Citation Nr: 1017152	
Decision Date: 05/10/10    Archive Date: 05/26/10

DOCKET NO.  06-12 684	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New 
Orleans, Louisiana


THE ISSUES

1.  Whether new and material evidence has been received to 
reopen a claim of entitlement to service connection for 
bilateral pes planus and, if so, whether the reopened claim 
should be granted.

2.  Whether new and material evidence has been received to 
reopen a claim of entitlement to service connection for 
osteotomy of the second and third metatarsal, healed, status 
post exostectomy, hallux toes of the right foot (right foot 
disorder).

3.  Whether new and material evidence has been received to 
reopen a claim of entitlement to service connection for 
osteotomy of the second and third metatarsal, healed, status 
post exostectomy, hallux toes of the left foot (left foot 
disorder).

4.  Whether new and material evidence has been received to 
reopen a claim of entitlement to service connection for a 
back disorder.




REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

D. J. Drucker, Counsel


INTRODUCTION

The matter of whether new and material evidence has been 
received to reopen a claim as to whether there was clear and 
unmistakable error (CUE) in a July 1975 rating decision that 
denied entitlement to service connection for bilateral pes 
planus and osteotomy of the second and third metatarsal, 
healed, status post exostectomy, hallux toes of the right and 
left feet has apparently been raised by the record (in a 
March 2010 written statement from the Veteran's service 
representative), but has not been adjudicated by the Agency 
of Original Jurisdiction (AOJ).  Therefore, the Board does 
not have jurisdiction over it, and it is referred to the AOJ 
for appropriate action.  

The Veteran had active military service from February 1971 to 
August 1973.

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from a July 2005 rating decision of the Department 
of Veterans Affairs (VA) Regional Office (RO) in New Orleans, 
Louisiana.

Regarding entitlement to service connection for right and 
left foot and back disorders, this decision addresses only 
whether the evidence submitted is new and material.  Because 
these claims are reopened, and development not yet complete, 
the remainder of the appeal as to these matters is REMANDED 
to the RO via the Appeals Management Center (AMC) in 
Washington, D.C.  Consistent with the instructions below, VA 
will notify the Veteran of any further action that is 
required on his part.


FINDINGS OF FACT

1.  A May 2002 rating decision declined to reopen the issue 
of entitlement to service connection for bilateral pes planus 
on the basis that the evidence did not show that the Veteran 
had a constitutional and developmental abnormality aggravated 
by active service.  The Veteran did not perfect an appeal.

2.  The evidence associated with the claims file since the 
May 2002 rating decision raises a reasonable possibility of 
substantiating the claim of entitlement to service connection 
for bilateral pes planus.

3.  The May 2002 rating decision also declined to reopen the 
issue of entitlement to service connection for right and left 
foot disorders, on the basis that the evidence did not show 
that he had a constitutional and developmental abnormality 
aggravated by active service.  The Veteran did not perfect an 
appeal.

4.  The evidence associated with the claims file since the 
May 2002 rating decision raises a reasonable possibility of 
substantiating the claims of entitlement to service 
connection right and left foot disorders.

5.  The May 2002 rating decision also declined to reopen the 
issue of entitlement to service connection for a back 
disorder, on the basis that there was no evidence that the 
claimed disorder was incurred or aggravated by active 
service.  The Veteran did not perfect an appeal.

6.  The evidence associated with the claims file since the 
May 2002 rating decision raises a reasonable possibility of 
substantiating the claim of entitlement to service connection 
of a back disorder.

7.  Giving the Veteran the benefit of the doubt, his 
bilateral pes planus was incurred during active military 
service.


CONCLUSIONS OF LAW

1.  The May 2002 rating decision that declined to reopen the 
claims of entitlement to service connection for bilateral pes 
planus, right and left foot disorders, and a back disorder, 
is final.  38 U.S.C.A. § 7105 (West 2002).

2.  The evidence presented since the May 2002 RO decision is 
new and material and the claims are reopened. 38 U.S.C.A. § 
5108 (West 2002); 38 C.F.R. § 3.156 (2009).

3.  Resolving doubt in the Veteran's favor, bilateral pes 
planus was incurred or aggravated during active military 
service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & 
Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.	Duty to Notify and Assist

Under 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 
& Supp. 2009), VA has certain obligations to notify and 
assist the appellant.  Given that this decision reopens the 
claims of entitlement to service connection for bilateral pes 
planus, right and left foot disorders, and a back disorder; 
grants the claim for service connection for bilateral pes 
planus; and remands the remaining issues on appeal, an 
exhaustive analysis of VA's attempt to comply with these 
statutes is not in order.

In light of the Board's favorable decision regarding the 
claim for service connection for bilateral pes planus, any 
deficiency of the duty to notify or assist is rendered moot.  
Information concerning effective dates and ratings for 
bilateral pes planus will be provided by the RO.  If 
appellant then disagrees with any of those actions, he may 
appeal those decisions

II.	Factual Background and Legal Analysis

A. New and Material Evidence

1. Bilateral Pes Planus

A May 2002 rating decision declined to reopen the issue of 
entitlement to service connection for bilateral pes planus 
finding that there was no evidence that the Veteran's foot 
condition was aggravated by active service.  The Veteran did 
not appeal.  Hence, that decision is final.  38 U.S.C.A. § 
7105.

A claim will be reopened if new and material evidence is 
submitted.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).  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.  Id.

Evidence that is solely cumulative or repetitious in 
character will not serve as a basis for reconsideration of a 
previous decision.  The decision in Hodge v. West, 155 F.3d. 
1356 (Fed. Cir. 1998), stressed that under the regulation new 
evidence could be material if that evidence provided "a more 
complete picture of the circumstances surrounding the origin 
of a Veteran 's injury or disability, even where it will not 
eventually convince the Board to alter its ratings decision."  
Id. at 1363.

For the purpose of establishing whether new and material 
evidence has been submitted, the credibility of the evidence, 
although not its weight, is to be presumed.  Justus v. 
Principi, 3 Vet. App. 510, 513 (1992).

An application to reopen the appellant's claim was received 
in July 2004.  The evidence added to the record since the May 
2002 rating decision includes VA medical records, dated from 
2003 to 2004; service department records; and written 
statements from the Veteran in support of his claim.  Amongst 
these is the Veteran's March 2006 substantive appeal wherein 
he asserts that he was accepted into the military in 
"sound" condition and then, during basic training was 
diagnosed with third degree flat feet.  He further maintains 
that military daily logs should reflect his visit to sick 
call regarding this matter.  Also, in December 2004, the 
Veteran said he had not been to a hospital, seen a physician, 
or even knew that he had a foot problem prior to starting 
basic training. 

Added to the record were VA medical records that include an 
October 2003 entry wherein the Veteran complained of 
bilateral foot pain and reported having foot surgery after 
discharge.  It was noted that he reported being on his feet 
during basic training and was told that his inside (foot) 
tissue was torn in areas where the arch should be due to 
being flat footed.  The clinical impression included plantar 
fasciitis bilaterally, resolved.

The evidence added to the record since the May 2002 RO 
decision is new, it tends to relate to an unestablished fact 
necessary to substantiate the claim, and raises a reasonable 
possibility of substantiating the claim.  Since the previous 
denial was premised, in part, on a finding that there was no 
evidence that the Veteran aggravated a pre-existing disorder 
during service, the VA medical records along with the 
Veteran's written statement relate to an unestablished fact 
necessary to substantiate the claim.  Thus, new and material 
evidence has been submitted.  The issue of entitlement to 
service connection for bilateral pes planus is reopened.

2. Right and Left Foot Disorders

The May 2003 rating decision also denied the claim of 
entitlement to service connection for right and left foot 
disorders on the basis that there was no evidence that the 
Veteran's foot condition was aggravated by active service.  
The Veteran was notified in writing of the RO's decision.  He 
did not perfect an appeal, and it became final.

Amongst the evidence submitted in support of the claim to 
reopen are the VA medical records, including the October 2003 
clinic record, wherein he reported leaving service in 1973 
and undergoing foot surgery in 1975.  The diagnosis included 
bilateral metatarsalgia, present preoperatively and 
persistent long after and forefoot surgery.

In the December 2004 signed statement, the Veteran said that, 
prior to basic training, he never sought medical treatment 
for a foot problem or even knew he had one.  In March 2006, 
he noted that he was accepted into the military in sound 
condition. 

The evidence added to the record since the May 2002 rating 
decision is new, it tends to relate to an unestablished fact 
necessary to substantiate the claim, and raises a reasonable 
possibility of substantiating the claim.  Since that denial 
was premised, in part, on a finding that there was no 
evidence that the Veteran had left and right foot disorders 
that were aggravated by active service, the 2003 and 2004 VA 
treatment records, reflecting a diagnosis of bilateral 
metatarsalgia, and the Veteran's written statements, relates 
to an unestablished fact necessary to substantiate the 
claims.  Thus, new and material evidence has been submitted.  
The claims are reopened.

3. Back Disorder

The May 2002 rating decision also denied the claim of 
entitlement to service connection for a back disorder on the 
basis that there was no evidence that the claimed disorder 
was incurred or aggravated in active service.  The Veteran 
was notified in writing of the RO's decision.  He did not 
perfect an appeal, and it became final.

Amongst the evidence submitted in support of the claim to 
reopen is a September 2003 VA medical record indicating that 
the Veteran was disabled, evidently due to his lower back in 
1983, and treated for lumbago in 1986.  The October 2003 VA 
medical record that includes an impression of back pain with 
overlay onto foot problems.  

The evidence added to the record since the May 2002 rating 
decision is new, it tends to relate to an unestablished fact 
necessary to substantiate the claim, and raises a reasonable 
possibility of substantiating the claim.  Since that denial 
was premised, in part, on a finding that there was no 
evidence that the Veteran had a post service chronic residual 
disability related to service, the 2003 VA medical records 
relate to an unestablished fact necessary to substantiate the 
claim.  Thus, new and material evidence has been submitted.  
The claim is reopened.

Adjudication of the claims does not end with a finding that 
new and material evidence has been submitted, nor is a grant 
of service connection assured.  Once a claim is reopened, the 
Veterans Claims Assistance Act of 2000 provides that the 
Secretary shall make reasonable efforts to assist a claimant 
in obtaining evidence necessary to substantiate the claimant' 
s claim for benefits, unless no reasonable possibility exists 
that such assistance would aid in substantiating the claim.  
See 38 U.S.C.A. § 5103A.  As noted below, the Board is 
requesting additional development with respect to the 
underlying claims for service connection for right and left 
foot disorders, and a low back disorder, and will issue a 
final decision once that development is complete, if the case 
is ultimately returned to the Board.

B. Service Connection for Bilateral Pes Panus

Under 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303, a veteran is 
entitled to disability compensation for disability resulting 
from personal injury or disease incurred in or aggravated by 
active military service.  

At the time of the service entrance examination, every 
veteran shall be taken to have been in sound condition when 
examined, accepted, and enrolled for service, except as to 
defects, infirmities, or disorders noted at the time of 
examination, acceptance, and enrollment, or where clear and 
unmistakable evidence demonstrates that the injury or disease 
existed before acceptance and enrollment and was not 
aggravated by such service.  38 U.S.C.A. § 1111 (West 2002).  
Only such conditions as are recorded in examination reports 
are considered as "noted."  38 C.F.R. § 3.304(b) (2009).

The United States Court of Appeals, Federal Circuit, has held 
that "[l]ay evidence can be competent and sufficient to 
establish a diagnosis of a condition when (1) a layperson is 
competent to identify the medical condition, (2) the 
layperson is reporting a contemporaneous medical diagnosis, 
or (3) lay testimony describing symptoms at the time supports 
a later diagnosis by a medical professional." Jandreau v. 
Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also 
Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) 
("[T]he Board cannot determine that lay evidence lacks 
credibility merely because it is unaccompanied by 
contemporaneous medical evidence").

In a claim for service connection, the ultimate credibility 
or weight to be accorded evidence must be determined as a 
question of fact.  The Board determines whether (1) the 
weight of the evidence supports the claim, or (2) the weight 
of the "positive" evidence in favor of the claim is in 
relative balance with the weight of the "negative" evidence 
against the claim: the appellant prevails in either event. 
However, if the weight of the evidence is against the 
appellant's claim, the claim must be denied.  38 U.S.C.A. § 
5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 
49 (1990).

On a report of medical history completed in February 1971, 
when he was examined for enlistment into service, the Veteran 
checked yes to having foot trouble, and foot arthritis 
appears to have been noted by the examiner (writing is 
unclear).  However, when examined at that time, neither 
bilateral pes planus nor another foot disorder was noted, and 
the Veteran was found qualified for active service.

Clinical records indicate that in April and May 1971, the 
Veteran complained of bilateral foot pain and was evaluated 
by podiatrists.  In April 1971, it was noted that that arch 
supports were not helpful.  In May 1971, a past history of 
foot problems with no past medical treatment was reported.  A 
progression of foot pain since the Veteran was at Fort Polk 
was noted and it was also noted that arch supports were not 
helpful.  Objectively, he had bilateral pes planus on weight 
bearing with plantar callous formation and pronation; cock-up 
toes and some recovery of arch off weight bearing.  Results 
of x-rays of his feet taken at the time were normal.  The 
clinical impression was plantar arch strain in both feet.

In March 1972, the Veteran was evaluated again by a 
podiatrist for complaints of poor arches and pain on long 
standing.  Pes valgo planus, flexible, moderate and severe, 
was noted and that previous supports were unsuitable.  Custom 
molded inlays were prescribed.

When examined for separation from service in August 1973, a 
foot disorder was not noted.

Post service, private hospital records indicate that, when 
examined in May 1975, prior to prospective toe surgery, it 
was noted that the Veteran's transverse arches were broken 
and he had a very big callus under both feet with third 
degree flat feet.

A July 1997 VA examination report regarding the Veteran's 
feet reflects his history of developing foot pain during 
basic training for which he was seen in a hospital, given 
arch supports, and told he had flat feet.  The pertinent 
diagnosis was pes planus.

Resolving all reasonable doubt in favor of the Veteran, the 
Board finds that the evidence supports a finding that 
bilateral pes planus was incurred during active service and 
service connection is warranted.  The service treatment 
records clearly document that, when examined for enlistment, 
bilateral pes planus was not noted and the service treatment 
records further document the Veteran's treatment for 
bilateral pes planus in service.  The Veteran has credibly 
and repeatedly stated in writing that he has had chronic foot 
pain since that basic training.  Given the clear evidence of 
treatment in service, the private treatment record dated less 
than two years after discharge, showing third degree flat 
feet, and the 1997 VA examination report that diagnosed pes 
planus, the Board is of the opinion that the Veteran's 
bilateral pes planus cannot be dissociated from his active 
military service.  There is no evidence against the claim.  
As such, the Board finds that the evidence supports the claim 
and service connection is granted.




ORDER

New and material evidence having been received, the claims of 
entitlement to service connection for bilateral pes planus, 
right and left foot disorders, and a back disorder, are 
reopened.

Entitlement to service connection for bilateral pes planus is 
granted.


REMAND

The Veteran seeks also service connection for his left and 
right foot disorders, and a back disorder, which he has 
variously attributed to his (now) service-connected bilateral 
pes planus (see Veteran's July 1975, July 1977 and April 2002 
written statements).  He has repeatedly argued that he never 
experienced foot problems until he entered service and then, 
shortly after discharge, underwent toe surgery.  

