Citation Nr: 18142944 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 15-13 790 DATE: October 17, 2018 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for pes planus, and the claim is reopened. REMANDED Entitlement to service connection for pes planus is remanded. FINDING OF FACT Additional evidence received since the June 1992 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection of pes planus, and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received to reopen the Veteran’s claim for service connection for bilateral pes planus. 38 U.S.C. §§ 1131, 5108 (2012); 38 C.F.R. §§ 3.303, 3.156 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1989 to October 1991. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for pes planus The Veteran initially claimed entitlement to service connection for pes planus in October 1991. Although rating decisions that are not appealed within one year become final, they may be reopened and reviewed if new and material evidence is received. See 38 U.S.C. §§ 7105, 5108; 38 C.F.R. § 20.200 (2018). Regardless of the RO’s findings, the Board must adjudicate de novo whether new and material evidence has been submitted because the matter goes to the Board’s jurisdiction. See Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). Evidence is “new” when it was not previously submitted and it is “material” when-by itself or with previous evidence of record-it relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. The phrase “raises a reasonable possibility of substantiating the claim” is a low threshold, to be viewed as “enabling rather than precluding reopening.” See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). During this analysis, the evidence must be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). A rating decision of June 1992 denied entitlement to service connection for pes planus. The reason for the denial was essentially a lack of evidence that the Veteran’s pes planus was aggravated by service. The Agency of Original Jurisdiction (AOJ) pointed to a May 1991 x-ray which showed a bilateral hallux valgus deformity, but no degenerative changes. Also pointed to was a September 1991 medical board finding that the Veteran’s pes planus was not permanently aggravated and not compensable. The June 1992 decision is final based on the evidence then of record because the Veteran did not appeal or submit new evidence within one year of that decision. 38 U.S.C. § 7105; 38 C.F.R. § 3.156. At the time of the June 1992 rating decision, the evidence of record included the Veteran’s service treatment records, and available VA medical records, as well as the Veteran’s statement in his application for compensation. In December 2012, the Veteran submitted an application to reopen the previously denied pes planus claim. In an October 2013 rating decision, the AOJ determined that new and material evidence had been received to reopen the claim of service connection for service connection for bilateral pes planus, and denied the claim on its merits. At the time of this rating decision, the AOJ considered the Veteran’s service treatment records, VA treatment records from February to October 2013, and a VA examination of October 2013. New evidence associated with the claims file since the last final denial of June 1992, in addition to that relied upon by the AOJ in October 2013, includes a general VA medical examination addressing the Veteran’s left foot reconstruction surgery, statements of nexus from the Veteran, and VA medical records including foot treatment and surgery records from 2013. This evidence is material because it directly relates to whether or not the Veteran’s bilateral pes planus had its onset or was aggravated in service. Indeed, the Veteran is competent to report observable symptoms and, further, though he cannot diagnose pes planus, he can attest to the severity of symptoms and establish that these symptoms began in service and persisted since that time. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). New and material evidence having been received, the claim of entitlement to service connection for bilateral pes planus is reopened. REASONS FOR REMAND 1. Entitlement to service connection for pes planus is remanded. Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. The Veteran was afforded a VA examination October 2013. The examiner confirmed the Veteran’s diagnosis of bilateral pes planus but opined that the Veteran’s bilateral pes planus is less likely than not caused by or the result of military service. In support of this opinion, the examiner stated that review of the Veteran’s medical records shows that it fails to document chronicity of the Veteran’s pes planus since service, and further, that pes planus existed prior to service. In addition, the examiner stated that there is no objective clinical evidence that the Veteran’s pes planus was incurred, caused, worsened, aggravated, or permanently increased by military service. Rather, the examiner opined that the pes planus increased due to the natural progression of the disease. Further, “moderate pes planus, asymptomatic” was documented on the Veteran’s October 1988 entrance examination, as noted by the VA examiner. The presumption of soundness, accordingly, did not attach. See 38 U.S.C. § 1111. As the Veteran’s preexisting pes planus was noted at the time of entry into service, service connection may be granted only if it is shown that the condition worsened beyond its natural progression during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The Veteran’s service treatment records show that at a July 1991 medical board evaluation, the Veteran’s pes planus was assessed as “symptomatic” and “chronic.” The October 2013 VA examiner failed to adequately address whether there is clear and unmistakable evidence to rebut the presumption of aggravation. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (2018). An addendum opinion should thus be obtained. Once VA undertakes the effort to provide an examination, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Thus, a remand for a new medical opinion is necessary to fairly adjudicate the Veteran’s claim. While in remand status, any pertinent, updated treatment records should be obtained. The matter is REMANDED for the following action: 1. Obtain and associate any outstanding VA and/or private medical records with the Veteran’s claims file. 2. Once the above has been completed, return the claims file to the VA examiner who provided the October 2013 opinion, if available. If the examiner is not available, another examiner should respond to the below inquiries. The need for an additional examination is left to the discretion of the examiner. Following review of the claims file, including a copy of this remand, the examiner should provide a well-reasoned opinion as to each of the following: (a) Whether there is clear and unmistakable (obvious, manifest, or undebatable) evidence that the Veteran’s preexisting pes planus was not aggravated beyond the natural progression of the condition during active service. The examiner should specifically note the October 1988 entrance examination which documented “moderate pes planus, asymptomatic,” as well as the Veteran’s July 1991 medical board evaluation, at which his pes planus was assessed as “symptomatic” and “chronic.” The examiner is advised that the Veteran is competent to report history and symptoms and that his reports must be considered in formulating the requested opinion. If the examiner rejects the Veteran’s reports, the examiner must provide a rationale for doing so. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G.C., Associate Counsel