Citation Nr: 22012254 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 18-43 696 DATE: March 3, 2022 ORDER As new and material evidence has been received, the Veteran's claim to entitlement to service connection for a left foot disability is reopened. Entitlement to service connection for a left foot disability is granted. FINDINGS OF FACT 1. A June 2012 rating decision denied service connection for a left foot disability. The Veteran submitted a timely August 2012 notice of disagreement; but in a November 2014 statement, indicated that they wished to withdraw all issues on appeal. Therefore, the rating decision became final. 2. The evidence received since that decision, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for a left foot disability. 3. Resolving reasonable doubt in the Veteran's favor, the evidence of record favors a finding that the Veteran's symptoms of the currently diagnosed left foot disability were chronic during service and have been continuous since separation from service. CONCLUSIONS OF LAW 1. The June 2012 rating decision, which denied the Veteran's claim of entitlement to service connection for a left foot disability, is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103. 2. Evidence received since the June 2012 rating decision in relation to the Veteran's claim for entitlement to service connection for a left foot disability is new and material; therefore, the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for a left foot disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in active-duty service with the Air Force form June 1976 to June 1980 and from January 2003 to February 2004 to include Reserve service. This matter is on appeal from an April 2016 rating decision. The Veteran was afforded an August 2021 hearing before the undersigned Judge; a transcript of the hearing has been associated with the claims record. New and Material Evidence In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to VA. 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 and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). 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) (in determining whether evidence is new and material, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156 (a) creates a low threshold for finding new and material evidence and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In a June 2012 rating decision, service connection for a left foot disability was denied. Evidence at the time of the rating decision included the Veteran's service treatment records (STRs), private and VA medical center (VAMC) treatment records, and VA examination. The rating decision did not find any persistent disability from service, no nexus was established, and the claimed left foot disability was not caused or aggravated by the Veteran's service-connected right foot disability. The Veteran timely appealed the rating decision by submitting an August 2012 NOD. However, the Veteran in November 2014 submitted a statement stating that they requested to withdraw all issues on appeal. As such, the June 2012 rating decision became final because it pertained to the issue of service connection for a left foot disability. See 38 U.S.C. § 7105 ; 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. New evidence since the June 2012 rating decision includes VA medical treatment records, VA examinations, submitted lay statements and testimony, and the Veteran's substantive appeal. In a November 2017 VA examination the Veteran stated that her left foot pain was related to putting more weight on it following right foot surgery; in an August 2018 form 9 and August 2021 hearing testimony, the Veteran stated that her left foot disability was due to a number of causes to include continuous wearing combat boots or from cold exposure. The evidence and statements, if presumed credible, raise a reasonable possibility of substantiating the claim. Therefore, new and material evidence has been received, and the claim for service connection for a left foot disability is reopened. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Service Connection Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). Certain chronic diseases, which are listed in 38 C.F.R. § 3.309 (a), including arthritis, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If a disease listed in 38 C.F.R. § 3.309 (a) is shown to be chronic in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). The showing of chronic disease in service requires a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Id. However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303 (b). A claimant "can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a)." Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In relevant part, 38 U.S.C. § 1154 (a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107 (b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends her left foot disability is related to service. Review of the evidence of record shows treatments and diagnoses for a left foot disability; a May 2010 and September 2015 x-ray found degenerative changes in the left foot first MTP joint, a November 2017 VA examination diagnosed the Veteran with left foot hallux valgus, and the Veteran underwent an October 2018 surgical procedure to treat painful recurrent bunions and hallux limitus in the left foot. As such, the Board finds the Veteran with a current disability. Review of the Veteran's STRs show in May 1980 the Veteran was see for complaints of being "tired all the time"; the Veteran was noted to have a history of foot pain but denied other issues. The provider did not indicate which foot was in pain and did not provide any assessment relating to the Veteran's reported history of foot pain. At the May 1980 separation examination, the Veteran did not report any foot trouble, arthritis, or joint problems. In January 2003 the Veteran was seen for complaints of pain in the "left " 1st MTP joint for 4 years but reported a history of blunt trauma to the right foot; the Veteran reported increased pain with activity , prolonged standing and with wearing new boots. The Board notes that the provider in this examination only evaluated the Veteran's right foot and assessed the Veteran with a right foot hallux valgus with bunion; the Board further notes that this evaluation would lead to a February 2003 bunionectomy surgical procedure for the right foot. In an October 2011 VA examination for skin conditions, the Veteran reported pain in her soles with blistering and swelling since joining the reserves in 1984. The examiner first opined the Veteran had extensive callouses and/or hyperkeratosis on the plantar surface of both feet; the examiner did not find these to be related to a reported 1999 injury to the right foot. The examiner found the Veteran had a tendency to develop bunions over the plantar surface resulting in pain; however, the examiner did not find that these were related to the Veteran's 1999 injury to the right foot or caused or aggravated by the claimed condition. The Board notes that the examiner did not identify a baseline and did not address the May 1980 reported history of foot pain. In a January 2017 notice of disagreement (NOD), the Veteran stated that she would require surgery for her left foot disability due to continuous wearing of combat boots during her service. In a November 2017 VA examination, the Veteran reported that her left foot began to hurt in 2003 because she had to put more weight on her left foot as a result of right foot surgery. The examiner noted the January 2003 record documenting a complaint for "left foot pain" and determined that this finding was a typo because the context of that record was centered around treating a right foot condition with a subsequent right foot surgery; the examiner further noted that the Veteran did not report left foot pain until after the right foot surgery. The examiner did not find the Veteran's left foot disability related to service referring to the explanation of the January 2003 record as a typo. The examiner then did not find the Veteran's left foot disability as secondary to the right foot disability, stating that there was no documentation to support the Veteran's contention and that "although the condition of both feet are similar", one did not necessarily cause the other. Although the November 2017 VA examiner opined the Veteran's left foot disability was not related to the Veteran's active-duty service, the examiner did not address the May 1980 reported history of foot pain or the Veteran's statements describing the impact of the Veteran's statements regarding pain resulting from improper footwear and continuous use of combat boots to perform marching, running, and prolonged standing. The opinion also appears to improperly rely largely, if not entirely, on medical evidence or the lack thereof, and do not provide adequate consideration to the Veteran's competent and credible account of in-service onset and corresponding symptomatology. Inaccurate or incomplete reasoning and analysis only support the respective examination opinions because there is competent and credible evidence to the contrary. See Coburn v. Nicholson, 19 Vet. App. 427 (2006) (affirming the holding in Reonal v. Brown, 5 Vet. App. 458 (1993), that a medical opinion based on an inaccurate factual premise is of no probative value). As such, the Board affords the November 2017 VA opinion less probative weight. In an August 2018 form 9 statement, the Veteran stated that the wearing of combat boots during her military career to include long periods of standing, walking, marching, and running in combat boots contributed to her foot disability. The Veteran further asserted that she had arthritis prevalent and resent in both feet while on active duty. At the August 2021 hearing, the Veteran testified that her left foot disability was due to the type of footwear used in service; the Veteran stated that no proper footwear was ever provided for running or marching. The Veteran also testified the January 2003 record was not a typo but an early indicator of her left foot disability; the Veteran stated that these symptoms were consistent with her current diagnosed left foot disability. After review of the evidence of record and resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence in equipoise to show chronic in-service symptoms and continuous post-service symptoms relating to the Veteran's current back and left hip disability. While a lay person is "not competent to opine as to medical etiology," a lay person is competent "to establish the presence of observable symptomatology[.]" Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Therefore, the Veteran's statements and testimony regarding the Veteran's in-service experiences and symptoms are competent. Moreover, the Board finds the statements to be credible, as they are internally consistent and consistent with the medical evidence of record. Moreover, lay evidence can be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, the Veteran is also competent to report experiencing continuing left foot disability symptoms during and since the Veteran's active service, as the onset, frequency, and duration of such symptoms as pain and weakness are certainly capable of lay observation. The Veteran's STRs show in May 1980 the Veteran reported a history of foot pain. The Board recognizes the Veteran's statements and testimony of experiencing symptoms of pain in her left foot. The Veteran is competent to report that she experienced symptoms her left foot during the appeal period. Her testimony is credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record. Based on the foregoing, the Board finds that the evidence of record establishes that the Veteran has continuously experienced symptoms consistent with a left foot disability since her reported symptoms and complaints during active-duty service. As such, the Board finds that the evidence establishes that the left foot disability had its onset in service and that it has been continuous since. The Board acknowledges that the Veteran has asserted alternative theories of entitlement for service connection for a left foot disability to include secondary service connection from the Veteran's service-connected right foot disability. However, as the Board finds that as the theory of direct service connection is applicable for the Veteran's issues on appeal, the Board finds it not necessary to address the Veteran's alternative theories for entitlement. Accordingly, resolving reasonable doubt in favor of the Veteran, service connection for a left foot disability is warranted. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.