Citation Nr: 21026201 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 20-04 495 DATE: April 30, 2021 ORDER The petition to reopen a previously denied claim for service connection for a left foot disorder is granted, based on receipt of new and material evidence. REMANDED The claim for service connection for a left foot disorder, including secondary to service-connected total knee replacement left knee, is remanded. FINDINGS OF FACT 1. A July 2014 rating decision denied the Veteran’s original claim for service connection for swelling in the left foot, to include claimed as due to total knee replacement, left knee. 2. Since then, additional evidence has been received which presents a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The July 2014 rating decision denied the Veteran’s original claim for service connection for swelling in the left foot, including claimed as due to total knee replacement, left knee is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.200, 20.302. 2. New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a left foot disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Air Force from May 1955 to July 1958. The Veteran died in September 2018; the appellant here, the Veteran’s surviving spouse, has been properly substituted to continue the appeal. This issue comes before the Board of Veterans’ Appeals (Board) on appeal of a In April 2021, a videoconference hearing was held before the undersigned Veterans Law Judge (VLJ) of the Board, the transcript of which is of record. In May 2019, the appellant filed a claim for dependency and indemnity compensation, survivor’s pension, and burial benefits. In an August 2019 administrative decision, the RO partially granted the appellant’s claim for burial benefits. In a separate August 2019 administrative decision, the RO denied the appellant’s claim for DIC benefits and survivor’s pension benefits on the basis that the appellant had not submitted a copy of the Veteran’s death certificate (despite the fact that the Veteran’s claims file reflects that a copy of that certificate was submitted earlier that month). Many of the appellant’s written statements appear to be arguing for DIC benefits rather than for the issue before the Board. Because the RO has issued a decision on this issue, the Board is not able to refer it to the RO for processing. That said, the appellant is encouraged to contact her representative for further information about refiling her claim for DIC benefits. The previously denied claim for service connection for a left foot disorder is reopened. By July 2014 RO rating decision, the original claim for service connection for flat feet / foot surgery was denied. The RO stated the decisional basis as follows, that service connection was denied for lack of causal relationship to service, including “no permanent residual or chronic disability subject to service connection [as] shown by the service medical records.” Also cited was that within the Service Treatment Record (STRs) there was an August 1956 record that showed treatment for flat feet, painful, and the Veteran’s was provided arch support. Separation examination July 1958 was negative for foot condition or foot surgery. According to the RO’s consideration of the case, this meant less of likelihood of causal connection between a current foot disorder and service, and since there was not a clearly documented continuing bilateral foot condition present since service. Following this determination, the Veteran did not file a timely Notice of Disagreement with the RO rating decision within one year of notification of the same, and as a result that decision became final on the merits. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 20.200 (2020). A petition to reopen the matter was received December 2017. When a claim to reopen is presented under § 5108, VA must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Since the prior decision there is additional evidence obtained that includes a basis to reopen the claim, considering that the Veteran in his December 2017 petition to reopen had averred that the left foot condition was due to left knee problems. Given that a claim for service connection for left knee problems similarly now was on appeal, this raised the theory of secondary service connection, per 38 C.F.R. § 3.310(b). The claim for service connection for knee condition remained denied, at the time. Since then, however, a December 2019 RO rating decision granted service connection for total knee replacement, left knee (procedure had been done twice), with a 60 percent rating effective December 20, 2017. There is now a tenable basis for theory of secondary service connection. The appellant also raised the same theory during recent Board hearing testimony. The reasonable likelihood of establishing the claim with application of theory of secondary recovery sufficiently qualifies as “new and material” evidence to reopen the claim. See 38 C.F.R. § 3.156(a) (2020). Accordingly, the claim for service connection for a left foot condition is reopened. Further development of the reopened claim is the subject of the remand section below. REASONS FOR REMAND The claim for service connection for a left foot disorder, including secondary to service-connected total knee replacement left knee, is remanded. The Board is remanding the reopened claim for de novo reconsideration (on the merits) and for a more comprehensive VA medical opinion. The first question the Board is attempting to answer is whether the claimed issue pre-existed service, as an August 1956 Service Treatment Record (STRs) suggested as to pes planus, and if so whether a left foot condition was aggravated in service and following a clear explanation why or why not. STRs did not document further treatment for a problem of the bilateral feet, however, the already obtained description from the appellant’s hearing testimony about the Veteran’s symptoms during service would warrant consideration as to any in-service aggravation that was present. Secondly, an opinion is warranted addressing secondary service connection, given that status-post total knee replacement for the left knee is an adjudicated service-connected disability. Finally, the appellant had previously submitted releases to allow VA to obtain evidence on her behalf. It appears that VA rejected these releases, finding that a death certificate had not been submitted. However, the Veteran’s claims file reflects that the appellant submitted the Veteran’s death certificate in August 2019. As such, VA must again attempt to obtain these records. The matter is REMANDED for the following action: 1. With any necessary assistance from the appellant, obtain outstanding copies of the Veteran’s private treatment records. 2. Following the completion of the above ordered development, provide the claims file to a qualified VA examiner to obtain an opinion on the likely etiology of a left foot disorder. The entire claims file and a copy of this remand must be made available to the clinician for review. It is requested the examiner provide an opinion in response to the following inquiries: a) From what left foot disability or disabilities did the Veteran suffer prior to his death in September 2018? b) For any identified left foot disability, the examiner must state whether that disability clearly and unmistakably preexist the Veteran’s active service? If so, is there clear and unmistakable evidence that any identified left foot disability was not aggravated during the Veteran’s subsequent active service? The examiner is advised that the evidentiary standard for whether a condition existed prior to service is “clear and unmistakable,” which is a formidable evidentiary standard, requiring that the preexistence of a condition or a no-aggravation result be “undebatable.” For determining whether there was any aggravation of a pre-existing condition, the examiner is to consider both documentation from Service Treatment Records (STRs) and the appellant-widow’s April 2021 hearing testimony about the further relevant background medical history. c) If no left foot disability preexisted the Veteran’s service, then is it at least as likely as not that any identified left foot disability was incurred in, had its onset during, or is otherwise related to the Veteran’s active service? d) Is it at least as likely as not that any identified left foot disability is secondary to the Veteran’s service-connected left knee replacement? That is, is any identified left foot disability proximately due to, the result of, or aggravated by the Veteran’s service-connected left knee replacement? A complete rationale should be given for any opinions expressed. If a requested opinion cannot be made without resort to speculation, the examiner should state this and explain why this happens to be the case. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lyons, 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.