Citation Nr: 21030854 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 18-07 554 DATE: May 19, 2021 ORDER New and material evidence has been presented, and the previously denied claim for service connection for bilateral foot pain is reopened. Service connection for bilateral foot pain is granted. FINDINGS OF FACT 1. The April 2014 rating decision that denied service connection for bilateral foot pain is final because the Veteran did not initiate an appeal, or submit new and material evidence within a year of the denial. 2. The evidence received since the April 2014 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim for service connection for bilateral foot pain, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim. 3. The Veteran asserts that he experiences bilateral foot pain. While the post-service evidence of record has not provided a specific diagnosis for the Veteran's complaints of bilateral foot pain, he has credibly testified that his bilateral foot pain causes functional impairment. CONCLUSIONS OF LAW 1. The April 2014 rating decision that denied service connection for bilateral foot pain is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received since the April 2014 rating decision that is sufficient to reopen the Veteran's claim for service connection for bilateral foot pain. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The criteria for service connection for a bilateral foot disability (manifested by pain and functional impairment) have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2001 to December 2001 and from January 2004 to March 2005. The Veteran provided testimony before the undersigned Veterans Law Judge (VLJ) at an August 2020 Board hearing. A complete transcript is of record. Reopening Claims Once a claim has been denied by VA and becomes final, new and material evidence must be received to reopen the claim. New evidence is defined as evidence not previously submitted to agency decision makers. 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. New and material evidence can be 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). When determining whether a previously denied claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010), the U.S. Court of Appeals for Veterans Claims (Court) clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. An April 2014 rating decision denied the Veteran's claim for service connection for bilateral foot pain, as the Regional Office (RO) found that his service treatment records (STRs) did not contain complaints, treatment, or diagnosis for the condition and there was no continuity of symptoms from service to the present. Since the denial, the Veteran submitted medical records showing recurrent treatment for foot pain, within a year of his separation from the military. Accordingly, the claim is reopened. Service Connection Service connection requires competent evidence showing: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for bilateral foot pain is granted. The Veteran asserts that his current bilateral foot pain is due to his active duty service. Specifically, the Veteran testified that prior to his separation from the military, he began to experience numbness in his feet, which subsided a few months after his separation from military service, and turned to bilateral foot pain. The Veteran was afforded a VA examination for his feet in January 2018. After an in-person examination and a review of the Veteran's claims file, the examiner found that the Veteran did not have a diagnosis for any foot conditions, but showed slight, but unconfirmed pes planus. The examiner noted that the Veteran did have foot pain during his active duty service, but attributed it to a back condition and noted no separate foot diagnosis. The examiner attributed the Veteran's current foot pain to natural progression. The Veteran provided testimony at an August 2020 Board hearing. He credibly testified that he did not have pain in his feet prior to the military and that after separation, he became a high school teacher and did not have any trauma to the feet. He testified that during his active duty service, he experienced numbness in both of his feet and that a few months after service, the numbness went away. However, as the numbness subsided, he started to experience foot pain. He reported that he is currently self-employed and harvests hydroponic crops, which causes him to be on his feet for long periods of time. Since he has been on his feet more often, he has started to notice pain and numbness coming back and has to rest his feet periodically during the day. The Veteran's STRs show a post-deployment health assessment where the Veteran reported numbness and tingling in his hands or feet. An April 24, 2004 treatment note also shows complaints of numbness in the legs and toes. A review of the Veteran's post-service treatment records shows that he was referred to podiatry and he reported foot pain, less than a year after his separation from the military. See VA Treatment Record dated January 5, 2006. The post-service treatment records also show that he described achy pain in his feet and was prescribed orthotics about a year after his separation from the military. See VA Treatment Record dated April 7, 2006. The Board acknowledges that the Veteran was afforded a VA examination in January 2018, where the VA examiner did not find a specific diagnosis for any foot condition. However, the Board notes that pain alone, even without an underlying pathology or diagnosis, can constitute a disability, where such pain results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Here, the Board finds that service connection for bilateral foot pain is warranted. The Veteran credibly testified that he experienced numbness in his feet during his active duty service and experienced such symptoms for a few months after his separation. When the numbness subsided, he began to experience pain in both of his feet. His post-service treatment records corroborate his testimony, as his treatment records show complaints of foot pain, within a year after his active duty service and a prescription for orthotics a few months later. The Veteran was afforded a VA examination for his feet in January 2018, but a specific diagnosis for a foot condition was not rendered. However, the Board finds that the Veteran has shown that his bilateral foot pain constitutes a disability because he credibly testified that his pain results in functional impairment. For example, he testified that he currently works on his feet for long periods of time, harvesting crops, and that he needs to sit down and take breaks throughout the day because his feet bother him. Here, the Veteran is competent to describe a continuity of bilateral foot symptoms, to include both numbness and pain and he has credibly testified before the undersigned VLJ about a continuity of such symptoms. The Board is satisfied that the evidence has established that the onset of the Veteran's bilateral foot symptoms started during his active duty service, manifested by numbness; that after the numbness subsided after his separation from service, he started to experience bilateral foot pain, which he has experienced ever since; and that his bilateral foot pain has resulted in functional impairment, which constitutes a disability. Accordingly, service connection for bilateral foot pain is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, 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.