Citation Nr: 23006262 Decision Date: 02/01/23 Archive Date: 02/01/23 DOCKET NO. 18-21 388 DATE: February 1, 2023 ORDER New and material evidence has been received sufficient to reopen a previously denied and final claim of service connection for left-foot plantar fibromatosis. Entitlement to service connection for left-foot plantar fibromatosis, as aggravated by active service, is granted. FINDINGS OF FACT 1. A June 2011 rating decision denied service connection for "left-foot condition," the Veteran does not dispute he received notice of the decision, he did not file a timely appeal, and no new and material evidence was received within a year of the issuance of the decision. 2. Evidence received since the June 2011 rating decision is not cumulative, it relates to an unestablished fact necessary to substantiate the claim and it raises a reasonable possibility of substantiating the claim. 3. The evidence of record shows left-foot plantar fibromatosis was incurred during active service, caused by an event, injury or disease occurring in active service and proximately due to, the result of or made worse to any degree (aggravated by) service-connected by injuries or activities in active service. CONCLUSIONS OF LAW 1. The June 2011 denial of the claim for service connection for left-foot condition is final. 38 U.S.C. § 7105 (c) (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010). 2. New and material evidence has been received to reopen the previously denied and final claim of service connection for left-foot condition. 38 U.S.C. §§ 5103, 5103A, 5107, 5108 (2018); 38 C.F.R. § 3.156 (2021). 3. Entitlement to service connection for left-foot plantar fibromatosis, as aggravated by active service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.10 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force National Guard from June 1970 to October 1970 and in the United States Army from December 1971 to July 1973. The Veteran was scheduled for a hearing in January 2022. He was unable to connect virtually and requested a decision on the record. The Board deems the hearing request withdrawn. 1. Whether new and material evidence has been received sufficient to reopen the claim for service connection for left-foot plantar fibromatosis. In general, rating decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.1103, 20.1105. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. New evidence is evidence not previously submitted to agency decision makers. Material evidence means existing evidence which, 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). However, if new and material evidence is received within a year of the issuance of the last "final" decision, then in fact that decision has not yet become final. 38 C.F.R. § 3.156 (b); see also Bond v Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). The credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Regardless of a decision by the Agency of Original Jurisdiction (AOJ) to reopen a claim, deny its reopening or, in effect, "reopen" the claim by addressing its merits, the Board must make its own determination, as this in turn establishes the Board's jurisdiction to reach the underlying claim and to adjudicate it de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g, 8 Vet. App. 1 (1995)). On this basis and looking to the June 2011 rating decision, new and material evidence would consist of evidence of current disability, evidence of incurrence or aggravation of disease or injury in service and evidence of a nexus or link between the in-service injury or disease and the current disability. However, the June 2011 rating decision also discussed the inadequacy of Dr. L.M.'s January 2011 VA opinion on aggravation and the rating decision concluded the evidence of record shows no show aggravation of the Veteran's pre-existing left-foot plantar fibromatosis. Looking first to the complicated procedural history of this appeal, this claim originally was filed in March 1997. A June 1997 rating decision denied the claim, which was confirmed by a July 1997 Statement of the Case (SOC). The Veteran requested a Decision Review Officer hearing (DRO), held in April 1998. Nonetheless, a September 1998 Supplemental Statement of the Case (SSOC) denied the claim. The Veteran then was afforded a Board hearing in January 1999. The Board denied the claim in May 1999. However, the Veteran did not appeal the Board's decision within the year. In a submission received in September 2001, the Veteran requested that the claim be reopened. A November 2002 rating decision denied the claim. The Veteran filed a Notice of Disagreement (NOD), filed in March 2003. A July 2004 SOC denied the claim and the Veteran filed a substantive appeal, which was received in late October 2004, beyond the period in which to appeal. In June 2005, the Veteran again requested the claim be reopened. Based on the findings and opinion of a November 2010 VA examination, rating decisions issued on two different dates in December 2010, but which appear to be the same, denied the claim. As the AOJ received additional evidence within one year of the notification letter of the previous decision, it considered this to be a claim for reconsideration. A June 2011 denied the claim, as the new private treatment evidence of Dr. B.M. was inadequate for establishing aggravation. The Veteran did not appeal that decision within one year of notification and it became final. The Veteran submitted a claim application, received in April 2017, requesting the claim be reopened. A VA exam and an opinion followed in July 2017 addressing aggravation. Although an August 2017 rating decision denied the claim on the failure to submit new and material evidence, the decision, in effect, "reopened" the claim, as it addressed the merits of the claim. The Veteran appealed that decision by submission an NOD, received in October 2017. After a February 22, 2018 SOC confirmed the denial, the Veteran filed his substantive appeal, received on April 19, 2018. The matter then came before the Board. The Board finds the record currently contains the following: A March 1997 kinesiotherapy evaluation, not associated with the file until August 2017, discussing the Veteran's left-foot disorder in detail, the Veteran's statement accompanying his October 2004 Veterans Appeals Form 9, addressing his left-foot disorder as pre-existing and aggravated by service, his April 2017 Statement in Support of Claim, detailing the history of his foot disorder, and the December 2010 and July 2017 VA opinions addressing aggravation. This evidence was not of record at the time of the June 1997 rating decision and it therefore is new. Moreover, it is material, as it provides information which may support the Veteran's assertions and thereby presents a reasonable possibility of substantiating the claim. The evidence is neither cumulative nor redundant of the evidence previously of record and it is pertinent to the issues on which the Veteran's claim will turn. For these reasons, the claim is reopened. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active service or that a preexisting injury or disease was aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2021). Establishing service connection generally requires: (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 during service. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Additionally, service connection of a nonservice connected disease or injury will be established if an increase in severity of the nonservice connected disability is shown to be proximately due to or the result of a service-connected disease or injury and not due to the natural progress of the nonservice connected disease or injury. 38 C.F.R. § 3.310 (b). The evidence must show (1) a current disability exists and (2) the current disability was the (a) proximately caused by or (b) proximately aggravated (worsened in severity to any degree) by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). The Federal Circuit has distinguished between those cases in which the pre-existing condition is noted upon entry into service and cases in which the pre-existence of the condition must otherwise be established. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In a case where there is no pre-existing condition noted upon entry into service, the Veteran is presumed to have entered service in sound condition and the burden falls to the government to demonstrate by clear and unmistakable evidence that (1) the condition pre-existed service and (2) the pre-existing condition was not aggravated by service. Wagner, 370 F.3d at 1096. "[I]f a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder." Wagner, 370 F.3d at 1096; see also 38 U.S.C. § 1153; 38 C.F.R. § 3.306. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that such increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Clear and unmistakable (obvious, manifest and undebatable) evidence is required to rebut the presumption of soundness. 38 C.F.R. § 3.306 (b). The evidence must show a lasting worsening of the condition, meaning an increase in severity that existed at the time of separation from service and still exists currently. Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991). To be "noted" within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304 (b). History of pre-service existence of a disease does not constitute a notation of such condition. See Crowe v. Brown, 7 Vet. App. 238, 240 (1994). 2. Entitlement to service connection for left-foot plantar fibromatosis, as aggravated by active service. The record shows in January 2011, the Veteran underwent a medical evaluation with his private-treatment podiatrist, Dr. B.M, practically all of which address the right foot. However, her diagnosis was "bilateral plantar fibromatosis." At the end of the statement, she concludes the Veteran's "multiple nodules bilaterally were aggravated with past military activity and may be so in the future with extended periods of weightbearing." Additionally, the Veteran submitted a June 2011 medical statement of Dr. B.M., in which she stated he has chronic plantar fibromatosis, the condition has been present since age nine and it was aggravated during active-service activities. However, both statements provide no rationales, they do not make references to the medical evidence of record and it appears the statements were based solely on the Veteran's reports. These statements are inadequate for VA adjudication purposes. The July 2017 VA examiner opined, "The claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness." However, upon explaining his conclusion in his rationale, the examiner further stated, the Veteran was seen for a left-foot disorder in service and he observed fibromatosis would otherwise be exhibiting symptoms when inflamed with just walking. The examiner therefore concluded, "The patient did not have this portio[n] of the disease process while in the service on the left foot[,] therefore no aggravation was seen at time of service and therefore the normal progression is not affected as this is normally progressive and has been in hands and back[;]therefore the left foot is not at least as likely as not aggravated beyond his normal progression that is expected with his disease of left foot." However, as stated, when a condition is not noted on a Veteran's entrance examination, a presumption of soundness at entry applies unless VA proves that (1) the condition clearly and unmistakably preexisted service and (2) the condition clearly and unmistakably was not aggravated beyond its natural progression by service. Additionally, the Board's reviewing court has recently made clear that a medical opinion finding no aggravation on a preponderance of the evidence standard (i.e., "at least as likely as not," " less likely than not," etc.) is insufficient to rebut the presumption of soundness. See Horn v. Shinseki, 25 Vet. App. 231, 234-35 (2012). Although the first sentence of July 2017 examiner's opinion was stated appropriately, the examiner's subsequent conclusion, "the left foot is not at least as likely as not aggravated," therefore is the incorrect evidentiary standard for this opinion. The Board therefore finds this opinion, too, is inadequate for VA purposes. In looking to the Board's previous decision in May 1999, the Board at that time first noted the STRs showed no indication of left-foot plantar fibromatosis or any other disease or disorder of the left foot. However, the Board further noted the Veteran submitted testimony and written statements that his service-connected right-foot plantar fibromatosis preexisted entry into active service and that he suffered symptoms of plantar fibromatosis in both feet during service. The Board concluded this was competent evidence which in turn provided clear and unmistakable evidence that the Veteran's right foot plantar fibromatosis existed prior to service and the Board therefore found it was sufficient to rebut the presumption of soundness at the time of entrance into service. The Veteran has consistently contended that he has always had left-foot plantar fibromatosis. For example, in the statement accompanying his October 2004 Veterans Appeals Form 9 and his statement accompanying the October 2017 NOD, the Veteran contends his left-foot plantar fibromatosis pre-existed active service, it was aggravated by active service resulting in a worsened condition and it has continued to worsen since active service. The Board notes that, given the Veteran's further competent evident, the record supports a conclusion that left foot and right-foot plantar fibromatosis are similar and contemporaneous disorders, particularly as they involve the same body-segment. Therefore, the burden of proof again now falls upon VA to show the disability clearly and unmistakably did not increase in service. However, as the Veteran has yet to be afforded an adequate VA examination addressing aggravation of left-foot plantar fibromatosis, the record as it now stands does not satisfy the Board's burden of proof to demonstrate by clear and unmistakable evidence that the Veteran's left-foot condition was not aggravated by service. The Board therefore finds there is an approximate balance of the evidence, which favors the claim for service connection. EMILY TAMLYN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Franke, 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.