Citation Nr: 18160203 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 17-11 505 DATE: December 26, 2018 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral pes planus. New and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disability. New and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disability. REMANDED Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. Unappealed October 1994 and July 2005 rating decisions denied service connection for bilateral pes planus and bilateral knee disabilities. 2. Evidence received more than one year since the October 1994 rating decision is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a right knee disability; evidence received more than one year since the July 2005 rating decision is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for bilateral pes planus and a left knee disability. CONCLUSIONS OF LAW 1. The October 1994 and July 2005 rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria to reopen the claims of entitlement to service connection for bilateral pes planus and bilateral knee disabilities are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1986 to June 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In this regard, the record shows that VA examination reports were associated with the record within a year of the October 2014 rating decision relevant to the issues on appeal. However, since the RO never determined whether the additional VA examination reports constituted new and material evidence with respect to the October 2014 rating decision, that decision never became final and is the proper rating decision on appeal. 38 C.F.R. § 3.156(b). New and Material Evidence 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral pes planus. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disability. 3. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disability. A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence is defined as 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). The Veteran’s initial claim of entitlement to service connection for bilateral pes planus and bilateral knee disabilities were denied in an October 1994 rating decision. The Veteran did not appeal this decision, and new and material evidence was not received within one year of its issuance, making the October 1994 rating decision final. See 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(b), 20.1103; Buie v. Shinseki, 24 Vet. App. 242 (2010). A July 2005 rating decision denied the Veteran’s petition to reopen the claim for bilateral pes planus and a left knee disability based on lack of submission of new and material evidence. The Veteran did not appeal this decision and new and material evidence was not received within one year of its issuance. Accordingly, the July 2005 rating decision is also final, and new and material evidence is required to reopen the claims. Id. Evidence received more than one year since the final July 2005 rating decision includes updated VA and private treatment records, VA examination reports, and the Veteran’s lay statements. This evidence is new, as it was not considered in the prior denials. It is also material, because it is not cumulative or duplicative of evidence previously considered and it raises a reasonable possibility of substantiating the claims. As such, the Veteran has presented new and material evidence to reopen the previously denied claims of entitlement to service connection for bilateral pes planus and a left and right knee disability. See Shade v. Shinseki, 24 Vet. App. 110 (2010). REASONS FOR REMAND 4. Entitlement to service connection for bilateral pes planus is remanded. 5. Entitlement to service connection for a left knee disability is remanded. 6. Entitlement to service connection for a right knee disability is remanded. In the May 2015 VA examination report, the examiner stated that there was no specific evidence to support aggravation of pes planus, but did not provide any rationale. This opinion is inadequate, as the Board notes that an examiner cannot state that a Veteran’s disability clearly and unmistakably was not aggravated by service merely because that there was a lack of medical evidence to support a claim of aggravation. Similarly, the examiner provided a negative nexus opinion regarding the Veteran’s left and right knee disabilities based on the lack of continuity documented in the post-service treatment records pertaining to knee complaints or treatment, making the opinion inadequate as well. Additionally, the examiner did not discuss the Veteran’s reports of aggravation in her feet and knees resulting from the effects of basic training, running, and road marching, or her reports of continuity since then. Accordingly, addendum opinions are necessary on remand. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Any outstanding VA and private treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then refer the claims file to an examiner for preparation of an addendum opinion as to the etiology of the Veteran’s bilateral pes planus. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. Following a review of the claims file, the examiner is asked to address the following: (a) Is it at least as likely as not (50 percent probability) that there was a permanent increase in the Veteran’s pes planus disorder (noted on entrance examination) during service? (b) If the answer to question (a) is yes, is there clear and unmistakable evidence that any increase in severity was due to the natural progress of the condition? In addressing this question, please consider the Veteran’s in-service complaints of arch pain (see August 1986 service treatment record), her statements as to aggravation from the cumulative effects of training, running, marching, and wearing boots (see September 2015 Notice of Disagreement (NOD)), as well as her reports of continuous symptomology since then. Also, please note that the lack of contemporaneous medical records is not dispositive and may not be used as a basis for a negative opinion. Instead, please provide a complete rationale based on medical principles to support any conclusion reached. 4. Then refer the claims file to an examiner for preparation of an addendum opinion as to the etiology of the Veteran’s left and right knee disabilities. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. Following a review of the claims file, please opine as to whether it is at least as likely as not that the Veteran’s left and/or right knee disability, to include bilateral patellofemoral pain syndrome and degenerative joint disease, had its onset in service or is otherwise related to service, to include as a result of the documented July 1987 left knee retropatellar pain syndrome and right knee iliotibial band syndrome therein. In addressing this question, please consider the Veteran’s assertions that her knee disabilities are due to the cumulative effects of training, running, and marching in service (see September 2015 NOD), as well as her reports of continuous knee symptomology since. Also, please note that the lack of contemporaneous medical records is not dispositive and may not be used as a basis for a negative opinion. Instead, please provide a complete rationale based on medical principles to support any conclusion reached. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.S. Mahoney, Associate Counsel