Citation Nr: 0005031 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 97-21 221 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for postoperative residuals of a bunion with hallux valgus of the right first metatarsal. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for postoperative residuals of a bunion with hallux valgus of the left first metatarsal. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD C. S. Freret, Counsel INTRODUCTION The appellant had active duty for training from May 1982 to September 1982. The record also reflects that she has many years of service in the National Guard, including a two week period of annual training from March 28 to April 11, 1987. Service connection was denied for postoperative residuals of bunions with hallux valgus of the first metatarsals of each foot by a June 1991 rating decision, and that decision became final when the appellant did not appeal it after receiving notification thereof in July 1991. This appeal came before the Board of Veterans' Appeals (Board) from an August 1996 rating decision by the Department of Veterans Affairs (VA) St. Petersburg, Florida, Alabama, Regional Office (RO), and it was remanded in May 1998 in order to permit the appellant to testify at a Travel Board hearing, which was held at the RO in October 1999. FINDINGS OF FACT 1. Service connection was denied for postoperative residuals of bunions with hallux valgus of the right and left first metatarsals by a June 1991 rating decision, which became final when the appellant did not appeal the decision within one year after notification thereof in July 1991. 2. Because the evidence received since the June 1991 rating decision is merely cumulative of the evidence previously considered, it is not so significant that it must be considered in order to fairly decide the merits of the claim of entitlement to service connection for postoperative residuals of a bunion with hallux valgus of the right first metatarsal. 3. Because the evidence received since the June 1991 rating decision is merely cumulative of the evidence previously considered, it is not so significant that it must be considered in order to fairly decide the merits of the claim of entitlement to service connection for postoperative residuals of a bunion with hallux valgus of the left first metatarsal. CONCLUSIONS OF LAW 1. The evidence received by VA since the June 1991 rating decision is not new and material, and the claim for service connection for postoperative residuals of a bunion with hallux valgus of the right first metatarsal is not reopened. 38 U.S.C.A. §§ 1131, 1137, 1153, 5108, 7105(c) (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.104(a), 3.156(a), 3.303(d), 3.306, 20.302(a) (1999). 2. The evidence received by VA since the June 1991 rating decision is not new and material, and the claim for service connection for postoperative residuals of a bunion with hallux valgus of the left first metatarsal is not reopened. 38 U.S.C.A. §§ 1131, 1137, 1153, 5108, 7105(c) (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.104(a), 3.156(a), 3.303(d), 3.306, 20.302(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant asserts that her current bilateral foot disabilities are related to her period of annual training with the National Guard from March to April 1987, and that she has presented new and material evidence with which to reopen her claims for service connection for postoperative residuals of bunions with hallux valgus of the first metatarsals of each foot. She maintains that she had no foot disorder prior to entering the military in 1982. The appellant's claims for service connection for postoperative residuals of bunions with hallux valgus of the right and left first metatarsals were previously denied by a June 1991 rating decision that became final when she did not file a timely appeal of the decision after receiving notification thereof in July 1991. Except as otherwise provided, when a claim becomes final after an unappealed rating decision, the claim may not be thereafter reopened. Should new and material evidence be presented or secured with respect to a claim that has been disallowed, the claim shall be reopened and reviewed as to all of the evidence of record. 38 U.S.C.A. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104(a), 20.302(a). In Elkins v. West, 12 Vet. App. 209 (1999), the United States Court of Appeals for Veterans Claims (Court) held that the process for reopening claims had become a three-step process under the holding by the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998): (1) the Secretary must determine whether new and material evidence has been presented, which under 38 C.F.R. § 3.156(a) means evidence not previously submitted to agency decision makers which satisfies the following requirements: it bears directly and substantially upon the specific matter under consideration; it is neither cumulative nor redundant; and, by itself or in connection with evidence previously assembled, it is so significant that it must be considered in order to fairly decide the merits of the claim; (2) if new and material evidence has been presented, immediately upon reopening the Secretary must determine whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C. § 5107(a); and (3) if the claim is well grounded, the Secretary must reopen the claim and "evaluate the merits of the veteran's claim in light of all the evidence, both old and new" after ensuring the duty to assist under 38 U.S.C. § 5107(b) has been fulfilled. Winters v. West, 12 Vet. App. 203 (1999). For the limited purpose of determining whether to reopen a claim, the Board must accept the new evidence as credible and entitled to full weight. Justus v. Principi, 3 Vet. App. 510 (1992). In determining whether new and material evidence has been submitted, the Board must review all evidence submitted since the last final denial of a claim. Evans v. Brown, 9 Vet. App 273 (1996). In this case, the appellant's claims for service connection for postoperative residuals of bunions with hallux valgus of the right and left first metatarsals were last finally denied by the June 1991 rating decision. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131. Regulations also provide that service connection may be established where all the evidence of record, including that pertinent to service, demonstrates that the veteran's current disability was incurred in service. 38 C.F.R. § 3.303(d). A preexisting 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 the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). 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 that 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). The evidence of record at the time of the June 1991 rating decision included the appellant's service medical records, which revealed the following facts: during her period of active duty for training from May to September 1982, she received no treatment for any foot disorder; during a two week period of annual training for the National Guard in March and April 1987, she received treatment for bunions on both great toes that had been present for a long time; and she was hospitalized at a VA medical facility for four days during July 1987 when she underwent a bunionectomy of the right first metatarsal with metatarsal head osteotomy and closing wedge osteotomy of the right first proximal phalanx. The July 1987 hospitalization report indicated that there was a 10 year history of bilateral first metatarsophalangeal joint bunion with hallux valgus, and that over the years the structural deformity had increased so that the hallux drift was considerable and the bunion prominence was irritated by most foot gear. A history of redness and swelling about the first metatarsophalangeal joint when wearing foot gear and on prolonged weight-bearing was noted, with the structural changes as well as the symptoms being greater on the right than on the left, although there was minimal difference. Service connection was denied for postoperative residuals of bunions with hallux valgus of the first metatarsals of each foot by the June 1991 rating decision, on the basis that the appellant's bilateral foot problems with bunions on each great toe had not had their origins in service but rather had preexisted military service and had not undergone an increase in severity as a result of military service. The evidence submitted since the June 1991 rating decision includes VA and private medical records, dated from 1987 to 1997. A medical record from a military medical facility, dated April 15, 1987, indicated that the appellant had experienced pain around each great toe for two to three months, and the assessment was bunions. A July 1987 VA medical record noted a 10 year history of bunions on both great toes, which had been painful for about the last year. VA hospitalization reports show that she underwent bunionectomies on the right and left great toes in July 1987 and August 1987, respectively. Medical records dated since August 1987 reveal that she has continued to complain of and receive treatment for foot problems since the 1987 surgeries. A January 1997 VA podiatry examination report indicated that the right bunionectomy had produced good results but that the left first metatarsal continued to present problems. While some of the evidence submitted since June 1991 is new, in that it was not previously of record, it is cumulative of the evidence considered at that time because it reveals that the appellant has postoperative residuals of bunions with hallux valgus of the right and left first metatarsals, a fact that was evident in June 1991 when the evidence showed that the appellant had undergone bunionectomies of both great toes. There has been no additional evidence presented which demonstrates that the appellant's bilateral foot problems involving bunions on each great toe began in service, that her current bilateral foot problems are related to any incident in service, or that her bilateral foot problems, which were shown to have preexisted service, underwent a permanent increase in severity as a result of military service. The Board finds that the appellant has not presented any additional evidence so significant that it must be considered in order to fairly decide the merits of the her claims. Accordingly, her claims for service connection for postoperative residuals of bunions with hallux valgus of the right and left first metatarsals cannot be reopened, as she has not submitted evidence that is both new and material. 38 U.S.C.A. §§ 5107, 5108, 7105; 38 C.F.R. § 3.156. ORDER New and material evidence not having been submitted to reopen claims of entitlement to service connection for postoperative residuals of bunions with hallux valgus of the right and left first metatarsals, these claims remain denied. M. W. GREENSTREET Member, Board of Veterans' Appeals