Citation Nr: 21067981 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 17-61 094 DATE: November 8, 2021 ORDER The application to reopen the claim for entitlement to service connection for bilateral pes planus is denied. FINDING OF FACT A June 2014 rating decision that denied entitlement to service connection for bilateral pes planus is final, and subsequent evidence received and associated with the claims file does not relate to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The June 2014 rating decision, which denied entitlement to service connection for bilateral pes planus, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2014). 2. New and material evidence having not been submitted, the criteria to reopen the claim for entitlement to service connection for bilateral pes planus are not met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2019). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the U. S. Army from October 2010 to October 2012. This matter comes before the Board of Veterans' Appeals (Board) from a June 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran attended a Board hearing with the undersigned Veterans Law Judge in June 2021. A transcript of the hearing is of record. New and Material Evidence The Veteran has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (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(b) and (c); 38 C.F.R. §§ 3.160(d), 20.201, and 20.302(a). The Veteran was most recently denied entitlement to service connection for bilateral pes planus in a June 2014 rating decision. The Veteran was notified of that decision and appeal rights. He did not appeal the decision or submit new and material evidence within one year. The denial of his claim consequently became final. See 38 C.F.R. §§ 20.302, 20.1103. As a result, the claim of service connection for bilateral pes planus may now be considered on the merits only if new and material evidence has been received since the time of the last final adjudication. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). Under 38 C.F.R. § § 3.156(a), evidence is considered "new" if it was not of record at the time of the last final disallowance of the claim. 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. Finally, 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. In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). Additionally, when determining whether the Veteran has submitted new and material evidence to reopen a claim, consideration must be given to all the evidence since the last final denial of the claim. Evans v. Brown, 9 Vet. App. 273 (1996). Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). Whether new and material evidence sufficient to reopen the claim for entitlement to service connection for bilateral pes planus has been received At the time of the June 2014 rating decision, the claims file included the Veteran's service treatment records, lay statements, and VA treatment records. The rating decision also considered an April 2014 VA examination. After examining the Veteran and reviewing the claims file, to include the in-service treatment for pes planus, the examiner determined that service did not aggravate the Veteran's pes planus. The RO denied service connection because there was no evidence submitted reflecting that the Veteran's prior existing pes planus was worsened by his service. Since the time of the last final rating decision, VA treatment records reflecting continued treatment for pes planus has been added to the claims file. The Veteran also provided testimony at a June 2021 Board hearing. He stated that he was unaware that he had pes planus prior to service and that he believed the heavy physical requirements of service permanently aggravated his condition. The Veteran's former representative submitted an informal hearing brief in June 2021 again reiterating the in-service treatment for pes planus and arguing that pes planus was permanently worsened. The Board finds this to be argument but does not provide or identify new and material evidence. The additional records address on-going treatment for a disability already shown to exist and reiterate the Veteran's lay statements and in-service treatment for pes planus. The new evidence is cumulative and does not provide any additional evidence not already considered in the June 2014 rating decision. There is no new evidence suggesting that service permanently aggravated the Veteran's preexisting pes planus. Because the new evidence is cumulative, the Board declines to reopen the claim for service connection for bilateral pes planus. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fitzgerald, 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.