Citation Nr: 18154904 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 15-31 268A DATE: December 4, 2018 ORDER Entitlement to service connection for bilateral foot disorder, to include bilateral pes cavus and plantar fasciitis, is granted. FINDINGS OF FACT 1. New and material evidence has been submitted to reopen the claim of service connection for bilateral foot disorder. 2. The Veteran’s bilateral foot disorder had its onset in service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the service connection claim for bilateral foot disorder. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for granting the claim for service connection for bilateral foot disorder, to include bilateral pes cavus and plantar fasciitis, are met. 38 U.S.C. § 7105, 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the Marine Corps from February 1994 to December 1994. The Veteran previously submitted a claim of entitlement to service connection for bilateral foot disorder which was denied in a June 1995 rating decision on the basis that the Veteran’s condition preexisted military service and that his military service did not aggravate his condition. The June 1995 rating decision became final because the Veteran did not submit a Notice of Disagreement or new evidence in connection with the claims within the appeal period. See 38 C.F.R. § 3.156(b). The Veteran attempted to reopen his claim, but a February 2005 RO decision declined to reopen due to a lack of new and material evidence. In 2011, Veteran again attempted to reopen his claim, and again the RO denied in an October 2011 decision for lack of new and material evidence. 1. New and Material Evidence In connection with the Veteran’s claim to reopen, the Veteran provided two medical opinions from private physicians. A 2011 statement from Dr. TG opines 1.) the Veteran has plantar fasciitis, and 2.) plantar fasciitis is caused by repetitive stress on feet “such as walking/hiking/running particularly in boots”. A 2015 statement from Dr. RC notes the Veterans’ foot pain was ongoing. Dr. RC found “no abnormalities on [the Veteran] today that would suggest this is congenital.” Additionally, the Veteran provided internet articles on plantar fasciitis from WebMD.com, About.com, and Emedicinehealth.com. In his February 2017 hearing, Veteran testified that during service he was required to stand for prolonged periods of time in boots. See February 2017 Hearing Transcript at 5. Thus, the Board finds that new and material evidence has been received sufficient to reopen his previously denied claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board finds that the February 2011 private medical opinions of the Veteran’s treating physicians is new and material evidence sufficient to allow for the reopening of his previously denied claim of service connection for a bilateral foot disorder. See 38 U.S.C. § 5108; see also 38 C.F.R. § 3.156(a). This evidence is “new” evidence because it was not previously of record and “material” because it addresses an unestablished element, i.e., a connection between the Veteran’s military service and his foot disorder. See 38 C.F.R. § 3.156(a). Additionally, the evidence meets the low threshold for reopening because there is a reasonable possibility it can substantiate the claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Therefore, the Board finds that the Veteran’s claim of entitlement to service connection for bilateral foot disorder is reopened. 2. Service Connection for Bilateral Foot Disorder Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). If a preexisting disorder is noted upon entry into service, service connection may be granted based on aggravation during service of that disorder. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). However, when no preexisting medical condition is noted upon entry into service, a veteran is presumed to have been sound upon entry. 38 U.S.C. § 1111. When that is the case, the burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran’s disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096. Clear and unmistakable evidence means that the evidence “cannot be misinterpreted and misunderstood, i.e., it is undebatable.” Vanerson v. West, 12 Vet. App. 254, 258 (1999). In this case, there was no foot disorder noted upon the Veteran’s entrance examination In fact, his feet were marked as “normal” by the examiner. Specifically, the examiner noted that the Veteran’s feet had “normal arch”. See Report of Medical Examination (December 1993). Further, the Veteran claims that his feet functioned normally before service and that he played three sports throughout high school without experiencing any foot pain. (February 2011 Statement in Support of Claim (VA Form 21-4138)). The Veteran’s claim is bolstered by Dr. RC’s report that there is no evidence that the Veteran’s foot disorder is congenital. The Board recognizes that Veteran was discharged for erroneous enlistment when the Veteran complained of his foot disorder only months after entering service; however, mere temporal proximity cannot satisfy the high burden of clear and unmistakable evidence to overturn the presumption of soundness. Therefore, presumption of soundness attaches in this instance. Because the presumption of soundness attaches, the Board must determine if foot disorder was incurred during service. 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. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Here, all three elements of service connection have been established by the competent and credible lay and medical evidence of record. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Veteran has a current diagnosis for plantar fasciitis from his private physician. The Veteran has provided testimony that he stood for prolonged periods of time in boots, which his physicians have linked to plantar fasciitis. Finally, he reports ongoing foot problems since service, which is consistent with the lay and medical evidence of record. Moreover, this is consistent with the May 1995 VA examination report. The Veteran’s account of recurrent foot problems since service is both competent and credible. The Veteran’s statements are entitled to probative weight, as they are consistent with the evidence of record, showing that the Veteran had numerous complaints of foot pain in service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).   In sum, based on the evidence, the Board finds that, because the Veteran was sound at service entry and has had recurrent foot problems since that time, service connection for bilateral foot disorder is granted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Gillespie, Law Clerk