Citation Nr: 21075430 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 16-46 958 DATE: December 20, 2021 ORDER The request to reopen the claim for service connection for a foot condition based on new and material evidence is denied. FINDINGS OF FACT 1. The Veteran's claim for entitlement to service connection for a foot condition was denied in a June 2011 rating decision that was not appealed, nor was any new and material evidence submitted within the appeal period. 2. Evidence received since the final June 2011 rating decision does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a foot condition. CONCLUSIONS OF LAW 1. The June 2011 rating decision that denied service connection for a foot condition is final. 38 U.S.C. §§ 5103A, 5108, 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. Evidence received since the final June 2011 rating decision is not new and material; the criteria to reopen the claim for service connection for a foot condition have not been met. 38 U.S.C. § 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Army from March 1979 to February 1983. In August 2021, the Veteran testified before the undersigned Veterans Law Judge at a Virtual hearing. A copy of the transcript has been associated with the claims file. 1. Request to reopen the claim for service connection for a foot condition based on new and material evidence The Veteran contends that his foot condition is due to his period of service. The Board finds that the Veteran has not submitted new and material evidence for the purpose of reopening a claim for service connection for a foot condition. Pertinent procedural regulations provide that nothing in 38 U.S.C. § 5103A shall be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in 38 U.S.C. § 5108. See 38 U.S.C. § 5103A (f). Reopening a claim for service connection that was previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996). Moreover, 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). New evidence means existing evidence not previously submitted to VA. 38 C.F.R. § 3.156(a). 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. Id. 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. Id. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit 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. The United States Court of Appeals for Veterans Claims (Court) held that in determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court held that the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) (2018) in order to have a finally denied claim reopened under 38 U.S.C. § 5108 (2012). Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). To determine whether new and material evidence has been received, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis in conjunction with the evidence already of record. Id. In September 2004, the Veteran submitted a claim for service connection for feet. In an April 2005 rating decision, the RO denied service connection for chronic ingrown toenails, claimed as feet condition. The RO indicated that, while the Veteran's current VA records indicated current treatment for complaint of chronic ingrown toenails, service connection was denied because the record did not show that the chronic ingrown toenail condition, claimed as feet condition, occurred in or was caused by his period of service. The Veteran did not appeal the decision, and it became final. The Veteran made a request to reopen the claim in December 2008. In an October 2009 rating decision, the RO declined to reopen the claim, stating that, while the Veteran submitted new evidence, in this case, updated VA medical records, current medical evidence from the Veteran's private physician, and lay statements noting the current effect of his foot condition, the evidence was not material because it did not substantiate an unestablished fact necessary to substantiate the claim and did not raise a reasonable possibility of substantiating the claim. The RO then stated that, while the evidence is new, in that it had not previously been of record, the new evidence did not show that the Veteran's current foot condition occurred in or was caused by service. The Veteran did not perfect an appeal of the decision, and it became final. In February 2011, the Veteran submitted a request that the claim for ingrown toenails, secondary to bilateral foot pain, be reopened. Here, the Veteran submitted evidence, to include a September 2010 lay statement asserting that his current disability was incurred during his service in Germany due to poorly draining showers causing stagnant water and bacteria. In a June 2011 rating decision, the RO declined to reopen the claim for service connection for chronic ingrown toenails, also claimed as a foot condition, stating that the current claim does not constitute new and material evidence because it does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. The RO noted that there is no objective evidence that shows that this condition began in service or is related to the Veteran's military service, and that in order to grant service connection for a disability, the evidence must show that the claimed condition occurred while he was in service and that there was a link between an in-service condition and the current disability. The Veteran did not appeal the decision, and it became final. In December 2014, the Veteran submitted a request that the claim for bilateral foot condition be reopened. In the February 2015 rating decision currently on appeal, the RO declined to reopen the claim for service connection for chronic ingrown toenails, also claimed as a foot condition, stating that the current claim does not constitute new and material evidence because it does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. The RO stated that there was no continuity of symptoms from service to the present, the evidence does not show an event, disease or injury in service, and the evidence did not contain a link between the Veteran's current medical condition and his period of active duty service. The Board is required to address the issue of new and material evidence in the first instance. If the Board determines that new and material evidence has not been received, the adjudication of the claim ends, and further analysis is neither required nor permitted. Any decision that the AOJ may have made with regard to a new and material claim is not binding on the Board. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Evidence added to the file during this period included updated VA medical treatment records, and a VA Form 9 lay statement reiterating that the Veteran had foot issues while stationed in Germany due to bad drainage and sought treatment several times during service, including with a civilian doctor on base. The Veteran reported that while stationed at Ft. Hood, he complained so much about his feet that his commander discharged him for failure to adjust to military life. Additional evidence also included the Veteran's statements during an August 2021 Board hearing, in which the Veteran asserted that his claim is misclassified as ingrown toenails instead of foot fungus. The Veteran stated that the fungus caused ingrown toenails and callouses, which had to be removed frequently. The Veteran reiterated that he believed his foot condition began during his service in Germany due to stagnant water in the showers. The Veteran also stated that he sought treatment during service, and that he was eventually discharged from service due to reporting his foot condition repeatedly. The Board notes that since his original filing of the claim, the Veteran has established a current foot condition. The unestablished facts for the purposes of reopening the claim are evidence of an in-service event or injury, and/or a nexus or link between the Veteran's current foot condition and the in-service event or injury. While the RO has classified the claim interchangeably with the diagnosis of the Veteran's current foot condition of record, the fact that the Veteran has a current condition has been established by the record. To this extent, assertion that the Veteran's current foot condition is an underlying chronic fungus rather than the resulting ingrown toenails does not relate to an unestablished fact. Likewise, the Veteran's lay statements regarding his service in Germany is duplicative in nature. The prior final June 2011 rating decision previously considered the Veteran's description of the drainage of the showers and his assertion that his condition was incurred during his period in service. In consideration of the evidence, the June 2011 rating decision notes that, as previously found, there is no objective evidence of that shows that this condition began in service or is related to the Veteran's period of service, meaning that despite the Veteran's assertions in his lay statements, the Veteran service treatment records and military personnel records do not contain complaint of or treatment for a foot condition. As the Veteran's service in Germany has previously been considered in the June 2011 rating decision, the Veteran's subsequent written lay statements and his Board hearing testimony regarding his service in Germany is duplicative in nature and does not constitute new evidence. Under these circumstances, the Board must conclude that new and material evidence to reopen the claim of entitlement to service connection for a foot condition has not been received. The Board recognizes the threshold for reopening a claim is low, but it is a threshold nonetheless, and as described, the evidence that has been added since June 2011 does not reach that threshold. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). As such, the appeal must be denied. As the Veteran has not fulfilled the 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). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ford 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.