denial of the claim does not raise a reasonably possibility of substantiating the claim, the requirements of 38 C.F.R. § 3.156(a) are not met, and the previously denied claim of entitlement to service connection for a bilateral ankle disability is not reopened. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). REASONS FOR REMAND 2. Entitlement to service connection for an acquired psychiatric disorder is remanded. While a nexus opinion addressing direct service connection was obtained in April 2016, the Veteran's representative subsequently raised the theory of secondary service connection, asserting that the Veteran's acquired psychiatric disorder may be secondary to his current service-connected disabilities. See November 2021 Appellate Brief. Thus, an opinion addressing secondary service connection should be obtained on remand. The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding pertinent private treatment records. 3. Obtain an addendum opinion from a VA examiner addressing the etiology of the Veteran's acquired psychiatric disorder. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. Following a review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's major depressive disorder: (a) is proximately due to his service-connected bilateral pes planus and/or plantar fasciitis; or (b) has been aggravated (worsened beyond natural progression) by his service-connected bilateral pes planus and/or plantar fasciitis. In addressing these questions, please note there is no temporal requirement that the primary condition (foot disorders) be service-connected, or even diagnosed, at the time the secondary condition (psychiatric disorder) is incurred, and reliance on this fact will render any opinion inadequate. A complete rationale shall be given for all opinions and conclusions expressed. If unable to opine without resorting to speculation, please provide a rationale for that conclusion. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.S. Mahoney 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.