Citation Nr: 21004237 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 16-45 589 DATE: January 26, 2021 ORDER New and material evidence having been received, the claim to reopen service connection for right foot pes planus is granted. REMANDED Entitlement to service connection for right foot pes planus is remanded. FINDINGS OF FACT 1. The claim of entitlement to service connection for bilateral pes planus was denied in an April 2005 rating decision, and the Veteran did not perfect an appeal nor submit new and material evidence within one year. 2. The denial was confirmed and continued in a November 2006 rating decision, and the Veteran did not perfect an appeal nor submit new and material evidence within one year. 3. The denial was confirmed and continued for service connection for right foot pes planus in a March 2010 rating decision, and the Veteran did not perfect an appeal nor submit new and material evidence within one year. 4. The denial was confirmed and continued for service connection for right foot pes planus in a July 2012 rating decision, and the Veteran did not perfect an appeal nor submit new and material evidence within one year. 5. New and material evidence has been received since the last prior final decision. CONCLUSIONS OF LAW 1. The April 2005, and November 2006 rating decisions denying service connection for bilateral pes planus, and the August 2010, and July 2012 rating decisions denying service connection for right foot pes planus are final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2019). 2. New and material evidence has been received that warrants reopening of the claim of service connection for right foot pes planus. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1977 to October 1977, and from October 1978 to October 1982, with additional service in the Army National Guard. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran testified before a Veterans Law Judge (VLJ) other than the undersigned in an August 2019 hearing. Unfortunately, due to audio malfunctions, a transcript of this hearing is unavailable. A letter was sent to the Veteran in November 2019 informing him of this and offering him an opportunity for a new Board hearing, which the Veteran declined. In February 2020, a letter was sent to the Veteran informing him that the VLJ who held his August 2019 hearing was no longer available for his appeal, and offering him another opportunity for a new Board hearing, which the Veteran again declined. In March 2020, yet another letter was sent to the Veteran offering him an opportunity for a new Board hearing, and the Veteran did not reply. The Board notes that the Veteran’s service connection claim was previously characterized as a claim for service connection for bilateral pes planus (previously claimed as bilateral foot condition now claimed as right foot condition). To make the focus clearly on the present claim rather than the prior claims, the Board has recharacterized the claim as service connection for right foot pes planus. New and material evidence having been received, the claim to reopen service connection for right foot pes planus is granted. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). 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. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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 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, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). A claim is not reconsidered, however, where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or any other official source. 38 C.F.R. § 3.156(c)(2). To establish service connection, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Veteran first filed service connection for bilateral pes planus in January 2005. In an April 2005 rating decision, the RO denied service connection because the pes planus was determined to be preexisting, and there was no record of treatment between separation from service in 1982 until 2004. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. A November 2006 rating decision found additional evidence to be new, but not material, and continued the denial. The Veteran neither appealed that decision, nor submitted new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. An August 2010 rating decision continued the denial because the evidence submitted was not new and material. The Veteran failed to perfect an appeal after the issuance of a November 2011 statement of the case. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. A July 2012 rating decision continued the denial because the evidence submitted was not new and material. The Veteran neither appealed that decision, nor submitted new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the July 2012 rating decision includes the Veteran’s service treatment records (STRs), a buddy statement, and VA treatment records. The STRs contain numerous entries for complaints of foot pain due to pes planus. The buddy statement includes a report that the Veteran had difficulty running and getting a comfortable fit wearing combat boots, and that he had no arch in his feet. VA treatment records include several entries for treatment for severe pes planus. Evidence submitted after the July 2012 rating decision includes VA treatment records, Army hospital records, lay statements, a buddy statement, a VA medical provider letter, and a VA medical opinion. The VA treatment records continue to report treatment for pes planus. The Army hospital records indicate that the pes planus was adult acquired. The buddy statement from a fellow soldier reports that they were required to run in combat boots over cobblestone streets, and that many soldiers complained of pain and got flat feet as a result. The Veteran’s lay statement reports that his problems with his feet began when he went to jump school, and from military running and marching with a 50-pound ruck sack. The VA medical opinion contains a positive nexus opinion. The VA doctor letter indicates that the Veteran’s feet have bothered him ever since jump school in the army. The Board finds that new and material evidence has been presented. The evidence is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim - evidence of a nexus between the in-service complaints of foot pain and the present disability. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, for all of the above reasons, the Veteran’s claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for right foot pes planus is remanded. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, a June 2018 VA examination was conducted. Although it appears to have been conducted connection with the right ankle claim, the examiner provided an extensive opinion regarding pes planus. The examiner opined that a “foot condition” was caused by service, but then noted it was preexisting and aggravated by service. The examiner did not make clear the distinction between a foot condition, an ankle condition (for which the Veteran is now service-connected), and pes planus. Accordingly, an addendum opinion is necessary for clarification. In that regard, the Board makes several findings. There is the possibility of service connection based on two distinct periods of service. Regarding the Veteran’s period of ACDUTRA from July 1977 to October 1977, the Board notes that the Veteran’s hearing loss and tinnitus were service-connected based partially on this period. In the July 2016 rating decision, the RO noted that the noise exposure that supported these grants included his time as an Armor Crewman during ACDUTRA. Thus, there is already veteran status for this duty period and the presumption of soundness would apply. However, there was no entrance examination prior to ACDUTRA and the presumption of soundness is inapplicable. Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). Indeed, the Board finds that the evidence of record demonstrates that the Veteran’s pes planus pre-existed active duty. Notably, although there are no pre-service medical records, only 11 days after entrance into ACDUTRA, a July 1977 STR noted moderate flat feet. Accordingly, as the pes planus pre-existed service, the issue is one of aggravation. Here, the Veteran must show a permanent worsening of a preexisting condition during the relevant period of service to trigger the presumption. This is what the examiner must provide an opinion on. Regarding the second period of service, which is active duty, the February 1978 service entrance RME noted moderate pes planus. Thus, the presumption of soundness is rebutted and the issue is one of aggravation. 38 C.F.R. § 3.306. Again, clarification is needed. The matters are REMANDED for the following action: Obtain an addendum opinion regarding the etiology of the right foot pes planus from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. First, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the pre-existing pes planus was permanently worsened by the Veteran’s first period of service from July 1977 to October 1977. Second, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the pre-existing pes planus was permanently worsened by the Veteran’s second period of service from October 1978 to October 1982. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.