Citation Nr: 1801194 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 15-35 801 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for deformity, congenital, right foot and ankle (claimed as bilateral foot and bilateral ankle condition). 2. Entitlement to service connection for pes planus. 3. Entitlement to service connection for residuals of cold weather, bilateral feet. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD P. Daugherty, Associate Counsel INTRODUCTION The Veteran served in the United States Marine Corps with active duty from September 1951 to November 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. A December 1955 Board decision denied service connection for deformity, congenital, right foot and ankle. The Veteran did not appeal that decision and it became final. 2. Evidence received since the last final December 1955 Board denial is cumulative or redundant of evidence of record at the time of such decision and does not raise a reasonable possibility of substantiating the Veteran's claim for service connection for deformity, congenital, right foot and ankle. 3. The preponderance of the evidence is against a finding that the Veteran's claimed pes planus was incurred in or is related to his active duty service. 4. The preponderance of the evidence is against a finding that the Veteran's claimed residuals of a cold weather injury, bilateral feel, was incurred in or is related to his active duty service. CONCLUSIONS OF LAW 1. The December 1955 Board decision that denied service connection deformity, congenital, right foot and ankle is final. 38 U.S.C. § 7104, 7105 (c) (2012); 38 C.F.R. § 3.104, 20.1100 (2017). 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for deformity, congenital, right foot and ankle. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 3. The criteria for service connection for pes planus have not been met. 38 U.S.C. §§ 1110; 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 4. The criteria for service connection for residuals of cold weather, bilateral feet, have not been met. 38 U.S.C. §§ 1110; 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Under 38 U.S.C. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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. 38 U.S.C. § 5103(a). Here, a letter sent to the Veteran in August 2011 satisfied the VCAA notice requirement for his new and material evidence claim and his claims for entitlement to service connection claim because it provided the Veteran with notice that fulfills the provisions of 38 U.S.C. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess. Furthermore, the Veteran and his representative have had the opportunity to allege that notice in this case was less than adequate and they have not done so. See Goodwin v. Peake, 22 Vet. App. 128 (2008). VA also has a duty to assist the Veteran in the development of his claims. This duty includes assisting the Veteran in the procurement of pertinent treatment records, and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the claims has been obtained. The Veteran's service treatment records have been obtained and associated with the claims file. With respect to outstanding post-service VA treatment or private treatment records, the Veteran did not indicate on his application for benefits that he was receiving treatment for his claimed disabilities and he did not fill out and submit the VA Form 21-4142 Authorization and Consent to Release Information that was included in the August 2011 VCAA letter. Additionally, the December 2017 Appellate Brief received from the Veteran's representative states that "we have no additional evidence or argument to add at this time." The duty to assist is not a one way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). As the Veteran has not provided any records or identified them for VA to obtain, VA's duty to assist him in development as to this matter is met. The Veteran has not been afforded a VA examination in connection with his claims. In this regard, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has addressed the appropriate standard to be applied in determining whether an examination is warranted under this statute. In Waters v. Shinseki, 601 F. 3d 1274 (Fed. Cir. 2010), and Colantonio v. Shinseki, 606 F. 3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability; "medically competent" evidence is not required to indicate that the current disability may be associated with service. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet this standard as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, supra. As discussed below, the weight of the evidence fails to indicate that the Veteran's current pes planus or residuals of cold weather, bilateral feet, disabilities may be related to service. Specifically, the Board notes that there is no indication that the Veteran is being treated for a current disability or that either disability was diagnosed or treated while on active duty. Further, the Veteran has not identified or submitted any additional evidence that the Board should seek to obtain on his behalf. Accordingly, the Board finds that a remand for a VA examination is not required because the record, as explained below, does not contain competent and credible evidence that the Veteran's claimed pes planus or residuals of a cold weather injury, bilateral feet, were incurred in or are otherwise related to active service. As such, the Board finds that medical evidence of record is sufficient to adjudicate the claim, and no VA examination or opinion is necessary. 38 U.S.C.A. § 5103A(d); 38 C.F.R. §§ 3.159(c)(4), 3.304(f)(5); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the circumstances of this case, a remand would not serve a useful purpose, as it would unnecessarily impose addition burdens on VA with no benefit to the Veteran. Soyini v. Derwinski, 1 Vet. App. 540 (1991). Neither the Veteran nor his representative has alleged or demonstrated any prejudice with regard to the content or timing of VA's notices or other evidentiary development. Shinseki v. Sanders, 129 U.S. 1696 (2009). Accordingly, the Board will proceed with the adjudication of the Veteran's claim. II. New and Material Evidence The Veteran and his representative assert that his deformity, congenital, right foot and ankle disability was aggravated by his active duty service. The Veteran initially submitted his claim for entitlement to service connection for this disability in April 1955. The Veteran's claim was denied in May 1955 rating decision, which the Veteran timely appealed. A December 1955 Board decision affirmed the denial of the Veteran's claim. The Veteran did not appeal the December 1955 Board decision and therefore, that decision is final. 38 U.S.C.A. §§ 7104, 7105. Generally, a final Board decision may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7104 (b)(West 2014). However, under 38 U.S.C.A. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition. 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). The Court has held that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board is required to give consideration to all of the evidence received since the first denial of the claim in light of the totality of the record. See Hickson v. West, 12 Vet. App. 247, 251 (1999). In this regard, the Court in Shade v. Shinseki, 24 Vet. App. 110 (2010) held that the language of 38 C.F.R. § 3.156(a) created a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Further, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The question of whether new and material evidence has been received to reopen a claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Id at 1369. If it is determined that new and material has been submitted, the claim must be reopened. The Board may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. While the Board finds that the evidence submitted since the last final Board decision in December 1955 is new, it is not material as it does not reasonably substantiate the Veteran's claim. At the time of the December 1955 Board decision, the Board considered the Veteran's service treatment records and the Veteran's statements in support of his claim. At that time, the Veteran reported that he suffered from right ankle pain as a result of the aggravation of his congenital right foot and ankle disability. The Board summarized the Veteran's service treatment records, to include noting that the Veteran's deformity, congenital, right foot and ankle was noted on entry into service on his September 1951 physical examination. The Board noted that the Veteran was limited in his activities and experienced pain related to his disability prior to entry into service and the symptoms that he was experiencing after his discharge were essentially similar to those. Specifically, the Board noted that "aggravation of the right foot and ankle disability during service is not demonstrated." See, December 1955 Board decision. Since filing his claim to reopen in May 2011, the Veteran has submitted photographs of himself stationed in Korea, his certificate of acceptance into the Marine Corps, his notification of promotion to staff sergeant, his honorable discharge certificate, and a statement outlining why he believes that he is entitled to service connection. In the Veteran's statement, he noted that he successfully passed the physical examination requirements to enter the Marine Corps, was hospitalized while in Korea for his right foot and ankle disability, and was subsequently discharged as a result of his disability. See, June 2011 correspondence from the Veteran. While the Veteran's statement and photographs are new, they do not indicate that the Veteran's deformity, congenital, right foot and ankle disability was aggravated in service. The December 1955 Board decision discussed the Veteran's disability being noted on entry and also discussed that the Veteran's symptoms in 1955 existed similarly prior to service and were therefore not aggravated in service. Additionally, the Board notes that the Veteran's personnel records were of record at the time of the December 1955 Board decision and therefore, the certificate of acceptance into the Marine Corps, his notification of promotion to staff sergeant and his honorable discharge certificate are redundant. Accordingly, none of the evidence submitted since the December 1955 Board decision relates to an unestablished fact and therefore, the Board finds that the claim for service connection for a deformity, congenital, right foot and ankle disability is not reopened as new and material evidence has not been received. III. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may also be granted where disability is proximately due to or the result of already service-connected disability. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). a. Pes Planus The Veteran and his representative assert that he has pes planus and that it is related to his active duty service. A review of the Veteran's service treatment records does not show any treatment or diagnosis of pes planus. The Board notes that the absence of documented treatment in service is not fatal to a service connection claim. A veteran is considered competent to report that which he perceives through his symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, in this case, the Veteran's feet were examined closely upon entry as a result of his deformity, congenital, right foot and ankle disability and pes planus was not noted. Additionally, when the Veteran was hospitalized in September 1953 for his deformity, congenital, right foot and ankle disability, his feet were closely examined and again, pes planus was not noted. Specifically, metatarsus varus was noted, but the foot and ankle were noted to be "otherwise o.k." See, post-service treatment records dated September 1953, October 1953. Additionally, the Veteran has not submitted any post-service treatment records to show treatment or diagnosis of pes planus. Therefore, the record is devoid of evidence of a pes planus disability at any time during the pendency of this claim with the exception of the Veteran's statements, which, as a result of the negative examinations above, are not found to be credible in this regard. Congress also specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the Board concludes that the preponderance of the evidence is against the Veteran's claim for entitlement to service connection for pes planus and that the claim must therefore be denied. b. Residuals of Cold Weather, Bilateral Feet The Veteran and representative assert that he suffers from a residual injury to his feet due to cold weather while he was stationed in Korea. A review of the Veteran's service treatment records does not show any treatment or diagnosis of a cold weather injury to the Veteran's feet. The Board notes that the absence of documented treatment in service is not fatal to a service connection claim. A veteran is considered competent to report that which he perceives through his symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, in this case, the Veteran's feet were closely examined upon his hospitalization in September 1953 while stationed in Korea. During that examination, other than the Veteran's metatarsus varus, his feet were noted to be "otherwise o.k." There is no indication that the Veteran suffered from a cold weather injury. See, post-service treatment records dated September 1953, October 1953. Additionally, the Veteran has not submitted any post-service treatment records to show treatment or diagnosis of residuals of a cold weather injury to both feet. Therefore, the record is devoid of evidence of residuals of a cold weather disability to both of the Veteran's feet at any time during the pendency of this claim. As noted previously, Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the Board concludes that the preponderance of the evidence is against the Veteran's claim for entitlement to service connection for residuals of a cold weather injury to both feet and this claim must therefore also be denied. ORDER New and material having not been received, the claim to reopen the previously denied claim for service connection for deformity, congenital, right foot and ankle disability is denied. Service connection for pes planus is denied. Service connection for residuals of a cold weather injury, bilateral feet, is denied. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs