Citation Nr: 22013429 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 19-29 149 DATE: March 9, 2022 ORDER Whether new and material evidence has been received to reopen the previously denied claim for entitlement to service connection for cervical dysplasia is dismissed. New and material evidence having been received, the petition to reopen the previously denied claim for entitlement to service connection for a right hip pain is granted. Entitlement to service connection for a bilateral foot disorder, namely bunions and hammertoe, is granted. REMANDED Entitlement to service connection for a right hip disorder, to include as secondary to service-connected lumbosacral strain, degenerative arthritis of the thoracolumbar spine with intervertebral disc syndrome and spinal stenosis, is remanded. FINDINGS OF FACT 1. At her September 2020 Board hearing, the Veteran indicated testified that she was withdrawing the issue of whether new and material evidence has been received to reopen the previously denied claim for entitlement to service connection for cervical dysplasia. 2. An unappealed July 2007 rating decision denied the claim of entitlement to service connection for a right hip pain based on a finding that the there was no currently diagnosed disability. 3. The evidence associated with the claims file subsequent to the July 2007 rating decision is not cumulative nor redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for right hip pain. 4. Resolving all doubt in favor of the Veteran, her bilateral foot disorder, namely bunions and hammertoe, is etiologically related to her active service. CONCLUSIONS OF LAW 1. The criteria for dismissal of whether new and material evidence has been received to reopen the previously denied claim for entitlement to service connection for cervical dysplasia have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.55, 20.205. 2. The July 2007 rating decision denying the claim for service connection for a right hip disorder is final; new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for right hip pain. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. § 3.156. 3. The criteria for service connection for a bilateral foot disorder, namely bunions and hammertoe, have been 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 January 1983 to January 2007. These matters come to the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the RO in St. Louis, Missouri. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge of the Board in September 2020. A transcript of the hearing has been associated with the claims file. The record was held open for 60 days following this hearing to allow for the submission of additional evidence and argument. WITHDRAWAL An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the veteran or by his/her authorized representative. 38 C.F.R. § 19.55. At her September 2020 Board hearing, the Veteran testified that she was withdrawing her pending claim as to whether new and material evidence has been received to reopen the previously denied claim for entitlement to service connection for cervical dysplasia. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. This request for withdrawal of the issue on appeal meets the content, form and timing requirements of 38 C.F.R. § 19.55(b) and is, therefore, deemed a withdrawal of the claim. See 38 C.F.R. § 19.55(c); see also Hembree v. Wilkie, 33 Vet. App. 1 (2020). As a result, no allegation of error of fact or law remains before the Board for consideration with regard to this issue. Accordingly, the Board does not have jurisdiction over this issue, and the claim of whether new and material evidence has been received to reopen the previously denied claim for entitlement to service connection for cervical dysplasia is dismissed. PETITION TO REOPEN As a threshold matter, the Board must determine whether new and material evidence has been submitted to reopen a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial) A rating decision becomes final when it has not been appealed within the prescribed time period and when no additional material evidence was received within a year of the decision; the decision is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In order to reopen a claim, there must be added to the record "new and material evidence." 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 neither be cumulative or 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. The law provides that new and material evidence necessary to reopen previously and finally disallowed claims must be secured or presented since the time that the claims were finally disallowed on any basis, not only since the time the claims were last disallowed on the merits. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). 38 C.F.R. § 3.156(a), which defines new and material evidence, requires that evidence raise a reasonable possibility of substantiating the claim in order to be considered "new and material," and defines material evidence as evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's claim for service connection for right hip pain was originally denied in a July 2007 rating decision based on a finding that the evidence failed to show a currently present diagnosed disability. Evidence considered in this rating decision includes the Veteran's service treatment records and a VA examination report. In August 2007, the Veteran was advised of the decision and her appellate rights. No further communication regarding her claim for entitlement to service connection for a right hip disorder was received until October 2017, when VA received a petition to reopen such claim. Therefore, the July 2007 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claim for service connection was received or was in the constructive possession of VA prior to the expiration of the appeal period stemming from the July 2007 rating decision. See also Lang v. Wilkie, 971 F.3d 1348 (2020); Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Moreover, no additional service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(c). The Veteran filed the instant petition to reopen her claim for entitlement to service connection for right hip pain, which was received by VA in July 2007. The pertinent evidence that has been received since the July 2007 rating decision includes continuing post-service treatment records, showing treatment for and diagnoses of leg pain, chronic pain syndrome, and right hip pain, and September 2020 Board hearing testimony. Presuming the credibility of the post-service treatment records and the Veteran's sworn testimony before the Board, the Board finds that the evidence is new and material. In this regard, it has not been previously considered by VA and it raises a reasonable possibility of substantiating the claim of entitlement to service connection for right hip pain. The claim for service connection for right hip pain was previously denied because there was no evidence showing that the Veteran had a currently diagnosis of a right hip disorder. However, the continuing post-service treatment records indicate the Veteran has current diagnoses related to her right hip. Accordingly, reopening of the claim of entitlement to service connection for right hip pain is warranted. See Justus v. Principi, supra. SERVICE CONNECTION The Veteran asserts that she has a bilateral foot disorder, namely bunions and hammertoe, as a result of trauma sustained in active service. Specifically, the Veteran testified at her September 2020 Board hearing that she developed symptoms related to her bilateral foot disorder due to ill-fitting boots issued to her by the military. See Board hearing transcript, September 24, 2020. Additionally, she testified that she was given a profile due to her bilateral foot disorder. Id. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may be granted based on evidence of (1) a current 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. 38 C.F.R. § 3.304. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999). Service treatment records are unremarkable for complaints of, treatment for, or diagnoses related to the Veteran's feet. Post-service treatment records confirm diagnoses of bilateral pes planus, Morton's neuroma, metatarsalgia, hammertoes, hallux valgus (bunion), and hallux rigidus. See e.g. Private Disability Benefits Questionnaire (DBQ) report, September 4, 2018. Turning to the question of whether there is an etiological relationship between the Veteran's service and her bilateral foot disorder, the Board notes that the record contains two etiology opinions which must be considered and weighed. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). When faced with conflicting medical opinions, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998). The Board will consider each opinion below. First, the Veteran provided a September 2018 private foot DBQ completed by Dr. V.B. At that time, Dr. V.B. diagnosed bilateral pes planus, Morton's neuroma, metatarsalgia, hammertoes, hallux valgus (bunion), and hallux rigidus; and indicated that the Veteran experienced foot injuries throughout her service from 1983 to 2007. The Board finds this opinion inadequate to decide the claim. In this regard, Dr. V.B. failed to provide supporting rationale for the conclusions reached. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Rather, Dr. V.B. provided only a conclusory statement that the Veteran's foot disorders were due to foot injuries sustained during service. Therefore, this opinion is afforded little, if any probative weight. An August 2019 private opinion rendered by Dr. V.B. was also submitted. At that time, Dr. V.B. diagnosed hallux valgus, commonly referred to as bunions and hammertoe syndrome bilaterally. Dr. V.B. noted that he personally reviewed the Veteran's medical history and treatment records and took into consideration her lay statements and contentions regarding the wearing of boots throughout her military service. Dr. V.B. also noted the Veteran had been thoroughly examined while she had been under his care, and that she did not have any other known risk factors that would have precipitated her current conditions. Accordingly, based on his medical expertise and known medical literature, Dr. V.B. opined that her hallux valgus and hammertoe resulted from years of abnormal motion and pressure on the joints due to hard and tight footwear, namely, the Veteran's military boots. In sum, Dr. V.B. opined that her bilateral foot disorder more likely than not resulted from her military service; and within a reasonable medical certainty, the wearing of her military boots contributed to and exacerbated her conditions. The Board finds the August 2019 private etiology opinion by Dr. V.B. highly probative. In this regard, Dr. V.B. conducted a thorough interview of the Veteran, reviewed the claims file, examined and provided continuing treatment for the Veteran, and provided supporting rationale for the conclusions reached. In addition, Dr. V.B. adequately considered the statements and contentions of the Veteran, to include the circumstances of her service, and the onset and continuity of her symptoms. This opinion also had clear conclusions and supporting data, as well as reasoned medical explanations connected the Veteran's bilateral foot disorder to her service. Nieves-Rodriguez v. Peake, supra. Accordingly, this opinion is afforded great probative weight. In sum, the Veteran has current diagnoses of a bilateral foot disorder, namely bunions and hammertoe. There is only one probative etiology opinion of record, which is in support of the Veteran's claim for entitlement to service connection. Moreover, there is no sufficient basis for the Board to reject this supportive opinion and to further develop the claim. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (holding that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Accordingly, the Board finds that the preponderance of the evidence is for the claim and entitlement to service connection for a bilateral foot disorder, namely bunion and hammertoe, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND Service Connection Right Hip Disorder The Veteran asserts that she has a right hip disorder as a result of her active service. Specifically, the Veteran testified at her September 2020 Board hearing that her right hip symptoms had its onset during active service; in the alternative, the Veteran asserts that her right hip disorder was caused or aggravated by her service-connected lumbosacral strain. See Board hearing transcript, September 24, 2020. The Board notes that the Veteran was afforded a VA examination for her right hip disorder in November 2006. At that time, the examiner opined the Veteran did not have a currently diagnosed right hip disorder and noted that her right hip strain had resolved without sequalae. An opinion as to the nature and etiology of her claimed right hip disorder was not rendered at this time. Subsequently, continuing post-service treatment records indicate the Veteran has a current diagnosis as it relates to her right hip. Accordingly, the Board concludes that the Veteran should be afforded a new VA examination to determine the nature and etiology of her claimed right hip disorder. Where VA provides a veteran with an examination in a service connection claim, the examination and medical opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and her representative and afford her an opportunity to submit any copies in her possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran for VA examinations with an appropriate clinician(s) to determine the etiology of the Veteran's claimed right hip disorder. The record, to include a copy of this Remand, should be made available to the examiner, and all indicated tests should be conducted. Further physical examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following questions: (A) Is at least as likely as not (50 percent or greater probability) that the Veteran's right hip disorder had its onset during any period of service, or is otherwise related to such period of service? The examiner should specifically address the Veteran's contentions that her right hip disorder is due to her in-service physical activity, parachute jump training and in-service falls. (B) Is at least as likely as not (50 percent or greater probability) that the Veteran's right hip disorder was caused and or permanently worsened by service-connected lumbosacral strain? A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resorting to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.