Citation Nr: 20005232 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 17-28 992 DATE: January 23, 2020 ORDER The petition to reopen the previously denied claim of service connection for pes planus is granted. Service connection for bilateral pes planus is granted. REMANDED Entitlement to service connection for right lower extremity sensory motor axonal neuropathy is remanded. Entitlement to service connection for left lower extremity sensory motor axonal neuropathy is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for a lumbar spine disability is remanded. FINDINGS OF FACT 1. In February 2009 and April 2010 rating determinations, the RO denied service connection for bilateral foot/pes planus disorders. The Veteran was notified of these decisions those same months and did not perfect his appeal within the proscribed time period nor was evidence received which would have allowed the claims to remain open. 2. Evidence received since the February 2009 and April 2010 decisions raises a reasonable possibility of substantiating the claim of service connection for pes planus. 3. The evidence is in at least relative equipoise as to whether bilateral pes planus had its onset during active service. CONCLUSIONS OF LAW 1. The February 2009 and April 2010 rating determinations denying service connection for bilateral foot/pes planus disorders are final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2018). 2. New and material evidence sufficient to reopen the claim of service connection for pes planus has been received. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2018). 3. With reasonable doubt resolved in favor of the Veteran, bilateral pes planus was incurred in service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from September 1966 to February 1967. As to the issues of service connection for right and left lower extremity sensory motor axonal neuropathy and entitlement to compensation under 38 U.S.C. § 1151 for a lumbar spine disability, these matters were previously before the Board in May 2017. As it relates to these issues, a hearing was held before Veterans Law Judge Roberts in March 2013. In its May 2017 decision, the Board, in pertinent part, found the issues of service connection for right and left lower extremity sensory motor axonal neuropathy to be inextricably intertwined with the then not perfected claim of service connection for pes planus. The Board remanded the above claims for the issuance of a statement of the case with regard to the issue of service connection for pes planus. A statement of the case was issued in May 2017 and the Veteran filed a substantive appeal to perfect this issue for appeal that same month. In his substantive appeal, the Veteran checked the box indicating that he wished to be afforded a videoconference hearing as it related to this issue. The Veteran was afforded the requested hearing in September 2019 before VLJ Parakkal. At that time, the Veteran and his representative noted that the issue of service connection for pes planus was inextricably intertwined with the other service connection issues on appeal and provided testimony on all issues of service connection as well as the 1151 claim. Judge Parakkal informed the Veteran of the right to a third hearing, if so desired, and the Veteran waived his right to a third hearing. With regard to the issue of service connection for pes planus, the question of whether new and material evidence has been received is one that must be addressed by the Board, notwithstanding any action which may have been rendered by the RO. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) [before considering a previously adjudicated claim, the Board must determine that new and material evidence was presented or secured for the claim]; see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) [the Board has a jurisdictional responsibility to consider whether it was proper for the RO to reopen a previously denied claim]. As a result of the above, the Board has listed the issues as such on the title page of this decision. New and Material-Pes Planus New evidence means existing evidence not previously submitted to agency decisionmakers. 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 evidence 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. 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. 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 appellant's claim in light of all the evidence. Justus, 3 Vet. App. at 512. The Court has elaborated that material evidence is: (1) evidence on an element where the claimant initially failed to submit any competent evidence; (2) evidence on an element where the previously submitted evidence was found to be insufficient; (3) evidence on an element where the appellant did not have to submit evidence until a decision of the Secretary determined that an evidentiary presumption had been rebutted; or (4) some combination or variation of the above three situations. Kent v. Nicholson, 20 Vet. App. 1 (2006). Further, RO decisions become final "only after the period for appeal has run," and "[a]ny interim submissions before finality must be considered by the VA as part of the original claim." Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). If new and material evidence is received within one year after the date of mailing of an RO decision, it may be "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period that prevents an initial determination from becoming final." King v. Shinseki, 23 Vet. App. 464, 466-67 (2010). When VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final. Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Buie v. Shinseki, 24 Vet. App. 242, 252 (2011) (remanding for the Board to consider the application of 38 C.F.R. § 3.156(b) and whether the regional office correctly viewed the statements in question "as new claims"). In Buie, the Court explained that, when statements are received within one year of the rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156 (b). Id. The RO denied service connection for a bilateral foot/pes planus disorder in February 2009 and April 2010. In denying service connection in the February 2009 rating determination, the RO noted that service connection could be granted for a disability which began in military service or was caused by some event or experience in service. It observed that the entrance examination noted no medical history of a bilateral foot condition and that service treatment records (STRs) on October 1, 1966 showed a diagnosis of pes planus. The RO further observed that STRs dated January 30, 1967 showed treatment for a sprained right ankle and that X-rays suggested fracture of post distal fibula. It noted that the Veteran was placed in a cast and it was removed on February 3, 1967. It further observed that exit examination showed no permanent residual disability of the right ankle. Moderate pes planus was noted on separation. The RO indicated that although medical records from Lovelace and VAMC Albuquerque showed a medical history of left foot fasciitis, bilateral painful pes planus and mild hallux valgus, the evidence reviewed in support of the claim for service connection for bilateral foot condition did not establish a nexus between the current foot condition and service. It stated that the extensive post service foot treatment could not be related to the problems in service without engaging in sheer speculation. In order to grant service connection for bilateral foot condition, there needed to be medical evidence linking an etiological relationship of the current foot condition to active duty service or to a service-connected disease or injury. The RO indicated that at this time, there was no basis upon which to establish service connection. Therefore, service connection for bilateral foot condition was denied. In the April 2010 rating determination, the RO stated that it had to continue to deny service connection for pes planus (also claimed as foot condition) since the evidence of record did not show that this condition was incurred in or was aggravated by his military service. The RO observed that service treatment records did not show any treatment for pes planus. It noted that the Veteran’s release from active duty examination dated January 10, 1967 did note pes planus that was not symptomatic. It observed that outpatient treatment records from the Albuquerque VA Medical Center noted that the Veteran had been treated for pes planus and foot pain since-2007. The RO indicated that at the May 2009 VA examination, the Veteran reported that he had been flatfooted for his entire life. He stated that he had received orthotics for this about a year ago. Physical examination showed painful motion, tenderness and abnormal weight bearing. The Veteran had marked pronation with pain on manipulation. A diagnosis of pes planus was shown. The RO observed that the examiner stated that this condition was a congenital or developmental disability and there was no indication that the condition was worsened by service. The RO indicated that VA paid compensation for acquired pes planus; however, 38 C.F.R. § 4.9 provided that mere congenital or developmental defects were not diseases or injuries in the meaning of applicable legislation for disability compensation purposes. It noted that a claim of entitlement to service connection required three elements (1) medical evidence of a current disability (2) medical or in certain circumstances lay evidence of an inservice incurrence or aggravation of a disease or injury and (3) medical evidence of a nexus between the current disability and the disease or injury inservice. The RO indicated that it had to deny service connection for pes planus (previously denied as bilateral foot condition) since the evidence of record showed that this disability was a congenital or developmental defect that was not incurred in or aggravated by military service. Evidence available to the RO at that time included service treatment records; statements from the Veteran; his application; post-service treatment records, and the results of the May 2009 VA examination. The Veteran was notified of the denials the same months of the decisions and did not appeal within the proscribed time nor was evidence received which would have allowed the claim to remain open. Thus, the decision became final. Evidence received subsequent to the February 2010 rating determination includes post-service treatment records showing continuing diagnoses and treatment of pes planus, an August 2017 VA medical opinion, and the testimony of the Veteran with regard to his pes planus. The medical records show the continuing diagnosis and treatment for pes planus. The Veteran’s testimony demonstrates consistent symptoms since service and provides detail as to severity of the pes planus while in service. This demonstrates previously unestablished elements of the claim of a current disability and a possible link between the current disability and service, and provides a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For these reasons, the Board finds that the evidence received since the February 2009 and April 2010 determinations is new and material to reopen service connection for pes planus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The reopened issue will be addressed directly below. Service Connection -Pes Planus Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.§ 1110; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Disorders first diagnosed after discharge may be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). When no preexisting medical condition is noted upon entry into service, a Veteran is presumed to have been in sound condition upon entry. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096; Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both pre-existing and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. "The Federal Circuit has made clear that the Secretary may rebut the second prong of the presumption of soundness through demonstrating, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition." Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (citing to Wagner, 370 F.3d at 1096). Service treatment records do not reveal any preexisting foot disability, including bilateral pes planus, prior to the Veteran's entry into active service. At the time of the Veteran’s December 1965 pre-enlistment examination, normal findings were reported for the feet. On his December 1965 pre-enlistment report of medical history, the Veteran checked the “no” box when asked if he had or had ever had foot problems, with no notation of foot problems or pes planus noted in the physician’s summary section of the report. Thus, he is presumed to be in sound condition at entry. To that end, as such, VA is required to rebut that presumption by clear and unmistakable evidence. In an October 1966 treatment record, the Veteran was noted to have pes planus which was found to be incurred in the line of duty. Arch supports were supplied at that time. At the time of his January 1967 service separation examination, the Veteran was noted to have pes planus. On his January 1967 service separation report of medical history, the Veteran checked the “yes” box when asked if he had foot trouble. In the physician’s summary section of the report, the examiner noted the foot trouble as moderate pes planus. At the time of a June 2009 VA examination, the Veteran was diagnosed as having pes planus. The Veteran reported that he had had flat feet his whole life. He stated that his feet hurt in the military but he never told anyone. The examiner answered yes to the question of the whether the condition was congenital or developmental and no to the question of whether the condition was worsened by service. He further indicated that there was no condition superimposed upon the congenital/developmental condition. There was no rationale provided. In an August 2017 VA opinion, as to the question of whether the current foot problem pes planus or any other foot condition (previously denied as bilateral foot condition) was at least as likely as not (50 percent or greater probability) incurred in or caused by the moderate pes planus diagnosed during service, the examiner indicated that the condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner indicated that VBMS military records did not show a reason for exacerbation of pes planus. No new medical records were found since the previous denial of service connection for pes planus. There was evidence that the Veteran started to complain of foot pain related to neuropathy long after military separation. It was noted that the medical record and Veteran agreed that his foot pain was a neuropathic-type foot pain and therefore not related to pes planus. The examiner indicated that no new argument was developed to connect a symptomatic pes planus to military service. It was more likely his foot pain was secondary to his idiopathic, peripheral polyneuropathy and sciatica as pointed out in contemporary medical records of the last several years. The above opinions do not rebut the presumption of soundness as the examiners do not establish that pes planus clearly and unmistakably preexisted service. As the presumption of soundness has not been rebutted by clear and unmistakable evidence, the question becomes one of direct service connection. In this regard, as noted above, the Veteran was not found to have foot problems or pes planus on his entrance into service. The service treatment records demonstrate that pes planus was first diagnosed during service, with a specific finding of it having been incurred in the line of duty, with arch supports being issued in October 1966. The Veteran also checked the yes box when asked if he was having trouble on his January 1967 service separation report of medical history, with the physician indicating that the Veteran had moderate pes planus at that time. Moderate pes planus was also found at the time of the Veteran’s January 1967 service separation examination. Moreover, the Veteran has been diagnosed with pes planus on numerous occasions following service and has testified as to having had foot problems since service. The Board finds his testimony credible. The Board finds the evidence regarding the claim for service connection for bilateral pes planus in at least relative equipoise and, as such, the all doubt is resolved in the Veteran's favor. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, service connection for bilateral pes planus is warranted. REASONS FOR REMAND As it relates to the claims of service connection for right and left lower extremity sensory motor axonal neuropathy, the Veteran has indicated his belief that these disorders are caused and/or aggravated by his now service-connected pes planus. Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, at 448 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). To establish secondary service connection, the law states that there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between a service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). As such, a VA examination is warranted. As it relates to the claim for compensation under 38 U.S.C. § 1151 for a lumbar spine disability, the Board notes that this matter was remanded in March 2014 to obtain an opinion on this issue. The Veteran was afforded a VA examination in May 2014. At the time of the examination, the examiner rendered diagnoses of degenerative arthritis of the spine, intervertebral disc syndrome, spinal stenosis, and left lower extremity radiculopathy. The examiner stated that after a full review of the claims file, it was less likely than not that the Veteran had any additional lumbar spine disability due to VA treatment. The examiner noted that the Veteran's history, physical examination, and lumbar MRI demonstrated lumbar degenerative disc disease, degenerative joint disease, and spinal stenosis, all of which were consequences of aging. The examiner did not address the diagnosis of the lower left extremity radiculopathy. The RO found the report inadequate noting that the diagnosis of left lower extremity radiculopathy could be considered an additional disability. In a September 2014 report, the VA examiner stated that she had reviewed the conflicting medical evidence and was providing the following opinion: I am unable to determine whether or not the proximate cause of the Veteran's left lower extremity radiculopathy is the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the medical treatment from 2008 to the present without resorting to mere speculation. I am unable to determine, without resorting to mere speculation, whether any failure on the part of the VA to timely diagnose and properly treat the lumbar spine disorder caused or contributed to the Veteran's development of any additional disability including left lower extremity radiculopathy and whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider or VA furnished the hospital care, medical or surgical treatment, or examination without informed consent. I am unable to determine, without resorting to mere speculation, that the proximate cause of the Veteran's left lower extremity radiculopathy is an event which was not reasonably foreseeable, based on what a reasonable health care provider would have foreseen. Since I am unable to determine that the Veteran's left lower extremity radiculopathy was caused by VA treatment, I am unable to further comment on the last question. The examiner did not provide any rationale or reason as to why she could not provide the requested opinions. When the record is ambiguous as to whether sufficient information was obtained, "it is the Board's duty to remand for further development." Jones v. Shinseki, 23 Vet. App. 382 at 390. Before the Board can accept an examiner's statement that an opinion cannot be provided without resort to speculation, it must be clear that this is predicated on a lack of knowledge among the medical community at large and not the insufficient knowledge of the specific examiner." Sharp v. Shulkin, 29 Vet. App. 26, citing Jones at 390. As such, additional development is warranted. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain all outstanding VA and/or private treatment records related to the Veteran's outstanding claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified. 2. Schedule the Veteran for a VA examination to assist in determining the nature and etiology of any current right and/or left lower extremity sensory motor axonal neuropathy. The entire record should be made available to the examiner in conjunction with the examination. All necessary tests should be performed. The examiner is requested to offer the following opinions: (a) Is it at least as likely as not (50 percent probability or greater) that any right and/or left lower extremity sensory motor axonal neuropathy had its onset in service or is otherwise related to the Veteran's service? (b) If not, is it as likely as not (50 percent probability or greater) that any right and/or left lower extremity sensory motor axonal neuropathy is caused by the service-connected pes planus? (c) If not, is it at least as likely as not (50 percent probability or greater) that any right and/or left lower extremity sensory motor axonal neuropathy is aggravated by the service-connected connected pes planus? If aggravation is found, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of severity of the nonservice-connected disorder before the onset of aggravation. Complete detailed rationale is requested for any opinion that is rendered. 3. If available, return the file to the examiner who prepared the September 2014 medical opinion with regard to additional disability of left lower extremity radiculopathy. As it relates to the rendered opinions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. If the deficiency in the record can be remedied, remedy the deficiency and have the examiner render the requested opinions. If the examiner does not have the knowledge or training to render the requested opinions, refer the matter to an examiner with the required background and request the examiner render the opinions requested in the September 2014 report. (Continued on the next page)   If the examiner is not available, refer the matter to an additional VA examiner with the appropriate expertise and request that he/she answer the questions set forth by the RO in the September 2014 report. Complete detailed rationale must be provided for each opinion rendered. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals TBD To Be Determined Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. S. Kelly, 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.