Citation Nr: 21067173 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 19-16 218 DATE: November 3, 2021 ORDER New and material evidence having been presented, the claim for entitlement to service connection for peripheral neuropathy of the lower extremities is reopened. New and material evidence having been presented, the claim for entitlement to service connection for a skin condition is reopened. Entitlement to an initial evaluation in excess of 30 percent for service-connected bilateral pes planus is denied. REMANDED Entitlement to an increased compensable evaluation for hearing loss prior to October 21, 2015 and in excess of 10 percent thereafter is remanded. Entitlement to service connection for a bilateral knee condition is remanded. Entitlement to service connection for peripheral neuropathy of the lower extremities is remanded. Entitlement to service connection for a skin condition is remanded. FINDINGS OF FACT 1. In an unappealed July 2014 rating decision, the Veteran was denied entitlement to service connection for peripheral neuropathy and a skin condition. 2. The evidence received since the July 2014 rating decision is not merely cumulative and redundant of the evidence of record and does raise a reasonable possibility of substantiating the claims. 3. Throughout the period of appeal, the Veteran's pes planus has been productive of pain and cramping in the feet that is relieved by the use of shoe inserts; there have been no findings of marked pronation, extreme tenderness of plantar surfaces of the feet, or marked inward displacement and severe spasm of the tendo achillis on manipulation. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claims of entitlement to service connection for peripheral neuropathy of the lower extremities and a skin condition. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156. 2. The criteria for a rating in excess of 30 percent for bilateral pes planus have not been met. 38 U.S.C. §§ 1155 , 5107; 38 C.F.R. §§ 4.1 , 4.3, 4.7, 4.59, 4.71a, Diagnostic Code (DC) 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1972 to August 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in March 2021. A copy of the transcript is of record and has been reviewed accordingly. New and Material Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). 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. 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 determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence generally is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran initially filed a claim of service connection for peripheral neuropathy and a skin condition in September 2009. In a June 2010 rating decision, he was denied service connection for these disabilities based on findings that there was no showing of a current disability. The Veteran did not appeal that decision and it became final in June 2011. In June 2011, the Veteran then filed a claim to reopen for entitlement to service connection for peripheral neuropathy. The RO again denied the claim for failure to show evidence of a current disability in an October 2011 rating decision. The Veteran did not appeal that decision and it became final in October 2012. In September 2013, the Veteran then filed a claim to reopen for entitlement to service connection for peripheral neuropathy and a skin condition. The RO again denied the claims for failure to show evidence of a current disability in a July 2014 rating decision. The Veteran did not appeal that decision and it became final in July 2015. In September 2016, the Veteran filed a petition to reopen the previously denied claims of entitlement to service connection for peripheral neuropathy and a skin condition. In a March 2017 rating decision, the RO declined to reopen based upon a finding that there had been no new and material evidence submitted. The evidence that has been added to the record since the July 2014 rating decision includes VA outpatient treatment records showing treatment in July 2019 for diagnosed peripheral neuropathy of the bilateral lower extremities and treatment in September 2016 for diagnosed actinic keratosis. Records from January 2019 reveal hydrophilic ointment treatment for the skin. In addition, the Veteran provided statements, particularly to include his March 2021 Board Hearing testimony in which he indicated that he had been treated for the aforementioned disorders and had experienced symptoms since leaving military service. The Board notes that the outpatient treatment records, and the Veteran's statements are new, as they have not been previously considered. Additionally, the records and statements are material, as they address a pertinent fact that was in issue in the last denial, namely that there was no current disability to relate back to military service. Accordingly, the evidence is not merely cumulative and redundant of what has previously been received and reviewed and, at the very least, raises the possibility of substantiating the Veteran's claims. As new and material evidence has been found to be presented in this matter, the Veteran's claims are reopened. The claims are granted to this extent only. Increased Rating The Veteran contends that he is entitled to a higher rating for his pes planus. He testified at his March 2021 Board that his bilateral pes planus was managed with over-the-counter shoe inserts and that he otherwise generally experienced pain, cramping, and an inability to stand for prolonged periods. The Veteran's bilateral pes planus is rated under 38 C.F.R. § 4.71a, DC 5276, for acquired flatfoot. Under DC 5276, a 30 percent rating is warranted for severe bilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is also warranted for pronounced unilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. A maximum 50 percent rating is warranted for pronounced bilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, DC 5276. The Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for the Veteran's bilateral pes planus during the relevant evidentiary period under consideration. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that he cannot walk or stand for prolonged periods of time would not result in symptoms more nearly approximating pronounced bilateral acquired flatfoot. An October 2016 VA examination report shows the Veteran had pain in the heels and flare-ups resulting in throbbing pain, particularly after standing or walking for prolonged periods of time. There was pain on the use and manipulation of both feet, but no swelling or calluses. There was also tenderness on the plantar surfaces of both feet and decreased longitudinal arch height, but no objective evidence of marked pronation or deformity. VA and private treatment records received during the relevant evidentiary period under consideration did not show bilateral pes planus symptoms more severe than those observed at the October 2016 VA examination. Overall, the Veteran's bilateral pes planus is manifested by pain and cramping on use of the feet, and pain on manipulation in both feet; decreased longitudinal arch height of both feet on weight-bearing; disturbance of locomotion; and interference with standing. These findings more closely approximate the criteria for a 30 percent rating under DC 5276. The Board finds no probative lay or medical evidence during the relevant evidence period demonstrating that the Veteran's service-connected bilateral pes planus has been manifested by marked pronation in either foot, extreme tenderness of plantar surfaces of the feet, or marked inward displacement and severe spasm of the tendo achillis on manipulation of each foot, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, DC 5276. In conclusion, the Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for bilateral pes planus. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Veteran's appeal is denied. REASONS FOR REMAND 1. Bilateral Hearing Loss In regard to the Veteran's bilateral hearing loss, it is noted that the Veteran was last examined for this condition in October 2016. Since that time, the Veteran has reported, most recently at his March 2021 Board hearing, that his hearing loss has significantly worsened. VA has a duty to assist Veterans to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 § C.F.R. § 3.159. The duty to assist includes providing a thorough and contemporaneous medical examination. Green v. Derwinski, 1 Vet. App. 121 (1991). V A must provide a new examination when a Veteran claims a disability is worse than when originally rated or when the available evidence is too old to adequately rate the current state of the condition. Olson v. Principi, 3 Vet. App. 480 (1992); Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Here, as the examinations of record are over 5 years old and the Veteran has reported a worsening of his condition, it would be pertinent to the adjudication of these claims to have updated findings. Accordingly, a new VA examination should be obtained. 2. Knees, Peripheral Neuropathies, and Skin Here, the Veteran has previously only been provided with VA examinations for his skin and peripheral neuropathies claims at times prior their diagnoses, and he has never been provided a VA examination for his knee disabilities. In this regard, the Veteran has been shown to have current disabilities for the knees (Pain in both knees, degenerative joint disease, and status post right knee arthroplasty in 2019 ), peripheral neuropathy (diagnosed in 2019), and a skin condition, noted as actinic keratosis (diagnosed in 2016). He has also testified regarding in service injuries leading to the onset of these disabilities and symptoms continued to present. The Veteran should be provided with VA examination to assess the etiologies of these conditions in accordance with McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain and associate updated VA and, if applicable, private treatment records. 2. Thereafter, schedule the Veteran for a VA examination of his service-connected bilateral hearing loss. The record should be made available to the examiner. Any required testing should be performed and recorded. The examiner should consider the Veteran's lay statements regard any worsening of his conditions. 3. Schedule the Veteran for examinations with appropriate specialists to determine the nature and etiology of any bilateral knee disabilities, bilateral peripheral neuropathies of the lower extremities, and skin condition. The examiners should review the entire claims file, to include the Veteran's service department records, his current outpatient medical records, and his lay statements regarding in-service onset and continuity of symptoms post-service. Following a thorough review of the medical and lay evidence of record, the examiner should provide an opinion whether it is at least as likely as not (50 percent or greater probability) that any of the disabilities at issue are due to an in-service disease or injury. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 4. Thereafter, readjudicate the appeal. M. E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dodd, Ryan 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.