Citation Nr: 1325241 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 08-31 213 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether new and material evidence was received to reopen a claim for service connection for bilateral pes planus, and if so, whether the Veteran is entitled to service connection for bilateral pes planus. ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from July 1992 through March 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which declined to reopen the Veteran's claim for service connection for bilateral pes planus. A timely Notice of Disagreement (NOD) was received from the Veteran in May 2007. After a Statement of the Case (SOC) was issued in July 2008, the Veteran perfected his appeal in September 2008, via VA Form 9 substantive appeal. The substantive appeal reflects that the Veteran initially requested a Central Office hearing at the Board's offices in Washington, D.C. A Central Office hearing was scheduled to take place in August 2013 and notice to that effect was mailed to the Veteran in May 2013. In June 2013, however, the Veteran notified VA that he wished to withdraw his hearing request. He has not made a renewed request for a hearing. FINDINGS OF FACT 1. An August 2004 rating decision denied the Veteran's initial claim for service connection for bilateral pes planus; notice of that decision was mailed to the Veteran on August 16, 2004; and the Veteran did not subsequently perfect a timely appeal of that decision. 2. The Veteran's current request to reopen his claim for service connection for bilateral hearing loss was received in February 2006. 3. The evidence associated with the claims file since the RO's August 2004 rating decision, when considered with the evidence previously of record, relates to the previously unestablished question of whether the Veteran's pre-service pes planus was aggravated or permanently worsened by his active duty service, or, was sustained during his active duty service. 4. The Veteran's bilateral pes planus was sustained during his active duty service. CONCLUSIONS OF LAW 1. The additional evidence associated with the claims file since the RO's final August 2004 decision is new and material, and the Veteran's claim for service connection for bilateral pes planus is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 2. The criteria for service connection for bilateral pes planus have been met. 38 U.S.C.A. §§ 1131, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has considered whether VA has fulfilled its notification and assistance requirements under 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 and 38 C.F.R. § 3.159. However, given the favorable actions taken below as to the issue on appeal, no further notification or assistance in developing the facts pertinent to this limited matter is required at this time. Indeed, any such action would result only in delay. I. New and Material Evidence The Veteran's original claim for service connection for bilateral pes planus was received by VA in March 2004. This claim was denied by the Houston RO in an August 2004 rating decision on the grounds that the evidence available at that time did not show that the Veteran's pre-service pes planus was permanently worsened by his active duty service. In a February 2006 submission, the Veteran purported to have responded to the RO's March 2004 denial with a timely NOD dated June 2005. A copy of the purported June 2005 NOD was attached to the February 2006 submission. An appeal consists of a timely filed NOD in writing and, after an SOC has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. An NOD is a written communication from a claimant or from his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result. While special wording is not required, the NOD must be in terms that can be reasonably construed as disagreement with that determination and a desire for appellate review. 38 C.F.R. § 20.201. An NOD must be filed within one year of the rating decision or the decision becomes final. However, the filing of a timely Substantive Appeal is not a jurisdictional bar to the Board's jurisdiction. Therefore, the Board can implicitly or explicitly waive the issue of timeliness with regard to a Substantive Appeal. Nonetheless, the Board may decline to exercise jurisdiction over an appeal, if a Substantive Appeal is not timely filed. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). Here, the record reflects that the purported NOD, although dated June 2005, was not received by VA until it was February 2006. Careful inspection of the claims file does not indicate any irregularities which would suggest that the purported NOD was received by the Board prior to February 2006. Under the circumstances, the Veteran's purported June 2005 NOD is untimely. Accordingly, the RO's March 2004 rating decision is final and the Veteran's June 2005 submission is accepted as his request to reopen his claim for service connection for bilateral pes planus. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.156. Generally, a final rating decision or Board decision may not be reopened and allowed, and a claim based on the same factual analysis may not be considered. 38 U.S.C.A. §§ 7104, 7105. Under 38 U.S.C.A. § 5108, however, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." Under 38 C.F.R. § 3.156(a), "new and material evidence" means evidence not previously submitted to agency decisionmakers which, by itself or in connection with evidence previously included in the record, "relates to an unestablished fact necessary to substantiate the claim." Such evidence must also "raise a reasonable possibility of substantiating the claim." 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). At the time of the final March 2004 rating decision, the substantive evidentiary record consisted only of the Veteran's claims submissions and service treatment records. Evidence associated with the claims file since the March 2004 rating decision includes a statement from the Veteran's brother, E.S.; a statement from the Veteran's mother; January 2012 VA examination report; and new arguments raised in the Veteran's September 2008 substantive appeal. The statements from the Veteran's mother and brother each attest that the Veteran did not demonstrate or complain of any foot problems prior to his enlistment into service, but, that the Veteran complained of foot problems and appeared to be impaired in his physical activities due to his feet after his separation from service. In his substantive appeal, the Veteran argued that the condition in his feet was aggravated by prolonged standing and performing other activities on his feet during motor transport school. Overall, the newly received evidence, when considered with the other evidence that was previously of record, raises the possibility that his bilateral pes planus was aggravated during his active duty service, or alternatively, was sustained during active duty service. Hence, the newly received evidence raises a reasonable possibility of substantiating the Veteran's claim and the Board finds that new and material evidence has been received. Accordingly, the Veteran's claim for service connection for bilateral pes planus is reopened. This claim will next be addressed by the Board on a de novo basis, an action that will not prejudice the Veteran in light of the ultimate outcome. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Service Connection In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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. If chronicity in service is not established, a showing of continuity of symptoms after separation from service is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. 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." 38 C.F.R. § 3.303(b). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b). In support of his claim for service connection for bilateral pes planus, the Veteran alleges in his September 2008 NOD that he aggravated his pre-service pes planus during his active duty service. Statements provided by the Veteran's mother and brother attest that the Veteran did not demonstrate or complain of any foot problems prior to his enlistment into service, but, that the Veteran began complaining of foot problems and appeared to be impaired in his physical activities due to his feet after his separation from service. During his November 1991 enlistment examination, the Veteran denied having any prior or current history of foot problems. A physical examination of the feet was essentially normal, revealing normal and asymptomatic arches in both feet. During in-service treatment in December 1992, the Veteran reported ongoing bilateral foot pain that had been ongoing for two years but was aggravated during training. In that regard, the Veteran acknowledged that he had been having foot pain prior to his enlistment, but that his foot pain had become much worse after his enlistment. Whereas examination of the feet at the enlistment examination was essentially normal, re-examination of the feet during the December 1992 treatment revealed "some degree" of pes planus and possible bilateral plantar fasciitis. In February 1993, the Veteran appeared before the Medical Board for examination of his feet. At that time, examination demonstrated a loss of the normal longitudinal arch and excessive heel valgus in both feet. The forefeet were also pronated with mild clawing of the lesser toes. The Veteran was diagnosed with symptomatic bilateral pes planus. The Medical Board determined that the Veteran was unable to perform his full duty and the Veteran was separated from service. After his separation from service, the Veteran was afforded a VA examination of his feet in January 2012. A physical examination of the feet confirmed the presence of bilateral pes planus that was manifested by decreased longitudinal arch height on weight-bearing, slight hallux valgus of both feet, and clawing of the lesser toes. Based upon the findings from the examination, the Veteran's reported history, and review of the claims file, the examiner opined that the Veteran's pes planus was less likely than not incurred in, caused, or aggravated by his active duty service. As rationale, the examiner appears to place great emphasis on the fact that there was no evidence of any post-service treatment or complaints pertaining to the Veteran's feet. Overall, the examiner opined that the Veteran had "dynamic pes planus," meaning that running and chronic use of his feet resulted in changes in foot dynamics which caused discomfort. Cryptically, the examiner concluded that the Veteran's active duty service did not aggravate the Veteran's pes planus and that he was experiencing "progression with exacerbations." As also noted above, the Veteran's enlistment examination revealed normal findings of the feet, to include normal and asymptomatic arches. Accordingly, the Board finds that the presumption of soundness attaches and the Veteran's pes planus did not exist prior to his enlistment into service. Furthermore, despite the Veteran's acknowledged pre-service foot pain during in-service treatment in December 1992, the evidence still does not clearly and unmistakably show that the Veteran's pes planus existed prior to service. Accordingly, the presumption of soundness is not rebutted. Mindful of the foregoing, the December 1992 service treatment record and the February 1993 Medical Board examination report each noted the presence of pes planus. Under the circumstances, the evidence shows that the Veteran's pes planus arose at some point during the Veteran's active duty service. Although the record indicates that the Veteran has not received any post-service treatment for his feet, the January 2012 VA examination confirmed the presence of ongoing pes planus, manifested by decreased longitudinal arch height on weight-bearing and slight hallux valgus of both feet. Although mindful of the VA examiner's negative opinion that the Veteran's pes planus was less likely than not incurred in, caused, or aggravated by his active duty service, the Board finds that this opinion is not supported by an adequate rationale. In that regard, the examiner apparently placed primary emphasis upon the absence of any post-service treatment without acknowledging or discussing the credible lay evidence that the symptoms in the Veteran's feet became worse after his enlistment into service. Indeed, these assertions are supported by, and entirely consistent with, the aforementioned service treatment records which indicate that the Veteran's pes planus arose during his active duty service. In the absence of such a discussion, the Board assigns greater probative weight to the other evidence of record, to include the objective findings expressed in the service treatment records and the aforementioned lay assertions from the Veteran and his family. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Accordingly, the Veteran is entitled to service connection for bilateral pes planus and the appeal is granted. ORDER New and material evidence has been received, and the Veteran's previously denied claim for service connection for bilateral pes planus is reopened. Service connection for bilateral pes planus is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs