Citation Nr: 18161199 Decision Date: 12/31/18 Archive Date: 12/28/18 DOCKET NO. 16-43 976 DATE: December 31, 2018 ORDER The petition to reopen a claim for service connection for bilateral knee arthritis is denied. New and material evidence having been received, the claim of entitlement to service connection for bilateral pes planus, is reopened. To that extent only, the appeal is granted. REMANDED Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for a left Achilles tendon condition is remanded. Entitlement to service connection for a right Achilles tendon condition is remanded. Entitlement to service connection for allergies is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The Veteran’s claim of entitlement to service connection for bilateral knee arthritis was previously denied by a December 2009 rating decision because there was no evidence that the disability was incurred in or caused by service. The Veteran did not perfect an appeal. Therefore, that rating decision became final. 2. The evidence received subsequent to the December 2009 rating decision does not relate to a previously unestablished fact and does not present a reasonable possibility of substantiating the claim of service connection for bilateral knee arthritis. 3. The Veteran’s claim of entitlement to service connection for bilateral pes planus was previously denied by a December 2009 rating decision because there was no evidence that the preexisting disability was aggravated by service. The Veteran did not perfect an appeal. Therefore, that rating decision became final. 4. The evidence received subsequent to the December 2009 final denial of the claim for service connection for bilateral pes planus is new, and is also material because it raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. New and material evidence has not been submitted to reopen the claim of service connection for a bilateral knee condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. As new and material evidence has been received, the criteria to reopen the claim for service connection for bilateral pes planus have been 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 Army from August 1978 to March 1985. New and Material Evidence The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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). The threshold for determining whether new and material raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312 (1999). If the Board determines that the evidence submitted is new and material, it must reopen the case and evaluate the Veteran’s claim in light of all the evidence. Justus, 3 Vet. App. at 512. 1. Bilateral Knee Arthritis The RO originally denied service connection for bilateral knee arthritis in December 2009, because there was no evidence of an in-service event or injury, or any medical evidence of a relationship between the Veteran’s bilateral knee arthritis and his military service. The Veteran did not perfect an appeal, and therefore the rating decision became final. See 38 C.F.R. § 3.156 (b). In the rating decision on appeal, the RO declined to reopen the Veteran’s claim for service connection for bilateral knee arthritis because the Veteran did not submit new and material evidence in support of his claim. The evidence added to the record since prior final denial includes VA treatment records and private treatment records unrelated to the Veteran’s bilateral knee condition, which are cumulative and redundant of the evidence of record at the time of the prior final denial. In view of the foregoing, the Board finds that while the evidence added to the record is “new” to the extent it was not previously on file, it does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim, as it does not pertain to the issue of whether there is a nexus to the Veteran’s active service or an in-service event or injury. Thus, new and material evidence has not been received to reopen the previously denied claim in accord with 38 C.F.R. 3.156 (a). Accordingly, the benefit sought on appeal must be denied. See Barnett v. Brown, 83 F.3d. 1380 (Fed. Cir. 1996). 2. Bilateral Pes Planus The Board finds that the low threshold for reopening the claim for service connection has been met. Shade v. Shinseki, 24 Vet. App. 110 (2010). The new evidence is material, and the Veteran’s claim for service connection for bilateral pes planus is reopened. REASONS FOR REMAND 1. Entitlement to service connection for bilateral pes planus is remanded. The Veteran contends that his bilateral pes planus was aggravated by his active military service. A Veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). If a preexisting disorder is noted upon entry into service, a veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; see Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In that case, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish an increase in severity. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under § 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing “that the increase in disability is due to the natural progress of the disease.” See 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417; Wagner, 370 F. 3d at 1096. Significantly, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306 (b). Service treatment records indicate that upon entry into active military service, a May 1978 enlistment examination noted mild pes planus. Because the Veteran’s pre-existing pes planus was noted on entry into service, the Veteran cannot bring a claim for service connection for pes planus, but can only bring a claim for service-connected aggravation of pes planus, and the burden falls upon the Veteran to establish aggravation. See Jensen, 19 F.3d at 1417. Therefore, this case turns on whether the Veteran’s pre-existing pes planus was aggravated by his active military service. The Veteran was treated for various foot problems in service. In September 1981, he complained of blisters on the feet and he reported he had not been wearing shoes for 10 days. The clinician noted that they were possibly friction blisters and prescribed a cream to apply. In January 1983, he was referred to podiatry for treatment of his bilateral pes planus. The Veteran presented with large blisters on his feet in March 1984 and the assessment was bullous tinea pedis. On follow-up in April 1984, his condition was noted to be much improved. In September 1984, the Veteran was again treated for tinea pedis and pes planus. A February 1985 podiatry consultation noted an assessment of congenital pes planus. The Veteran was noted to have good range of motion and his running shoes were comfortable. There was no varus or valgus of the rear or forefoot, and no longitudinal arch when weight-bearing. Upon discharge, a January 1985 Report of Medical Examination revealed normal feet and no defects or diagnoses were noted. The Veteran did not indicate any foot trouble. The Veteran submitted an August 2014 opinion by Dr. E.M. stating that it was more likely than not that the Veteran’s participation in military activities exacerbated his foot condition. No VA examiner has opined whether the Veteran’s bilateral pes planus was not aggravated beyond the natural progress of the disorder by active duty service. As noted above, VA regulations pertaining to the rebuttal of the presumption of soundness require the highly stringent standard of clear and unmistakable evidence that the Veteran’s pre-existing disease or injury was not aggravated beyond the natural progress of the disorder by active duty service. In light of the foregoing, the Board finds that a VA opinion is necessary. 2. Entitlement to service connection for a bilateral Achilles tendon condition is remanded. The Veteran contends that his bilateral Achilles tendon condition was caused by his military service. The medical evidence shows the Veteran has a current diagnosis of bilateral Achilles tendinopathy. The Board cannot make a fully-informed decision on the issue of service connection for bilateral Achilles tendon condition because no VA examiner has opined whether the Veteran’s condition was caused by his military service. As such, a remand is necessary to afford the Veteran a VA examination to address this issue. 3. Entitlement to service connection for allergies is remanded. The Veteran contends that his allergies condition was caused by his military service. A February 2014 VA examiner noted a diagnosis of allergic rhinitis and opined that the Veteran’s allergies were less likely than not caused by the May 1983 upper respiratory infection noted in his service treatment records. The examiner did not opine whether the Veteran’s allergies were otherwise related to his military service. The Veteran submitted an April 2014 opinion by Dr. W.L. stating that the Veteran’s ocular and nasal symptoms “could certainly be aggravated by time spent in the field during his military service.” Also of record is an April 2014 opinion by Dr. S.R. stating that it was more likely than not that the Veteran’s allergic rhinitis and septal deviation “may have been aggravated during his time of military service.” Given that the February 2014 VA examiner did not opine whether the Veteran’s allergies are otherwise related to his military service, an addendum opinion is necessary to address this issue. 4. Entitlement to service connection for sleep apnea is remanded. The Veteran contends that his obstructive sleep apnea was caused by his military service. A February 2014 VA examiner opined that the Veteran’s sleep apnea was less likely than not caused by the May 1983 upper respiratory infection noted in his service treatment records. The examiner did not opine whether the Veteran’s sleep apnea was otherwise related to his military service. The Veteran submitted an April 2014 opinion by Dr. S.R. stating that it was more likely than not that the Veteran’s obstructive sleep apnea “may have been aggravated during his time of military service.” An addendum opinion is necessary as the February 2014 VA examiner did not opine whether the Veteran’s sleep apnea was otherwise etiologically related to his military service. The matters are REMANDED for the following action: 1. Send the Veteran’s file to an appropriate VA examiner. The examiner should receive a copy of this remand and review the Veteran’s file. The examiner should consider all medical records associated with the file. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. Based on review of the record, the examiner should determine whether it is clear and unmistakable that the Veteran’s pre-existing bilateral pes planus WAS NOT aggravated beyond the natural progress of the disorder by his active military service. In other words, please determine whether it is clear and unmistakable that there was no increase in disability during service or that it is clear and unmistakable that any increase in disability was due to the natural progress of the pre-existing condition. In rendering the requested opinion, the examiner must consider and discuss all pertinent medical and other objective evidence, as well as all lay assertions, to include any assertions as to onset and continuity of bilateral pes planus symptoms. Specifically, the examiner should consider the Veteran’s in-service treatment for various foot problems. The examiner should explain the medical basis for the conclusions reached. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his bilateral Achilles tendon disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. 3. Obtain an addendum opinion from an appropriate clinician regarding whether it is at least as likely as not that the Veteran’s allergies originated during service or are otherwise etiologically related to the Veteran’s military service. The examiner should discuss the April 2014 medical opinions by Dr. W.L. and Dr. S.R. 4. Obtain an addendum opinion from an appropriate clinician regarding whether it is at least as likely as not that the Veteran’s obstructive sleep apnea originated during service or is otherwise etiologically related to the Veteran’s military service. The examiner should discuss the April 2014 medical opinion by Dr. S.R. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Freeman, Associate Counsel