New and material evidence having been submitted, the claim for service connection for a bilateral foot condition is reopened; the appeal is granted to this extent only.
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Citation Nr: 19108523 Decision Date: 02/05/19 Archive Date: 02/04/19 DOCKET NO. 17-51 204 DATE: February 5, 2019 ORDER New and material evidence having been submitted, the claim for service connection for a bilateral foot condition is reopened; the appeal is granted to this extent only. REMANDED Entitlement to service connection for right knee osteoarthritis with knee replacement to include scar is remanded. Entitlement to service connection for a bilateral foot condition is remanded. FINDINGS OF FACT 1. Service connection for a bilateral foot condition was denied in an unappealed May 1999 rating decision; in an unappealed May 2007 rating decision, the RO determined new and material evidence had not been submitted to reopen the claim. 2. Evidence received since the last final rating decision is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of entitlement to service connection for a bilateral foot disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1977 to December 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900. 38 U.S.C. § 7107 (a)(2). The Veteran testified before the undersigned at a Board Hearing in July 2018. A transcript is of record. New and Material Evidence The Veteran previously submitted a claim for service connection for a bilateral foot injury which was denied in a May 1999 rating decision on the basis that a causal nexus was not established. The Veteran did not submit a notice of disagreement, and new and material evidence was not submitted within one year. Hence, the denial became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Veteran attempted to reopen her claim in January 2007. In a May 2007 rating decision, the RO determined new and material evidence was not submitted. The Veteran did not submit an NOD, and new and material evidence was not received within one year. Hence, that decision also became final. Id. An application to reopen this claim was received in May 2013. Since the last decision, she submitted medical evidence from Dr. B. indicating that there is a connection between her bilateral foot conditions and her military service. This evidence is sufficient to reopen the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS FOR REMAND 1. Entitlement to service connection for right knee osteoarthritis with knee replacement to include scar is remanded. 2. Entitlement to service connection for bilateral foot condition is remanded. The Veteran seeks service connection for a bilateral foot condition, to include foot fungus, plantar fascitis, flat feet and calluses. She also seeks service connection for a right knee disability, to include as secondary to her bilateral foot condition. The Veteran is in receipt of disability benefits from the Social Security Administration (SSA) for both claimed conditions. The medical records underlying SSA’s determination are not of record and should be obtained. The appeal is also remanded for a medical examination and opinion. With respect to the bilateral foot condition, service records show complaints of right ankle pain, right foot pain and calluses. There are no knee complaints noted in the service treatment records. The Veteran asserts that her foot and knee conditions are due to service, to include the rigorous activities therein such as frequent running. She also contends that her right knee disability may be secondary to her bilateral foot problems. In a March 2018 opinion, Dr. A. opined that the Veteran’s right knee disability may be related to excessive running and other tasks performed during service. In a May 2018 opinion, Dr. Bash opined that the service records support finding that her current disabilities of plantar fasciitis and flat feet are related to service. He did not address the current fungal conditions of onychomycosis and onychogryphosis affecting the bilateral feet and hallux toenails. Dr. Bash also opined that the Veteran’s right knee disability is secondary to her foot conditions in service. The Veteran has not yet been afforded a VA examination for her bilateral foot or right knee disabilities; this is necessary prior to adjudication. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The matters are REMANDED for the following action: 1. Obtain the Veteran’s federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 2. Ask the Veteran to complete a VA Form 21-4142 for any physician who has treated her foot and knee conditions- for whom she has not already provided a complete set of records. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of her claimed bilateral foot conditions, to include foot fungus (onychomycosis and onychogryphosis), plantar fascitis, flat feet and calluses. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including due to extensive running in service and other physical activities. A complete rationale for these opinions must be provided. The rationale should reflect consideration of the pertinent evidence of record, to include the lay statements by the Veteran describing the nature and onset of her symptoms (including at the July 2018 hearing) and May 2018 opinion from Dr. Bash. If the examiner is unable to render an opinion regarding etiology, he or she must provide a rationale as to why this is so and state whether there is additional evidence that would permit an opinion to be rendered. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of her current right knee disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including as a result of extensive running in service and other rigorous physical activities. The examiner must opine whether it at least as likely as not (1) began during active service, (2) whether osteoarthritis manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner should opine whether the right knee disability is at least as likely as not (1) proximately due to a bilateral foot condition, to include plantar fasciitis and/or flat feet, or (2) aggravated beyond its natural progression by a bilateral foot condition, to include plantar fasciitis and/or flat feet. A complete rationale for these opinions must be provided. The rationale should reflect consideration of the pertinent evidence of record, to include the lay statements by the Veteran describing the nature and onset of her symptoms (including at the July 2018 hearing), the March 2018 opinion from Dr. A. and the May 2018 medical opinion from Dr. Bash. If the examiner is unable to render an opinion regarding etiology, he or she must provide a rationale as to why this is so and state whether there is additional evidence that would permit an opinion to be rendered. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Lauritzen, Associate Counsel