Citation Nr: 1308637	
Decision Date: 03/14/13    Archive Date: 03/25/13

DOCKET NO.  10-40 878	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1.  Entitlement to service connection for a bilateral foot condition other than pes planus, including arthritis due to cold injury, hallux valgus, and corns and calluses.

2.  Entitlement to service connection for a bilateral leg disorder.

3.  Whether new and material evidence has been received to reopen the claim of entitlement to service connection for pes planus 3rd degree.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and spouse


ATTORNEY FOR THE BOARD

S. Grabia, Counsel


INTRODUCTION

The Veteran served on active duty from January 1964 to July 1965. 

These matters come before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans' Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.  The file was later transferred to the RO in Jackson, Mississippi.

In February 2012, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. At the time of this hearing, the Veteran indicated that there may be outstanding VA medical records to be added to the claims file, as well as earlier records from Dr. Bloom.  A review of the claims file reveals that these records were previously requested and are part of the claims file.  Regarding Dr. Bloom's records, the Veteran has noted that he has long since retired and his records were not available.  

Service connection for bilateral pes planus was initially denied by rating action in October 1979, as the RO found that condition pre-existed service and had not been aggravated during service.  The Veteran did not appeal this decision and no new and material evidence was received within a year of its issuance.  Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011).  As such it became final.  38 U.S.C.A. § 7105.

By rating action in August 2005 the RO confirmed and continued the prior denial of service connection.  This decision also became final.

The Veteran has made several attempts to reopen his claim.  He also filed numerous claims for multiple disabilities of the legs and feet, variously described.  

By rating action in August 2007 denial of service connection for pes planus was confirmed and continued. In addition in August 2007, service connection was denied for bilateral hallux valgus, and corns and callosities.  In November 2009, service connection was denied for bilateral leg and bilateral foot (arthritis) disorders.

The Board is aware that the Veteran is seeking service connection for multiple bilateral leg and foot disorders variously described.  Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled).  Accordingly, the issues have been recharacterized as shown on the title page.

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  A review of the documents in such file indicates that there is relevant information to the Veteran's current claims and such evidence has been considered accordingly.


FINDINGS OF FACT

1.  The preponderance of the evidence of record is against a finding that the Veteran has a bilateral foot disorder, excluding bilateral pes planus, that has manifested as a result of his period of active service or that manifested to a compensable degree within any applicable presumptive period.

2.  The preponderance of the evidence of record is against a finding that the Veteran has a bilateral leg disorder that has manifested as a result of his period of active service, or that manifested to a compensable degree within any applicable presumptive period.

3.  In an August 2005 rating decision, the RO denied a claim to reopen a claim of service connection for bilateral pes planus. The Veteran did not appeal that determination and no new and material evidence was received within one year of its issuance.

4. The additional evidence received since the August 2005 rating decision does not relate to unestablished facts necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim.


CONCLUSIONS OF LAW

1.  The criteria for establishing service connection for a bilateral foot disorder other than pes planus, including arthritis due to cold injury, hallux valgus, and corns and calluses have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012).

2.  The criteria for establishing service connection for a bilateral leg disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012).

3.  The August 2005 RO rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012).

4.  As evidence received since the August 2005 rating decision is not new and material, the service connection claim for bilateral pes planus is not reopened. 38 U.S.C.A. §§ 5107, 5108, 7104 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.156, 3.159 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

In a pre-adjudication letter dated in April 2007 the RO notified the Veteran of the evidence needed to substantiate his claims for service connection for hallux valgus, and corns and callosities.  In pre-adjudication letters dated in June and August 2009 the RO notified the Veteran of the evidence needed to substantiate his claims for service connection for a bilateral foot condition, and a bilateral leg condition.  These letters also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist him in obtaining and the evidence it was expected that he would provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).

The appellant was also adequately informed of the specific basis for the prior denial of his claim of entitlement to service connection for pes planus and of the type of evidence necessary to reopen the claim. Kent v. Nicholson, 20 Vet. App. 1 (2006).  Notices were provided prior to the initial unfavorable decision on the claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) 

Given the above, no further development is required with respect to the duty to notify.

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claims.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c) (4). 

The Veteran's relevant service, VA, and private medical treatment records have been obtained.  There is no indication of any additional, relevant records that the RO failed to obtain.  The Veteran was afforded VA examinations in August 2009.  The Board finds the examination reports to be thorough and adequate upon which to base a decision with regard to the claims of service connection.  The VA examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to decide the claims.  Brief but relevant and important opinions were provided.  The Board finds the opinions to be adequate, as they were predicated on a full reading of the claims file and the Veteran's own statements.  

The United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). 

At the February 2012 hearing, the VLJ identified the issues, sought information as to the onset of the Veteran's symptoms and the treatment he received in order to determine whether all relevant records had been obtained. The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c) (2) as interpreted in Bryant.

In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA.

I.  Service connection 

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012).

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.
Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).  Moreover, the provisions of 38 C.F.R. § 3.303(b) apply only to chronic diseases listed in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013)

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (2012); Walker, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013)

Service connection for certain chronic diseases, such as arthritis, may also be established based upon a legal presumption by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012).

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181   (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).
The United States Court of Appeals for the Federal Circuit (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").

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).

Background

The Veteran asserts that he has a bilateral leg and foot disabilities to include leg pain, arthritis due to cold weather injury, hallux valgus, and corns and callosities that have manifested as a result of his period of active service. 

Service treatment records include a January 1964 entrance examination noting preexisting pes planus, Type III.  The service treatment records include extensive treatment for the Veteran's preexisting pes planus.  

At a February 1965 Medical Evaluation Board (MEB), the examiner noted that the Veteran had symptomatic flat feet that had been treated in the orthopedic clinic over a prolonged period of time with arch supports, physical therapy, and exercise without great benefit to the Veteran.  He was not recommended for reenlistment.  

The service treatment records are entirely silent as to any treatment for any other chronic leg or foot disorders to include hallux valgus, corns or callosities, arthritis, or any evidence of any complaints treatment or diagnosis of frostbite or a cold injury of the legs or feet.  The Veteran was separated from service in April 1965.

VA treatment records in February 2004 identify treatment and diagnoses of corns and callosities of the bilateral feet.  A May 2007 outpatient record noted hallux valgus and osteoarthritis.

The Veteran was afforded a VA foot examination in August 2009.  The examiner noted an extensive review of the claims file and medical records.  The Veteran reported initial bilateral pain in his feet after falling down a pole while working as a lineman.  He reported no foot pain prior to this injury.  Afterward he noted that his feet were flat.  He has undergone no surgery to either foot.  He used a cane and orthotics which were mildly helpful.  He could ambulate approximately one block.  His pain was exacerbated by ambulation and weight bearing type activity.  It was alleviated with decrease of weight on his feet, and with Advil.  The Veteran reported that in 1964 he was in Germany and lodged in a tent.  It was 19 below zero and he noted that he had frostbite or cold feet at the time, although he could not relate any current symptoms to this incident.  When specifically asked if his cold injury bothers his feet, he stated that his flat feet and falling from the pole are what bother his feet.  The cold injury resolved and he did not relate any current symptoms to the reported cold injury episode.  

The examiner noted that the Veteran claimed service connection for multiple foot and leg conditions in April 2009, over 40 years after service.  He noted that the Veteran reported that he did not believe the cold injury was the cause of his foot and leg symptoms.  The examiner opined that "I believe it is less likely than not that the cold weather injury described to me... on today's examination is the cause of his arthritis in his feet, based on the patient's interview and medical record." He also found it less likely than not that the in-service trauma described by the Veteran aggravated his pes planus.

A cold injury examiner noted that the Veteran never had frozen feet.  He reported a foot injury in 1964, when he fell off of a telephone pole. 
 
The examiner summarized the relevant history, noting that there was no record of any cold injuries or treatment in service at the time of the reported injuries.  There was no history of surgical treatment; other cold injuries; Raynaud's syndrome; hyperhydrosis; peripheral neuropathy; cold sensitivity; changes in skin thickness; swelling; numbness, abnormal color, breakdown or ulceration.  There was mild tingling of the feet. The Veteran had a history of fungal infection of the toenails, and X-rays revealed osteoarthritis changes.

According to the STRs the Veteran never suffered a cold weather injury in service therefore it was not the cause of the arthritis in his legs.  There was no record in the claims file or treatment records related to cold injury and the Veteran denied any cold injury.  His "frozen foot" related to his fear of climbing a communications pole.  There was considerable documentation concerning his flat feet and this was the cause of his separation from service.

Having carefully considered the claims in light of the record and the applicable law, the Board finds that the preponderance of the evidence is against an award of service connection for a bilateral foot disorder and a bilateral leg disorder.

As noted above, the Veteran's service treatment records reveal extensive treatment for pes planus, which preexisted service.  There is no evidence of any other leg or foot conditions or injuries to include hallux valgus, arthritis, corns and callosities, or any frostbite or other cold injuries.  Following service, it is not until February 2004 when the Veteran first filed a claim of service connection for arthritis due to cold exposure in service and not until February 2007 did he first file a claim of service connection for bilateral hallux valgus, and corns and callosities.  

Thus, the evidence of the claimed disorders is first shown almost 40 and 43 years following separation from service.  In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since service, can be considered as evidence against a claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

The Board recognizes the Veteran's contentions that he has had symptoms associated with his legs and feet since his period of active service.  When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007).

In this case, the Veteran's statements as to a history of symptomatology (other than for pes planus) dating back to service are not deemed credible.   He did not raise any complaints, other than those related to pes planus in service, to include at his Medical Board proceedings.  Moreover, he did not file a claim for that disability until 2004 and 2007.  It is reasonable to believe that, even if not seeking treatment, if he was experiencing chronic foot problems since service that he would have raised a claim much sooner. 

For the above reasons, the record fails to establish continuity of symptomatology, either by way of the clinical record or the Veteran's own statements.

Moreover, the medical evidence of record fails to link any current leg or foot disability to active service.  Rather, VA examiners in August 2009 reached the opposite conclusion. 

The Board finds probative the August 2009 opinions of the VA examiners concluding that the Veteran's bilateral foot disorder, to include arthritis, corns and callosities were not related to service. The opinions are considered probative as they were definitive, based upon a complete review of the Veteran's entire claims file, to include his lay statements, and supported by detailed rationale. Accordingly, the opinions are found to carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Veteran has not provided any competent medical evidence to rebut the opinions against the claims or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995).

The evidence of record also fails to show that the Veteran was diagnosed with arthritis of the legs and feet within one year following his separation from service.  As such, service connection based upon a legal presumption under 38 C.F.R. § 3.307  is not warranted.

Given the medical evidence against the claims, for the Board to conclude that the Veteran has a bilateral foot and/or leg disorder as a result of service would involve speculation, and the law provides that service connection may not be based on a resort to speculation or remote possibility.  38 C.F.R. § 3.102 (2012); Obert v. Brown, 5 Vet. App. 30, 33 (1993).

For the reasons and bases provided above, the evidence in this case weighs against the claims of service connection for a bilateral foot and a bilateral leg disorder. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998).  The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required by law and VA regulations.  See 38 U.S.C.A. §5107 (West 2002).

II. Petition to reopen for new and material evidence

An October 1979 rating decision denied a claim of service connection for bilateral pes planus. The Veteran did not appeal that determination and no new and material evidence was received within a year of its issuance.  He subsequently sought to reopen the claim several times.  The last final denial to reopen the claim was in an August 2005 rating action that confirmed and continued the prior decision.  In February 2007 the Veteran once again filed a claim to reopen the previously denied claim and the RO denied the claim in the August 2007 rating action that is the subject of the instant appeal.  

An unappealed decision by the RO or a decision of the Board is final.  38 U.S.C.A. §§ 7104(b), 7105.  The claim may nevertheless be reopened if new and material evidence is presented.  38 U.S.C.A. § 5108.

As the Veteran's claim to reopen was received after August 29, 2001, the current regulatory definition of new and material evidence under 38 C.F.R. § 3.156 applies.

The regulatory definition of new and material evidence means evidence not previously submitted to agency decision makers, which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim, which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).

However, if new and material evidence was received during an applicable appellate period following a RO decision (1 year for a rating decision and 60 days for a SOC) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009).  Thus, under 38 C.F.R. § 3.156(b), "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). "[N]ew and material evidence" under 38 C.F.R. § 3.156(b) has the same meaning as "new and material evidence" as defined in 38 C.F.R. § 3.156(a). See Young v. Shinseki, 22 Vet. App. at 468.

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).

In Shade v. Shinseki, 24 Vet. App 110 (2010), the Court, interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c) (4), which "does not require new and material evidence as to each previously unproven element of a claim." The Court further held it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would "force the veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA."

In determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered.  Hodge v. West, 155 F. 3d 1356, 1363   (Fed. Cir. 1998).

In order that the additional evidence may be considered new and material under the current regulatory definition of new and material evidence, the evidence must relate to the basis for the prior denial of the claim.

The Board finds that the provisions of 38 C.F.R. § 3.156(b) are not for application in the present case, as there was no evidence that could be considered new and material received within the one year period following the August 2005 rating decision. 

Again, the Veteran's request to reopen a claim of entitlement to service connection for pes planus disability was last denied in an unappealed August 2005 rating decision.  At that time, the RO determined that the Veteran had not submitted any new and material evidence to show that his pre-existing pes planus condition was aggravated or increased in the level of disability during his period of active service. 

The evidence at the time of the August 2005 rating decision includes extensive service records, statements from the Veteran, his wife, relatives and friends, and private and VA medical records dated several decades post service.  

The pertinent evidence added to the record since the August 2005 rating decision includes VA treatment records from 2006 showing continued residuals of pes planus.  

The evidence received since the last final rating does not show that the Veteran met the basic eligibility requirements for service connection, that is that his pre-existing pes planus was aggravated during service. 38 C.F.R. §§ 3.303, 3.304 (2012).

Thus, the evidence, by itself or when considered in conjunction with the evidence previously of record, does not relate to unestablished facts necessary to substantiate the Veteran's claim and does not raise a reasonable possibility of substantiating his claim.  Therefore, the Board finds that new and material evidence has not been received and the petition to reopen a service connection claim for bilateral pes planus is denied. Id.; 38 C.F.R. § 3.156(a). 


ORDER

Service connection for a bilateral foot disorder, excluding bilateral pes planus, is denied.

Service connection for a bilateral leg disorder is denied.

Petition to reopen a claim of entitlement to service connection for bilateral pes planus is denied.


____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs