Citation Nr: 1806240	
Decision Date: 01/31/18    Archive Date: 02/07/18

DOCKET NO.  10-22 987	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to service connection for a bilateral foot condition (pes planus), to include on the basis of clear and unmistakable error (CUE) in a June 1980 VA rating decision that denied service connection.

2.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for pes planus.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

T.L. Bernal, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from October 1975 to October 1979.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which in pertinent part, granted service connection for right ear hearing loss and declined to reopen the claim for service connection for bilateral pes planus.

Following the May 2009 rating decision, the Veteran also filed an August 2009 Notice of Disagreement (NOD) with the issues of entitlement to increased ratings for right lower extremity varicose veins and left lower extremity varicose veins.  Although the Veteran was furnished a May 2010 Statement of the Case with respect to these issues, he did not timely perfect an appeal regarding these issues.  Therefore, these issues are not before the Board at this time.  

Similarly, following a January 2011 rating decision which denied service connection for left ear mastoiditis, the Veteran filed a January 2012 Notice of Disagreement.  Although a March 2015 Statement of the Case was issued with respect to this issue, he did not timely perfect an appeal.  Therefore, this issue is also not before the Board at this time.

In a March 2012 brief to the Board, the appellant's representative raised the issue of whether there was clear and unmistakable error (CUE) in the June 1980 rating decision that denied service connection for bilateral pes planus.  The Board previously referred this issue to the RO for appropriate action in a March 2012 decision/remand, again in a March 2014 decision, again in an October 2015 decision/remand, and again in a September 2016 decision/remand.  

The Board notes, however, that an allegation of CUE in a prior RO decision is not a claim, but rather is a motion for revision of a prior and final rating decision.  Review of the record demonstrates that in May 2017 a decision was rendered on the motion concerning CUE by the Agency of Original Jurisdiction (AOJ).  The AOJ found that CUE was not present and denied the motion for revision of a prior and final rating decision.  

The Veteran previously requested a Board hearing before a Veterans Law Judge via videoconference.  However, in a June 2015 correspondence, the Veteran cancelled his hearing request.  As no additional request for another hearing has been raised by the Veteran or his representative, the hearing request is deemed withdrawn.  See 38 C.F.R. § 20.704(e) (2017).


FINDINGS OF FACT

1. In June 1980, the RO, after considering the evidence then of record, including the Veteran's service treatment records, denied service connection for pes planus; the Veteran did not file a NOD, nor was new and material evidence received, within one year.  CUE is not indicated. 

2.  The evidence associated with the claims file subsequent to the June 1980 rating decision is cumulative or redundant of the evidence previously of record and is not sufficient to raise a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral pes planus.


CONCLUSIONS OF LAW

1.  The June 1980 rating decision, in which the RO denied service connection for pes planus, is final and CUE is not indicated.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.105, 3.156, 20.1103 (2017).

2.  Evidence received since the last final denial on the issues of service connection for pes planus is not new and material; therefore, the claim is not reopened.  38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Clear and Unmistakable Error (CUE)

Clear and unmistakable error is a very specific and rare kind of error.  It is the kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.  Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.  38 C.F.R. § 20.1403 (a); See Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999); Fugo v. Brown, 6 Vet. App. 40, 43 (1993); Hines v. Principi, 18 Vet. App. 227, 235 (2004).

In Russell v. Principi, the Court set forth a three-pronged test for determining when there is CUE present in a prior rating decision.  The criteria for establishing CUE are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question.  Russell v. Principi, 3 Vet. App. 310, 313-14 (1992).

In this case, the Board finds that the June 1980 rating decision does not contain clear and unmistakable error, as the correct facts, as they were known in June 1980, were accurately reported to the RO and the statutory and regulatory provisions extant at the time were correctly applied.  Thus, revision or reversal of the June 1980 decision is not warranted. 

First, the Veteran contends that a clear and unmistakable error is found in the June 1980 rating decision denying service connection for bilateral pes planus because he was presumed sound upon entry into service.  However, the Veteran's condition, identified as bilateral pes planus (claimed as pes planus of the left and right foot), is considered a congenital or developmental defect which is unrelated to military service and not subject to service connection.  

In other words, congenital conditions are conditions present from birth which are not incurred because of military service and cannot be awarded service connection as such.  

The rationale used at the time of the rating decision was in accordance with 38 C.F.R. § 4.57 in 1980 which stated, "[i]t is essential to make an initial distinction between bilateral flatfoot as a congenital or as an acquired condition.  The congenital condition, with depression of the arch, but no evidence of abnormal callosities, areas of pressure, strain or demonstrable tenderness, is a congenital abnormality which is not compensable or pensionable."  

The Veteran was provided a VA examination in June 1980 which noted that the Veteran had bilateral pes planus with eversion on the right only.  The examination at the time did not show abnormal callosities, areas of pressure, strain or demonstrable tenderness.  At the time of the 1980 adjudication, the Veteran's service treatment records were considered and complaints of pes planus were not present.   

Since the June 1980 VA examiner opined that the Veteran's bilateral pes planus was congenital, the RO correctly applied the statutory and regulatory provision available at the time to determine that the Veteran's disability was not service connected.  Therefore, the RO used the correct statutory and regulatory provisions available at the time and correctly applied them.

Second, the Veteran contends that he did not understand his right to appeal the VA decision in 1980 and the VA did not notify him of such.  However, in June 1980 the Veteran was notified of the rating decision and the process required to appeal the decision.  Contrary to his assertion that the VA appeals process was not properly explained, the Veteran utilized the VA appeals process in 1982 when he appealed a rating decision for another disability.  

In this case, the facts, as they were known at the time, were before the adjudicator; the error of the Veteran not understanding the appeals process would not have changed the outcome; and the rating decision made at the time was based on a statutory preclusion to congenital disabilities.  Based on the foregoing, the Board does not find a basis for CUE warranting revision or reversal of the June 1980 rating decision.  38 C.F.R. §§ 3.104(a), 3.105(a).

New and Material Evidence (NME)

In general, Board decisions are final on the date stamped on the face of the decision. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100.  Also, RO decisions that are not timely appealed are final.  See 38 U.S.C. § 7105; 38 C.F.R. § 20.200.  An exception to this rule is 38 U.S.C.§ 5108, which provides that 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 of the claim.

"New" evidence is existing evidence not previously submitted to agency decision makers.  "Material" evidence is 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 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).  In determining whether evidence is new and material, the "credibility of the evidence is to be presumed."  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material.  If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened.  See Smith v. West, 12 Vet. App. 312, 314 (1999).  If it is determined that new and material evidence has been submitted, the claim must be reopened.  The VA 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 appellant in developing the facts necessary for the claim has been satisfied.  See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C. § 5103A (eliminating the concept of a well-grounded claim). 

Claim for Bilateral Pes Planus

The Veteran was denied entitlement to service connection for bilateral pes planus in a June 1980 rating decision based on a finding that the condition was congenital and not acquired through military service.  The Veteran did not appeal that decision.  In a May 2009 rating decision, entitlement to service connection for bilateral pes planus was denied based on a finding that there was no new and material evidence to show that the condition was not congenital, and that bilateral pes planus was incurred in or aggravated by active service.  The Veteran did appeal that decision.  

The Veteran contends that his claim for bilateral pes planus should be reopened and readjudicated because his condition was acquired in service and has worsened.  However, the evidence which the Veteran has provided is both cumulative and redundant to his initial claim for service connection for bilateral pes planus.  

In June 1980, the Veteran was given a VA examination prior to his rating decision.  At that time, the examiner noted bilateral pes planus with eversion on the right only.  The examination did not show abnormal callosities, areas of pressure, strain or demonstrable tenderness.  In accordance with statutory guidance at the time of the examination, it was determined that the Veteran's condition was congenital and not acquired through trauma or injury.

The evidence of record at the time of the May 2009 denial included the following: the Veteran's STRs, which were silent for a diagnosis of, or treatment for, bilateral pes planus; the Veteran's entrance and exit medical exam; VA Medical Center treatment records showing the Veteran to have a diagnosis of bilateral pes planus; and, the Veteran's statements that he did not have flat feet (pes planus) prior to military service.

Treatment records were obtained from the VA medical Center (VAMC) in Fayetteville which shows a history of treatment for bunions on both feet as well as a history of gout; however, these records do not show any treatment for bilateral pes planus.  While the Veteran did provide a note from a podiatrist, Dr. D.S., the note simply states "[Veteran] has flat feet which can exacerbate knee problems."  This recitation does not provide an opinion as to whether the Veteran's condition is congenital in nature or acquired.

In August 2009, the Veteran raised the issue of his bilateral pes planus possibly being secondary to his service connected varicose veins disability.  Since the original June 1980 examiner did not opine as to whether the Veteran's service connected disability could incur or aggravate his bilateral pes planus, the RO ordered a VA examination in order to determine whether the Veteran's bilateral pes planus might have been incurred or aggravated by his service connected disability.  The Veteran was provided a VA examination in December 2011 to address this issue.

In December 2011, the VA examiner opined that the Veteran's bilateral pes planus was not aggravated nor caused by his service connected disability as they are two separate conditions.  The VA examiner found that the bilateral pes planus was not due to injury or trauma and that the Veteran had not received any treatment for his condition.  The examiner observed normal gait and posture with no weight bearing.  There was no tenderness, painful motion, weakness or disturbed circulation of the bilateral feet.  There was pes planus noted in both the right and left foot with a moderate degree of valgus in each foot.  The Veteran was diagnosed at the exam with bilateral pes planus with calcinoses spurs, degenerative joint disease and hallux valgus.  

Although the Veteran has provided evidence concerning diagnosis of bilateral pes planus, the evidence does not show that the Veteran's bilateral pes planus is an acquired foot deformity rather than a congenital condition.  Since no evidence has been provided which contradicts the findings of either VA examiner and the Veteran and his representative have not brought into question the adequacy of the VA examinations, the Board finds that the June 1980 exam and the December 2011 exam are adequate for adjudication purposes.

The Board finds that the evidence added to the record since the June 1980 rating decision is not new and material.  The additional evidence is redundant and does not speak to the reason the claim was denied.  The evidence fails to indicate that the Veteran's condition is not congenital.  Further, records confirming a current diagnosis are cumulative and redundant of the evidence previously considered by VA.  

Therefore, the evidence added to the record is not sufficient to raise a reasonable possibility of substantiating the claim.  Accordingly, because new and material evidence has not been received, reopening of the claim of entitlement to service connection for bilateral pes planus is not warranted.  The Board finds that no new and material evidence has been received and, as such, the Veteran's claim for bilateral pes planus remains denied.

Duties to Notify and Assist

VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that assistance would aid in substantiating the claim.  VA must also notify the claimant of any information, and any medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim.  38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159.  As part of the notice, VA must specifically inform the claimant and the claimant's representative, if any, of which part, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.

Notice to a claimant should be provided at the time or immediately after, VA receives a complete or substantially complete application for benefits.  38 U.S.C. § 5103(a); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  The timing requirement applies equally to the effective date element of a service connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

When providing notice, it is necessary for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of the new and material evidence that must be presented.  Kent v. Nicholson, 20 Vet. App. 1 (2006).

With regard to the claim to reopen the previously denied claim of entitlement to service connection for bilateral pes planus, the Board finds that the Veteran has been provided adequate notice in response to the claim.  The record shows that the Veteran was mailed letters in September 2008 and May 2010 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence.  The September 2008 and May 2010 letters also provided the Veteran with appropriate notice with respect to the disability rating and effective date elements of the claim and of the reasons for the prior denial and the unique character of the new and material evidence that must be presented.
The Board also finds that the Veteran has been provided adequate assistance in response to his claim.  The Veteran's service records are of record.  VA and private treatment records have been obtained.  The Board acknowledges that the Veteran has not been provided a VA examination in response to the claim to reopen the previously denied claim of entitlement to service connection for bilateral pes planus and that a VA medical opinion has not been obtained in response to that claim.  However, VA has no obligation to provide an examination or to obtain an opinion if new and material evidence has not been presented.  38 C.F.R. § 3.159(c)(4).

ORDER

Entitlement to service connection for a bilateral pes planus, to include on the basis of CUE in a June 1980 VA rating decision that denied service connection, is denied.

As new and material evidence has not been received to reopen the claim of entitlement to service connection for bilateral pes planus, the appeal is denied.


JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs