Citation Nr: 18141647 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 15-34 126 DATE: October 11, 2018 ORDER New and material evidence having been received, the application to reopen a previously denied claim of entitlement to service connection for pes planus is granted and the claim is reopened. Service connection for pes planus is granted. FINDINGS OF FACT 1. In an April 1975 rating decision, the claim of entitlement to service connection for pes planus was denied on the ground that the Veteran’s pes planus preexisted his active duty service. 2. The evidence added to the record since the April 1975 rating decision relates to an unestablished fact that is necessary to substantiate the claim of service connection for pes planus. 3. Resolving reasonable doubt in the Veteran’s favor, it is at least as likely as not that the Veteran’s preexisting pes planus was aggravated by active duty service. CONCLUSIONS OF LAW 1. The April 1975 rating decision that denied the Veteran’s claim of entitlement to service connection for pes planus is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Because the evidence received after the April 1975 rating decision is new and material, the requirements to reopen the Veteran’s claim of entitlement to service connection for pes planus have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.102, 3.156. 3. The criteria for service connection for pes planus have been met. 38 U.S.C. §§ 1110, 1153, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1974 to April 1974. New and Material Evidence Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for pes planus 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); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulations, “new” evidence is defined as evidence not previously submitted to agency decision-makers. 38 C.F.R. § 3.156(a). “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. Id. If it finds that the submitted evidence is new and material, 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 veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Moreover, when determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In this case, the Veteran is claiming entitlement to service connection for pes planus. The Veteran’s claim was previously denied in April 1975 on the ground that the Veteran’s pes planus preexisted his active duty service. The Veteran did not appeal that decision, nor did he submit any new and material evidence within a year of receiving it. This represents the last final denial of the Veteran’s claim seeking service connection for pes planus. After a review of the evidence submitted since the April 1975 rating decision became final, the Board determines that the claim should be reopened. The evidence now includes lay statements and new medical evidence. This evidence raises the possibility that the Veteran’s pes planus may have been aggravated by his active duty service. Not only is this evidence “new” because it was not of record prior to the last final denial of the claim, it is also “material” because it relates to an unestablished fact necessary to support the claim. Therefore, the claim should be reopened on this basis. Shade v. Shinseki, 24 Vet. App. 110, 118-21 (2010); see also 38 C.F.R. § 3.156(a).   Service Connection Entitlement to service connection for pes planus The Veteran is claiming entitlement to service connection for pes planus. Specifically, the Veteran asserts that his preexisting pes planus was aggravated by active duty service. Under the relevant laws and regulations, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, to prevail on a service connection claim, 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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). As an initial matter, in the report from the Veteran’s 1974 entrance examination, the examining physician noted that the Veteran had pes planus prior to entering active duty service. As a result, there is clear and unmistakable evidence that the Veteran had pes planus prior to active service and the presumption of soundness does not attach. See 38 U.S.C. 1153; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Although the Veteran’s pes planus preexisted service, the evidence of record indicates that his disorder was aggravated by active service. Specifically, the medical evidence, in conjunction with the credible statements of the Veteran, his sister and mother, indicates that his pes planus increased in severity during service. Here, the Veteran was qualified for enlistment and induction into Army in February 1974. The Veteran’s service treatment records reflect that in March 1974, the Veteran sought treatment for bilateral foot pain, was diagnosed with supple severe pes planus bilateral, was placed on a physical profile that immediately suspended him from all military training, was determined to be not medically qualified for active duty service due to his pes planus, and was discharged due to his pes planus. Additionally, the competent and credible testimony of the Veteran, his mother, and his sister shows that since service, the Veteran has endured worsening foot pain and a steady decline in the functionality of his feet. Thus, the Veteran’s pes planus was clearly aggravated during service. Next, there is no clear and convincing evidence that the Veteran’s pes planus was due to the natural progression of the disease. Indeed, the record is devoid of any evidence suggesting that the Veteran’s suspension from training and discharge from active duty service were due to the natural progression of the disease. Thus, the Board concludes that the record does not contain clear and convincing evidence that the worsening of the Veteran’s pes planus was not due to service. As previously discussed, the Veteran sought treatment for bilateral foot pain during active duty service, and his pes planus increased in severity during active duty service, resulting in his placement on a physical profile suspending him from training and resulting in his discharge. Therefore, resolving all reasonable doubt in the Veteran’s favor, the Board concludes that the weight of the evidence supports service connection or, at the very least, is in in relative equipoise. Accordingly, the Veteran’s claim seeking service connection for pes planus is granted. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Crosnicker, Associate Counsel