Citation Nr: 1416022 Decision Date: 04/10/14 Archive Date: 04/24/14 DOCKET NO. 10-34 696 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Buffalo, New York THE ISSUE Whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for a bilateral foot disability, diagnosed as bilateral pes planus and, if so, whether service connection is warranted. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran is the appellant in the instant appeal. She had active service from November 1983 to April 1993. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Buffalo, New York, Regional Office (RO) which, in pertinent part, determined that new and material evidence had not been received to reopen the Veteran's claim of entitlement to service connection for bilateral pes planus and denied service connection for kidney stones. In June 2011, the Board granted service connection for kidney stones and remanded the issue of whether new and material evidence had been received to reopen the Veteran's claim of entitlement to service connection for bilateral pes planus to the RO for additional action. The Board has reviewed the physical claims files and both the Veterans Benefit Management System (VBMS) and the "Virtual VA" files. The reopened claim of service connection for a bilateral foot disorder to include pes planus is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. In April 1994, the RO denied service connection for bilateral pes planus. The Veteran was informed in writing of the adverse determination and her appellate rights in April 1994. She did not submit a notice of disagreement (NOD) with the decision. 2. The April 1994 rating decision denying service connection for bilateral pes planus is final. 3. The additional documentation submitted since the April 1994 rating decision is new; relates to an unestablished fact of service incurrence; and raises a reasonable possibility of substantiating the claim for service connection for bilateral pes planus. CONCLUSIONS OF LAW 1. The April 1994 rating decision denying service connection for bilateral pes planus is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). 2. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for bilateral pes planus has been presented. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326(a), 20.1103 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that a Veterans Claims Assistance Act of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103, must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate her claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. In this decision, the Board reopens and remands the Veteran's claim of entitlement to service connection for bilateral pes planus. As such, no discussion of VA's duty to notify and to assist is necessary. II. Application to Reopen Generally, absent the filing of a NOD within one year of the date of mailing of the notification of the initial review and determination of an appellant's claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. §§ 20.200, 20.300, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). In April 1994, VA denied service connection for bilateral pes planus as "entitlement to service connection for pes planus is not established as the evidence shows this condition existed prior to service and was not aggravated by service." The Veteran was informed in writing of the adverse decision and her appellate rights in April 1994. She did not submit a NOD with the decision. The evidence upon which the April 1994 rating decision was formulated may be briefly summarized. The report of the Veteran's August 1983 physical examination for service entrance notes that she was diagnosed with "pes planus [not considered disabling]." The Veteran's service treatment records indicate that she was treated for multiple foot complaints. A December 1989 podiatric evaluation states that the Veteran complained of bilateral foot pain. An assessment of "moderate pes planus [left greater than right]" was advanced. The report of a February 1994 VA examination for compensation purposes states that the Veteran complained of left foot pain. She was noted to have a history of an in-service left bunionectomy. The Veteran was diagnosed with left bunionectomy residuals and a slight right foot bunion deformity. Pes planus was not diagnosed. New and material evidence pertaining to the issue of service connection for bilateral pes planus was not received by VA or constructively in its possession within one year of written notice to the Veteran of the April 1994 rating decision. Therefore, the rating decision became final. 38 C.F.R. § 3.156(b). The additional documentation received since the April 1994 rating decision includes a November 2008 VA physical evaluation which states that the Veteran currently had foot pain, renal stones, and thyroid problems and "these 3 problems were present during the time of her service in the military." The VA physical evaluation is of such significance that it raises a reasonable possibility of substantiating the Veteran's claim for service connection when considered with the previous evidence of record. As new and material evidence has been received, the Veteran claim of entitlement to service connection for bilateral pes planus is reopened. ORDER The Veteran's application to reopen her claim of entitlement to service connection for bilateral pes planus is granted. REMAND In light of its reopening above, the Veteran's claim for service connection for a recurrent bilateral foot disorder is to be adjudicated on the merits following a de novo review of the entire record. The Veteran asserts that she incurred a recurrent bilateral foot disorder during active service. The service treatment records note that the Veteran was seen for multiple foot complaints; underwent a May 1992 left bunionectomy; and was diagnosed with bilateral pes planus, "pes planus [with forefoot] varus and tight gastrox;" bilateral bunions; bilateral hallux valgus; bilateral hallux abducto valgus;" bilateral plantar fasciitis; and a right first toe crushing injury. The Veteran has not been afforded a recent VA examination which addresses her current foot disabilities and their relationship, if any, to her in-service foot symptoms, injury, and surgery. Therefore, the Board finds that additional VA evaluation is needed to resolve the issues raised by the instant appeal. The VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that she provide information as to all post-service treatment of her recurrent foot disabilities, including the names and addresses of all health care providers whose records have not already been provided to VA. Upon receipt of the requested information and the appropriate releases, the RO should contact all identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the Veteran, not already of record, for incorporation into the record. If the identified documentation is not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2013). 2. Associate with the record any VA clinical documentation pertaining to the treatment of the Veteran not already of record, including that provided after June 2011. 3. Schedule the Veteran for a VA examination in order to assist in determining the current nature and etiology of her recurrent foot disabilities. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should advance an opinion as to whether it is as likely as not (i.e., probability of 50 percent or more) that any identified recurrent foot disorder had its onset during active service; is related to her in-service foot symptoms, injury, and surgical procedure; and/or otherwise originated during active service. With respect to pes planus, an opinion should be provided as to whether such became aggravated beyond normal progression during active service. All relevant medical records, including those in the claims folders, should be made available to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. The examiner should provide a rationale for all opinions and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Then adjudicate the issue of service connection for a recurrent bilateral foot disorder to include pes planus on a de novo basis. If any benefit sought on appeal remains denied, the Veteran and her accredited representative should be provided a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the Veteran's claim for benefits, to include a summary of the evidence considered, since the issuance of the last SSOC. An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination as failure to do so may result in denial of her claim. See 38 C.F.R. § 3.655 (2013). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs