Citation Nr: 18153008 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-46 986 DATE: November 27, 2018 ORDER Whether new and material evidence has been introduced to reopen a claim of entitlement to service connection for a low back disorder is granted. Entitlement to service connection for bilateral pes planus is denied. REMANDED Entitlement to service connection for a low back disorder is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for a low back disorder was denied in an October 2009 rating decision. The Veteran was informed of that decision and his appellate rights, but did not appeal or submit new and material evidence within one year. 2. Evidence received into the record since the October 2009 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the Veteran’s claim for service connection for a low back disorder. 3. A preponderance of the evidence shows that the Veteran’s bilateral pes planus clearly and unmistakably predated his entry into active duty service, and clearly and unmistakably was not aggravated beyond its normal course of progression by any aspect of active duty service. CONCLUSIONS OF LAW 1. The October 2009 rating decision denying entitlement to service connection for a low back disorder is final. 38 U.S.C. § 1705(c); 38 C.F.R. § 20.1103 (2017). 2. The evidence received since the October 2009 rating decision is new and material, and the claim of entitlement to service connection for a low back disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (2017). 3. The criteria for entitlement to service connection for bilateral pes planus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from September 1989 to June 1992. This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be established for disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Federal Circuit has held that continuity of symptomatology under 38 C.F.R. § 3.303(b) applies only to chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (2013). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 1. Whether new and material evidence has been introduced to reopen a claim of entitlement to service connection for a low back disorder Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. 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. New evidence means existing evidence not previously submitted to VA. 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. 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Id. at 117. Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. at 117. The Veteran’s claim for service connection for a low back disorder was originally denied in October 2009. The Veteran was informed of the rating decision, but did not appeal or submit new and material evidence within one year; hence, the October 2009 decision became final. Since that time, the Veteran has advanced additional evidence, including medical treatment records and lay statements in support of his claim that shed additional light on his service and the nature of his disability. The Board finds this evidence “new,” because it postdates the aforementioned rating decisions. The Board also finds the new evidence “material,” because it bears directly on points at issue on the question of entitlement to service connection in the instant case, and raises at least a reasonable probability of substantiating the underlying claims. Consequently, the claim of service connection for a low back disorder is reopened. The reopened claim is addressed in the remand portion of the decision below. 2. Entitlement to service connection for bilateral pes planus The Veteran contends that his foot problems, diagnosed as pes planus with plantar fasciitis, relates to his active duty service. Although he acknowledges that he has always had flat feet, he has stated that marching and running in service caused the condition to worsen beyond its normal course of progression. As noted below, the burden does not fall on the Veteran to demonstrate aggravation; rather, it is VA’s burden to demonstrate the lack of increase in severity of the condition beyond its normal course of progression. Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111, 1153. Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306 (b). Essentially, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C. § 1153. VA’s Office of General Counsel has issued a precedent opinion holding that in order to rebut the presumption of soundness in 38 U.S.C. § 1111, VA must demonstrate by clear and unmistakable evidence both that the disease or injury in question existed prior to service and that it was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attaches. Turning to the evidence, service treatment records confirm the Veteran was treated for left foot pain while on active duty, the pain attributed to his congenital flat feet. These records do not show a single triggering incident or injury; rather, the Veteran has stated that marching and running on a repeated basis exacerbated his foot condition. Post service treatment records document the Veteran’s foot condition and reflect periodic complaints of foot pain. The Veteran has undergone two VA examinations in connection with his claim for service connection. The first took place in September 2012. That examiner noted the Veteran presented with “no identifiable [foot] condition other than pes plans,” adding that despite the Veteran’s current symptoms, there was no evidence of any service-related exacerbation or aggravation of the condition. A second VA examination was conducted in August 2014. That examiner explicitly stated that, based on a thorough review of the record and examination of the Veteran, the Veteran’s foot condition clearly and unmistakably existed prior to service, and was clearly and unmistakably not aggravated beyond its normal progression therein, explaining that the Veteran “does have pes planus that does not appear to have progressed beyond its normal course,” adding that the Veteran’s current symptomatology was unlikely attributable specifically to any aspect of military service. The examiner noted in particular that the service treatment records were bare of evidence of any significant or debilitating in-service foot injury. There is little doubt the Veteran experienced foot pain related to his condition during service. As noted above, service treatment records show he sought treatment for left foot pain while on active duty. However, the record is bare of evidence of any single event or pattern of use causing exacerbation of the condition. Further, no treating or examining provider has opined that any aspect of the Veteran’s active service contributed to an exacerbation of his symptomatology beyond its ordinary course of progression. The Veteran’s lay statements, while competent and credible, are insufficient to establish that incidents of foot pain in service constituted aggravation of his foot disorder beyond its normal course of progression. Accordingly, the Board finds that service connection is not warranted in this case. The August 2014 VA examiner found that the Veteran’s foot problems were clearly and unmistakably not aggravated beyond their normal or expected course of progression during active duty, or as a result of any aspect of active duty, and there is no compelling medical evidence to the contrary. Consequently, the weight of the evidence is against the Veteran’s claim. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (noting that when all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.) As the weight of the evidence is against the current claim, service connection for a disability of the bilateral feet must be denied. 38 C.F.R. § 3.102 (2016). See also 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to service connection for a low back disorder is remanded. Having reopened the issue of entitlement to service connection for a low back disorder, the Board finds that additional development must be completed before the matter can be finally adjudicated. The Veteran has indicated that he believes his low back symptoms are etiologically related to his service connected knee disability. VA medical records confirm the Veteran’s low back pain has been periodically associated with his knee problems by treating providers. This theory of entitlement has not yet been properly evaluated by a VA examiner. Accordingly, on remand, a new examination must be conducted and a medical opinion obtained as to the etiological relationship, if any, between the Veteran’s service connected knee disability and any diagnosed low back disorder. The matter is REMANDED for the following action: 1. After obtaining the necessary authorization, update the file with any VA or private treatment records relevant to the Veteran’s claims. If any requested records are unavailable, the Veteran should be notified to that effect. 2. Schedule the Veteran for an examination by an appropriate medical professional to ascertain the nature and etiology of his low back disorder. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. (a) Please identify my medical diagnosis the Veteran’s low back disorder(s). (b) For each diagnosis, the examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the Veteran’s low back condition began in service, or within a year of separation therefrom, or is otherwise related to service? (c) For each diagnosis that is deemed not to have begun in service, within a year of separation therefrom, and that is not otherwise related to service, the examiner should state whether it is at least as likely as not that the low back condition has been caused or aggravated beyond its normal course of progression by any other service-connected disability, including the Veteran’s service-connected knee disabilities. 3. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Z. Sahraie, Associate Counsel