Citation Nr: 1414175 Decision Date: 04/02/14 Archive Date: 04/11/14 DOCKET NO. 09-11 086 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim for service connection for bilateral pes planus. 2. Entitlement to service connection for bilateral pes planus. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Boyd, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1988 to October 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The RO in Atlanta, Georgia currently has original jurisdiction of this appeal. During a February 2014 travel board hearing, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. In addition to a paper claims file, there is a Virtual VA electronic file. The Board has reviewed both files prior to reaching this decision. The issue of service connection for bilateral pes planus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In an August 2003 rating decision, the RO declined to reopen the Veteran's claim for entitlement to service connection for bilateral pes planus; the Veteran did not appeal and the decision became final in August 2004. 2. Evidence received since the August 2003 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for bilateral pes planus, and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The August 2003 rating decision is final; new and material evidence has been received and the claim seeking service connection for bilateral pes planus is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The Board finds that VA compliance is sufficient to permit review of the petition to reopen for entitlement to service connection for bilateral pes planus. As the determination below represents a grant of the petition to reopen and the claim for service connection for bilateral pes planus is being remanded for further development, a detailed discussion of VA's duty is not necessary. In view of the outcome, any deficiencies in such notice or assistance have not prejudiced the Veteran. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159 ; Kent v. Nicholson, 20 Vet. App. 1 (2006). II. New and Material Evidence Generally, a claim which has been denied in an unappealed or final RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108 , which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 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 is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence need not address each previously unproven element of a claim to be sufficient to reopen the claim. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). Since the August 2003 rating decision, the Veteran submitted a statement in support of her claim and VA treatment records indicating multiple foot surgeries. Additionally, she offered testimony before the undersigned Veterans Law Judge at a hearing in February 2014. The evidence pertains to the onset of symptoms and to multiple surgeries that took place after many years of foot pain and discomfort that evidence suggests began during military training and was nonexistent prior to enlistment. The treatment records and the Veteran's hearing testimony were not considered by the RO in August 2003. The lay and medical evidence raise the possibility that the Veteran's pes planus was permanently worsened, or aggravated, by her military service given that her disability was asymptomatic upon entry into service, became symptomatic during service and remained symptomatic following separation from service. Accordingly, the Board determines that there is new and material evidence sufficient to reopen the Veteran's service connection claim. Therefore, the claim to reopen is granted. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for bilateral pes planus is reopened, and to this extent only, the appeal is granted. REMAND Reasons for Remand: To attempt to obtain outstanding treatment records and to afford the Veteran a VA examination. Asymptomatic pes planus was noted on the Veteran's April 1987 entrance examination and within three weeks of enlistment, she sought treatment for pain in her feet and was given permission not to wear military issued boots with her uniform. Upon discharge in 1989, the Veteran indicated a desire for surgery to ease the "excessive pain" she was experiencing in her feet. See March 2003 Statement in Support of Claim. She stated that she could not have the surgery at that time because she was pregnant, but was told that surgery would be performed after the birth of her child. Id. The Veteran indicates she sought treatment at Fort Gordon following separation from service, but surgeries were not performed until the 2000s. The Veteran contends that her symptoms of pain and discomfort did not exist prior to enlistment, began in the military and continued thereafter. See February 2014 Hearing Transcript. Pursuant to VA regulations, every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). With respect to the issue of service connection for pes planus, the presumption of sound condition on service entrance does not apply because pes planus was noted on the Veteran's April 1987 enlistment examination. The issue thus becomes whether the Veteran's pre-existing disorder was aggravated by service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that '[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.' 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). If a disorder exists prior to entrance into service, the Veteran cannot bring a claim for service connection for that disorder but may bring a claim for service-connected aggravation of that disorder. The presumption of aggravation applies only when a pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The Veteran enlisted on January 5, 1988 with pes planus that was not presenting symptoms as noted on her April 1987 enlistment examination. Roughly three weeks later on January 20, 1988, the Veteran presented with left metatarsal discomfort and pain. She was given a "Tennis shoes waiver" and was not required to wear military boots. In February 1988, blisters were noted and she was allowed to continue wearing tennis shoes rather than boots. In August 1989, the Veteran complained of painful callouses on both her right forefoot and left forefoot. The note indicated "no known injuries" and that the Veteran would be getting out of service and "wishes surgery on her bunions." Diffuse tenderness of the left and right forefoot and bilateral bunion deformity was noted. No x-rays were taken at that time because the Veteran was 6 months pregnant. Arch supports were supplied to "redistribute pressure." The Veteran indicated at her February 2014 Board hearing that she went to seek treatment at Fort Gordon in the early 1990s, but was only given medication for her continuing pain. She began seeking treatment with the VA in the late 1990s and the pain has continued to worsen to the point where she has difficulty walking or standing for long periods. She has had steroid injections to help with the pain and ultimately had bunionectomy surgery to remove bunions from both feet in August 2003 and July 2007. The evidence suggests that the Veteran did not begin to experience symptoms until after enlistment in the military and the records indicate chronic pain from several weeks into the Veteran's enlistment to the present day. Based on this evidence, the Board concludes the Veteran should be afforded a VA examination to consider her claim of aggravation of a pre-existing disability that was asymptomatic upon entry into service. On remand, the RO should attempt to obtain records from Fort Gordon and VA and/or private treatment records from the late 1990s, if available, and associate them with the claims file. Accordingly, the case is REMANDED for the following action: 1. Update the claims file with the most recent VA treatment records. 2. Attempt to locate any available treatment records from the early 1990s at Fort Gordon, Georgia, to include contacting the Eisenhower Army Medical Center. Search for records under the Veteran's married and maiden names. All requests and responses, positive and negative, should be associated with the claims file. 3. The oldest treatment record in the claims file appears to be dated in 2002. Ask the Veteran where she received treatment for her feet prior to 2002. Also ask her to identify any treatment she has received from non-VA healthcare providers. Obtain all available VA treatment records from the 1990s and early 2000s that are not already associated with the claims file. For any identified non-VA treatment records that may be outstanding, have the Veteran complete a VA Form 21-4142, Authorization and Consent to Release Information to VA. Then, request all identified records from the appropriate sources. All requests and responses, positive and negative, should be associated with the claims file. 4. After the above development has been completed, schedule the Veteran for a VA examination with a podiatrist. A copy of the claims file and this remand must be made available to the examiner for review. Based on a review of both the lay and medical evidence of record, the examiner should provide an opinion as to whether the Veteran's bilateral pes planus worsened in severity during active service and whether the increase represented a permanent worsening or "aggravation" of the disease beyond its natural progression. For purposes of this analysis, "aggravation" is defined as a permanent worsening of the nonservice-connected disability beyond that due to the natural disease process. Temporary or intermittent flare-ups of symptoms of a preexisting condition alone do not constitute aggravation unless the underlying condition worsened beyond its natural progression. The examiner is advised that asymptomatic bilateral pes planus was noted at the Veteran's enlistment physical examination in April 1987 and that she sought treatment for pain in her feet within one month of enlistment and was excused from wearing military issued boots. The Veteran contends symptoms of pain and discomfort have continued since service and resulted in multiple surgeries. The examiner must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file or to medical literature or treatises. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should state why that is the case. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 5. When the development requested has been completed, the case shall again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran shall be furnished a supplemental statement of the case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant 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. 2013). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs