Citation Nr: 22017505 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 17-19 807 DATE: March 25, 2022 ORDER New and material evidence having been received, the issue of entitlement to service connection for a right great toe condition is reopened. New and material evidence having been received, the issue of entitlement to service connection for a right leg condition, claimed as secondary to a right great toe condition, is reopened. Entitlement to service connection for a right great toe condition is denied. Entitlement to service connection for a right leg condition, claimed as secondary to a right great toe condition, is denied. FINDINGS OF FACT 1. A July 2010 rating decision denied service connection for a right great toe condition and a right leg condition, claimed as secondary to the right great toe condition. The Veteran did not perfect an appeal. Therefore, that rating decision became final. 2. The evidence received subsequent to the July 2010 final denial of the claims for service connection for a right great toe condition and a right leg condition, claimed as secondary to the right great toe condition, is new, as it relates to previously unestablished facts, and is material, as it presents a reasonable possibility of substantiating the claims of service connection. 3. The evidence persuasively supports a finding that the Veteran does not have a current diagnosis of a right great toe or foot disability, and therefore there is no benefit of the doubt to resolve in the Veteran's favor. 4. The evidence persuasively supports a finding that the Veteran does not have a current diagnosis of a right leg disability, and therefore there is no benefit of the doubt to resolve in the Veteran's favor. 5. The evidence persuasively supports a finding that there was no in-service incurrence, event, or injury of the right great toe or foot, and therefore there is no benefit of the doubt to resolve in the Veteran's favor. CONCLUSIONS OF LAW 1. As new and material evidence has been received, the criteria to reopen the claim for service connection for a right great toe condition have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. As new and material evidence has been received, the criteria to reopen the claim for service connection for a right leg condition, claimed as secondary to a right great toe condition, have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for a right great toe condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a right leg condition, claimed as secondary to a right great toe condition, have not 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 had 90 days of active service from late June 1983 to late September 1983. This matter came before the Board on appeal of a May 2014 rating decision issued by the Department of Veterans Affairs (VA) regional office (RO), which reopened a previous final denial of the claim for service connection for a right great toe condition and right leg condition claimed as secondary thereto, and denied the claims on the merits. In August 2019, the Board denied requests to reopen the previously denied claims for service connection, finding that new and material evidence had not been submitted. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In October 2020, the Court granted a Joint Motion for Remand, vacating and remanding the issues back to the Board for further development. The Board remanded the claims in March 2021 to obtain potentially existing and outstanding service treatment records (STRs) and VA treatment records prior to October 7, 2013. The Board noted the Veteran reported he sought treatment for right great toe and foot conditions while on active duty at the Fort Sill, Oklahoma medical clinic in either 1983 or 1985. The Board again remanded the matters in August 2021 finding that the RO had not substantially complied with its prior remand directives. The Board directed the RO to obtain "all missing STRs from 1983 through 1985" as well as "all missing VA treatment records prior to October 7, 2013." The Board directed the RO to contact all appropriate federal or state records custodians, including a PIES 050 request. All available STRs have been obtained, all personnel records have been obtained, a PIES 050 request was made and responsive service personnel documents produced, and all available VA records have been obtained and associated with the Veteran's claims file. The claims file reflects the RO's requests for records and the responses received, including the necessary certifications that no further records exist. In light of the above, the Board finds that the RO has substantially complied with prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998). New and Material Evidence The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing 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). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. The threshold for determining whether new and material raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the United States Court of Appeals for Veterans Claims (Court) held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312 (1999). If the Board determines that the evidence submitted is new and material, it must reopen the case and evaluate the Veteran's claim in light of all the evidence. Justus, 3 Vet. App. at 512. The threshold for determining whether new and material raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. 1. New and material evidence having been received, the issue of entitlement to service connection for a right great toe condition is reopened. 2. New and material evidence having been received, the issue of entitlement to service connection for a right leg condition, claimed as secondary to a right great toe condition, is reopened. The RO originally denied service connection for a right great toe condition and right leg condition in July 2010, finding that there was no evidence of a current toe or leg disability, no evidence of in-service incurrence of an event or injury, and, consequently, no nexus to service. The Veteran did not perfect an appeal, and therefore the rating decision became final. See 38 U.S.C. § 3.156(b). Since the July 2010 final rating decision, the Veteran submitted a self-statement in July 2013 reporting he sustained an injury at Fort Sill, Oklahoma during active-duty training, that he sought medical care for right great toe pain and discomfort at the Fort Sill medical clinic, and that he wore a specially sized shoe on his right foot. The RO reopened the claim and continued the denial in May 2014. In his Form 9 appeal in April 2017, the Veteran wrote that he was "trying to find my medical records from a injury I got while in basic training to my right foot." This evidence is new and raises a reasonable possibility of substantiating the claims, as it pertains to evidence of an in-service incurrence of an injury. For the purpose of reopening only, this evidence is presumed to be credible. Other new records have also been added to the Veteran's claims file since the July 2010 final rating decision, including additional personnel records and medical records, but they are not material to the claims. Accordingly, the claims are reopened, and the Board will evaluate the Veteran's claims in light of all the evidence. Justus, 3 Vet. App. At 512. 3. Entitlement to service connection for a right great toe condition. 4. Entitlement to service connection for a right leg condition, claimed as secondary to a right great toe condition. Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the evidence is persuasively against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). In this case, the evidence does not reflect that the Veteran has a diagnosed current disability of the right great toe, foot, or the right leg at any point during the period on appeal. While the Veteran submitted medical records with his initial claim, they did not relate to these conditions. Subsequent medical records he submitted in July 2013 were also irrelevant to the claimed conditions. The only evidence indicating the Veteran may have a current condition is the July 2013 statement that he "wears a specially sized shoe" for his foot condition. Medical records have not indicated the existence of any prescription of such a shoe from a medical provider. As to the right leg condition, there is no evidence of a current disability. The RO's additional search efforts yielded only one additional unrelated medical record, from October 1985, in which the Veteran reported he broke his right leg "three weeks ago" and requested orthopedic follow-up. The Veteran's subsequent National Guard records reflect his reports of a right leg tibia fracture. Second, the Board does not find evidence of in-service incurrence or aggravation of an injury. Despite the efforts put forth into obtaining reportedly missing treatment records, the resulting searches have not yielded any records reflecting an in-service injury to the right toe, foot, or leg. The Veteran's service records do not reflect complaint of or treatment for a right toe or foot injury or condition. Moreover, the Veteran has not identified any specific event in service which caused his claimed right great toe condition. There are a number of medical records from the Veteran's 90-day period of active-duty training time at Fort Sill, Oklahoma, in summer 1983, but none of them reflect treatment for the claimed conditions or any symptoms associated therewith. For example, there is a June 1983 record of an eye examination, a July 1983 record reflecting a bronchitis diagnosis, an August 1983 record reflecting a flu diagnosis, and two additional August 1983 records reflecting visits for bronchitis. Moreover, the Veteran denied any "foot trouble" on the Standard Form 83, Report of Medical History, in September 1989 and June 1990. As the Veteran did report sinusitis and hay fever, leg cramps, and a history of a fractured tibia on these forms, the Board concludes the Veteran read and understood the forms and that he likely would have reported "foot trouble" if it were present. The Board notes that the October 2020 JMR indicated that there were missing records related to an emergency department visit, and cited to comments contained in follow-up records associated with that emergency department visit. The JMR stated that the nature of the injury from that ER visit is unclear and that this injury could potentially be the injury referenced in the Veteran's claim. However, on further review, the Board finds that the injury is not unclear; it was a laceration to the right knee sustained during an accident. The JMR also implies the date of the ER visit was unclear and could be either May 1983 or May 1985, but it is not unclear. The record is signed with "1983" clearly written at the bottom. The referenced injury occurred in May 1983 and the Veteran sought treatment at a private hospital in New Hampshire. This is prior to the Veteran's active-duty service beginning in late June 1983 at Fort Sill, Oklahoma; the Veteran enlisted in the National Guard several weeks after this knee laceration injury. Regardless, New Hampshire is geographically distant from Oklahoma, so there is no possibility he would have sought treatment at that private hospital while on active-duty training at Fort Sill. Further, although a copy of this hospital record is contained in his National Guard file, there is no evidence indicating he was otherwise on active duty, active-duty training, or inactive duty training at the time of the injury. Even if he were, the Board notes that neither a laceration to the knee, nor any residuals thereof, has been claimed as a condition for which the Veteran seeks service connection. The Board has considered whether the VA's duty to assist and provide an examination has been triggered by the instant decision to reopen the claims. However, the Board concludes that a remand to obtain an examination is not warranted. VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but there is: (1) competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of a disability; (2) evidence of an in-service event, injury, or disease (or disease falling under presumptive rules); and (3) the evidence indicates that the current disability or symptoms may be associated with the in-service event. McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The Board finds there is no diagnosis of a right great toe, foot, or leg disability, nor competent evidence of persistent or recurrent symptoms of a disability. The Veteran has not submitted any evidence describing any symptoms related to his right toe, foot, or leg, and the medical records reflect no diagnoses and no complaints. While he stated he "wears a specially sized shoe," this lone statement is insufficient to constitute a finding of persistent or recurrent symptoms of a great toe disability. There is no evidence in the medical records that such a shoe was prescribed, and the Veteran has provided no statements regarding pain or any other limitations related to his toe or foot. As to the claimed secondary right leg condition, there are no lay statements whatsoever aside from the claim form itself which merely lists the claimed right leg condition, and there is no discussion or documentation with regard to any diagnosis, symptoms or complaints of a right leg condition, nor any other evidencemedical or otherwiseof any reported symptoms. The only records related to the right leg reflect a tibia fracture occurring in 1985, well outside his period of active-duty service. Turning to the second element, the Board again notes there is no evidence of an in-service injury aside from the Veteran's own lay statement that he "went to the medical clinic at Fort Sill each time my big toe was causing me pain and discomfort." The file reflects a number of medical records from his time at Fort Sill in summer 1983, but no visits related to the right great toe or foot. Given that the Veteran could not remember whether he was on active-duty training in 1983 or 1985, it is possible he may not accurately remember whether and for what conditions he sought medical treatment. The Board does not find his statements that he sought medical care for right great toe or foot pain to be credible, particularly considering that he did seek medical care on at least four occasions during basic training and that the record includes such notes. Similarly, the Veteran's personnel records, i.e., the September 1989 and June 1990 Report of Medical History, reflect that he denied experiencing foot trouble, despite annotating several other conditions/complaints. It is well settled that lay statements made in connection with medical treatment may be afforded greater probative value than later statements made with self-interest in mind. See Rucker v. Brown, 10 Vet. App. 67 (1997); Harvey v. Brown, 6 Vet. App. 390 (1994). The Veteran's denial of foot issues in the years following his period of active duty are thus more probative that the Veteran did not experience foot issues as compared to his later statements that he did. Despite the prior remands' emphasis on "missing" records from 1983-1985, the Board does not find that the evidence supports a conclusion that any records are actually missing. The JMR's emphasis on a missing emergency department record in May 1983 was discussed above, and the Board finds that it is unrelated to the Veteran's period of active service or to the claimed conditions. There is insufficient competent evidence that could otherwise suggest a link between the Veteran's claimed right great toe condition (and claimed secondary right leg condition) and his service. The Veteran's medical records do not reflect various complaints, symptoms, or treatments for right toe, foot, or leg conditions, and there is no credible, probative evidence of an in-service event or injury. Therefore, despite the low bar set by McLendon, the Board finds that a VA examination is not warranted. The Board concludes that, as the evidence persuasively favors against a finding of a current right great toe, foot, or right leg disability, and persuasively favors against a finding of an in-service event, injury, or illness, it therefore persuasively favors against service connection. Accordingly, the evidence is not in approximate balance, and the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Medley, 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.