Citation Nr: 1314141 Decision Date: 04/29/13 Archive Date: 05/15/13 DOCKET NO. 10-33 690 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether new and material evidence has been submitted to reopen, or official service department records have been submitted to reconsider, the claim of entitlement to service connection for bilateral pes planus. REPRESENTATION Veteran represented by: Polly Murphy, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from October 1974 to October 1978 and from October 1992 to April 1993. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2005 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. FINDINGS OF FACT 1. An April 1984 rating decision confirmed continued a prior denial of service connection for bilateral pes planus; although provided notice of this decision that same month, the Veteran did not perfect an appeal thereof, nor did he submit any pertinent evidence within the appeal period. 2. In May 1999, additional relevant service treatment records were retrieved by the RO from the National Personnel Records Center. These records existed at the time of the April 1984 rating decision, and the RO's inability to obtain these records at an earlier time was not due to the Veteran's failure to provide the RO with sufficient information. 3. The evidence of record establishes that the Veteran has a current bilateral pes planus disability which is attributed to his first period of active military service. CONCLUSIONS OF LAW 1. The criteria to reconsider the previous RO denial in 1984 of entitlement to service connection for bilateral pes planus have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(c) (2012). 2. Bilateral pes planus was incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). This is so because the Board is taking action favorable to the Veteran by finding that reconsideration of the issue of entitlement to service connection for bilateral pes planus is warranted, and by granting service connection for such claim. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Reconsideration In March 1982, the Veteran file his original claim seeking entitlement to service connection for bilateral pes planus. In July 1982, the RO issued a rating decision which denied service connection for bilateral pes planus. In December 1982, prior to the expiration of the appeal period, the Veteran submitted copies of some of his service treatment records that had not been received or reviewed by the RO. In an April 1984 rating decision, the RO reopened the claim; however, denied it on the merits, as it determined that the Veteran's bilateral pes planus disability existed prior to service and was not aggravated beyond its normal progression by service. The Veteran was provided notice of this decision that same month; however, he did not perfect an appeal thereof. As such, the April 1984 rating decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.201 (2012). In October 2004, the Veteran initiated a claim to reopen the issue of entitlement to service connection for bilateral pes planus. In a December 2005 decision, the RO determined that new and material evidence had not been received, and denied the Veteran's claim to reopen. Thereafter, the Veteran filed a timely appeal of this decision. In a May 2012 supplemental statement of the case, the RO reopened the claim, and denied it on the merits. Specifically, the RO noted that the denial was continued because bilateral pes planus was not shown to have been incurred in or cause by service, nor was it aggravated beyond the normal progression by service. In order to reopen a claim which has been previously denied and which is final, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. If the claim is so reopened, it will be reviewed on a de novo basis. 38 U.S.C.A. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). New evidence means existing evidence not previously submitted to agency decisionmakers. 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 last 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). In addition to new and material evidence, the regulations provide that at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c). Further, an award made based all or in part on these records is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. 38 C.F.R. § 3.156(c)(i)(3). In this case, the RO determined that new and material evidence had been presented to reopen the Veteran's claim for entitlement to service connection for bilateral pes planus, and denied that claim on the merits. Such a determination, however, is not binding on the Board, and the Board must first decide whether new and material evidence has been received to reopen the claim. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993) (holding that Board reopening is unlawful when new and material evidence has not been submitted). In this regard, the RO associated additional service treatment records with the Veteran's claims files in May 1999. These records, obtained from the National Personnel Records Center, are relevant to the issue on appeal, and were not considered at the time of the aforementioned April 1984 rating decision. A September 1974 induction physical examination report is negative for complaints, treatment, or a diagnosis of a foot disorder, to include pes planus. A June 1978 separation physical examination notes the Veteran's complaints of foot trouble, as well as his reported a history of bilateral pes planus since 1977, that was treated with arch support with good relief; the report includes the examiner's notation of "NCNS" (not chronic no sequelae), and is negative for a diagnosis. Significantly, these records existed at the time of the April 1984 decision, in which the RO confirmed and continued the previous denial of entitlement to service connection for bilateral pes planus. Moreover, the RO's inability to obtain these records at an earlier time was not due to the Veteran's failure to provide the RO with sufficient information. Indeed, the record demonstrates that in December 1982 and December 1983, the Veteran's submitted copies of service treatment records that he obtained. Accordingly, reconsideration of the claim for entitlement to service consideration for bilateral pes planus is warranted. 38 C.F.R. § 3.156(c). As above, in a May 2012 supplemental statement of the case, the RO considered the Veteran's claim on the merits; thus, the Board will proceed with adjudication of the claim of entitlement to service connection for bilateral pes planus, as the Veteran is not prejudiced by such action. Service Connection Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran contends that his current bilateral pes planus had its onset during his first period of active service. In this regard, during the September 2011 hearing before the Board, he testified that prior to his first period of active service, his feet did not bother him nor was he provided a diagnosis of flat feet. He further testified that he sought treatment for and complained of flat feet in April 1975, during service, which resulted in his initial diagnosis of bilateral pes planus. He asserted that he subsequently sought treatment in August 1975, when his diagnosis of pes planus was confirmed. Regarding a service treatment record dated in August 1975, the Veteran acknowledged that it indicates that he reported pain in his arches for five years; however, he testified that it was an typographic error, and that it should have indicated five months. He stated that he continued to seek treatment for his bilateral foot disability during service, and was ultimately put on physical profile for such, in November 1976. He stated that his bilateral pes planus did not resolve in service, and continued to the present, as he was recently provided custom shoe inserts by VA to treat his disability. The Veteran's service treatment records for his first period of active service include a September 1974 induction physical examination, which is negative for complaints, treatment, or a diagnosis of a foot disorder, to include pes planus. See 38 U.S.C.A. § 1111 (West 2002) (a veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service). An April 1975 record notes the Veteran's complaints of flat feet, with cramping, in his long arch area after running and exercise for three months, with a negative history and trauma; the diagnosis was moderate, bilateral pes planus. A plan of long arch supports was noted. An August 14, 1975 record notes the Veteran's complaints of foot pain, with treatment for pes planus in April 1975; the diagnosis was pes planus. An August 15, 1975 record documents the Veteran's complaints of pain in his long arch area for five "years" (sic) while walking or standing, with no history of trauma; range of motion is within normal limits; the diagnosis includes pes planus. A November 1976 record reveals a diagnosis of second degree pes planus, and indicates that the Veteran was permitted to wear combat boots or steel toes shoes for duty only, due to severe, bilateral pes planus. A June 1978 separation physical examination reports the Veteran's complaints of foot trouble, and indicates a history of bilateral pes planus since 1977, that he was treated with arch supports, with good relief; the report includes the examiner's notation of NCNS, and was negative for a diagnosis. Subsequent to the Veteran's first period of active service, records include a March 1981 enlistment examination for Reserve service in the U.S. Air Force, which was negative for complaints, treatment, or a diagnosis of pes planus. In May 1982, the Veteran underwent a VA examination, during which he reported a history of pes planus and fallen arches. Upon examination, the examiner diagnosed mild, bilateral pes planus. The examiner did not provide an opinion addressing the etiology of the Veteran's disability. A May 1986 service periodic examination reveals the Veteran's complaints of foot trouble, to include fallen arches and flat feet. A July 1988 enlistment examination for Reserve service in the U.S. Air Force includes the Veteran's report of foot trouble with his arches during active service. The report shows the Veteran reported that he was given arch supports prior to his separation from service in 1978; the examiner's notation included a diagnosis of moderate pes planus, with arch supports given while in service. A May 1990 VA outpatient treatment record indicates a provisional diagnosis of pes planus. A January 1992 periodic non-flying service examination was negative for a diagnosis of pes planus. A June 1992 VA record shows the Veteran was in reserve duty status. The record shows the Veteran reported a history of pes planus since 1977. The record further indicates that the Veteran requested arch supports during his "annual tour" from June 13, 1992 through June 27, 1992. The Veteran's service treatment records for his second period of active service include a November 1992 record, which noted the Veteran's complaints of chronic pes planus, for which he previously wore arch supports. The examiner's notation included an assessment of second degree pes planus, with a plan of arch supports. Subsequent to the Veteran's second period of active duty service, records include Social Security Administration (SSA) records, which include an examination report dated in August 2003. The Veteran reported a history of flat feet, which bothered him while standing or walking for more than a half hour to an hour. The examiner reported an assessment of mild to moderately symptomatic flat feet. Subsequent SSA records dated in May 2005 note the Veteran's complaints of flat feet. The Veteran was afforded a VA examination in April 2012, during which he reported a history of bilateral pes planus since his first period of active service. He stated that pes planus was initially diagnosed in 1975, several months subsequent to his entry into service. He reported that he had continued to experience pain and problems with his arches since that time. The Veteran also reported that he was provided with arch supports for his feet during and subsequent to his first and second periods of active service; however, he explained that he had not used arch supports for the past two years because he was provided the wrong size. He reported that his post-service occupation included working maintenance for the United Parcel Service, but indicated that was on medical leave for other health related issues for the past two years. Upon examination and review of the Veteran's claims files, the examiner diagnosed bilateral pes planus. The examiner opined that the Veteran's current bilateral pes planus was "less likely than not" related to his active military service from 1974 to 1978. In providing the opinion, the examiner stated that it was "very unlikely" that pes planus formed within five or six months after induction into service. The examiner further stated that pes planus was "mostly" a congenital deformity. Finally, the examiner stated that the Veteran's pes planus existed prior to his active service, as it was clearly mentioned in a service treatment records dated in August 1975, that the Veteran had pain in his arch area for five "years." The examiner concluded that the Veteran's pre-existing bilateral pes planus did not worsen beyond its natural progression during his active service from 1974 to 1978. The Board finds that the evidence of record supports a finding of service connection for bilateral pes planus. A post-service VA examination report shows a current diagnosis of bilateral pes planus in April 2012. Degmetich v. Brown, 104 F.3d 1328, 1333 (1997). (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Although, the April 2012 VA examiner offered a negative opinion, indicating that the Veteran's current bilateral pes planus disability was not related to his service, the examiner failed to provide an adequate rationale for such opinion. In providing the opinion, the examiner noted that it was "very unlikely" that the Veteran's pes planus condition formed within five or six months after induction into service, but did not discuss how that conclusion was reached. In addition, the examiner noted that the pes planus condition was "mostly" a congenital deformity, but did not provide support for such conclusion. A medical opinion that is unsupported and unexplained is purely speculative and does not provide the degree of certainty required for medical nexus evidence. Nieves -Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Bloom v. West, 12 Vet. App. 185, 187 (1999). Further, the examiner stated that the Veteran's pes planus existed prior to his active service, based upon an August 1975 service treatment record which indicates that the Veteran reported pain in his arch area for five "years." However, this opinion is based upon an inaccurate assessment of the record. Pes planus was not noted on the Veteran's service entrance examination, and therefore, the Veteran is presumed sound upon induction into service. See 38 U.S.C.A. § 1111. Accordingly, the April 2012 VA examination report is of no probative value. Although the record does not include a competent medical nexus opinion that relates the Veteran's current bilateral pes planus to his in-service onset and diagnoses, continuity of symptomatology and treatment may serve as a basis to establish service connection. In this regard, the Board finds the Veteran's testimony and statements regarding bilateral foot pain, to include onset during service and continuity since separation, to be competent and credible evidence, as these are symptoms that are observable. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Veteran's account as to his symptomatology has been consistent and the medical evidence of record supports his account, as service treatment records for his first period of active service indicate such complaints, as well as an initial diagnosis in April 1975. Subsequent service treatment records dated in August 1975 note diagnoses of bilateral pes planus. A November 1976 record indicates that the Veteran is permitted to wear combat boots or steel toes shoes for duty only, due to severe bilateral pes planus. The Veteran's June 1978 separation physical examination report notes his complaints of foot trouble since 1977, namely, bilateral pes planus. Subsequent to the Veteran's first period of active duty service, records include histories of bilateral pes planus since service, and/or diagnoses of pes planus on an examination in May 1982, on a periodic examination in May 1986, on his enlistment examination in July 1988, during VA outpatient treatment in May 1990, and during VA outpatient treatment in June 1992. Service treatment records for his second period of active service dated in November 1992, note complaints of chronic pes planus that required arch supports, as well as a diagnosis of pes planus. Subsequent to the Veteran's second period of active duty service, records include an August 2003 SSA examination report which notes the Veteran's report of flat feet, as well as a diagnosis of pes planus. SSA records dated in May 2005 note the Veteran's complaints of flat feet. At a September 2011 hearing before the Board, the Veteran's testified that his current bilateral pes planus and associated symptoms had its onset during service and continued to the present, as he was recently provided custom shoe inserts by VA to treat this disability. Accordingly, the Board finds that the evidence is at least in equipoise with regard to this claim, and therefore, with application of the benefit of the doubt doctrine, service connection for bilateral pes planus, is warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER New and material evidence, in the form of additional service treatment records, have been received to reconsider the previous RO denial in 1984 of the claim of entitlement to service connection for bilateral pes planus. Service connection for bilateral pes planus is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs