Citation Nr: 1322348 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 11-12 413 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for pes cavus of the right foot. 2. Entitlement to service connection for pes cavus of the right foot. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his friend ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from November 1942 to March 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, which denied the Veteran's request to reopen a claim of service connection for pes cavus of the right foot. In May 2013, the Veteran testified at a travel board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In an unappealed rating decision issued in September 2006, the RO denied the Veteran's request to reopen his claim for service connection for pes cavus of the right foot. 2. Evidence added to the record since the final September 2006 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for pes cavus of the right foot. 3. The Veteran's pes cavus of the right foot was aggravated by service. CONCLUSIONS OF LAW 1. The September 2006 rating decision that denied the Veteran's request to reopen his claim for entitlement to service connection for pes cavus of the right foot is final. 38 U.S.C.A. § 7105(c) (West 2002). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for pes cavus of the right foot. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. The criteria for service connection for pes cavus of the right foot are met. 38 U.S.C.A. § 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. § 3.102, 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board is reopening and granting the Veteran's claim of entitlement to service connection for pes cavus of the right foot. As such, no discussion of VA's duty to notify and assist is necessary. Analysis: New and Material Evidence A previously denied claim will be reopened if the claimant submits new and material evidence. 38 U.S.C.A. § 5108, 38 C.F.R. § 3.156(a). If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. New evidence is defined as evidence not previously submitted to agency decision makers, and 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. 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. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Board finds that the Veteran has submitted new and material evidence sufficient to reopen his claim. His claim was most recently denied in a September 2006 rating decision because the RO found that the Veteran did not submit new and material evidence. The Veteran had previously been denied service connection for pes cavus of the right foot in March 2000 and December 1955. Since September 2006, new evidence has been added to the claims file, including the Veteran's testimony at a May 2013 hearing before the undersigned Veterans Law Judge. At that hearing, the Veteran testified that his pes cavus of the right foot became much worse in the military due to having to go up and down ladders and push a stretcher. See transcript, pp. 3, 5-6. The Veteran further testified that he was treated with shoe inserts for the first time during his service, and has had to wear such orthotics ever since. Id., pp. 5-6. In his May 2013 testimony, the Veteran reported that his pes cavus of the right foot was aggravated in service. As this testimony was not available at the time of the September 2006 denial, it is new. As it regards the reason for that denial, it is also material. Accordingly, the Board finds that the Veteran has submitted new and material evidence sufficient to warrant reopening the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Analysis: Service Connection for Pes Cavus of the Right Foot As discussed above, the Veteran contends that his pes cavus of the right foot was aggravated by having to go up and down ladders and push a stretcher in service. He further contends that the in-service aggravation of his pes cavus of the right foot is demonstrated by his in-service treatment, including requiring shoe orthotics for the first time. See transcript, pp. 3, 5-6. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on all things of which he has personal knowledge derived from his own senses); 38 C.F.R. § 3.159(a)(2). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is credible, the Board may properly consider the internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Service connection may be granted for congenital diseases, but not congenital defects. Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (discussing VAOPGCPREC 82-90); Monroe v. Brown, 4 Vet. App. 513, 515 (1993). When no pre-existing medical condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry. 38 U.S.C.A. § 1111 (West 2002); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The presumption of soundness applies if a veteran's congenital disease is not noted at entry. See Quirin, 22 Vet. App. at 396-97; Monroe, 4 Vet. App. at 515. The burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. Accordingly, [o]nce the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexistence and the aggravation prong; it never shifts back to the claimant. In particular, even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness...the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (emphasis added). This burden must be met by "affirmative evidence" demonstrating that there was no aggravation. See id. The burden is not met by finding "that the record contains insufficient evidence of aggravation." See id. The Board finds that the evidence supports an award of service connection for pes cavus of the right foot. First, the Veteran is competent to identify that disorder. See Davidson, 581 F.3d at 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77 (Fed. Cir. 2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); see also 38 C.F.R. § 3.159(a)(2). Second, the Veteran's service treatment records corroborate his consistent account of aggravation of his pes cavus of the right foot in service. Specifically, in his entrance examination a clinician found that the Veteran's congenital right foot deformity was flexible and had good function. By contrast, at his March 1946 examination at separation from service, an in-service clinician found that the Veteran's pes cavus had become moderate in severity and specifically answered "yes" to the question of whether the Veteran's pes cavus symptoms had been aggravated by his military service. The Veteran's service treatment records further show that he was provided with specially-made shoes in March 1946. Furthermore, no lay or medical evidence of record contradicts the Veteran's report of aggravation in service. Based on the above, the Board finds that the evidence indicates that the Veteran's pes cavus of the right foot was aggravated in service. Thus, the Board finds that service connection is warranted for pes cavus of the right foot. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 3.304, 3.306. ORDER The service connection claim for pes cavus of the right foot is reopened. Service connection for pes cavus of the right foot is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs