Citation Nr: 1307229 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 10-42 447 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been submitted sufficient to reopen a claim for service connection for bilateral pes planus and stress fractures. 2. Entitlement to service connection for a bilateral foot disability, to include pes planus, hallux valgus, and stress fractures. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Juliano, Associate Counsel INTRODUCTION The Veteran served on active duty from February 2, 1988 to April 7, 1988. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Cleveland, Ohio. A June 2009 rating decision continued the denial of the Veteran's claims. In May 2012, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing at the RO located in Cleveland, Ohio. A transcript of the proceeding has been associated with the claims file. The claim for service connection for a bilateral foot disability is reopened, and the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A September 1988 rating decision denied service connection for bilateral stress fractures and pes planus; the Veteran did not appeal, and the decision became final. 2. A January 1992 RO decision denied the Veteran's application to reopen his claim; the Veteran did not appeal, and the decision became final. 2. Evidence received since the January 1992 RO decision is not cumulative and redundant, and raises a reasonable possibility of substantiating the claim for service connection for bilateral stress fractures and pes planus. CONCLUSIONS OF LAW 1. The unappealed January 1992 RO decision that denied the Veteran's claim of service connection for a bilateral foot disability is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.1100, 20.1103 (2012). 2. Since the unappealed January 1992 decision, new and material evidence sufficient to reopen the Veteran's claim of service connection for a bilateral foot disability has been received. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012); Hodges v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) With regard to the Veteran's application to reopen the previously denied claim of entitlement to service connection for a bilateral foot disability, the Board has reopened and remanded the claim for further development, as explained below. As such, the Board finds that any error under the VCAA with regard to the Veteran's claim is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). New evidence means evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). According to the Court, in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The preliminary issue for resolution before the Board is whether new and material evidence has been submitted sufficient to reopen the Veteran's previously denied claim of entitlement to service connection for bilateral stress fractures and pes planus. After a review of the evidence of record, the Board finds that new and material evidence has been received. By way of background, a September 1988 rating decision denied service connection for claimed bilateral foot stress fractures and pes planus on the basis that there was no evidence of any stress fractures on VA examination, and that the Veteran's pes planus preexisted service and was not aggravated by service. The Veteran did not file a notice of disagreement, nor was new and material evidence submitted within one year, and the RO decision became final. See 38 C.F.R. §§ 3.156(a), 20.302, 20.1103 (2012). In January 1992, the Veteran filed a request to reopen his claim. A January 1992 rating decision denied the Veteran's application to reopen his claim on the basis that the newly submitted evidence (copies of certain service treatment records) was redundant of evidence previously considered and was therefore not new and material. The Veteran did not file a notice of disagreement, nor was new and material evidence submitted within one year, and the RO decision became final. See 38 C.F.R. §§ 3.156(a), 20.302, 20.1103 (2012). In February 2009, the Veteran filed a request to reopen his claim. At the time of the January 1992 RO decision, the evidence of record included the Veteran's service treatment records, which include a December 1987 enlistment examination report reflecting diagnosed pes planus on entry as well as Medical Board proceedings reflecting diagnosed pes planovalgus (leading to his medical discharge). Also of record was a June 1988 VA examination report reflecting diagnosed pes planus and hallux valgus, but no opinion as to incurrence or aggravation. Since the final January 1992 RO decision, new evidence associated with the claims file includes, but is not limited to, private treatment records dated from 2003 to 2010 and VA treatment records dated from June 2009 to March 2010 reflecting complaints of foot pain and a reported history of a right foot injury at the age of 18, stress fractures in service, and a history of left ankle surgery apparently post-service. Diagnoses in these records include pes planus, hallux valgus, hammertoes, osteoarthritis, TP tendonitis, and PTTD. Also, the Veteran recently testified at the May 2012 Board hearing that he had no foot problems, injuries, or treatment prior to service, that he incurred stress fractures in service, and that he was diagnosed with stress fractures by private physicians when he returned home from service (i.e., shortly after his medical discharge). He further testified that his private physicians, Drs. T. and G., told him that his bilateral foot condition was caused by the stress fractures he incurred in service. In the alternative, the Veteran asserted at the Board hearing that his bilateral foot condition was aggravated by service. As noted above, when determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). Therefore, the Veteran's testimony is presumed credible, including his reported continuity of symptomatology as well as his reports of being told by private physicians that his bilateral foot condition is related to in-service stress fractures. The Board therefore finds that the newly submitted VA and private treatment records reflecting current diagnoses of bilateral foot conditions as well as the Veteran's testimony concerning incurrence and aggravation constitutes new and material evidence. See Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (overruling Colvin) (noting that it is not required for new evidence to warrant a change in the outcome of a claim in order to constitute material evidence, but rather, materiality relates to the importance of review of a complete record). Therefore, the Veteran's claim is reopened. ORDER New and material evidence sufficient to reopen a claim of entitlement to service connection for bilateral stress fractures and pes planus, has been received, and, to that extent only, the appeal is granted. REMAND The Veteran served on active duty from February 2, 1988 to April 7, 1988. He claims that he incurred a bilateral foot disability, to include pes planus, hallux valgus, and stress fractures, as a result of his service. In the alternative, he asserted at the Board hearing that his bilateral foot condition was aggravated by service. By way of background, a December 1987 enlistment examination report reflects a diagnosis of pes planus was noted on entry. February 1988 records reflect that the Veteran complained of bilateral foot pain (shortly after beginning training that month). A diagnosis of rule-out stress reaction/fracture was noted. X-rays, however, did not reveal any stress fracture, although an impression of hallux valgus was noted. March 1988 Medical Board proceedings reflect that the Veteran became severely symptomatic with pes planus and hallux abductovalgus, and he was ultimately discharged (in April 1988) as unfit for duty. Post-service, private treatment records dated from 2003 to 2010 and VA treatment records dated from June 2009 to March 2010 reflect that the Veteran has been followed for complaints of foot pain, and diagnoses in these records include pes planus, hallux valgus, hammertoes, osteoarthritis, TP tendonitis, and PTTD. The Veteran testified at the Board hearing that shortly after his discharge from service, he was seen at the Cincinnati, Ohio VA medical center for bilateral foot stress fractures. He also testified that he has continued to experience foot problems since service, and that he had no prior trauma or foot problems or treatment before service. He also asserts that he received treatment at the Dayton and Springfield VA facilities for the past 20 to 22 years. The Board notes that a 1988 VA examination report from the Cincinnati, Ohio VA medical center (VAMC) is of record. However, records from the Dayton and Springfield facilities dating back 20 to 22 years should be requested. The Veteran also testified that he received treatment by several private physicians, including Drs. Ahmed, Goings, Becker, Thomas and Venema, including surgery by Dr. Becker in 1998. He further testified that certain of these doctors told him that his bilateral foot condition is related to stress fractures he incurred in service, albeit he noted that records from Dr. Goings who treated him in the early 1990s shortly after service were no longer available. The Board acknowledges that the claims file includes treatment records from Dr. Ahmed dated from 2003 to 2008, from Dr. Venema dated in 2005, and one recent May 2010 record from Dr. Thomas. None of these records, however, include any etiological opinion linking his foot condition to service. In light of all of the above, the Board finds that a remand is also necessary so that the Veteran may be provided with another opportunity to identify specifically any outstanding treatment records and so that any records so identified may be associated with the claims file. As discussed above, the evidence of record includes evidence of a current bilateral foot disability, service treatment records reflecting complaints of bilateral foot pain and diagnosed pes planus and hallux valgus leading to the Veteran's medical discharge as unfit for duty, and the Veteran has testified that he has experienced continued symptomatology since service. Based thereon, the Board finds that the low threshold requirement for providing a VA examination has been met, and a remand for a VA examination is required. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). As bilateral pes planus was noted at the time the Veteran was examined, enrolled, and accepted for his period of active service, the presumption of soundness does not apply. See 38 U.S.C.A. § 1111 (West 2002). A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). The presumption of aggravation applies only when pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996). 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; Falzone v. Brown, 8 Vet. App. 398, 402 (1995); see also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (holding that evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat Veteran to establish an increase in disability). If an increase is shown, the presumption of aggravation may be rebutted only by clear and unmistakable evidence 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), (b). With respect to other foot disorders diagnosed in service, a Veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C.A. § 1111; VAOPGCPREC 3- 2003. The presumption of soundness is rebutted only where clear and unmistakable evidence shows that the condition existed prior to service and that it was not aggravated by service. See VAOGCPREC 3-2003. The General Counsel concluded that 38 U.S.C.A. § 1111 requires VA to bear the burden of showing the absence of aggravation in order to rebut the presumption of sound condition. See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In sum, when no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. Finally, the Veteran reported in December 1991 that he was filing for Social Security Administration (SSA) disability benefits. It does not appear, however, that the RO attempted to obtain the administrative decision and the records upon which SSA relied in reaching its decision. The Court of Appeals for Veterans Claims has held that VA's duty to assist encompasses obtaining medical records that supported an SSA award of disability benefits as they may contain information relevant to VA claims. Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992); see also 38 U.S.C.A. § 5103A(c)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2011); Diorio v. Nicholson, 20 Vet. App. 193, 199-200 (2006); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Those records should be requested, and associated with the Veteran's claims file. Accordingly, the case is REMANDED for the following action: 1. Request, directly from the SSA, complete copies of any determination on a claim for disability benefits from that agency as well as the records, including medical records, considered in adjudicating the claim. All attempts to fulfill this development should be documented in the claims file. 2. Attempt to obtain VA treatment records from the Dayton and Springfield VA medical facilities dating from 1988. 3. Provide the Veteran with an opportunity to identify any outstanding private treatment records and obtain copies of any records so identified. To that end, provide the Veteran with Forms 21-4142, and also specifically ask the Veteran if he wished to provide such forms so that any outstanding records from Drs. Ahmed, Becker, Goings, Thomas and Venema may be obtained. 4. With respect to steps 1 to 3, if, after making reasonable efforts to obtain named non-VA records the AMC is unable to secure same, or if after continued efforts to obtain federal records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 5. Schedule the Veteran for a VA examination to determine the current nature and the etiology of his bilateral foot disabilities. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The complete claims folder must be provided to the examiner for review in conjunction with the examination, and the examiner must note that the claims folder has been reviewed. The examiner should indicate as follows: a) With respect to bilateral pes planus, was it at least as likely as not (a probability of 50 percent or greater) permanently increased in severity during active service. [Note: a temporary flare-up of symptoms during service does not constitute a permanent increase in severity.] Please provide a complete explanation for the opinion. b) If so, was any increase in severity of the pre-existing bilateral pes planus during active service clearly and unmistakably (obviously, manifestly or undebatably) due to the natural progress of the disease. Please provide a complete explanation for the opinion. c) State whether it is clear and unmistakable (obvious, manifest, and undebatable) that stress reaction, hallux valgus, left foot achilles tendonitis, and any foot disorder other than pes planus, pre-existed active service. Please provide a complete explanation for the opinion. d) If so, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that any pre-existing disorder of either foot, other than pes planus, WAS NOT aggravated (i.e., permanently worsened) during service or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress. Please provide a complete explanation for the opinion. e) If a response to c) or d) above is negative, provide an opinion as to whether the current foot disabilities, including hallux valgus, hammertoes, osteoarthritis, bilateral PTTB, and TP tendonitis, at least as likely as not (a probability of 50 percent or greater) began in or are related to active service. Please provide a complete explanation for the opinion. 6. Then, readjudicate the Veteran's claim. If his claim remains denied, he should be provided with a Supplemental Statement of the Case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. 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. 2012). ______________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs