Citation Nr: 1343035 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 10-39 690 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for pes planus. 2. Entitlement to service connection a degenerative changes of the knees to include as secondary to pes planus. REPRESENTATION Veteran represented by: Kentucky Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Castillo, Associate Counsel INTRODUCTION The Veteran, who is appellant, served on active duty from February 1968 to February 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in May 2010 of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2011, the e Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's file. FINDINGS OF FACT 1. In a decision of January 2003, the RO denied the claim of service connection for pes planus on the basis that it was not caused by or aggravated by service; the Veteran was notified of the decision and of his appellate rights, but he did not appeal. 2. The additional evidence since the RO's decision in January 2003 is redundant or cumulative evidence previously considered or does not relate to an unestablished fact necessary to substantiate the claim. 3. Degenerative changes of the knees were not affirmatively shown to have been present during service; degenerative changes of the knees were not manifested to a compensable degree within one year from the date of separation from service in February 1970; degenerative changes of the knees, first diagnosed after service beyond the one-year presumptive period for a chronic disease, are unrelated to an injury, disease, or event in service; degenerative changes of the knees are not proximately due to or made worse by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria to reopen the claim of service connection for pes planus have not been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 2. The criteria for service connection for degenerative changes of the knees have not been met; the criteria for service connection for degenerative changes of the knees to include as secondary to pes planus have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In a claim to reopen, the VCAA notice requires information regarding the evidence and information necessary to reopen a claim and the evidence and information necessary to establish the underlying claim for the benefit sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided the Veteran pre-adjudication VCAA notice by letters in October 2009 and February 2010. The Veteran was notified that new and material evidence was needed to reopen the claim of service connection, that is, evidence not previously considered, which was not redundant or cumulative of evidence previously considered and that pertained to the reason the claim was previously denied. The Veteran was notified that VA would obtain service records, VA records, and records of other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any such records on his behalf. The notices included the general provisions for service connection, the effective date of a claim, and the degree of disability assignable. As for content and the timing of the VCAA notices, both documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); and of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (pre-adjudication VCAA notice). See Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of the claim); and of Kent v. Nicholson, 20 Vet. App. 1 (2006) (notice of the elements of a new and material evidence claim). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained the service treatment records, VA records, and private medical records. On the application to reopen the claim of service connection for pes planus, under the duty to assist, a VA medical examination or medical opinion is not authorized unless new and material evidence is presented. 38 C.F.R. § 3.159(c)(4)(iii). As the claim is not reopened, another VA medical examination or medical opinion is not authorized under the duty to assist. The Veteran was afforded a VA examination for the knees in July 2010. As the examination was based on a review of the Veteran's history and as the disability is was described sufficient detail so that the Board's review is a fully informed one, the examination report is adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disabilities in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As the Veteran has not identified any additional evidence pertinent to the claims and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Claim to Reopen Legal Principles The reopening of a claim of service connection which has been previously and finally disallowed requires that new and material evidence be presented since the last final disallowance of the claim. 38 U.S.C.A. § 5108. Whether or not the RO reopened a claim is not dispositive, as it is the Board's jurisdictional responsibility to consider whether it is proper for a claim to be reopened. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). As the Veteran's current claim to reopen was received in 2009, after the regulatory definition of new and material was last amended in August 2001, the current regulatory definition of new and material evidence applies. New evidence means existing evidence not previously submitted to agency decision makers. 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). 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). The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). In determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Analysis In a rating decision in January 2003, the RO denied the claim of service connection for pes planus on the basis that it was not caused by or aggravated by service. After the Veteran was notified of the adverse determination and of his procedural and appellate rights, he did not appeal the rating decision and no new and material evidence pertinent to the claim was received by VA within one year from the date that the RO mailed notice of the adverse determination to the Veteran. Thus, the January 2003 rating decision became final by operation of law on the evidence of record. 38 C.F.R. § 3.104(a). At that time, the evidence of record consisted of service treatment records, which showed that pes planus was asymptomatic on entrance examination and pes planus was not noted by complaint, finding, or history on separation examination. Records of Dr. Crump from 1992 to 2002 show no complaint or treatment of foot pain. The Veteran did assert that marching in combat boots during service aggravated his pre-existing pes planus. In October 2009, the Veteran filed the current application to reopen the claim of service connection for pes planus. In a rating decision in May 2010, the RO denied the application to reopen on the basis that new and material evidence had not been submitted since the rating decision in January 2003. The RO considered the Veteran's statements, service treatment records, statements, VA records, a VA medical opinion, and a letter from Dr. Crump. In order that the evidence submitted after the last, final denial may be considered new and material, the evidence must relate to the basis for the prior denial of the claim. The claim was previously denied because the evidence of record failed to show that the current pes planus was caused by or aggravated by service. The additional evidence presented since January 2003 includes the Veteran's testimony before the Board, whereby he asserted that marching in combat boots aggravated his preexisting pes planus. In a VA medical opinion in July 2010, the VA examiner stated that the Veteran's time in service did not aggravate pes planus. In a letter in December 2011, Dr. Crump stated that the Veteran had complained of foot pain since 1992. In letters by the Veteran's family it was related that he complained of foot pain after service. The Veteran's statements and the statements of the Veteran's family that the Veteran's pre-existing pes planus was aggravated by service are cumulative evidence, that is, evidence that merely supports a fact previously established and considered. Such cumulative evidence does not meet the regulatory definition of new and material evidence under 38 C.F.R. § 3.156(a). The letter from Dr. Crump that the Veteran has complained of foot pain since 1992 does not relate to an unestablished fact necessary to substantiate the claim, namely, evidence that the current pes planus was caused by or aggravated by service, and the evidence is not new and material under 38 C.F.R. § 3.156. As for the VA medical opinion, as the opinion opposes rather than supports the claim it does not relate to an unestablished fact necessary to substantiate the claim, namely, evidence that the current pes planus was caused by service or aggravated by service, and evidence is not new and material under 38 C.F.R. § 3.156. For these reasons, the claim of service connection for pes planus is not reopened. II. A Claim for Service Connection Law and Regulations Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, 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. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Secondary service connection will be granted when a disability is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310. Secondary service connection may be established for a disorder which is aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for a chronic disease, such as arthritis, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.307, 3.309. Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and from the weight of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the weight or probative value of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Evidence The service treatment records show no complaint, treatment, or diagnosis pertaining to the knees. After service, VA records show that the Veteran was diagnosed with bilateral knee arthritis in October 2009. On VA examination in July 2010, the Veteran gave a history of bilateral knee pain since 2004. X-rays showed bilateral osteoarthritis of the knees. The VA examiner stated that the degenerative changes of the knees were less likely as not caused by or a result of bilateral pes planus. The rationale was that the knee disability was a normal degenerative condition and it was highly unlikely that pes planus was related to the knee disability. In a letter in December 201, Dr. Crump stated that it is probable that the Veteran's bilateral pes planus led to current degenerative changes of the knees. Analysis The Veteran asserts that the degenerative changes of the knees were e caused by pes planus. As degenerative changes of the knees were not affirmatively shown to have been present during service, service connection under 38 C.F.R. § 3.303(a) is inapplicable. As degenerative changes of the knees did not manifest to a compensable degree within one year from the date of separation from service in February 1970, service connection under 38 C.F.R. §§ 3.303(b) and 3.307 is inapplicable. As a knee abnormality was not noted in service, the principles of service connection, pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) are also inapplicable. As there is no evidence that degenerative changes of the knees were incurred in service, service connection under 38 C.F.R. § 3.303(d) is inapplicable. To prevail, the Veteran must show that degenerative changes of the knees are proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran is not service-connected for pes planus or any other disability. Thus, the criteria for secondary service connection cannot be satisfied. For these reasons, the preponderance of evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b). ORDER As new and material evidence has not been presented, the claim of service connection for pes planus is not reopened and the appeal is denied. Service connection for degenerative changes, arthritis, of the knees to include as secondary service connection is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs