10-31 526
10-31 526
| Board of Vet. App. | Jul 14, 2017Background
- Veteran served active duty Sep 1973–Sep 1976 and appealed VA RO decisions denying/reopening foot and back claims.
- December 2001 RO denied service connection for right foot disability; that decision was final.
- April 2007 Board declined to reopen the right-foot claim; that decision was final.
- Evidence submitted after April 2007 included a May 2011 VA podiatry opinion diagnosing right foot neuritis and opining it was "likely as not" secondary to the service‑connected left foot condition due to an antalgic gait.
- Board found the May 2011 opinion new and material, reopened the right-foot claim, and granted secondary service connection for right foot neuritis based on the preponderance of evidence.
- The low back claim was remanded for a new VA examination because the May 2009 exam was inadequate (relied on an inaccurate factual premise regarding gait) and did not address direct service connection or aggravation by service‑connected foot disability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether new and material evidence reopens previously denied right-foot claim | May 2011 VA podiatry opinion linking right foot neuritis to service‑connected left foot creates reasonable possibility of substantiation | Prior final denials (Dec 2001, Apr 2007) barred reopening absent new and material evidence | Evidence since Apr 2007 is new and material; claim reopened |
| Service connection for right foot disability, including secondary to left foot | Right foot neuritis is etiologically related to service‑connected left foot (antalgic gait caused nerve irritation) | Earlier RO exams found no nexus; but new treating opinion supports nexus | Granted: right foot neuritis service‑connected as secondary to service‑connected left foot |
| Service connection for low back, including secondary to left foot | Representative argued prior nexus exam failed to address direct service connection and aggravation by foot disability; record shows antalgic gait | VA relied on May 2009 exam finding no persistent limp and attributed back to aging/obesity | REMANDED for new VA exam addressing service connection, secondary causation/aggravation, and noted factual gait evidence |
Key Cases Cited
- Jackson v. Principi, 265 F.3d 1366 (Fed. Cir.) (Board must consider whether claim should be reopened even if RO denied reopening)
- Bernard v. Brown, 4 Vet. App. 384 (Vet. App.) (reopening implicates both whether evidence is new/material and merits on reopening)
- Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir.) (VA must treat new evidence filed during appeal period as part of pending claim)
- Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir.) (elements required to establish service connection)
- Shedden v. Principi, 381 F.3d 1163 (Fed. Cir.) (service connection requires current disability, in‑service event, and nexus)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir.) (lay evidence competency for medical matters and symptom reporting)