Citation Nr: 21030488 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 18-49 820 DATE: May 19, 2021 ORDER The application to reopen the claim of service connection for left foot and toe disorders is granted. Service connection for a chronic left foot/toe disorder is denied. FINDINGS OF FACT 1. The Veteran had active duty from July 1977 to July 1980. 2. In an unappealed September 2012 rating decision, the Regional Office (RO) denied, among other things, service connection for a left foot and toe disorder. 3. The evidence submitted since the September 2012 rating decision reflected diagnoses of a left foot/toe disorder, private medical records, Board hearing testimony detailing onset, and correspondence describing an in-service incurrence. 4. The current left foot/toe disorder, diagnosed as callus left great toe interphalangeal joint, bilateral hallux limitus, and mild bilateral pes planus, were not incurred in service. CONCLUSIONS OF LAW 1. The September 2012 RO rating decision, which denied service connection for a left foot and toe disorder, is final. 38 U.S.C. § 7105 (2012). 2. The evidence received since the September 2012 rating decision is new and material; the claim for service connection for a left foot/toe disorder is reopened. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2020). 3. A chronic left foot/toe disorder was not incurred in service. 38 U.S.C. §§ 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. "New" evidence means evidence "not previously submitted to agency decisionmakers." "Material" evidence means "evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim." 38 C.F.R. § 3.156(a). In order to be "new and material" evidence, the evidence must not be cumulative or redundant, and "must raise a reasonable possibility of substantiating the claim," which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). Turning to the evidence, the Veteran's initial claim for service connection for a left foot/toe disorder was denied in a February 2012 rating decision. However, he submitted new and relevant evidence in the year following that rating decision, resulting in the RO issuing a subsequent rating decision in September 2012 to address the new evidence. The September 2012 rating decision again denied the claim. He filed a notice of disagreement (NOD) but it was not timely. As such, the September 2012 rating decision became final. In January 2017, the Veteran filed a new claim for "left foot/toe." In support, he gave testimony before the Board, submitted private medical records, and submitted additional correspondence regarding his claimed disability. Service connection was denied in the prior final rating decision due to lack of a medical nexus. While the new evidence does not contain a fully composed medical nexus opinion, in his March 2021 testimony before the Board, the Veteran gave additional detail describing the initial onset of his toe symptomology. The circumstances of onset are relevant to the medical nexus element. As such, new and material evidence relating to an unestablished element of the claim has been submitted since the prior final rating decision, the application to reopen the claim of service connection for left foot and toe disorder is warranted, and the appeal, to this extent, is granted. Service Connection Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Turning to the evidence, the Veteran claims he has a left foot/toe disorder caused by service. The first element of service connection a current disability is met, as a January 2012 VA examiner diagnosed callus left great toe interphalangeal joint, bilateral hallux limitus, and mild bilateral pes planus. This is confirmed by VA and private medical records also associated with the claims file. As such, the first element of service connection is met. The second element an in-service incurrence is also met, as the Veteran's service treatment records (STRs), show an injury to his left foot and toe. November 1979 STRs specifically show that rods were dropped on his foot, falling on the first digit of the left foot resulting in a bruise. X-rays were negative. Additionally, STRs show a June 1976 sprained left foot but was negative for any dislocation. As such, the second element of service connection is met. Next, the third element of service connection is not met as no medical professional has connected his current diagnoses with service. The January 2012 VA examiner found that it was less likely than not that the Veteran's current disorders were caused by service. The examiner reasoned that although the Veteran had a bruise on his left foot great toe during service, at separation his physical found normal feet and his medical history did not relate any chronic foot problems. Further, the examiner reflected that the Veteran did not start having a callus under his left great toe until the 1990s, more than 12 years after the in-service injury. In addition, as the injury in service did not cause a fracture, it would not later cause a deformity which could cause recurrent callus. This evidence weighs against the appeal. There is no contradictory medical opinion that refutes the well-reasoned opinion of the January 2012 VA examiner. The Veteran submitted an April 2012 statement from a lay person who had known him for over 25 years and stated he had issues with his left big toe over the years. Although the Veteran represented this as a medical nexus letter during his March 2021 Board hearing, only a medical professional is competent to provide an etiological opinion as to the origin of his current disorder. As such, the medical evidence does not support the third element of service connection. The Board has considered the Veteran's lay statements that that his disorder was caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, as stated above, neither he nor any other layperson is competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brendan A. Evans, Associate 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.