Citation Nr: 1614695	
Decision Date: 04/12/16    Archive Date: 04/26/16

DOCKET NO.  12-05 978	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Whether new and material evidence has been presented to reopen a claim for service connection for bilateral pes planus, and if so, whether service connection is warranted. 

2.  Entitlement to an initial rating in excess of 30 percent prior to December 15, 2015, and in excess of 50 percent thereafter, for posttraumatic stress disorder (PTSD).  

3.  Entitlement to a total rating for compensation based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Cummins B. Jones, Attorney at Law



WITNESS AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

Betty Lam, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1992 to May 1996. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2009 and December 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.  The April 2009 rating decision denied, in pertinent part, service connection for bilateral pes planus because the evidence submitted is not new and material.  The December 2011 rating decision in pertinent part, granted service connection for PTSD, evaluated as 30 percent disabling, effective June 1, 2011.

In February 2016, the Veteran testified at a hearing before the undersigned at the RO.  A transcript of the hearing is part of the record. 
  
In a February 2016 rating decision, the RO increased the rating for PTSD, to 50 percent, effective December 15, 2015.

This appeal was processed using the VBMS paperless claims processing system.  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.  

The issue of entitlement to service connection for GERD was raised in a November 2013 informal claim, 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.  38 C.F.R. § 19.9(b) (2015). 

The issues of entitlement to higher initial ratings for PTSD and to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1.  In an October 1999 rating decision, the RO denied the claim of entitlement to service connection for pes planus; the Veteran submitted a notice of disagreement; but his appeal was closed after he failed to submit a substantive appeal.

2.  Evidence received more than one year after the October 1999 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for a pes planus, and raises a reasonable possibility of substantiating the claim.

3.  The Veteran's current bilateral pes planus increased in severity during active military service and the increase was not clearly and unmistakably due to the natural progression of the condition.


CONCLUSIONS OF LAW

1.  The unappealed October 1999 rating decision that denied service connection for pes planus is final.  38 U.S.C.A. §§ 7105(c) (West 2014); 38 C.F.R. 
§§ 3.104(a), 20.302(a), 20.1103 (2015).

2.  Evidence received since the October 1999 rating decision that denied service connection pes planus is new and material, and the claim is reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. §§ 3.156(a) (2015).

3.  A bilateral pes planus disability was aggravated during active military service.  38 U.S.C.A. §§ 1110, 1131, 1153, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. New and Material Evidence to Reopen Claim

After notice of a decision, a claimant has one year to submit a notice of disagreement.  38 U.S.C.A. § 7105(c).  If a timely notice of disagreement is received a statement of the case (SOC) is issued; and an appellant has the longer of 60 days after issuance of the SOC or the remainder of the one year period after notice of the decision on appeal, to submit a timely notice of disagreement.  38 U.S.C.A. § 7105(d)(3) (West 2014).  If a timely substantive appeal is not submitted, the RO may close the appeal without further notice.  38 C.F.R. § 19.32 (2015).  An RO decision becomes final if an appeal is not perfected by submission of a timely substantive appeal. 38 C.F.R. § 20.1103 (2015).

A claim which is the subject of a prior final decision may be reopened if new and material evidence is presented or secured.  38 U.S.C.A. § 5108.  New evidence means evidence not previously submitted.  Material evidence means existing evidence that by itself or when considered with previous evidence 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 last final decision, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

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, 1363 (Fed. Cir. 1998).  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).  

If new and material evidence is received during an applicable appellate period following a RO decision (1 year for a rating decision and 60 days for a statement of the case) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period.  38 C.F.R. § 3.156(b).  Thus, under 38 C.F.R. § 3.156(b), "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim."  Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). "[N]ew and material evidence" under 38 C.F.R. § 3.156(b) has the same meaning as "new and material evidence" as defined in 38 C.F.R. § 3.156(a).  See Young v. Shinseki, 22 Vet. App. 461, 468 (2011).

In Shade v. Shinseki, 24 Vet. App 110 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R.  § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."  The Court further held it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would "force the Veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA."  

In an October 1999 rating decision, the RO initially denied the Veteran's claim for bilateral pes planus.  The RO considered the Veteran's service medical records as well as a June 1999 VA examination report.  The RO found that the Veteran's bilateral pes planus existed prior to service, and that there was no evidence to show that the condition had permanently worsened as a result of service.

The Veteran filed the current claim to reopen in February 2010.  Evidence received since the October 1999 rating decision consists of private treatment records, VA treatment records from the Atlanta VA Medical Center (VAMC) through January 2016, and the Veteran's statements, and hearing testimony.  

The Veteran testified that pes planus initially became symptomatic in service and had continued since that time.  In March 2009, P. Harvey, M.D., at Med-South Associates,  noted the Veteran's reports of the onset of pes planus symptoms in service and found that the Veteran had "constant [m]ultiple sequela of pes planus deformity."

This evidence indicates that bilateral pes planus underwent a permanent worsening or aggravation as a result of service.  This evidence is new as it was not before the RO at the time of prior final October 1999 denial and it is material as it is not redundant of evidence already in the record in October 1999, and relates to the unestablished fact of whether the Veteran has a current bilateral pes planus disability was aggravated by service.  See 38 C.F.R. § 3.156(a).  Accordingly, the issue of entitlement to service connection for bilateral pes planus is reopened.  38 U.S.C.A. § 5108.

II. Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in active service and for in-service aggravation of a preexisting injury or disease. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Generally, the 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 in or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 

The Veteran will be presumed to have been in sound condition when he entered service; except for conditions noted on the examination when he was accepted for service, unless there is clear and unmistakable evidence to rebut the presumption.  38 U.S.C.A. § 1111 (West 2014)

"[I]f a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder."  See Wagner v. Principi, 370 F.3d 1096 (Fed. Cir. 2004); see also 38 U.S.C. § 1153; 38 C.F.R. § 3.306.  In such claims, the Veteran has the burden of showing that there was an increase in disability during service to establish the presumption of aggravation.  See Wagner; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). 

A preexisting injury or disease will be considered to have been aggravated by 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.  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 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). 

If the claimant meets his burden of demonstrating an increase in service, the disability is presumed to have been aggravated in service, and the burden is on the Secretary to rebut that presumption.  Horn v. Shinseki, 25 Vet. App. 234 (2012); 38 U.S.C. § 1153; 38 C.F.R. § 3.306.  To rebut that presumption, the Secretary must show, by clear and unmistakable evidence, that the worsening of the condition was due to the natural progress of the disease.  Horn, 25 Vet. App. at 235 n. 6; 38 U.S.C. § 1153.

Service treatment records include a June 1991 report of medical examination for enlistment which revealed that the Veteran has mild, asymptomatic pes planus.  There is no evidence of complaints or treatment for bilateral pes planus in service.  In November 1995, the Veteran was treated for an ingrown toenail.  An April 1996 report of medical examination for separation found that the Veteran had normal feet.  

A June 1999 VA examination confirmed a diagnosis of flat feet and pain in both heel and sole.  The examiner noted that the Veteran used to see a podiatrist.  The Veteran reported constant pain without flare-ups.  A physical examination revealed a "moderate degree of flat feet." The examiner found no callouses, breakdown of the skin, or vascular changes.  The right foot was noted to have tenderness to palpitation as well as the left feet in less severity.  

Private treatment records from Med-South Associates dated in March 2009 note that the Veteran complaints of progressively worsening foot problems.  The Veteran stated that his symptoms "began in 1993 when he began working as a barber in the military.  Long hours of standing combined with an aggressive physical training program lead to his initial symptoms.  Shortly thereafter patient state he was diagnosed with pes planus deformity, plantar [fasciitis] was also diagnosed and treated locally."  The private physician provided that the Veteran's pes planus deformity was exacerbated by prolonged standing, increased activity and shoe gear.  

Private treatment records from the Village Podiatry Centered dated in An April 2009 provided that the Veteran has pain and lesions on the bottom of both feet for more than 10 years.  The Veteran reported that he developed these lesions from wearing training boots while in service.  

Private treatment records from Dr. J.G. dated in September 2009 confirmed a diagnosis of plantar fasciitis and the Veteran was treated with corticosteroid injections in both feet. 

VA treatment records from the Atlanta VAMC include a January 2010 radiology report that confirmed mild degenerative changes in the first metatarsophalangeal (MTP) joints bilaterally, minimal calcaneal spurring bilaterally, and mild flatfoot deformity on the left foot.  A January 2016 VA outpatient record continued to show treatment for pes planus and callouses.  

In February 2016, the Veteran testified that he had asymptomatic pes planus upon entrance in service.  He said that he did not seek treatment for his feet in service; because he did not want to be reassigned from his position as a barber.  However, he testified that his foot condition worsened as a result of service.  

The record shows that the Veteran entered military service with a mild, asymptomatic pes planus that was not considered disabling.  The Veteran's statements and testimony provide competent and credible evidence that the disability became symptomatic in service.  The finding a few year after service that the disability had now become moderate and the reports of callus formation and other symptoms further support a finding that the disability increased in severity in service.  By June 1999, the VA examiner noted the presence of a "moderate degree of flat feet."   Consequently, it is at least as likely as not that the Veteran's bilateral pes planus underwent an increase in severity during service, and so the presumption of aggravation attaches.

Once a preexisting condition is considered to have been aggravated during service, as here, clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service.  38 C.F.R. § 3.306(b).  The standard of clear and unmistakable evidence is an onerous one and requires a result that is undebatable.  See Cotant v. Principi, 17 Vet. App. 116, 131 (2003).  

There is essentially no opinion or evidence to rebut the presumption of aggravation.  As the evidence establishes that the Veteran had pre-existing bilateral pes planus that was aggravated while in service and that he continues to suffer from the consequences of that disability, service connection for bilateral pes planus, to include manifestations diagnosed as plantar fasciitis and calluses, is warranted.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).    


ORDER

New and material evidence has been presented, the claim of service connection for bilateral pes planus is reopened.

Entitlement to service connection for bilateral pes planus, variously diagnosed as plantar fasciitis and calluses, is granted. 
REMAND

The Veteran was examined by VA for PTSD in January 2016.  At the February 2016 Board hearing, the Veteran testified that his condition had worsened since his recent examination.  The Veteran's representative also argued that his PTSD symptoms such as lack of eye contact and flattened affect, were not adequately considered by the January 2016 examination.  The Veteran also submitted a private treatment record dated in February 2016, suggested an increase in symptomatology.  As worsening symptomatology has been described since the Veteran's last VA examination, he should be afforded a new VA examination to determine the current nature and severity of his PTSD.  See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995).

At the February 2016 hearing, the Veteran also testified that that he continued to own a barber shop, but his wife indicated that the Veteran had limited involvement in the business and he reported that he was unable to work as a barber due to the effets of PTSD.  This testimony raises the question of entitlement to TDIU.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered "part and parcel" of the claim for benefits for the underlying disability).  Further development is required.

At the hearing the Veteran reported current treatment from a provider with an appointment scheduled in March.  The March treatment record has not been received.  VA has an obligation to seek the record.  38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015).

Lastly, the Board notes that the Veteran's substantive appeal (VA Form 9) on this claim is not included in Virtual VA and VBMS files.

Accordingly, the case is REMANDED for the following action:

1. Associate the Veteran's substantive appeal (VA Form 9) perfecting the appeal of the claim of an increased rating for PTSD with the claims folder.  

2.  Ask the Veteran to authorize VA to obtain records of his treatment for PTSD that have not yet been obtained, including the reported treatment in March 2016 treatment.  

If any records cannot be obtained; the Veteran must be notified of the missing records, the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records.

2.  Provide the Veteran with notice in compliance with the VCAA that informs him of what evidence he must show to support a claim for TDIU.  In addition, ask the Veteran to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Individual Unemployability and report his annual earnings from operating his barber shop so as to determine whether his employment is marginal.  

3.  After all outstanding records have been associated with the claims file; scheduled the Veteran for a VA psychiatric examination to determine the current nature and severity of his service-connected PTSD.  The claims file and a copy of this remand must be provided to the examiner for review. 

The examiner should provide an opinion as to the impact of the service connected disabilities on the Veteran's ability to engage in gainful employment (employment paying more than the poverty rate for a single person).

4.  If any benefit sought on appeal remains denied, issue a supplemental statement of the case.  Then return the appeal to the Board, if otherwise in order.

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 2014).




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


Department of Veterans Affairs