Citation Nr: 18153061 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 15-27 779 DATE: November 28, 2018 ORDER New and material evidence has been received for the claim of service connection for pes planus, and the claim is reopened. New and Material evidence has been received for the claim of service connection for axillary dermatitis, and the claim is reopened. Entitlement to service connection for pes planus is denied. REMANDED Entitlement to service connection for axillary dermatitis. is remanded. Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder is remanded. FINDINGS OF FACT 1. A July 1993 rating decision denied service connection for pes planus; the Veteran did not perfect an appeal. 2. Evidence submitted since the July 1993 rating decision, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and therefore raises a reasonable possibility of substantiating the claim for service connection for pes planus. 3. A July 1993 rating decision denied service connection for axillary dermatitis; the Veteran did not perfect an appeal. 4. Evidence submitted since the July 1993 rating decision, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and therefore raises a reasonable possibility of substantiating the claim for service connection for axillary dermatitis. 5. It is clear and unmistakable that the Veteran’s pes planus preexisted service and was not aggravated by his active service. CONCLUSIONS OF LAW 1. The July 1993 rating decision which denied service connection for pes planus is final. 38 U.S.C. § 7105 (2012). 2. New and material evidence has been received since the July 1993 rating decision and the claim of entitlement to service connection for pes planus is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The July 1993 rating decision which denied service connection for axillary dermatitis is final. 38 U.S.C. § 7105. 4. New and material evidence has been received since the July 1993 rating decision and the claim of entitlement to service connection for axillary dermatitis is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 5. The criteria for Entitlement to service connection for pes planus have not been met. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1988 to November 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in October 2014 by the Department of Veterans Affairs (VA) Regional Office (RO) which reopened and denied the issues of entitlement to service connection for pes planus and entitlement to service connection for axillary dermatitis. The Rating Decision concerning the Veteran’s claim for an increased rating for posttraumatic stress disorder (PTSD) was issued in September 2014. A Notice of Disagreement regarding the Veteran’s pes planus and axillary dermatitis claims was received in November 2014. In May 2015, a Statement of the Case was issued, and, in July of that year, the Veteran filed his substantive appeal (via a VA Form 9). The Veteran did not attend his scheduled hearing. New and Material evidence for the claim of service connection for pes planus In a July 1993 rating decision, the RO denied service connection for pes planus on the basis that the Veteran failed to report for a VA examination. A notice of disagreement was not received within the subsequent one-year period nor was pertinent evidence received. Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011). Therefore, the RO’s July 1993 rating decision is final. 38 U.S.C. § 7105. Prior unappealed decisions are final. However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that, when “new and material evidence” is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decisionmakers. 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. 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). According to the Court, the pertinent VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). Since the last prior final decision, evidence has been added to the record. The additional evidence of record consists of an October 2014 Statement in Support of Claim, an October 2014 Flatfoot (Pes Planus) Disability Benefits Questionnaire, and Washington VAMC treatment notes from September 23, 2014 to October 15, 2014. For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed, unless the evidence is inherently incredible or consists of statements which are beyond the competence of the person making them. Justus v. Principi, 3 Vet. App. 510 (1992); Meyer v. Brown, 9 Vet. App. 425 (1996); King v. Brown, 5 Vet. App. 19 (1993); Duran v. Brown, 7 Vet. App. 216 (1994). Evidence may be considered new and material if it contributes to a more complete picture of the circumstances surrounding the origin of a veteran’s injury or disability, even where it will not eventually convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010) In this case, the new lay and medical evidence contributes to a more complete picture of the circumstances surrounding the origin of a veteran’s injury or disability because it provides a diagnosis, history, lay account of symptoms and nexus opinion, which in combination raises a reasonable possibility of substantiating the claim. The Board finds that new and material evidence has been received since July 1993 rating decision. Therefore, the claim of entitlement to service connection for pes planus is reopened. New and Material evidence for the claim of service connection for Axillary Dermatitis In a July 1993 rating decision, the RO denied service connection for axillary dermatitis on the basis that that the Veteran failed to report for a VA examination. A notice of disagreement was not received within the subsequent one-year period nor was pertinent evidence received. Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011). Therefore, the RO’s July 1993 rating decision is final. 38 U.S.C. § 7105. Since the last prior final decision, evidence has been added to the record. The additional evidence of record consists of a Statement in Support of Claim received February 2013, a September 2014 Compensation and Pension examination, and a November 2014 NOD, in which the Veteran gave a lay account of skin irritation since service. In this case, the additional new lay and medical evidence suggests a basis for service connection. That evidence raises a reasonable possibility of substantiating the claim, as the Veteran has stated that he currently experiences skin irritation, and has since service in his November 2014 NOD. The Board finds that new and material evidence has been received since July 1993 rating decision. Therefore, the claim of entitlement to service connection for axillary dermatitis is reopened. Service connection for pes planus The Veteran contends that his pes planus is related to his active service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. 1110, 1131 (West 2014); 38 C.F.R. 3.303(a) (2018). A Veteran is presumed to be in sound condition, except for defects, infirmities, or disorders noted when examined, accepted, and enrolled for service, or when clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. § 1111. The burden is on the Government to rebut the presumption of sound condition upon induction by clear and unmistakable evidence showing that the disorder existed prior to service and was not aggravated by service. See VAOPGCPREC 3-2003 (holding in part, that 38 C.F.R. § 3.304 (b) is inconsistent with 38 U.S.C. § 1111 to the extent it states that the presumption of sound condition may be rebutted solely by clear and unmistakable evidence that a disease or injury existed prior to service). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304 (b). During the Veteran’s March 23, 1988 enlistment examination, the Veteran was noted to have asymptomatic minimal arches of the feet. During an October 2014 VA examination, the Veteran reported that once he was in the Army, he developed tingling in his arches and pain in his feet with walking and marching which occurred his entire military career. The examiner opined that the Veteran’s condition clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness. The rationale provided by the examiner stated that upon examination, the Veteran had a mild, minimal degree of pes planus, and that the entrance examination noted minimal arches, asymptomatic, and therefore the veteran’s pes planus condition has not been aggravated beyond its natural course. The Board has carefully reviewed the evidence of record, and finds pes planus clearly and unmistakably existed prior to entrance into service. In this regard, the notations on the entrance examination that he had minimal arches. Considering the foregoing, the Board finds that the condition clearly and unmistakably existed prior to the Veteran’s entrance into active duty. The question now is whether the Veteran’s pre-existing condition was aggravated during service. See VAOPGCPREC 3-2003 (to rebut the presumption of sound condition, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service). The Veteran has specifically alleged that the condition was aggravated during service due to the rigors of marching. The Board has carefully reviewed the evidence of record and finds that the pre-existing pes planus condition clearly and unmistakably was not permanently aggravated during service. Service treatment records do not reflect that the symptoms and manifestations of the Veteran’s pre-existing pes planus increased in severity during his service. As noted above, the Veteran’s most recent VA examination of the feet shows the same severity of minimal arches as the entrance examination. The Board accords this medical opinion high probative value as it was made after a physical examination and review of the Veteran’s statements. There is no competent evidence that contradicts that medical conclusion. In light of the above, the Board finds that the evidence is clear and unmistakable that the Veteran’s pre-existing pes planus was not aggravated by service. In doing so, the Board recognizes the Veteran’s statements that his disability was aggravated by the rigors of service. However, as discussed above, the Board does not find the lay opinion to be as probative as the medical opinion. Although lay persons are competent to provide opinions on some medical issues, determining whether a pre-existing disability was aggravated by active service falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report symptoms, he has not demonstrated that he possesses the requisite expertise to render complex medical opinions, such as is needed in this case. See Jandreau, supra. As such the Board assigns no probative weight to these assertions. For the reasons described above, the Board finds that the presumption of soundness at entrance is rebutted, that the evidence of record clearly and unmistakably shows that the Veteran had a pre-existing condition prior to entering service, and that the condition was not aggravated by his period of service. Accordingly, entitlement to service connection for pes planus is denied. The benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107 (b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND 1. Entitlement to service connection for axillary dermatitis is remanded. During the Veteran’s skin VA examination, he denied any symptoms of axillary dermatitis in the past several years. However, review of the Veteran’s record shows lay testimony of existing skin irritation since service. (See October 2014 NOD). Furthermore, the examiner did not render an opinion as to whether the Veteran’s axillary dermatitis, which was noted on the service entrance examination, preexisted service and if the Veteran’s axillary dermatitis was aggravated by the Veteran’s service. For the reasons stated above, a new VA examination is necessary to determine etiology and whether or not there is a current diagnosis axillary dermatitis. 2. Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder is remanded. Since the Veteran’s most recent May 2017 Supplemental Statement of the Case regarding his PTSD claim, new evidence has been added to the record in the form of VA treatment records received in October 2017 and October 2018 to include a March 21, 2017 treatment note documenting homicidal ideation. Such new evidence is pertinent and cannot be waived. A remand is required for AOJ review and an issuance of a new SSOC.   The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s claims file all outstanding VA treatment records regarding the Veteran’s axillary dermatitis and PTSD. 2. Additionally, send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional private treatment records pertinent to the claims on appeal that are not currently of record 3. After all outstanding records have been associated with the claims file, schedule the Veteran for an appropriate VA examination to obtain an opinion regarding the Veteran’s axillary dermatitis. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The VA examiner should thoroughly review the Veteran’s claims file, as well as a complete copy of this Remand, in conjunction with the examination. The VA examiner should note that this action has been accomplished in the VA examination report. After reviewing the record and examining the Veteran, the examiner is asked to address each of the following questions: (a) whether the axillary dermatitis clearly and unmistakably (i.e., highest degree of medical certainty) pre-existed military service. (b) If pre-existence is demonstrated clearly and unmistakably, the physician should then opine whether the disorder was clearly and unmistakably not aggravated (i.e., not permanently worsened beyond the natural progression of the disease) during military service. If necessary, and to the extent possible, reconcile this opinion with the Veteran’s lay statements regarding onset and continuity of symptoms. If it is found that there is clear and unmistakable evidence that the Veteran’s disability existed prior to service AND that there is clear and unmistakable evidence that the condition was not aggravated by service, the physician should clearly indicate the clear and unmistakable evidence supporting his/her conclusions. (c) If, however, the physician cannot clearly and unmistakably determine that axillary dermatitis pre-existed military service, OR that any preexisting disability was not aggravated in service, the physician must take as conclusive fact that the Veteran was sound on entrance into the military. (d) After presuming such, the physician should then opine as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that any currently diagnosed axillary dermatitis had its onset in service or is related to any in-service disease, event, or injury, to service. 4. Following the completion of the foregoing, the RO/AMC should readjudicate the Veteran’s claims for posttraumatic stress disorder AND axillary dermatitis. If the claim is denied, supply the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs