Citation Nr: 21005964 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 191205-47495 DATE: February 3, 2021 ORDER New and relevant evidence has been received to warrant readjudication of the claim for service connection for a left foot disability. REMANDED Entitlement to service connection for a left foot disability is remanded. FINDING OF FACT New and relevant evidence has been received to warrant readjudication of the claim for service connection for left foot disability. CONCLUSION OF LAW New and relevant evidence has been received to warrant readjudication of the claim for service connection for left foot disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.2501. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from August 1955 to November 1957. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed the decision and requested direct review. Under direct review, the Board considers the same record as was before the RO at the time of the appealed decision. No additional development is permitted; remand is allowable only to correct a pre-decisional error. 38 C.F.R. §§ 20.301, 20.802. The Board first notes that a January 2020 Board decision dismissed the Veteran’s claim under the Appeals Modernization Act (AMA), noting a lack of jurisdiction. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In a September 2020 order, the Court granted the parties’ joint motion for remand and determined that the Board failed to provide an adequate statement of reasons or bases for the dismissal. The matter has now been returned to the Board for review. Here, the Board recognizes that an October 2018 legacy rating decision denied reopening the Veteran’s claim for service connection for a left foot disability on the basis that new and material evidence had not been received. The Veteran then submitted a VA Form 21-9058, Notice of Disagreement (NOD), noting his service-connected Freiburg’s disease, manifestations of his left foot, and requesting that a 2012 claim be reopened. In an April 2019 letter, the RO notified the Veteran that his NOD was incomplete and that he was required to submit a new NOD and complete sections 1 to 10 on page 3. Instead, the Veteran first submitted a supplemental claim in April 2019 and the claim was accepted for AMA adjudication. As of February 19, 2019, when the AMA went into effect, a claimant has the option of filing a supplemental claim to request readjudication of a previously denied claim, legacy or otherwise. 38 C.F.R. § 3.2501. Because the Veteran’s NOD was insufficient, and the Veteran then filed a supplemental claim for readjudication under the AMA, the Board finds that the matter was properly accepted by the RO for adjudication under the AMA. New and Relevant Evidence – Left Foot Disability Under the AMA, “if new and relevant evidence is presented or secured with respect to a supplemental claim, the Secretary shall readjudicate the claim taking into consideration all of the evidence of record.” 38 U.S.C. § 5108(a); 38 C.F.R. § 3.2501. New evidence is defined as “evidence not previously part of the actual record before agency adjudicators.” Relevant evidence is defined as “evidence that tends to prove or disprove a matter in issue.” Here, a July 2019 rating decision determined that new and relevant evidence had not been received to readjudicate the claim for service connection for a left foot disability. In his supplemental claim, the Veteran, though his communication is somewhat indecipherable, indicated that he had manifestations of a left foot disability other than his service-connected Freiburg’s disease. In this respect, the Board notes that the Veteran is currently service connected for Freiburg’s disease, status post left 2nd toe amputation; neuritis left second toe stump; painful scar, status post left 2nd toe amputation; and scar, status post left 2nd toe amputation. In addition, a May 2019 VA medical treatment record shows a complaint of left foot pain without indicating any relationship to the service-connected disabilities. The Board finds that new and relevant evidence has been received because the new evidence indicates that the Veteran may have a left foot disability other than the disabilities for which he is service connected. The evidence tends to prove the matter on appeal and the claim must be readjudicated. As will be discussed below, remand is required for a pre-decisional duty to assist error. REASONS FOR REMAND Entitlement to service connection for a left foot disability is remanded. The Board finds that the Veteran’s claim for service connection for a left foot disability must be remanded due to a pre-decisional duty to assist error. The Board recognizes that the Veteran was last provided a VA examination in May 2018 concerning his left foot. The May 2018 VA examination report continued to document the Veteran’s service-connected Freiburg’s disease and 2nd toe amputation, but noted that there were no x-rays for review. However, the examiner did not address the February 2018 VA x-ray findings indicating degenerative joint disease, osteoporosis, and plantar heel spur. A VA examination and opinion is required to adjudicate the claim. In addition, when the Veteran requested service connection for a left foot disability in October 1977, he reported treatment at the Tuskegee VA Medical Center (VAMC) in August 1977. In January 1978, he also indicated that an x-ray was taken at Tuskegee VAMC in June 1977 and later stated that his doctor wanted to operate in 1977 or 1978. The claims file contains a September 1977 Tuskegee VAMC record and it not evident that a request was made for records earlier than January 1990 though some earlier records are included in the claims file. Accordingly, all VA records prior to January 1990 from Tuskegee VAMC must be requested. The matter is REMANDED for the following action: 1. Request VA treatment records prior to January 1990 from Tuskegee VAMC. 2. Schedule the Veteran for a new VA examination for his left foot disability. The claims file must be made available for review. The examiner must opine whether it is at least as likely as not that the Veteran has a left foot disability, other than his service-connected Freiburg’s disease and associated scars, related to his active service. In doing so, the examiner must address the x-ray findings indicating degenerative joint disease, osteoporosis, and plantar heel spur. A full and complete rationale must be provided for any opinion reached. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Seay, 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.