Citation Nr: 1337250 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 11-03 536 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for bilateral foot pain, pes planus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.P. Armstrong, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1965 to October 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran testified before the Board at a hearing in June 2011. A hearing transcript was associated with the claims file. In the hearing, the Veteran submitted additional evidence and waived review by the RO. The issue of entitlement to a total disability evaluation due to individual unemployability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Service connection was denied for a bilateral foot disability in a February 2007 determination by the RO; the Veteran was notified of his appellate rights but did not appeal to the Board, and no new and material evidence was received within one year of the rating decision. 2. Evidence received since the last final denial of service connection includes information that was not previously considered and that relates to an unestablished fact necessary to substantiate the claim. 3. The Veteran has a current bilateral foot disability, including pes planus; he reported repeated stress to his feet during service; and he and a friend reported observing flat feet and pain since service. CONCLUSION OF LAW 1. The February 2007 RO denial of service connection for bilateral foot disability became final, and new and material evidence has been received to reopen the previously denied claim. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103 (2013). 2. The criteria for service connection for a bilateral foot disability have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran petitioned to reopen his claim for service connection for bilateral foot disability in January 2010. As the Board's decision herein to reopen and grant service connection for a bilateral foot disability is a full grant of the benefits sought on appeal, no further action is necessary to comply with the Veterans Claims Assistance Act of 2000 and implementing regulations. I. New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C.A. §5108; 38 C.F.R. §3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Additionally, new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the pending claim. 38 C.F.R. § 3.156(b). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Here, the RO issued a rating decision denying the Veteran's claim for entitlement to service connection for bilateral foot disability in February 2007. The Veteran filed a timely Notice of Disagreement (NOD) and the RO issued a Statement of the Case (SOC) in January 2008 continuing the denial of service connection. The RO did not find any evidence of a current diagnosis, evidence of in-service incurrence, or evidence of a causal relationship. The RO denied finding no element of service connection had been met. The Veteran was notified of his appellate rights and did not contact VA about this claim or provide any new evidence until January 2010, more than one year after the decision. Therefore, the February 2007 rating decision became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104. The evidence of record at the time of the February 2007 decision included service treatment records and statements from the Veteran. This evidence showed that the Veteran complained of a current foot disability and believed it was due to ill-fitting shoes worn during service. In January 2010, the Veteran submitted an application to reopen the claim of service connection. With that claim, he submitted VA treatment records showing a current diagnosis of pes planus, statements that his feet were injured during service from ill-fitting shoes, and statements that he observed changes and has continued to experience pain in his feet since service. He later submitted a statement from a childhood friend evidencing a causal relationship to service. The new evidence relates to unestablished elements of the previously denied claim. Specifically, the new evidence establishes a current diagnosis, supports the finding of an in-service injury, and suggests a causal relationship between the two. The evidence raises a reasonable possibility of substantiating the claim inasmuch as it provides evidence which could establish all elements of service connection. Therefore, the claim is reopened. See 38 U.S.C.A. §5108; 38 C.F.R. §3.156(a). II. Service Connection Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. To establish entitlement to service-connection, evidence must show "(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-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Veteran is competent to identify pes planus and his persistent and ongoing symptoms, as it is a condition observable by his senses. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Board finds that the evidence proves all the necessary elements, and service connection is merited. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. First, the Veteran has a current bilateral foot disability. The Veteran reports having flat feet, pain, and numbness. See Hearing Transcript 6/11, Claim 1/10. VA treatment records show a diagnosis of bilateral pes planus, as well as posterior calcaneal spurs. See VA treatment 12/06, 5/11. Next, the Veteran had stress to his feet and injuries during service. The Veteran reports that he had long, narrow feet with high arches. He stated that during service he was issued shoes that did not fit properly. See Hearing Transcript 6/11, Claim 1/10. He consistently noted that the shoes caused him pain, pressing his toes together at the tip and spreading the sole of his foot, but he was unable to get a better-fitting pair. Id. The Board finds him competent to provide evidence of these incidents in service. Further, the Board finds the Veteran's statements to be credible. The Board notes that the lack of clinical evidence in service treatment records is not dispositive, and the Veteran's statements alone may prove an element of service connection. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Finally, statements from the Veteran and his childhood friend are sufficient to prove a causal relationship between his current foot disability and service. The Veteran reported that his feet broke down and flattened out as a result of the ill-fitting shoes, and they remained in that condition. He noted he has had continued pain and need for orthotics. See Hearing Transcript 6/11, Claim 1/10. Additionally, in a letter received in January 2011, the Veteran's childhood friend stated that the Veteran did not have any trouble with his feet before service but complained a good deal about pain in his feet after he returned from service. The Board finds the Veteran and his friend to be credible to provide this evidence. All of the elements needed for service connection have been demonstrated, and service connection for a bilateral foot disability is established. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). The benefit of the doubt has been applied and the Veteran is granted service connection. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER The issue of service connection for a bilateral foot disability, to include pes planus, is reopened, and service connection is granted. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs