Citation Nr: 18155360 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-53 952 DATE: December 4, 2018 ORDER The petition to reopen the claim of service connection for flat feet (claimed as pain with discomfort) is granted. REMANDED Service connection for flat feet (claimed as pain with discomfort) is remanded. FINDINGS OF FACT 1. Service connection for flat feet (claimed as pain with discomfort) was denied in an unappealed June 2014 rating decision because the evidence did not show that it was incurred or otherwise related to service. 2. Evidence received since the June 2014 denial was not previously considered by agency decision makers; is not cumulative and redundant of evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating his claim of service connection. CONCLUSION OF LAW The criteria to reopen the claim of service connection for flat feet (claimed as pain with discomfort) have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1962 to January 1965. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c) (2017). 38 U.S.C. § 7107 (a)(2) (2012). Whether new and material evidence has been received to reopen the claim of service connection for flat feet (claimed as pain with discomfort) The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. See 38 U.S.C. § 5108; Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decision makers. 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). 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, 118 (2010). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Id. at 117. For the purposes of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection for flat feet was denied in a June 2014 rating determination on the basis that a causal nexus was not shown. The Veteran did not initiate an appeal of this decision after being notified of the decision and his appellate rights in a June 6, 2014 letter. Additional records received within one year of the notice letter were duplicative of those previously considered. As new and material evidence was not received within a year of the June 2014 rating determination and notice thereof, the decision became final based on the evidence then of record. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). The Veteran sought to reopen his claim in May 2015. Evidence associated with the file since the June 2014 determination includes a January 2017 letter from Dr. A. who opined that the Veteran’s current pes planus is related to his in-service injury. This letter is new. As this evidence also addresses causal nexus, a previously unestablished fact necessary to substantiate the claim, and also raises a reasonable possibility of substantiating the claim; it is material. For these reasons, reopening of the previously denied claim of service connection for flat feet is warranted. The reopened claim is addressed further in the remand section. REASONS FOR REMAND Service connection for flat feet (claimed as pain with discomfort) is remanded. The Veteran has not been afforded a VA examination for current pes planus condition, which he believes is related to military service. The Veteran’s service treatment records have been destroyed in a fire-related incident and are unavailable for review. After review of the available evidence, the Board finds an examination is necessary to determine the nature and etiology of his flat feet. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In March 2012 and January 2017 letters, Dr. A. (the Veteran’s treating podiatrist) noted that the Veteran provided a history of having run across sharp rocks in service and feeling pain. Dr. A. opined that based on the contemporaneous treatment reportedly received, the Veteran’s foot problems were exacerbated and he continues to have chronic pain and inflammation in his feet. In the January 2017 letter, Dr. A. opined that the current pes planus is related to the injury in service. Review of treatment records from Dr. A., however, reflect diagnoses of congenital pes planus with onset in either 2012 or 2013. In the Veteran’s July 2016 notice of disagreement, he asserted that he was never informed of a flat foot disorder until being diagnosed by Dr. A. He also reported that his feet have hurt ever since he was in service, running over rough and uneven trails and after stepping on the large rock. Remand is warranted regarding this issue, to first determine whether the Veteran’s pes planus is a congenital disease or a congenital defect. While congenital or developmental defects are not compensable under VA regulations, congenital diseases are. Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009). Defects are defined as “structural or inherent abnormalities or conditions that are more or less stationary in nature.” VAOPGCPREC 82-90 (Jul. 18, 1990). A disease, on the other hand, is defined broadly as “any deviation from or interruption of the normal structure or function of any part, organ, or system of the body...” and “a condition considered capable of improving or deteriorating. Id. “Any worsening--any change at all--might demonstrate that the condition is a disease, in that VA considers defects to be ‘more or less’ static and immutable.” Quirin, 22 Vet. App. at 395 (citing VAOGCPREC 82-90). In assessing whether a condition is a congenital defect or disease, the Board highlights that the consideration of evidence in this regard is not limited to review of service treatment records. Post-service evidence can also illuminate whether a congenital condition is essentially “static in nature” and thereby a defect or whether it is capable of change and thereby a disease. Only if it is determined that the pes planus is a congenital disease, then an examiner should consider whether there was an increase in disability beyond natural progression during service. The matter is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Ask the Veteran to complete a VA Form 21-4142 for any physicians or facilities that have treated his pes planus, that he has not already provided. Make two requests for the authorized records from identified providers unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any flat foot. A copy of this REMAND must be provided to the examiner. The examiner must review the claims file in conjunction with the examination. The examiner is asked to answer the following questions: a) Is the Veteran’s bilateral pes planus a congenital defect OR a congenital disease? The examiner is advised that congenital defects are not eligible for service connection, but congenital diseases are. Defects are defined as “structural or inherent abnormalities or conditions that are more or less stationary in nature.” VAOPGCPREC 82-90 (Jul. 18, 1990). A disease, on the other hand, is defined broadly as “any deviation from or interruption of the normal structure or function of any part, organ, or system of the body...” and “a condition considered capable of improving or deteriorating. Id. “Any worsening--any change at all--might demonstrate that the condition is a disease, in that VA considers defects to be ‘more or less’ static and immutable.” Quirin, 22 Vet. App. at 395 (citing VAOGCPREC 82-90). In assessing whether a condition is a congenital defect or disease, the Board highlights that post-service evidence can also illuminate whether a congenital condition is essentially “static in nature” and thereby a defect or whether it is capable of change and thereby a disease. A complete rationale should be provided. b). If it is determined that pes planus is a congenital disease, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s pes planus underwent a permanent increase in severity, beyond the natural progress of the condition, during active service? The examiner is advised that the Veteran’s service treatment records are unavailable. Thus, his statements regarding onset of symptoms in service, and continued symptomatology thereafter, should be considered. c). If it is determined that pes planus is a congenital defect then, provide an opinion as to whether any other disease or injury was superimposed upon the congenital defect as a result of service. In this regard, the Veteran’s reports that he experienced pain in his feet after running over sharp rocks. His private podiatrist, Dr. A. asserts that the treatment received for this injury, exacerbated his foot problem. A complete rationale for the requested opinions should be provided. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, he or she must explain why this is so. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Vuong, Associate Counsel