Citation Nr: 18150401 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-44 667 DATE: November 15, 2018 ORDER New and material evidence has been submitted to permit reopening the Veteran’s claim for entitlement to service connection for flat feet. REMANDED Entitlement to service connection for flat feet is remanded. FINDING OF FACT Evidence received since the May 2013 rating decision denying service connection for flat feet is neither cumulative nor redundant of the evidence of record, and raises a reasonable possibility of substantiating the claim as it relates to an unestablished fact. CONCLUSION OF LAW The criteria to permit reopening the Veteran’s claim for entitlement to service connection for flat feet based on new and material evidence have been met. 38 U.S.C. §§ 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from April 1, 1980 to May 1, 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee (Agency of Original Jurisdiction (AOJ)). 1. Whether new and material evidence has been received to permit reopening the Veteran’s claim for service connection for flat feet Generally, an unappealed AOJ denial is final under 38 U.S.C. § 7105(c). A claim for service connection may be reopened, however, if new and material evidence is received. 38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140 (1991). Per 38 C.F.R. § 3.156, “new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of 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 the VA’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a) (2012); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Veteran filed a claim for service connection for flat feet in March 2013. At that time, the records associated with the claims folder included service treatment records (STRs) reflecting her April 22, 1980 treatment Achilles tendon area pain of 2 days duration. The examiner, noting the Veteran had poor arch development, provided an assessment of Achilles tendonitis with flat feet. Her treatment included wearing tennis shoes for 72 hours and fitment for arch supports. Notably, this disorder was not noted upon entry into service. The Veteran also provided a lay statement indicating that her flat feet caused her problems and that she was ordered to wear arches in her boots to combat the condition. She also submitted private medical records which did not reflect any relevant findings. A May 2013 AOJ decision denied service connection for flat feet as not being incurred in service. The Veteran was provided notice of this decision and her appellate rights by letter dated May 10, 2013. However, the Veteran did not submit a notice of disagreement or new and material evidence within one year of notice of the decision. This decision, therefore, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. Evidence submitted since the May 2013 final AOJ rating decision includes a two separate Disability Benefit Questionnaires (DBQs) reflecting a current diagnosis of painful bilateral pes planus and a witness statement attesting to the Veteran’s treatment for painful feet in service. The Board finds that this information provided and evidence associated with the Veteran’s claims file is sufficient to permit reopening her claim for entitlement to service connection for flat feet. Specifically, the new evidence of record confirms a post service diagnosis of flat feet with lay witness testimony of painful feet which began in service, which raises the possibility of substantiating her claim. Therefore, the Board finds that the evidence of record submitted since May 2013 pertaining to the Veteran’s flat feet is new and material, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. As such, the Board will permit reopening the claim. REASONS FOR REMAND 1. Entitlement to service connection for flat feet is remanded. Regrettably, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the issues on appeal, in order to afford the Veteran every possible consideration. The record reflects that the Veteran was treated for Achilles tendonitis with flat feet in service. Notably, this disorder was not noted on entry and, thus, the Veteran is presumed to have entered service in sound condition. 38 U.S.C. § 1111. She has provided VA DBQs confirming a post service diagnosis of flat feet (pes planus). The Board finds that medical opinion is necessary to decide this claim. The matter is REMANDED for the following action: 1. The AOJ shall associate the Veteran’s most recent outstanding VA medical treatment records with her file, if any. 2. Ask the Veteran to complete a VA Form 21-4142 for any private treatment providers that have treated her for flat feet or any foot condition. Thereafter, obtain and associate with the claims folder any private treatment records identified. 3. Then, the Veteran should be afforded an appropriate VA examination in order to determine the current nature and etiology of her flat feet. The claims file must be made available to and be reviewed by the examiner. The examiner should identify all disorders of the feet and Achilles heel, if any. With respect to the feet, the examiner should opine whether the flat feet treated in service clearly and unmistakably preexisted the period of active duty service beginning on April 1, 1980 and, if so, was clearly and unmistakably not aggravated beyond its natural progression during this period of service. For any other disorder of the feet and/or Achilles heel, whether such disorder at least as likely as not had its onset in service or is otherwise related to service? The examiner should consider the following: • the Veteran’s service treatment records, specifically the note from April 22, 1980 recording Achilles tendonitis and flat feet; • buddy letters from October 2015 and June 2017; and • the DBQs from October 2015 and June 2017. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Thereafter, readjudicate the claim. If any benefit sought on appeal remains denied, furnish the Veteran and his representative, if any, a supplemental statement of the case and an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Victoria A. Narducci, Associate Counsel