Citation Nr: 21009984 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-55 942A DATE: February 23, 2021 ORDER New and material evidence having been received, the application to reopen a previously denied claim of entitlement to service connection for a right foot condition is granted and the claim is reopened. REMANDED Entitlement to service connection of a right foot condition, to include the right 5th metatarsal, is remanded. Entitlement to service connection of a bilateral knee condition, to include as secondary to a service-connected disorder, is remanded. FINDINGS OF FACT 1. A September 2003 rating decision denied service connection for a right foot condition. The rating decision was not appealed nor was new and material evidence received during the appeal period. 2. The evidence received since the last final rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a right foot condition and raises a reasonable possibility of substantiating that claim. CONCLUSIONS OF LAW 1. The September 2003 rating decision that denied service connection for a right foot condition is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received to reopen a claim of entitlement to service connection for a right foot condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the active duty Navy from January 1969 to October 1970, with additional service as a member of the Navy Reserve. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Whether new and material evidence has been submitted to reopen a previously denied final claim of service connection of a right foot condition Reopening a claim for service connection that has been 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 (2012). 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. 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). The Veteran previously filed a claim for service connection due to VA surgical treatment under 38 U.S.C. § 1151 for his right 5th metatarsal, which the VA denied in a May 1997 rating decision. He did not file a notice of disagreement, nor did he submit any new evidence in support of that claim within the statutory period to appeal the denial. As such, it became final. While he filed to re-open this claim in October 2002, his Statement in Support of Claim also listed a right foot injury he alleged occurred in service. This claim was denied in a January 2003 rating decision as the evidence submitted was not new and material. In February 2003, the Veteran filed another claim to re-open his claim for service connection of a right foot condition. This claim was denied in a September 2003 rating decision because no new and material evidence had been submitted to the issue of his 38 U.S.C. § 1151 claim or a claim for service connection based on his “period of active duty.”. He did not timely file a notice of disagreement, nor did he submit any new evidence in support of that claim within the statutory period to appeal the denial. Therefore, it became final. In May 2014, the Veteran submitted a claim to re-open his “right foot condition to include 5th metatarsal.” The VA RO appears to have construed his claim to be for direct service connection of his right foot condition. The Board adjudicates this claim as one for direct service-connection of a right foot condition. In reviewing the evidence added to the claims folder since the September 2003 denial, the Board finds that additional evidence in the form of a VA examination has been received which is sufficient to reopen the Veteran’s right foot claim. At the time of the September 2003 denial, the Veteran had not been afforded a VA examination to determine whether his current right foot problems were caused by or related to his in-service injury. Additionally, he has since appeared before a Veterans Law Judge to testify to the circumstances of his injury, post-service issues and current symptoms. This evidence was not before the RO in September 2003 and it is not cumulative or redundant evidence then of record. It raises a reasonable possibility of substantiating the Veteran’s claim. Accordingly, the Board finds that new and material evidence has been added to the record since the September 2003 decision, and the claim must be reopened. REASONS FOR REMAND The Veteran seeks service connection of right foot and bilateral knee conditions, which he asserts are related to his active military service. Inasmuch as the Board regrets any further delay in the adjudication of these appeals, a remand is necessary. 1. Entitlement to service connection of a right foot condition is remanded. The Veteran was afforded a VA examination for his right foot condition in March 2018. Although diagnoses were given for a right foot 5th metatarsal fracture, right 5th metatarsal head resection and degenerative arthritis of the right foot, the examiner opined against any connection to service for the diagnosed conditions. Specifically, the examiner stated that present diagnoses were not related to any issues the Veteran had in-service, as the first complaint or treatment for a right foot condition was in 1998 for painful callouses of the 5th metatarsal – 29 years after the Veteran’s alleged injury in service. The examiner also stated he was unable to find any incident of the alleged December 1969 injury in the service treatment records. However, after a review of the record, the Board finds that the Veteran sought treatment for an instep bruise of his right foot during service in December 1969. Additionally, the record shows that his first complaint of a foot issue post-service occurred during an August 1985 VA examination for a low back condition. He also underwent bunionectomy surgery of the right foot’s 5th metatarsal head in January 1989. Unfortunately, the examiner did not consider these post-service complaints and treatment when providing his negative rationale. Because the March 2018 examiner based his negative opinion on an incorrect factual premise, an addendum opinion must be obtained that considers the Veteran’s in-service treatment for a foot bruise as well as post-service treatment and surgery prior to 1998. 2. Entitlement to service connection for a bilateral knee condition, to include as secondary to a service-connected disorder, is remanded. The Veteran originally filed a claim for a bilateral knee condition in May 2014 as secondary to his right foot condition. In his perfected appeal to the Board in November 2017, his claim listed bilateral knee degenerative joint disease as secondary to his right foot condition. The Veteran underwent VA examinations in September 2014 and March 2018 for his bilateral knee condition. Both examinations resulted in a negative opinion, however the March 2018 examination only discussed direct causation and did not address aggravation, nor secondary service connection. In his January 2020 hearing, the Veteran continued to assert that his bilateral knee condition is linked to his right foot disability. To the extent that the outcome of the right foot claim has a direct bearing on the outcome of his bilateral knee claim on appeal, this claim must be remanded as they are inextricably intertwined. Should the outcome of the right foot claim fall to the Veteran’s benefit, any additional development warranted thereby of the remaining claim should be fulfilled. The matters are REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of his appeal. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s right foot disability is at least as likely as not related to active service. The examiner should consider the Veteran’s complete history, specifically the December 1969 treatment for a bruised instep of his right foot. In addition, the examiner should consider the Veteran’s post-service issues, including complaints of foot pain in August 1985 and right foot surgery in January 1989. 3. Thereafter, the RO should conduct any necessary development regarding the Veteran’s bilateral knee issue on appeal in light of the foot claim. Should the evidence in the foot claim favor the Veteran, any secondary development of the remaining bilateral knee claim should be accomplished, to include any VA examinations as are necessary. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. McDonald