Citation Nr: 1804349 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 10-17 260 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for bilateral pes planus. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.D., Associate Counsel INTRODUCTION The Veteran served on active duty from February 6, 1977 to March 4, 1977. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois. A thorough discussion of the procedural history of this claim will follow in a separate Procedural History section below. In April 2016, the Board remanded this case for scheduling the Veteran for a Board hearing. In September 2017, the Veteran was afforded a Video Conference Board hearing with the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. Following the RO's last adjudication of the case in a September 2012 Supplemental Statement of the Case (SSOC), additional records were associated with the claims file. The Veteran did not submit a waiver of initial RO review for these records. However, a waiver is not needed because these records are either duplicative or not relevant to the outcome of this appeal. 38 C.F.R. 20.1304(c); see Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). FINDINGS OF FACT 1. Service connection for pes planus was denied in a final January 2006 Board decision. 2. Since the last final January 2006 Board decision that denied service connection for pes planus, VA received evidence that is new but not material with respect to the claim. CONCLUSIONS OF LAW 1. The January 2006 Board decision that denied service connection for pes planus is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100 (2017). 2. The criteria for reopening the claim for service connection for pes planus has not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA satisfied the duties to notify and assist in this appeal and neither the Veteran nor his representative have asserted any error as to these duties. See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). As previously noted, the Veteran was provided an opportunity to set forth his contentions before a Veterans Law Judges in September 2017. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that a "hearing officer" who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the Veteran has not raised any deficiency with the hearing and the Board does not otherwise find any prejudicial error. See Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). II. Procedural History The Veteran enlisted in the Army National Guard on December 4, 1976. His DD Form 214 shows that he reported for active duty for training in February 6, 1977, and, 22 days later, he was released from active duty for training on March 4, 1977, because of his failure to meet established physical standards due to bilateral pes planus. The RO originally denied the Veteran's claim for entitlement to service connection for bilateral pes planus in September 1978. Subsequently, the Veteran attempted to reopen the claim on numerous occasions. In May 1998, the Board found that new and material evidence had not been submitted to reopen the claim. In October 1998, the Veteran filed an additional application to reopen his claim. In November 2000, the Board denied reopening the claim and the Board decision was appealed to the United States Court of Appeals for Veterans Claims (CAVC). In a May 2001 order, CAVC granted the Secretary's Motion for Remand and to Stay Further Proceedings. The November 2000 Board decision was vacated and the case was remanded for the issuance of a decision in compliance with the Veterans Claims Assistance Act (VCAA). Pursuant to the Court's order, the Board readjudicated the case and, in a March 2002 decision, denied reopening the claim on the basis that new and material evidence had not been submitted. The Veteran appealed the Board's March 2002 decision to CAVC. In an August 2003 order, CAVC vacated the Board's March 2002 decision and remanded the matter for re-adjudication, to include consideration as to whether the Veteran was entitled to a tolling of the time period for filing a notice of disagreement from the September 1978 initial denial of service connection for pes planus. In a January 2006 Board decision, the Board found that equitable tolling was not warranted and that clear and unmistakable evidence demonstrates that the Veteran's pes planus existed prior to service and was not aggravated by active service. The Veteran appealed the Board's January 2006 decision to CAVC. In August 2007, CAVC affirmed the Board's January 2006 decision. III. New and Material Evidence Generally, a Board decision is final unless the Chairman of the Board orders reconsideration. See 38 U.S.C. §§ 7103(a), 7104(a); 38 C.F.R. § 20.1100(a) (2017). 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. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). "[N]ew evidence" means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156(a). Materiality has two components, first, that the new evidence pertains to the reason(s) for the prior final denial, and second, that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a determination whether the submitted evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying concepts derived from the duty to assist. Id. at 118. In making the determination of materiality, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board notes that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. The Veteran submitted a request to reopen his claim of entitlement to service connection for bilateral pes planus in February 2008. The Veteran contends that while serving in the military, he was required to march and jump from the top bunk of his bed to the floor for repeated drills which caused aggravation to his pre-existing pes planus. The Board denied the Veteran's claim for entitlement to service connection for bilateral pes planus in January 2006. The Veteran appealed the Board's denial to CAVC. In August 2007, CAVC affirmed the Board's January 2006 decision. Therefore, the Board's January 2006 decision is final. Furthermore, as the January 2006 decision is the last final decision of record, it is the evidence that was associated with the file since then that must be considered in connection with the new and material evidence inquiry. The evidence received since the prior denial include: (i) a treatment report from Dr. H, dated February 2010, (ii) treatment records from Dr. R.B. (iii) Social Security Administration records, (iv) treatment records from Dr. P.D., dated March 2010, and (v) a September 2017 Board hearing transcript. In order to reopen the Veteran's claim for entitlement to service connection for pes planus, the evidence associated with the file since the January 2006 Board denial must relate to an unestablished fact, by itself or when considered with other evidence, necessary to substantiate the claim. At the time of the last prior denial, the Board found that clear and unmistakable evidence demonstrates that the Veteran's pes planus existed prior to service, and that clear and unmistakable evidence demonstrates that the Veteran's pes planus was not aggravated during active service. As indicated above, the record at the time of the January 2006 Board denial included evidence of pes planus that existed prior to service and that did not worsen during service. In order to reopen the claim, the Veteran must submit new and material evidence suggesting an aggravation of his pes planus due to service. The Veteran submitted medical treatment records from his podiatrist Dr. R.L.B., dated May 2008. Dr. R.L.B reported that the Veteran continues to have painful right and left arch. Dr. R.L.B. expressed that his experience with acquired pes planus usually would be the "result of long term weight bearing with an underlying genetic predisposition." Dr. R.L.B. stated that the Veteran may have been asymptomatic in the past, prior to his term in the service, but in light of his flexibility, the Veteran can develop a symptomatic foot condition such as from a flat foot. In addition, Dr. R.L.B. expressed that he cannot say for certain that the Veteran's case is from over use during his stay in basic training. The Veteran submitted a report from Dr. H, dated February 2010. Dr. H. stated that, ever since the Veteran has been seen at the VA clinic, he has bad pain in each foot and exam shows bilateral flat foot. The Veteran submitted medical treatment records from Dr. P.D., dated March 2010. The records confirm that the Veteran has pes planus, but do not indicate that the Veteran's condition was permanently worsened by military service or due to service. A review of the Veteran's Social Security Administration records did not show that the Veteran's pes plans, which existed prior to active service, was aggravated by active military service. In September 2017, the Veteran testified that his feet give him trouble and that his feet pain has been continuous since service. After review of all the evidence, the Board notes that the pertinent evidence added to the record in this case, although new, is not material because it does no more than reflect what was previously known. There is no dispute that the Veteran has bilateral pes planus or that the disorder was manifest during his brief period of active service. The new evidence of record is either cumulative or redundant of the evidence previously considered. Reopening of the claim on this same factual basis is not warranted. Dr. R.L. expressed that he cannot say for certain that the Veteran's case is from over use during his stay in basic training. The evidence submitted do not address whether the Veteran's disability increased in severity during service, (i.e., was aggravated) using the standard of proof by VA, and is not material. That is, the issue is appellate status has been previously fully developed, to include an affirmance by the Court. The opinion from Dr. R.L. is cumulative and redundant of prior opinion evidence of record and does not provided a basis for granting the claim nor provide a basis for finding that there is an additional duty to obtain further opinion evidence. Although the Board has fully and sympathetically considered the record in conjunction with the low bar for reopening a claim for service connection, the Board finds the criteria for reopening this claim are not met and, therefore, this appeal must be denied. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). ORDER New and material evidence having not been received to reopen a claim of service connection for pes planus, the appeal is denied. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs