Citation Nr: 1332115	
Decision Date: 10/17/13    Archive Date: 10/21/13

DOCKET NO.  10-15 980	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1.  Whether new and material evidence has been received sufficient to reopen the Veteran's claim for entitlement to service connection for a bilateral pes planus, and if so, whether service connection may be granted.

2.  Entitlement to service connection for bilateral hearing loss.

3.  Entitlement to service connection for a disability of the left wrist.

4.  Entitlement to service connection for a disability of the ankles.   



REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

Patrick J. Costello, Counsel


INTRODUCTION

The Veteran had active military service in the United States Army from September 1986 to September 1989. 

This matter comes before the Board of Veterans' Appeals, hereinafter the Board, from rating decisions of the Newark, New Jersey, Regional Office (RO), of the Department of Veterans Affairs (VA).  

The Veteran originally requested a hearing before a Veterans Law Judge (VLJ) of the Board.  In November 2011, he withdrew his request.

The reopened claim for service connection for bilateral pes planus, issue is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. 


FINDINGS OF FACT

1. In an April 2005 rating action, the RO denied the Veteran's claim of entitlement to service connection for bilateral pes planus.  The Veteran did not appeal the decision, and no new and material evidence was received within a year of its issuance.  

2.  The evidence received since the April 2005, rating decision is not duplicative or cumulative of evidence previously of record, relates to un-established facts necessary to substantiate the claim, and it raises a reasonable possibility of sustaining the claim for entitlement to service connection for bilateral pes planus.

3.  On November 18, 2011, prior to the promulgation of a decision on the appeal, the Veteran submitted a VA Form 21-4138, Statement in Support of Claim, indicating that he was withdrawing his appeal with regard to the issues of entitlement to service connection for bilateral hearing loss, a disability of the left wrist, and disabilities of both ankles.   


CONCLUSIONS OF LAW

1.  The April 2005 RO decision that denied the Veteran's claim for entitlement to service connection for bilateral pes planus is final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013).

2.  New and material evidence has been received, and the claim for entitlement to service connection for bilateral pes planus is reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013).

3.  The criteria for withdrawal of an appeal by the Veteran with respect to the issues of entitlement to service connection for bilateral hearing loss, a left wrist disability, and disabilities of both ankles have been met.  38 U.S.C.A. § 7105(b)(2) (West 2002); 38 C.F.R. § 20.204 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  New and Material Evidence-Bilateral Pes Planus

A.  The Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the VCAA, VA has a duty to notify and assist veterans in substantiating claims for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013).  The Board is reopening the claim of entitlement to service connection for bilateral pes planus.  No additional notice or assistance is needed to aid the Veteran in substantiating this aspect of his claim.

B.  Analysis

In July 2004, the Veteran initially claimed entitlement to service connection for bilateral pes planus.  He now suffered from pes planus and that he had continued to suffer from said disorder since leaving the service in 1989.  Upon receipt of the application for benefits, the Veteran was asked by the RO to submit evidence showing that he was then currently suffering from bilateral pes planus and that the condition was etiologically linked to service.  In conjunction with his claim for benefits, the Veteran's VA medical treatment records were obtained and included in the claims folder for review.  Upon review of the evidence, the RO, in April 2005, issued a rating action that denied the Veteran's claim for benefits.  

The RO informed the Veteran of its decision and of his appeal rights.  It concluded that service connection could not be granted because the Veteran had pre-existing pes planus of both feet and that there was no medical evidence showing that the disorder had been aggravated by or made worse by his military service.  The Veteran did not submit a notice of disagreement or additional evidence within a year of the notice of the decision.  Hence, the April 2005 rating action became final.  38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302.

As a result, the claim for service connection can be reopened and considered on the merits only if new and material evidence has been received since the time of the last final adjudication.  38 U.S.C.A. § 5108 (West 2002).

Evidence is considered "new" if it was not previously submitted to agency decision makers.  "Material" evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an un-established 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 determining whether evidence is new and material, the "credibility of the evidence is to be presumed."  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

Additionally, the evidence necessary to meet the criteria of raising a reasonable possibility of substantiating the claim should be interpreted as enabling rather than precluding reopening.  Shade v. Shinseki, 24 Vet. App. 110 (2010).

To support his application to reopen the claim, the Veteran's representative has asserted that the tasks and duties that he performed while on active duty aggravated or made pes planus worse his disorder.  The Veteran has reported that he experienced problems caused by the boots he wore in service.  He has further indicated that since service, he had continued to suffer from pain and discomfort in both feet. 

The statement provided by the Veteran and his representative pertain to the previously un-established element of aggravation of the pes planus identified on his examination for entrance into service.  This information is clearly new and material in that was not previously before VA and relates to a previously unestablished fact necessary to substantiate the claim.  Accordingly, the Board concludes that the Veteran has submitted evidence that is new and material.
The claim is reopened.

II.  Withdrawal of Claims - Service Connection

Pursuant to 38 U.S.C.A. § 7105 (West 2002), the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  An appeal may be withdrawn in writing at any time before the Board promulgates a decision, either in writing or on the record at a Board hearing.  38 C.F.R. § 20.204 (2013).  Withdrawal may be made by the veteran or by his or his authorized representative.  Id.

In November 2011, the Veteran submitted a written statement to the VA that he was withdrawing his appeal with respect to the issues involving entitlement to service connection for bilateral hearing loss, a left wrist disability, and disabilities of the ankles.  As the Veteran has withdrawn this appeal, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appellate issues and they are dismissed.


ORDER

1.  New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for bilateral pes planus; to this extent only, the appeal is granted.

2.  Entitlement to service connection for bilateral hearing loss is dismissed.

3.  Entitlement to service connection for a disability of the left wrist is dismissed.

4.  Entitlement to service connection for a disability of the ankles is dismissed.   


REMAND

The Veteran has not been afforded an examination in connection with his claim.  An examination is needed in order to obtain an opinion as to whether the pes planus identified on examination for service entrance was aggravated.  38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2013):  

1.  Afford the Veteran an examination to obtain an opinion as to whether pes planus was aggravated in service.  The examiner should review the claims folder and state that this has been accomplished.

The examiner should express an opinion as to whether the pes planus identified on the Veteran's service entrance examination was aggravated (underwent a permanent increase in underlying disability) during service beyond natural progression.  

If additional foot disabilities are identified, other than pes planus, the examiner should opine whether the disability is the result of a disease or injury in service or is superimposed on pes planus as a result of an in-service disease or injury.

The examiner should discuss the initial service examination that found that he was suffering from "mild asymptomatic pes planus" and the diagnosis in 2004 of severe pes planus, as well as the Veteran's reports of problems from wearing boots in service.  Additionally, the examiner should provide an opinion as to whether any found bilateral pes planus disorder has been aggravated (i.e., permanently worsened) beyond its natural progression by the Veteran's military service.  

The examiner must provide reasons for all opinions that take into account the Veteran's reports of injuries, symptoms and treatment.  The absence of supporting medical records is not, by itself sufficient reason to reject the Veteran's reports.

The examiner should not invoke the phrase "without resort to mere speculation" without explaining the reasons for the inability to provide an opinion without speculation.  For example, does the examiner lack the expertise to render such an opinion, or is some additional testing or information needed, and possibly available, that would permit an opinion.  If the examiner cannot provide an opinion because it cannot be determined from current medical knowledge whether a specific service-connected disability can possibly cause the claimed condition, or the actual cause of the disability cannot be selected from multiple potential causes, this should be fully explained.  

If the examiner concludes that the Veteran's current pes planus of both feet was not caused by or the result of or aggravated by his military service, he or she must explain in detail the reasoning behind this determination.

3.  If the examination report does not include the opinions and reasons sought in this remand, the reports must be returned for corrective action.

4.  If the benefits sought on appeal remain denied, issue a supplemental statement of the case (SSOC).  Then return the case to the Board, if otherwise in order. 

The Veteran is advised that pursuant to 38 C.F.R. § 3.655 (2013) failure, without good cause, to attend the requested VA examination may result in denial of the claim.  See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991).

The Veteran 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).

______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs