Citation Nr: 0005439 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 98-14 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for a right foot disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The veteran served on active duty from April 1978 until October 1978. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a rating decision of July 1998 from the New York, New York Regional Office (RO) which declined to reopen the claim for entitlement to service connection for a right foot disability. FINDINGS OF FACT 1. The RO denied service connection for a right foot disorder in a rating decision of June 1994 and the veteran did not timely appeal the determination. 2. Evidence received since the June 1994 determination by the RO is cumulative of evidence previously considered, and the additional evidence by itself or in connection with evidence previously assembled, is not so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. The RO's unappealed June 1994 rating decision which denied service connection for a right foot disorder is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (1999). 2. The evidence received since the final June 1994 rating decision is not new and material to reopen the veteran's claim for service connection for a right foot disability. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that he injured his right foot due to the rigors of basic training including one mile runs in combat boots on hard surfaces, an unknown number of miles walked, and the numerous push-ups and other forms of exercises which applied pressure to his feet. He asserts that his right foot was normal at service entrance and that if he had not been subjected to this type of training, his foot disability would not have progressed as rapidly as it did. It is for these reasons that he maintains that service connection for a right foot disorder should now be granted by the Board. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active peacetime service. 38 U.S.C.A. § 1131 (West 1991). A preexisting injury of 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 the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(a) (1999). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service 38 U.S.C.A. 1153; 38 C.F.R. § 3.306(b) (1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service or aggravated by service. 38 C.F.R. §§ 3.303(d), 3.306 (1999). A claim for service connection for a right foot disability was initially denied by the RO in June 1994. Notice of the determination and the appellate rights were issued to the veteran in July 1994. The appellant did not file an appeal; and this decision is considered final, except that the claim may be reopened if new and material evidence is submitted. 38 U.S.C.A. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). "New and material evidence" means evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3rd 1356 (Fed.Cir. 1998) The record reflects that when the RO denied the claim of service connection for a right foot disability in June 1994, the veteran's service medical records showed that he denied foot trouble, and that his feet were clinically evaluated as normal, upon examination in December 1977 prior to service entrance. He was seen in July 1978 with symptoms which included slight tenderness anterior to the lateral malleolus since twisting the right foot the previous evening. He also indicated that there was limited movement of the toes, and that this had been that way since an automobile accident three years before when all the toes of the right foot had been broken. The appellant was observed to have a normal gait. An assessment of probable minor sprain aggravated by past injury was rendered. It was recorded at that time that he desired a medical discharge. X-ray examination of the right foot in July 1978 was interpreted as not indicative of recent trauma. It was noted that there were "old" deformities and/or arthritis of the toes, noted as possibly associated with previous trauma. In September 1978, the veteran was seen again for a painful right foot of five months' duration since being in the Army. It was again noted that he had suffered severe injury to the right foot in an automobile accident three years before. It was reported that an X-ray disclosed resection of the base proximal phalanges of toes two through five on the right, as well as an old fracture of the calcaneus. No acute fracture was identified. A medical board was subsequently convened and the appellant was subsequently discharged from service on the basis of disability consistent with amputation of the third and fourth toes of the right foot, as indicated by X- ray, which was determined to have existed prior to service and was not aggravated therein. The postservice evidence of record at the time of the June 1994 rating decision reflected that the veteran was treated at Anderson Memorial Hospital between 1991 and 1993 for various injuries, including trauma to the right foot in February 1993 after it was struck by a stick while he was involved in a fight. An X-ray of the right foot was interpreted as showing deformities of the bases of the proximal phalanges of the second through fifth toes and some secondary centers of ossification at those joints as well. An impression of right foot contusion was rendered. The record documents that the veteran failed to report for VA examination of the feet in June 1994. Service connection for right foot disability was subsequently denied by the RO in June 1994 on the basis that amputation of the third and fourth toes of the right foot pre-existed service and was not aggravated therein. Evidence received since the June 1994 RO decision includes private clinic records dated between 1997 and 1998 from the J. R. Wilson, M. D., and the Anderson Orthopedic Clinic showing treatment and surgery only for a left tibia/fibula fracture. Analysis The Board finds in this instance that all of the post-service clinical evidence dating from 1997 is new insofar as it was not considered by the RO in the rating decision of June 1994. However, such evidence, considered in conjunction with the record as a whole, is not material, as it does not relate to the basis for the prior final denial. Indeed, the additional evidence provides no findings relative to the right foot. As such, the additional evidence, considered in conjunction with the record as a whole, provides no medical support that the veteran's pre-existing right foot disability was aggravated in service. Essentially, there is still no clinical evidence or credible basis to find that the pre-existing right foot disorder increased in severity on account of any incident of active duty, nor has any current right foot disability been related to service by credible competent evidence. See 38 U.S.C.A. §§ 1131 (West 1991), 38 C.F.R. § 3.303 (1999). Consequently, the additional clinical and other evidentiary information which has been generated since the June 1994 decision is not so significant that it must be considered in order to fairly decide the merits of the claim. Accordingly, the Board concludes that the proffered evidence, while new, is not material, and does not provide a basis to reopen this claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). As well, the Board has considered the statements presented by the veteran attesting to the circumstances of right foot injury in service and continuing right foot disability after separation from active duty. However, such statements are not new as they are duplicative of contentions indicated upon the initial filing of his claim in 1994 and which were essentially of record at the time of the prior final denial of the claim for service connection in June 1994. See Reid v. Derwinski, 2 Vet. App. 312 (1992). Consequently, there is no competent medical evidence of record which establishes a nexus relationship between current right foot disability and service. See Caluza v. Brown, 7 Vet. App. 498 (1995). The appellant's opinion in this matter is not competent evidence of the required nexus. See also Heuer v. Brown, 7 Vet.App. 379, 384 (1995. The Board views its discussion as sufficient to inform the veteran of the elements necessary to reopen his claim for service connection for a right foot disability, and an explanation as to why his current attempt to reopen the claim must fail. See Graves v. Brown, 9 Vet. App. 172, 173 (1996); Robinette, 8 Vet. App. 69, 77-78 (1995). ORDER New and material evidence having not been submitted to reopen the claim of entitlement to service connection for a right foot disability, the benefit sought on appeal is denied. U. R. POWELL Member, Board of Veterans' Appeals