Citation Nr: 21014064 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 17-58 287 DATE: March 11, 2021 ORDER New and material evidence having been received, the claim of service connection for a left foot disability is reopened. Service connection for a left foot disability is granted. REMANDED The issue of service connection for a left knee disability is remanded. The issue of service connection for a back disability is remanded. FINDINGS OF FACT 1. In a November 1984 decision, the Board of Veterans’ Appeals (Board) denied service connection for a left foot disability. 2. Additional evidence received since the November 1984 decision is new, relates to an unestablished fact necessary to substantiate the service connection claim for a left foot disability, and raises a reasonable possibility of substantiating the claim. 3. The competent and probative evidence is at least in equipoise as to whether the current left foot disability had its onset during or is otherwise related to the Veteran’s period of active service. CONCLUSIONS OF LAW 1. In November 1984, the Board denied service connection for a left foot disability; VA has received new and material evidence since the November 1984 decision and reopens the claim of service connection claim a left foot disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for a right foot disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1974 to October 1977 and November 1977 to November 1978. This case is before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision from a Department of Veterans Affairs (VA) AOJ. In January 2021, the Veteran testified at a Board hearing. The transcript of the hearing has been associated with the record. An April 2020 rating decision granted service connection for posttraumatic stress disorder (PTSD) with anxiety, which constituted a full grant of the benefits sought. Accordingly, the claims of service connection for PTSD and anxiety are no longer in appellate status and are thus not currently before the Board. New and Material Evidence 1. New and material evidence for a service connection claim for a left foot disability. The April 2015 rating decision treated the evidence for the left foot disability claim as new but not material; however, even where the AOJ determines no new and material evidence is in the record, the AOJ’s determination does not bind the Board, and the Board must nevertheless consider whether VA has new and material evidence. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Generally, a claim which an AOJ has denied in a final decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(b). If, however, new and material evidence is presented or secured concerning a claim which has been disallowed, the claim must be reopened, and its former disposition must be reviewed. 38 U.S.C. § 5108. To be considered new, evidence cannot have been previously submitted to agency decision-makers or be cumulative or redundant of the evidence of record at the time of the last prior final denial. To be material, the evidence must, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim, and raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 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). The credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In deciding whether new and material evidence has been submitted, the evidence submitted since the time that the claim was finally disallowed on any basis is considered. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The record demonstrates VA received new evidence since the final prior decision, and such evidence is material to the issue of service connection for a left foot disability. In November 1984, the Board denied service connection for a left foot disability. In January 2021, the Veteran’s former spouse provided a statement recalling the Veteran’s complaints of left foot pain from service until the end of their cohabitation in 1994. 01/27/2021, VA 21-4138. This evidence is new and material in that it directly pertains to the basis for the prior final denial. The claim of service connection for a left foot disability is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection 2. Left foot disability. The Veteran has contended that his foot disability commenced from marching in ill-fitted boots in service. 08/20/2014, CAPRI; 07/07/1984, Hearing Testimony. Alternatively, he contends that his foot disability results from an in-service fall from a second-floor window. 01/18/2021, Hearing Transcript. Service connection will be granted for a current disability that resulted from an injury, disease, or aggravation while in active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, service connection requires (1) a present disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the present disability and the in-service incurrence or aggravation of a disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran and witnesses are competent to report symptoms and experiences they can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. The record demonstrates that service connection for a left foot disability is warranted. The record contains a competent diagnosis of residuals of a left midfoot fusion; accordingly, competent evidence of a current left foot disability is found. 08/10/2015, CAPRI. Service treatment records show the Veteran complained of bilateral foot pain in September 1975, was treated for a deep contusion of the left foot following a July 1976 injury, and he complained of bilateral foot pain in February 1978, specifying the left foot was worse due to a 1976 injury. 02/20/1979, STR–Medical. The Veteran’s November 1978 discharge examination noted a normal musculoskeletal evaluation, including of the feet. Id. Following service, VA treatment records show continued complaints of left foot pain in September 1980 and July 1983, which he attributed to wearing tight boots in the military. In August 1983, the Veteran underwent an osteotomy of the 3rd metatarsal. See 06/08/1984, Medical Treatment Record–Government Facility. The record does not contain medical evidence between 1984 and 2012. In August 2014, left foot midfoot arthritis was diagnosed, and in January 2015, he underwent a left foot arthrodesis or fusion of the midfoot. 08/10/2015, CAPRI. Considering the totality of the relevant evidence, the competent and probative lay and medical evidence of symptoms of left foot pain documented in service and after separation are at least in equipoise as to whether the current left foot disability had its onset in or is otherwise related to the Veteran’s period of active service. The Veteran’s former spouse’s observations of the Veteran’s complaints of foot pain since service until their separation in 1994 is competent and credible. Any doubt on the material issue of nexus is resolved in the Veteran’s favor, and the claim of service connection for a left foot disability is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Left knee disability. 2. Back disability. The Veteran has contended that his left knee and back disability are secondary to his foot disability. 04/21/2014, VA 21-526b. Alternatively, he contends that his left knee and back disability results from an in-service fall from a second-floor window. 01/18/2021, Hearing Transcript. The Veteran has a current diagnosis of degenerative arthritis of the spine, intervertebral disc syndrome, and left knee joint osteoarthritis. See 09/16/2017, C&P Exam. A September 2017 VA examiner opined the Veteran’s left knee condition in service was acute and resolved, and the current osteoarthritis of the left knee is more likely due to age-related wear and tear or an unrelated etiology; therefore, he concluded, the Veteran’s left knee disability is less likely as not incurred in or caused by the medial collateral ligament strain during service. See id. The September 2017 VA examiner also noted the Veteran’s current degenerative disc disease has no clinical correlation with a lumbosacral sprain, and the record is silent for a low back disorder between 1983 and 2012; thus, he concluded, the degenerative disc disease is more likely due to age-related wear and tear or an unrelated etiology. See id. The September 2017 nexus opinions are incomplete. The September 2017 examiner did not provide an opinion regarding the left knee and back disability etiology on a secondary basis. Accordingly, a new addendum opinion is necessary to analyze whether a nexus exists between the Veteran’s left knee and back disability and his service-connected disabilities, including his left foot disability. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). The matters are REMANDED for the following action: Schedule a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). Whether an in-person examination is necessary should be determined by the examiner. The examiner must address the following and provide a rationale for all opinions as to a) Whether the Veteran’s left knee disability is at least as likely as not (50 percent or greater probability) related to, proximately due to, or aggravated beyond its natural progression by a service-connected disability, including his service-connected left foot disability. b) Whether the Veteran’s back disability is at least as likely as not (50 percent or greater probability) related to, proximately due, or aggravated beyond its natural progression by a service-connected disability, including his service-connected left foot disability. If the examiner cannot give an opinion without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the (Continued on next page) record (additional facts are required), or the examiner (does not have the knowledge or training). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Costa, 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.