Private medical records indicate that, in April and May 1975, 
the Veteran was hospitalized for toe surgery.  Records 
indicate that he complained of pain in the bottom of both 
feet with callus formation, reported having trouble for 
"several years," and also had "pains in the back."  He was 
in the Armed Forces and at that time complained of foot and 
back pain and was found to have third degree flat feet.  
Shoes with special arches were made for him in service but 
none provided much relief and he complained since.  The 
diagnosis at that time was fallen transverse metatarsal arch 
with callus formation and pain in the Veteran's back that was 
probably associated with the difficulty he had in walking.  
The Veteran was referred for osteotomy of the toes of his 
right and left feet that was performed at that time.  

A July 1997 VA general medical examination report reflects 
that the Veteran reportedly sustained a work-related low back 
injury in 1979, reinjured his back in 1985, and underwent 
back surgery in 1989.  Diagnoses included degenerative joint 
disease and disc disease of the lumbosacral spine.  

During the July 1997 VA examination for his feet, the Veteran 
reported that one year after discharge he was unable to stand 
for a long time as a fast food restaurant worker and 
underwent foot evaluation that led to his left and right toe 
osteotomies.  Diagnoses included pes planus, bilateral foot 
deformity, status post osteotomy of the first, second, and 
third toes, and bilateral calluses.

The October 2003 VA medical record diagnosed bilateral 
metatarsalgia, present preoperatively and persistent long 
after, forefoot surgery, plantar fasciitis, bilaterally, 
resolved, and back pain with overlay onto foot problems.  An 
April 2004 VA medical record includes a clinical impression 
of acute lumbosacral strain with neuritis and osteoarthritis 
of the lumbosacral spine.  

Secondary service connection may be granted for a disability 
that is proximately due to, or the result of, a service-
connected disease or injury.  38 C.F.R. § 3.310(a) (2009).  
To establish service connection for a disability on a 
secondary basis, there must be evidence sufficent to show 
that a current disability exists and that the current 
disability was either caused by or aggravated by a service-
connected disability.  See Allen v. Brown, 7 Vet. App. 439, 
448 (2006).  Additionally, when aggravation of a nonservice-
connected disability is proximately due to or the result of a 
service-connected disorder, such disability shall be 
compensated for the degree of disability (but only that 
degree) over and above the degree of disability existing 
prior to the aggravation.  Id.; see also 38 C.F.R. § 3.310(b) 
(2009).

Here, the Board is of the opinion that the Veteran should be 
afforded a VA examination to determine whether he has right 
and left foot disorders or a back disorder due to service or 
that was aggravated by the service-connected bilateral pes 
planus, or is otherwise related to this pathology.  See 
Allen, supra.

Accordingly, the case is REMANDED for the following action:

1.	Contact the Veteran in writing and 
request that he provide specific 
information regarding medical providers 
for his 1989 back surgery and any 
subsequent treatment (e.g., hospital, 
surgeon, treating physician) and then 
obtain these medical records.  If any 
records are unavailable, the Veteran 
and his representative should so 
advised in writing.

2.	Obtain all medical records regarding 
the Veteran's treatment at the VA 
medical facilities in Shreveport and 
Alexandria, Louisiana, for the period 
from July 2004 to the present, and from 
any other VA or non-VA medical provider 
identified by him.  If any records are 
unavailable, the Veteran and his 
representative should be so notified in 
writing.

3.	Schedule the Veteran for a VA 
examination to determine the etiology 
of any back disorder and left and right 
foot disorders found to be present.  
The claims folder should be available 
to the examiner prior to entry of any 
opinion.  All indicated studies should 
be completed and all clinical findings 
reported in detail.  A complete history 
of the claimed disorders should be 
obtained from the Veteran, to 
particularly include any post-service 
work-related foot or back injuries.  
Based on a through review of the claims 
folder, and the examination findings, 
the examiner is requested to provide 
address the following 

a.	The examiner should identify if 
the Veteran has a diagnosed right 
and left foot disorder, including 
bilateral metatarsalgia, bilateral 
plantar fasciitis, or another foot 
disorder; or a back disorder, 
including acute lumbosacral 
strain, lumbago, osteoarthritis, 
degenerative disc disease, or 
another back disorder.

b.	 If right and left foot disorders 
are diagnosed, the medical 
specialist is requested to render 
an opinion as to whether it is at 
least as likely as not (i.e., to 
at least a 50-50 degree of 
probability) that any currently 
diagnosed right and left foot 
disorders were caused by military  
service (including the findings 
noted in the April and May 1971 
and March 1972 service treatment 
records), or whether such an 
etiology or relationship is less 
than unlikely (i.e., less than a 
50- 50 probability).

c.	The examiner further should 
proffer an opinion, with 
supporting analysis, as to the 
likelihood that the Veteran's 
diagnosed right and left foot 
disorders were caused by or 
aggravated by his service-
connected bilateral pes planus.  
The degree of right and left foot 
disorders that would not be 
present but for the service-
connected bilateral pes planus 
should be identified.

d.	If a back disorder is diagnosed, 
the medical specialist is 
requested to render an opinion as 
to whether it is at least as 
likely as not (i.e., to at least a 
50-50 degree of probability) that 
any currently diagnosed back 
disorder was caused by military 
service (including the findings 
noted in the April and May 1971 
and March 1972 service treatment 
records), or whether such an 
etiology or relationship is less 
than unlikely (i.e., less than a 
50-50 probability).

e.	The examiner further should 
proffer an opinion, with 
supporting analysis, as to the 
likelihood that the Veteran's 
diagnosed back disorder was caused 
by or aggravated by his service-
connected bilateral pes planus.  
The degree of back disorder that 
would not be present but for the 
service-connected bilateral pes 
planus should be identified.  The 
examiner is particularly requested 
to address the diagnosis rendered 
by a private physician in May 1975 
(to the effect that the Veteran's 
back pain was probably associated 
with the difficulty he had in 
walking); and by a VA podiatrist 
in October 2003 (to the effect 
that the Veteran had back pain 
with overlay onto foot problems).

f.	To the extent possible, all 
disability associated with any 
intercurrent work-related back 
injury should be distinguished 
from the disability caused by the 
service-connected bilateral pes 
planus.  If this is not possible, 
the examiner should so state.

g.	A rationale should be provided for 
all opinions rendered.  As noted, 
the claims file must be made 
available to the examiner in 
conjunction with the examination, 
and the examination report should 
indicate if the Veteran's medical 
records were reviewed prior to 
responding to the questions.

NOTE: The term "at least as 
likely as not" does not mean 
merely within the realm of 
medical possibility, but rather 
that the weight of medical 
evidence both for and against a 
conclusion is so evenly divided 
that it is as medically sound 
to find in favor of causation 
as it is to find against it.

4.	The Veteran should be advised in 
writing that it is his responsibility 
to report for the VA examination, to 
cooperate with the development of his 
claims, and that the consequences for 
failure to report for a VA examination 
without good cause include denial of 
the claims.  38 C.F.R. §§ 3.158, 3.655 
(2009).  In the event that the Veteran 
does not report for any ordered 
examination, documentation must be 
obtained that shows that notice 
scheduling the examination was sent to 
his last known address prior to the 
date of the examination.  It should 
also be indicated whether any notice 
that was sent was returned as 
undeliverable.

5.	Thereafter, the RO/AMC should review 
the examination report to ensure that 
it is in complete compliance with this 
remand.  If not, the case should be 
returned to the examiner if the 
questions posed herein were not 
answered.

6.	The RO/AMC should then adjudicate the 
claims of entitlement to service 
connection for right and left foot 
disorders and a back disorder on the 
merits.  If any benefit sought is not 
granted, the Veteran and his 
representative should be furnished with 
a supplemental statement of the case 
and afforded an opportunity to respond 
before the file is returned to the 
Board for further appellate 
consideration. 

The Board intimates no opinion as to the ultimate outcome of 
this case.  The appellant need take no action unless 
otherwise notified.

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner.  
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).




______________________________________________
Michael J. Skaltsounis
Acting Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs