Citation Nr: 20004599 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 19-13 114 DATE: January 21, 2020 ORDER The petition to reopen a previously denied claim for service connection for bilateral foot arthritis is granted. REMANDED Entitlement to service connection for bilateral foot arthritis is remanded. FINDINGS OF FACT 1. In an unappealed September 2003 rating decision, the RO denied the Veteran’s original claim for service connection for bilateral foot arthritis. 2. The evidence received since the September 2003 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for bilateral foot arthritis. CONCLUSIONS OF LAW 1. The September 2003 rating decision denying a claim for bilateral foot arthritis is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.105(a), 20.302, 20.1103 (2018). 2. The additional evidence received since the September 2003 rating decision is new and material, and the claim of service connection for bilateral foot arthritis is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1968 to July 1970. This appeal stems from a July 2016 rating decision that denied reopening a previously denied claim for bilateral foot arthritis. New and Material Evidence Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a NOD with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302 (2018). If the Board issues a decision on appeal, confirming the RO’s decision, then the Board’s decision subsumes the RO’s decision on the same issue at hand. 38 C.F.R. § 20.1104. Board decisions are final on the date issue, unless the Chairman of the Board orders reconsideration. 38 C.F.R. § 20.1100. An exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record 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 evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In the present case, the RO denied the Veteran’s claim for bilateral foot arthritis in a September 2003 rating decision, finding that there was no pathology of arthritis in the feet. The evidence considered at the time included service treatment records, VA treatment records, and a September 2003 VA examination report. The Veteran did not appeal this decision, and new and material evidence was not received within one year of the decision. Thus, the September 2003 rating decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Relevant evidence received since the final denial in September 2003 included multiple VA examinations, additional VA treatment records, and lay assertions from the Veteran. This evidence, specifically medical evidence showing a diagnosis of arthritis in both feet relates to an unestablished fact of a current diagnosis in the last final denial. This evidence is therefore new and material, and the criteria for reopening the claim for service connection for bilateral foot arthritis are therefore met. REASONS FOR REMAND A remand is necessary for the RO to adjudicate the claim on the merits and to obtain an adequate VA examination and medical opinion as to whether the Veteran’s claimed bilateral foot arthritis is etiologically related to his active service. Initially, the RO denied reopening the Veteran claim, finding that the new evidence did not related to an unestablished element of a nexus. Nevertheless, the final September 2003 rating decision clearly denied the claim for lack of a current diagnosis despite then adding that the disability was not incurred in or aggravated by service. The Veteran’s service treatment records showed that he complained of foot trouble and was diagnosed with asymptomatic bilateral pes planus, for which he is now service-connected. A December 1970 VA examination noted that the Veteran complained of bilateral foot pain and weakness and diagnosed pes planus. Thereafter, a November 1973 record showed that the Veteran had severe symptoms of pes planus. A subsequent December 1975 VA examination noted that the Veteran complained of sore feet and his longitudinal arches were completely obliterated with moderate bulging to the medial borders of the feet and the feet when viewed from the posterior aspect revealed moderate in-bowing of both tendo-achilles. X-rays showed mild pes planus deformity. In a June 2003 statement, the Veteran indicated that he was diagnosed with bilateral foot arthritis. He added that he had foot pain in service and since separation from service. In September 2003, the Veteran underwent a VA foot conditions examination, at which time the examiner stated that the Veteran had arthritis in both feet; however, the examiner then stated, “For the veteran’s claimed condition of arthritis diagnosed in both feet, there is no diagnosis because there is no pathology to render a diagnosis.” A December 2010 VA examination noted diagnoses of bilateral pes planus and hallux valgus but noted that x-rays were otherwise negative. Thereafter, a May 2015 VA examination diagnosed bilateral pes planus, bilateral hallux valgus, and bilateral degenerative arthritis. The examiner noted that x-rays showed normal images for the Veteran’s age with mild pes planus, mild arthritis, and minimal hallux valgus, both unrelated to his mild pes planus and not a progression of it. May 2016 and December 2017 VA examination reports confirmed these diagnoses. During a June 2018 DRO hearing, the Veteran testified that he had foot pain and foot trouble since separation from service. In January 2019, the Veteran underwent an additional VA foot conditions examination, at which time the examiner opined that the bilateral arthritis was less likely than not related to service. The examiner explained that medical literature indicates that degenerative arthritis results from the natural degeneration of cartilage as a result of wear and tear over time. The examiner concluded that the Veteran’s arthritis was age related and consistent with his age. The examiner further opined that there was no medical literature in support that minimum pes planus relates to the development of degenerative arthritis. The examiner concluded that the arthritis was not a progression of the pes planus. The Board finds many inconsistencies in the aforementioned evidence and finds that a new VA examination is necessary. First, for decades, with the exception of treatment records in 1973 that noted severe symptoms related to pes planus, all VA examiners concluded that the Veteran’s pes planus was mild. Specifically, the most recent VA examiner emphasized that the pes planus was so mild and therefore could not be related to the degenerative arthritis. However, no examiner addressed the Veteran’s decades of complaints of severe foot pain and whether the foot pain during service and since separation from service was related to the now diagnosed arthritis. Notably, the pes planus was asymptomatic at the time of discharge; however, the Veteran still complained of ongoing foot pain. Additionally, while all examiners agreed that the arthritis was not a progression of the pes planus, or in other words, was not caused by the pes planus, no examiner opined regarding any potential aggravation caused by the pes planus. Accordingly, obtaining a new VA examination is necessary prior to deciding the claim on the merits. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Thereafter, provide the Veteran with an appropriate VA examination to help determine the likely etiology of the claimed bilateral foot arthritis. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. After a review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Elicit from the Veteran and the record all signs and symptoms related to his bilateral foot arthritis during service and since separation from service. (b) Provide an opinion as to whether it is at least as likely as not (a 50 percent or higher probability) that the currently diagnosed bilateral foot arthritis had its onset during service or is otherwise related to it. In doing so, please specifically address the Veteran’s lay reports and the evidence showing that the bilateral pes planus was only mild suggestive that the complaints of severe foot pain throughout the years was unrelated to the pes planus. (c) Provide an opinion as to whether it is at least as likely as not (a 50 percent or higher probability) that the currently diagnosed bilateral foot arthritis was aggravated by the service-connected bilateral pes planus. Please note: permanent worsening is not a requirement for secondary service connection of a non-service-connected injury or disease. A complete rationale should be provided for all opinions on direct and aggravation. 3. Thereafter, readjudicate the remanded claim. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, 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.