Citation Nr: 1808416 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 15-41 111A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Whether new and material evidence exists to reopen a claim for entitlement to service connection for bilateral pes planus. 2. Entitlement to service connection for bilateral pes planus 3. Entitlement to service connection for depressive disorder. 4. Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD P.S. McLeod, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1986 to April 1988. These matters come before the Board of Veterans' Appeal (Board) from March 2013 and August 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The RO reopened the bilateral pes planus claim but denied service connection on the merits. The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Barnett, supra. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The claim for service connection for bilateral pes planus was denied in a July 2004 rating decision. The Veteran did not appeal that decision or submit new and material evidence within one year; the decision is final. 2. Evidence added to the record since the July 2004 denial is not cumulative or redundant of the evidence of record at the time of such decision and raises a reasonable possibility of substantiating the Veteran's claim for service connection for bilateral pes planus. 3. Affording the Veteran the benefit of the doubt, his pre-existing bilateral pes planus was aggravated by his active duty service. 4. Affording the Veteran the benefit of the doubt, his unspecified depressive disorder is etiologically related to his bilateral pes planus. 5. Affording the Veteran the benefit of the doubt, his sleep apnea is aggravated by his unspecified depressive disorder. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral pes planus. 38 U.S.C. § 5108 (West 2015); 38 C.F.R. § 3.156(a) (2017). 2. Resolving reasonable doubt in the Veteran's favor, pes planus was aggravated by active duty service. 38 U.S.C. §§ 1110, 5107(b) (West 2015); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2017). 3. Resolving reasonable doubt in the Veteran's favor, unspecified depressive disorder was etiologically related to bilateral pes planus. 38 U.S.C. §§ 1110, 5107(b) (West 2015); 38 C.F.R. §§ 3.102, 3.303 (2017). 4. Resolving reasonable doubt in the Veteran's favor, sleep apnea is aggravated by the unspecified depressive disorder. 38 U.S.C. §§ 1110, 5107(b) (West 2015); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. New and Material Evidence In a September 1988 rating decision, the RO denied the Veteran's original claim for service connection for bilateral pes planus on the grounds that his preexisting bilateral pes planus disability had not been permanently aggravated by service. The RO notified the Veteran of its decision and his appellate rights. He did not initiate an appeal of the RO's decision within one year and no new and material evidence was received within a year. 38 C.F.R. § 3.156(b). That decision became final. In a July 2004 rating decision, the RO declined to reopen the claim. That decision also became final. The claim of entitlement to service connection for a low back disability may be reopened if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran filed this application to reopen his claim in September 2010. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The evidence before the VA at the time of the prior final decision consisted of the Veteran's service treatment records (STRs) and medical board findings. Evidence added to the record since July 2004 includes post-service VA treatment records, VA examinations and opinions, private examinations and opinions, and lay statements of the Veteran and his mother. The private medical records include an opinion regarding aggravation of the Veteran's bilateral pes planus due to active duty service and the lay statements by the Veteran's mother indicate that he did not have any pain symptoms associated with his bilateral pes planus prior to the military but experienced severe pain ever since separation. The Veteran's foot pain is confirmed by post-service treatment records. The Board finds that this evidence is new, in that it was not previously considered. The Board further finds that the same evidence is material to the Veteran's claim because it relates to an unestablished fact necessary to substantiate the claim; that is, a nexus to service. Thus, for these reasons, the claim for service connection for a low back disability is reopened. II. Service Connection Service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet.App. 289 (2013). The requirement that there be a current disability is satisfied when the disability is shown at the time during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A. Bilateral Pes Planus The Veteran contends that his preexisting bilateral pes planus was aggravated by his active duty service. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service. Where the evidence shows that there was an increase in disability during service, there is a presumption that the disability was aggravated by service. In order to rebut the presumption of aggravation, there must be clear and unmistakable evidence (obvious or manifest) that the increase in severity was due to the natural progress of the disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a) and (b). The question for the Board is whether the Veteran's pre-existing bilateral pes planus was aggravated by his service; that is whether there was an increase in disability during service. The Board finds that competent, credible, and probative evidence establishes that there was an increase in disability during service. The Board further finds that the presumption of aggravation has not been rebutted; there is no clear and unmistakable evidence that the increase was due to the natural progress of the disability. It has been conceded that the Veteran's bilateral pes planus pre-existed his entrance into active duty. Physical examination on entrance indicated that the Veteran had mild asymptomatic pes planus. Service treatment records (STRs) include evidence that the Veteran had further problems with his feet that ultimately led to a Medical Board and honorable discharge from service. Specifically the January 1988 Medical Board Report indicated that the Veteran's bilateral foot pain began four weeks into his basic training. The Veteran was noted to be unable to climb, stand, or march for any period without resulting in severe bilateral foot pain. The Medical Board Report concluded that the Veteran's bilateral pes planus had been "aggravated by a service-commitment," but that the Veteran's foot pain "should return to his pre-enlistment status upon return to civilian occupation." The Veteran's mother submitted a lay statement on his behalf discussing her observations of the Veteran's issues with foot pain. She stated that prior to his enlistment the Veteran did not express any pain associated with his feet, while on active duty the Veteran complained repeatedly of foot pain and the ice bath treatments he utilized, and following his separation from service the Veteran required specialized shoes and continued to experience pain which progressively got worse. November 2013 VA medical treatment records describe the Veteran's bilateral pes planus as "dating back to his time in the Military and he has had significant pain in his feet since that time." The Veteran underwent a VA examination for his bilateral pes planus in October 2015. In addition to the Veteran's bilateral pes planus he was diagnosed with bilateral degenerative arthritis. The Veteran reported that prior to service he did not experience any foot pain associated with his pes planus and that it was in 1987 (during service) that he started noticing pain and swelling in his feet, which limited him from wearing shoes. The Veteran also reported that the foot surgeon he was referred to at Fort Dix, New Jersey advised that he have surgical intervention with silicon arch implants, which the Veteran declined. Since that time the Veteran indicated that he has had constant plantar foot pain bilaterally with intermittent swelling. The VA examiner opined that the Veteran's bilateral pes planus, which clearly and unmistakably existed prior to service, was less likely than not aggravated beyond its natural progression by military service. As supporting rationale the VA examiner provided that there was a lack of documented evidence supporting a progressive flatfoot condition after military service and "no clear objective findings, subjective complaints or medical records between 1989 to 2013 supporting a progressive/aggravating flatfoot condition." In February 2017 private physician Dr. K.D. offered an opinion regarding aggravation of the Veteran's bilateral pes planus. Dr. K.D., a retired orthopedic surgeon previously employed by a VA clinic, reviewed the Veteran's entire claims file and ultimately opined that the Veteran's bilateral pes planus was "as likely as not significantly and permanently aggravated beyond its natural progression while serving in the Navy." As supporting rationale Dr. K.D. provided that "overuse, such as running on hard surfaces or high impact jumping and landing can most certainly aggravate the condition." He further indicated that the Veteran and his mother's statements demonstrated that the Veteran's bilateral pes planus did not manifest with pain prior to service and noted the development of pain and swelling in-service which led to the Veteran's discharge. Dr. K.D. linked the specific "overuse and extreme physical stress" associated with basic training in the military to an acceleration of the Veteran's bilateral pes planus symptoms, causing the physical anatomy of the foot to alter and create new symptoms and increases to those previously present. The Board finds that service connection for the Veteran's bilateral pes planus is warranted. As stated above the Veteran's bilateral pes planus was noted on enlistment. He experienced foot pain during service and was ultimately discharge because of that pain. At separation, the Medical Board concluded that his pes planus had been aggravated by service. Thus, the presumption of aggravation attaches. There is no clear and unmistakable evidence to rebut that presumption; that is, that the increase was due to the natural progress of the disability. The Board finds that the most probative evidence of record is the opinion of Dr. K.D. which noted the Veteran's manifestations of pain and swelling in the Veteran's feet in-service and competently and credibly attributed these symptoms to the aggravation of the Veteran's bilateral pes planus caused by the overuse and physical stress associated with basic training. What is left is the opinion of the October 2015 VA examiner which, while acknowledging the Veteran's in-service pain and swelling symptoms and findings of the Medical Board, did not utilize the correct standard to determine if the Veteran's bilateral pes planus had been aggravated by service. Therefore, the October 2015 VA opinion is not clear and unmistakable evidence that the in-service increase was due to the natural progress of the disability. Thus, viewing the evidence as a whole and affording the Veteran the benefit of the doubt the Board finds that it is at least as likely as not that the Veteran's bilateral pes planus was aggravated by his active duty service and therefore service connection is warranted. B. Major Depressive Disorder The Veteran contends that his currently diagnosed major depressive disorder is etiologically related to his now service-connected bilateral pes planus. The Veteran's STRs and separation examination are silent for any depressive disorder or mental disability. A statement submitted by the Veteran's mother described the Veteran as a normal child with lots of friends and an outgoing and social nature. She further provided that when the Veteran would visit during his active duty service that he would have a short temper and anxiety, which she had never noticed prior to his enlistment. To date the Veteran's claim has been denied on the basis of no evidence of a current depressive disorder or other psychiatric disability. In March 2017 a private psychologist, Dr. H.H-G, diagnosed the Veteran with an unspecified depressive disorder. In May 2017 Dr. H.H-G interviewed the Veteran and offered an opinion on service connection, citing objective and subjective evidence and medical literature, that it was more likely than not that the unspecified depressive disorder "began in military service, continues uninterrupted to the present and is aggravated by his bilateral pes planus." The Board finds that there is a causal relationship between the Veteran's bilateral pes planus and unspecified depressive disorder warranting service connection. The May 2017 opinion of the Dr. H.H-G provided medical evidence and opinion of a medical connection between the Veteran's bilateral pes planus symptoms and the unspecified depressive disorder symptoms noted on the March 2017 private examination. Specifically Dr. H.H-G opined that the Veteran's unspecified depressive disorder symptoms began in-service. As this is also when the associated bilateral pes planus symptoms began, as a result of service aggravation, the Board finds that, affording the Veteran the benefit of the doubt, the unspecified depressive disorder developed secondary to the aggravation of his bilateral pes planus. Therefore entitlement to service connection for an unspecified depressive disorder secondary to bilateral pes planus is warranted. C. Sleep Apnea The Veteran contends that his currently diagnosed obstructive sleep apnea is etiologically related to his now service-connected unspecified depressive disorder. The Veteran's STRs and separation examination are silent for any sleep apnea or other sleep issues. The Veteran was diagnosed with obstructive sleep apnea in a July 2013 VA sleep study and was provided a continuous positive airway pressure (CPAP) machine. In June 2017 the Veteran underwent a private sleep apnea examination, conducted by Dr. H.S. Dr. H.S. opined that, following an interview with the Veteran, review of the claims file, and medical literature, it was as likely as not that the Veteran's "depression aided in the development of and permanently aggravates his [sleep apnea]." As rationale for this opinion Dr. H.S. cited to a medical study indicating that "subjects with depression compared with non-depressed controls have a higher prevalence of sleep apnea diagnosis." Dr. H.S. further indicated that when the Veteran was experiencing exacerbated depressive disorder symptoms that his CPAP machine would cause him to feel claustrophobic to the point of intolerance, which Dr. H.S. characterized as a common problem for patients who have mental problems and sleep apnea. This inability to use the CPAP machine every night was found to "greatly aggravate[s] the effects of [the Veteran's] sleep apnea" causing the Veteran to experience daytime tiredness and frequent periods of falling asleep. The Board finds that there is a relationship between the Veteran's unspecified depressive disorder and obstructive sleep apnea warranting service connection. The June 2017 examination and opinion provided by Dr. H.S. provided medical evidence of a secondary medical connection between the Veteran's, now service-connected, unspecified depressive disorder symptoms and obstructive sleep apnea. Specifically the Board finds that the opinion of Dr. H.S. supports service connection on the secondary basis of aggravation demonstrated by disruption in the use of his CPAP machine as a result of his unspecified depressive disorder symptoms. While Dr. H.S. also provided some evidence that obstructive sleep apnea could be caused by a depressive disorder, he did not make an explicit finding that the Veteran's diagnosed unspecified depressive disorder was the cause of his obstructive disorder. Thus, viewing the evidence as a whole and affording the Veteran the benefit of the doubt the Board finds that it is at least as likely as not that the Veteran's obstructive sleep apnea was aggravated by his unspecified depressive disorder. ORDER New and material evidence having been received, the claim of entitlement to service connection for bilateral pes planus; to this extent, the appeal is granted. Entitlement to service-connected aggravation for bilateral pes planus is granted. Entitlement to service connection for unspecified depressive disorder, secondary to service-connected bilateral pes planus is granted. Entitlement to service connection for obstructive sleep apnea, secondary to service-connected unspecified depressive disorder is granted. ____________________________________________ M.E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs