Citation Nr: 1807229 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 13-35 834 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a bilateral foot disability. 2. Entitlement to service connection for a bilateral foot disability. REPRESENTATION Appellant represented by: Thomas Reynolds, Attorney WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD E. Redman, Counsel INTRODUCTION The appellant served on a period of active duty for training (ACDUTRA) from February 1989 to July 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2012 rating decision, which denied reopening the appellant's claim. In April 2017 the appellant and his spouse testified at a videoconference hearing held before the undersigned Veterans Law Judge. The transcript of the hearing is of record. The issue of entitlement to service connection for a bilateral foot disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An unappealed September 1996 Board decision denied service connection for bilateral pes planus and plantar xanthofibroma of the right foot. 2. Evidence received since the September 1996 Board decision is new and raises a reasonable possibility of substantiating the appellant's claim of entitlement to service connection for a bilateral foot disability. CONCLUSIONS OF LAW 1. The September 1996 Board decision, which denied the claim for service connection for bilateral pes planus and plantar xanthofibroma of the right foot, is final. 38 C.F.R. §§ 20.1100 (1996). 2. Evidence submitted to reopen the claim of entitlement to service connection for a bilateral foot disability is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant contends that he is entitled to service connection for a bilateral foot disability. For the reasons that follow, the Board finds that new and material evidence has been received to reopen the appellant's claim. The Board notes that in September 1996 the Board denied service connection for bilateral pes planus and plantar xanthofibroma of the right foot on the basis that they both preexisted service and were not aggravated during service. The appellant did not seek, and the Chairman did not order, reconsideration, of the Board's September 1996 decision. Additionally, the Board decision was not appealed. As such, it is final. See 38 C.F.R. § 20.1100 (1996). The evidence received since the September 1996 Board decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156 (2017). In this regard, a June 2017 letter from the appellant's private podiatrist, Dr. Williams, contains a medical opinion which states that the appellant developed a plantar fibromatosis during service, a condition that is due to overuse/excessive weight bearing exercise such as running, jumping and marching, especially with a rucksack. Dr. Williams also opined that the appellant's condition was exacerbated while in service or caused by service. This new evidence raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. ORDER New and material evidence having been received, the claim of entitlement to service connection for a bilateral foot disability is reopened; the claim is granted to this extent. REMAND At the November 2017 hearing before the undersigned the appellant testified that he had no problems with his feet at all prior to service. He stated that he began having problems with his feet (pain) after three weeks of basic training. The appellant's spouse also testified that the appellant had no foot pain prior to service but that he has had chronic problems since service. When a claim for service connection is based on a period of ACDUTRA, there must be some evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA; or for INACDUTRA, there must be some evidence that the appellant became disabled as a result of an injury (not disease) incurred or aggravated in the line of duty during the period of INACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "veteran" by virtue of ACDUTRA service alone. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010); see also 38 U.S.C. § 101 (2), (24); 38 C.F.R. §§ 3.1 (d), 3.6. No presumptions attach (including soundness, aggravation, or presumptive diseases under service connection) unless "veteran" status is attained (although, some presumptions will not apply to periods of ACDUTRA and INACDUTRA). In establishing "veteran" status based on aggravation during ACDUTRA, although an active duty for training claimant is not required to show that his active duty for training proximately caused the worsening of his preexisting disability, the definition of aggravation set forth in 38 U.S.C. § 1153 and incorporated by 38 U.S.C. § 101 (24)(B) does require that an active duty for training claimant establish that there is a causal relationship between the worsening of the claimant's preexisting condition and his active duty for training. Donnellan v. Shinseki, 24 Vet. App. 167, 173 (2010). The causal relationship is shown when the claimant establishes that the preexisting condition worsened beyond the natural progress of that condition during service. Donnellan v. Shinseki, 24 Vet. App. 167, 173-74 (2010). "Aggravated in the line of duty" as its used in 38 U.S.C. § 101 (24)(B) means that in order for a claimant to establish his status as a "veteran" under 38 U.S.C. § 101 (24)(B), he must demonstrate that he experienced a permanent increase in disability beyond the natural progress of that disease or injury during his period of active duty for training. Donnellan v. Shinseki, 24 Vet. App. 167, 174 (2010). The standard of proof remains the "benefit of the doubt" standard. Competent evidence generally is needed to support a finding that a preexisting disorder increased in severity during service beyond its natural progression. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995). Mere temporary or intermittent flare-ups of a preexisting injury or disease during service are insufficient to be considered "aggravation in service", unless the underlying condition itself, as contrasted with mere symptoms, has worsened. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). The appellant's January 1989 entrance examination reflects that moderate pes planus, asymptomatic, was noted. The service treatment records reflect that the appellant was seen several times for bilateral foot pain. In March 1989 the appellant was diagnosed with a medial plantar fibroma of the right foot. He was given inserts. No separation examination report is of record. Private treatment records dated in 1991 reflect that the appellant was hospitalized to remove a large plantar xanthofibroma of the right foot. He reported that he had had a mass on the plantar aspect of the foot for sixteen years which greatly increased during service. In September 1994 the Chief of the Compensation Determination Branch of the National Guard Bureau determined that the appellant's tumor on the bottom of the right foot had existed prior to service and was aggravated during service. A January 1995 treatment record from Keesler Air Force Base Medical Center shows that the appellant's foot disability had improved; however, he still had pain through the longitudinal arches and dorsally over the extensor tendon. The assessment was plantar fasciitis and tendonitis, he was told to continue using arch supports. Motrin was prescribed. In June 1995 the appellant testified at a personal hearing before RO personnel. The appellant testified that prior to service he had a mass on his right foot; however, he had no problems associated with the mass before service. He indicated that when he began to have pain in his feet during basic training, he sought medical treatment and was given inserts and arch supports. After his 1991 foot surgery he testified that his feet would swell and get numb when he stood for long periods. During a 1995 VA foot examination, the appellant reported pain in both feet with aching along the medial longitudinal arch and sole of the foot. Bilateral pes planus with mild collapse of the medial longitudinal arch and tenderness along the medial longitudinal arch was also noted. X-rays revealed mild pes planus. The diagnosis was residual stage excision of neurofibroma, plantar right foot, and bilateral symptomatic pes planus. Under the circumstances, the Board finds that a remand is required in order to determine the nature and etiology of any current bilateral foot disability. The claims file contains private treatment records from Dr. Williams (North Mississippi Foot Specialists) dating through May 2016. The appellant testified in November 2017 that he has been seeing Dr. Williams once a month since 2013, and that he was scheduled to see Dr. Williams again before Christmas. Under the circumstances, while the case is being remanded, up-to-date private treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file, to specifically include the appellant's records from North Mississippi Foot Specialists dating from May 2016 to the present. 2. Schedule the appellant for a VA examination to determine the nature and etiology of the appellant's current bilateral foot disability. The claims file, to include a copy of this remand, must be made available to, and reviewed by, the examiner. The examiner must note all current bilateral foot diagnoses. Thereafter, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that any current right bilateral foot disability/disabilities (to include pes planus, right foot plantar xanthofibroma, plantar fibromatosis, plantar fasciitis and tendonitis) is/are the result of any injury during ACDUTRA or aggravated by the appellant's ACDUTRA. The examiner must address the relevant service treatment records, the 1991 private treatment records, the January1995 treatment records from Keesler Air Force Base Medical Center, Dr. Williams' June 2017 letter, the private treatment records from North Mississippi Foot Specialists, the September 1994 memorandum from the Chief of the Compensation Determination Branch of the National Guard Bureau, the appellant's testimony, and his and his wife's statements that he began having foot pain during service which has continued ever since. A complete rationale for all stated opinions must be provided. 3. Then, readjudicate the claim on appeal. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs