Citation Nr: 20005264 Decision Date: 01/24/20 Archive Date: 01/22/20 DOCKET NO. 17-48 977 DATE: January 24, 2020 ORDER The petition to reopen the claim of entitlement to service connection for a bilateral foot disorder, to include flat feet, pes planus and plantar fasciitis is granted. REMANDED The issue of service connection for a bilateral foot disorder is remanded. FINDINGS OF FACT 1. In January 2010, VA denied reopening the claim of entitlement to service connection for a bilateral foot disorder. The Veteran was informed of the adverse determination and his appellate rights and did not submit a notice of disagreement (NOD). 2. The documentation submitted since the January 2010 rating decision is new and raises a reasonable possibility of substantiating the Veteran’s claim of service connection for a bilateral foot disorder. CONCLUSIONS OF LAW 1. The January 2010 rating decision denying the reopening of the claim of service connection for a bilateral foot disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). 2. New and material evidence sufficient to reopen the Veteran’s claim of service connection for a bilateral foot disorder has been presented. 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 in the U.S. Army from January 1973 to August 1975. This matter comes before the Board of Veterans’ Appeal (Board) on appeal from an August 2016 rating decision of the Houston, Texas Regional Office (RO). In November 2019, the Veteran was afforded a Central Office hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claim. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. Reopening Generally, a claim that has been denied in an un-appealed RO decision is final and may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108 (2012); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence means existing evidence not previously submitted to agency decision makers. 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) (2017); Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The newly presented evidence need not be probative of all the elements required to award the claim, just probative of each element (or at least one element) that was a specified basis for the last disallowance of the claim. See Evans v. Brown, 9 Vet. App. 273, 283 (1996). Bilateral foot disorder In January 2010, the RO denied the claim of entitlement to service connection for a bilateral foot disorder. The RO found that there was no evidence of a chronic bilateral foot disorder from service discharge to the present. The evidence in January 2010 included service treatment records (STRs), the Veteran’s statement and private treatment records. In a September 1974 STR, it was noted that the Veteran reported experiencing painful feet. The Veteran was diagnosed with flat feet and provided with arch supports. In the July 1975 pre-separation medical history report, the Veteran answered in the affirmative to the question of whether he then had, or once had foot trouble; however, the physician’s summary section noted foot fungus. During the Veteran’s July 1975 pre-separation medical examination report, no foot abnormalities were noted. In a September 2008 statement, the Veteran indicated having been diagnosed with flat feet during service. Private treatment records dated May 2008, September 2008 and January 2009 reflect a diagnosis of pes planus. The Veteran was informed of this decision and apprised of his appellate rights, but he did not submit a NOD. Therefore, the January 2010 rating decision became final. 38 C.F.R. § 20.1103 (2018). The evidence received since the January 2010 rating decision includes the Veteran’s statement asserting that his bilateral foot disorder was caused by service; VA treatment records reflecting the Veteran’s report of experiencing bilateral foot pain and a diagnoses of pes planus and flat feet; private treatment records reflecting the Veteran’s report of experiencing bilateral foot pain and a diagnosis of bilateral plantar fasciitis; an August 2017 disability benefits questionnaire (DBQ) reflecting a diagnoses of bilateral flat foot and plantar fasciitis but no etiology opinion was provided; a private left foot radiograph that revealed no plantar fasciitis and a right foot radiograph that revealed plantar fasciitis; and the Veteran’s Board testimony where the Veteran testified to experiencing bilateral foot pain since service to the present. The issues of a current bilateral foot disorder and in-service event, injury or disease are not in dispute. The Veteran’s assertion that his bilateral foot disorder was caused by service is presumed credible for the limited purpose of determining whether new and material evidence has been submitted. The Veteran’s statement, coupled with the fact that the Veteran was diagnosed with flat feet during service, and continued to undergo treatment for a bilateral foot disorder post-service relates to an unestablished fact. The evidence is new and relates to an unestablished fact necessary to substantiate the Veteran’s claim. Therefore, the claim of entitlement to service connection for a bilateral foot disorder is reopened. REASON FOR REMAND When the Board reopens a claim after the RO has denied reopening that same claim, the matter generally must be returned to the RO for consideration of the merits. Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010) (holding that the RO generally does not assess the credibility of the evidence or determine the need for a medical examination or opinion when reopening is denied). The matter is remanded for the following action: 1. Readjudicate the claim of entitlement to service connection for a bilateral foot disorder. If the benefits sought on appeal remain denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period should be allowed for response before the case is returned to the Board. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Cohen, 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.