Citation Nr: 20004191 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 14-33 018 DATE: January 16, 2020 ORDER Motion to advance the Veteran’s case on the Board of Veterans' Appeals (Board’s) docket is denied. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral pes planus. The appeal is granted to that extent only. REMANDED Entitlement to service connection for bilateral pes planus is remanded. FINDINGS OF FACT 1. The U.S. Department of Veterans Affairs (VA), received a motion on February 14, 2019, to advance the Veteran’s case on the Board’s docket. The Veteran’s case does not involve interpretation of law of general application affecting other claims, the appellant is not seriously ill or under severe financial hardship, and sufficient cause to advance the case on the Board’s docket has not otherwise been shown.   2. A May 1975 rating decision denied the claim of entitlement to service connection for bilateral pes planus. The Veteran did not appeal or submit new and material evidence within one year of notification of the May 1975 rating decision. Therefore, the May 1975 rating decision became final. 3. Additional evidence has since been received which is not cumulative or redundant of the evidence of record at the time of the May 1975 rating decision and relates to an unestablished fact necessary to prove the claim of entitlement to service connection for bilateral pes planus. CONCLUSIONS OF LAW 1. The criteria to advance the Veteran’s case on the Board’s docket have not been met. 38 U.S.C. § 7107(a); 38 C.F.R. § 20.800(c). 2. The May 1975 rating decision denying service connection for bilateral pes planus is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 3. New and material evidence has been received since the May 1975 rating decision to reopen the claim of entitlement to service connection for bilateral pes planus, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1972 to August 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision of a VA Regional Office in Des Moines, Iowa. In September 2017, the undersigned Veterans Law Judge held a hearing and a transcript of this hearing is a part of the record. 1. Motion to advance case on the Board’s docket is denied. This is the ruling on the motion, received in this office on February 14, 2019, to advance the Veteran’s case on the Board’s docket. Appeals must be considered in docket number order but may be advanced if sufficient cause is shown. 38 U.S.C. § 7107(a) and 38 C.F.R. § 20.800(c). Sufficient cause includes advanced age (defined as 75 years or more), serious illness, severe financial hardship, or administrative error resulting in a significant delay. An appeal may also be advanced if the case involves interpretation of a question of law of widespread application affecting other claims, although this is extremely rare. Any motion for advancement should be supported by pertinent documentation. In the Veteran’s case, the evidence indicates that he did not meet the requisite 75-year age requirement. There is also insufficient supporting medical evidence to demonstrate that he had an illness so serious or grave in nature that advancement is warranted. Neither is there evidence that demonstrates severe financial hardship such as a pending bankruptcy, home foreclosure, or homelessness. General financial difficulties alone are insufficient. Finally, there is no evidence of administrative error resulting in a significant delay or misinterpretation of a question of law. In the absence of sufficient cause, the Veteran’s motion to advance his case on the Board’s docket is denied. 2. There is new and material evidence to reopen entitlement to service connection for bilateral pes planus, and the claim is reopened. Once the agency makes a final decision, the agency may consider a claim on the merits only if it receives new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is “new” if it was not previously submitted to agency decisionmakers. Evidence is “material” if, whether by itself or when considered with the record evidence from the prior final decision, it relates to an unestablished fact necessary to prove the claim. “New and material evidence” can be neither cumulative nor redundant of the prior final decision’s evidence and must raise a reasonable possibility of proving the claim. 38 C.F.R. § 3.156(a). The credibility of new and material evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding evidence new and material. Evidence raises a reasonable possibility of proving the claim if it would trigger the agency’s duty to provide an examination in deciding a claim that was not final. Shade v. Shinseki, 24 Vet. App. 110 (2010). The May 1975 rating decision denied the Veteran’s claim for entitlement to service connection for bilateral pes planus because the evidence did not establish that the Veteran’s preexisting pes planus was aggravated by his active service. At the time of that decision, the evidence of record included the Veteran’s service treatment records from June 1972 to August 1974 and a VA examination report from April 1975. The evidence received since the May 1975 rating decision includes evidence related to establishing in-service aggravation of his preexisting pes planus. This included the Veteran’s military personnel records from August 1972 to August 1974, VA treatment notes from April 2004 through February 2019, a VA medical opinion from August 2014, Veteran testimony from September 2017, and additional Veteran lay statements from throughout the period at issue. For purposes of determining if this evidence is new and material, the credibility of these statements is assumed. This evidence is new and material because it relates to an unestablished fact that is necessary to prove the claim. The record now includes additional evidence, including a VA medical nexus opinion and the Veteran’s own testimony, on whether his active service had aggravated his preexisting pes planus. Therefore, the claim is reopened.   REASONS FOR REMAND Entitlement to service connection for bilateral pes planus is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for bilateral pes planus because no VA examiner has yet considered the Veteran’s September 2017 hearing testimony. In August 2014, a VA examiner opined that there was no evidence that the Veteran’s preexisting pes planus was aggravated beyond its natural progression by an in-service event, injury, or illness. In September 2017, however, the Veteran testified that he did not even realize he had flat feet before he had joined the military. He testified that in-service training in ill-fitting combat boots and playing basketball for the Army in athletic shoes without sufficient arch support led to him having feet pain ever since his active service—pain that he did not have prior to his service. September 1973 service treatment records showed that the Veteran did receive in-service treatment for this condition. Consideration of the Veteran’s August 2017 hearing testimony by a VA examiner and an addendum medical opinion is warranted. The matter is REMANDED for the following actions: 1. Obtain updated VA and/or pertinent identified private treatment records to the extent possible. If records are unavailable, the Veteran’s claim file must be clearly documented, and the Veteran must be properly notified. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s bilateral pes planus was at least as likely as not aggravated beyond its natural progression by his active service. Only schedule the Veteran for an examination if the examiner indicates such an examination is required. The examiner should answer the following questions: (a) Does the evidence of record clearly and unmistakably (i.e., it is undebatable) show that the Veteran has bilateral pes planus which preexisted service? (b) If so, is it at least as likely as not (50 percent or greater likelihood) that the pre-existing bilateral pes planus underwent any worsening (i.e., increase in severity) during service? (c) If so, is there clear and unmistakable evidence (undebatable) that such worsening of the pre-existing bilateral pes planus during service was due to the natural progress of the disease? (d) If there is not clear and unmistakable evidence that the bilateral pes planus preexisted service, then the Veteran must be considered to have been sound at entry without a diagnosis of hearing loss. Based upon that premise, is it at least as likely as not (a probability of 50 percent or greater) that the Veteran’s bilateral pes planus began during service or is etiologically related to military service. The examiner is to specifically address the Veteran's lay statements and assume the Veteran is competent to report on foot symptomology he experienced prior to, during and after discharge from military service. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).   3. Readjudicate the appeal. If the full benefits sought for by the Veteran remain denied, issue a supplemental statement of the case and return the case to the Board. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James Hekel, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.