Citation Nr: 1752599 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 14-07 056A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for pes planus. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and J.G. ATTORNEY FOR THE BOARD K.M. Walker, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from August 1969 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In April 2017, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript is of record. This appeal was processed using the Veterans Benefits Management System (VBMS) electronic claims processing systems. Accordingly, any future consideration of this Veteran's case should take into account the existence of these electronic records. FINDINGS OF FACT 1. In an October 2009 rating decision, the RO denied reopening a claim for service connection for pes planus. The Veteran was notified of the October 2009 rating decision and his appellate rights, but he did not appeal that determination or submit new and material evidence within one year of notification. 2. The evidence received since the October 2009 rating decision, by itself, or in conjunction with previously considered evidence, is either cumulative or redundant of evidence previously of record or does not relate to an unestablished fact necessary to substantiate the claim for service connection for pes planus. CONCLUSIONS OF LAW 1. The October 2009 rating decision, which denied reopening the claim for service connection for pes planus, is final. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. § § 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 2. The evidence received after the October 2009 rating decision is not new and material, and the claim for service connection for pes planus is not reopened. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings liberally does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Law and Analysis In general, rating decisions that are not timely appealed or for which new and material evidence is not received within one year of the rating decision are final. See 38 U.S.C. § 7105; 38 C.F.R. § 3.156(b), 20.200, 20.201, 20.302, 20.1103. The Board has a jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. § § 5108, 7105 (c)). See also Barnett v. Brown, 83 F.3d 1380 (Fed Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine whether there is new and material evidence has been submitted to reopen the claim before proceeding to adjudicate the underlying merits. If the Board finds that no new and material evidence has been offered, that is where the analysis must end. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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). A finally decided claim must be reopened where the claimant submits new and material evidence relative to a fact that was unestablished at the time of the prior final decision on the claim. Shade v. Shinseki, 24 Vet. App. 110, 119 (2010). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. at 118-19. There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim, for purposes of reopening the claim. Id. at 117. In determining whether evidence is new and material, the credibility of the evidence in question is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). But see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary of VA to consider the patently incredible to be credible"). In this case, the RO previously considered and denied the Veteran's claim for service connection for pes planus in a July 1972 rating decision. At that time, the evidence of record included the Veteran's service records and a May 1972 VA examination report. In the decision, the RO observed that the Veteran was separated after approximately 30 months of active duty because of continuing complaints of pain in both feet caused by prolonged standing, hiking, and marching. The RO noted that the condition had been found to exist prior to service and was not aggravated by service. Specifically, the RO cited to an induction examination indicating that the Veteran reported a medical history of foot trouble and an orthopedic consultation prior to induction revealing moderate, bilateral pes planus. Because of the continuing complaints and the fact that measures taken (arch support and ripple sole boots) were of little benefit, the medical board recommended his discharge from service. The RO indicated that neither the medical board examination nor the VA examination showed anatomical changes in the foot condition and stated that there was no evidence to show that the Veteran's pre-service pes planus progressed at a rate greater than usual for such a disorder. Thus, the RO concluded that the disorder was not incurred in or aggravated by service. Thereafter, the Veteran submitted an application to reopen the claim in May 2011, which the RO denied in an October 2009 rating decision. The evidence at the time included the Veteran's service treatment records, VA medical records, and lay statements. In that decision, the RO indicated that the claim was previously denied in a July 1972 rating decision and noted that new and material evidence was needed to reopen the claim. Upon review of the evidence, the RO found that there was still no evidence showing that his preexisting disorder had been aggravated by service or otherwise related thereto. The Veteran was notified of the October 2009 rating decision and his appellate rights. However, he did not submit a notice of disagreement or new and material evidence within one year of the notification. The Board does acknowledge that the Veteran submitted a copy of a service treatment record pertaining to his pes planus in June 2010. However, that record was already associated with the claims file at the time of the July 1972 and October 2009 rating decisions. Thus, the record is duplicative of evidence already considered, and 38 C.F.R. § 3.156(c) does not apply. For these reasons, the Board concludes that the October 2009 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § § 3.156, 3.160(d), 20.200, 20.201, 20.302, 20.1103. The evidence received since the October 2009 rating decision includes VA treatment records and lay statements, including hearing testimony. With respect to the VA treatment records, the Board notes the majority of the evidence does not pertain to the Veteran's pes planus. To the extent that the records do reference pes planus, the Board finds that such evidence is cumulative in that the documents reiterate that the Veteran has current pes planus, which was already established at the time of the October 2009 rating decision. They do not address the etiology of the condition, which was the missing element needed to establish service connection at the time of the prior rating decisions. Thus, these additional records are cumulative or redundant of evidence previously of record, do not relate to an unestablished fact necessary to substantiate the claim, and do not raise a reasonable possibility of substantiating the claim. With respect to the lay statements, the Board notes that the Veteran has reiterated his contention that his preexisting pes planus was aggravated by his military service, including his duties, physical training, and wearing of boots therein. Such statements are redundant and cumulative, as they restate the Veteran's prior assertions that were previously considered by the RO in the earlier rating decisions. Therefore, the lay statements do not constitute new and material evidence. Significantly, the evidence missing at the time of the October 2009 rating decision continues to be absent. Specifically, the evidence does not establish that the Veteran's pes planus was aggravated by service beyond its normal progression or that his current pes planus condition is otherwise related to his military service. Accordingly, the Board finds that new and material evidence has not been presented to reopen the Veteran's previously denied claim for service connection for pes planus. ORDER New and material evidence not having been submitted, the claim for service connection for pes planus is not reopened. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs