Citation Nr: 21068091 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 19-15 587 DATE: November 9, 2021 ORDER New and material evidence having been received, the application to reopen a previously denied claim of service connection for a right knee disability is granted. Service connection for a right knee disability is denied. New and material evidence having been received, the application to reopen a previously denied claim of service connection for bilateral pes planus is granted. Service connection for bilateral pes planus is denied. FINDINGS OF FACT 1. In a February 2012 rating decision, the claim of service connection for a right knee disability was denied because it did not have its onset during service and is not otherwise related to service. 2. The evidence added to the record since the February 2012 rating decision relates to an unestablished fact that is necessary to substantiate the Veteran's claim of service connection for a right knee disability. 3. The Veteran's right knee disability did not have its onset during service and is not otherwise related to service. 4. In a February 2012 rating decision, the claim of service connection for bilateral pes planus was denied because it did not have its onset during service and is not otherwise related to service. 5. The evidence added to the record since the February 2012 rating decision relates to an unestablished fact that is necessary to substantiate the Veteran's claim of service connection for bilateral pes planus. 6. The Veteran's bilateral pes planus did not have its onset during service and is not otherwise related to service. CONCLUSIONS OF LAW 1. The February 2012 rating decision that denied the Veteran's claim of service connection for a right knee disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. As the evidence received subsequent to the February 2012 rating decision is new and material, the requirements to reopen the claim of service connection for a right knee disability have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.102, 3.156. 3. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 4. The February 2012 rating decision that denied the Veteran's claim of service connection for bilateral pes planus is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 5. As the evidence received subsequent to the February 2012 rating decision is new and material, the requirements to reopen the claim of service connection for bilateral pes planus have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.102, 3.156. 6. The criteria for service connection for bilateral pes planus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from July 1971 to July 1975 and July 1975 to July 1980. These matters come before the Board of Veterans' Appeals (Board) from a February 2018 rating decision. The Veteran testified before the Board at a hearing in June 2021. A transcript of the hearing has been associated with the claims file. New and Material Evidence In order for evidence to be sufficient to reopen a previously disallowed claim, it 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, 314 (1999). Under the relevant regulation, "new" evidence is defined as 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. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the Veteran in developing the facts necessary for the claim has been satisfied. Elkins v. West, 12 Vet. App. 209 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of such evidence is to be presumed unless "patently incredible." Duran v. Brown, 7 Vet. App. 216 (1994). After a review of the evidence submitted since the February 2012 rating decision became final, the Board determines that reopening the claims of service connection for a right knee disability and bilateral pes planus is warranted. In September 2018, the Veteran provided a statement describing an in-service right knee injury as well as bilateral foot pain during basic training resulting in a prescription for orthotics. The Veteran asserted that his right knee disability and bilateral pes planus have been present since service to the present. Further, at the June 2021 Board hearing the Veteran also provided detailed descriptions of the in-service right knee injury and the bilateral foot pain during basic training and again asserted that his right knee disability and bilateral pes planus have been present since service to the present. Additionally, the evidence now includes VA examinations regarding the Veteran's right knee disability and bilateral pes planus, which were conducted in February 2019. The Board finds that not only is this evidence "new" in that it was not of record prior to the last final denial of the claim, it is also "material," because it relates to an unestablished fact necessary to support the claim. Namely, it shows that the Veteran's disabilities may have been incurred during service or may otherwise be related to service. Therefore, the claims are reopened on this basis. Additionally, the Board acknowledges that in November 2017 additional service department records were associated with the claims file. However, insofar as there are newly obtained records that were not previously of record at the time of the February 2012 rating decision, the Board finds that these records are not relevant to the Veteran's claim as they do not demonstrate an in-service incident, injury, symptoms, or treatment related to the Veteran's right knee disability or bilateral pes planus. Therefore, a de novo review of the record based on receipt of newly associated service department records is not appropriate in this case. 38 C.F.R. § 3.156(c). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show the existence of (1) 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases are subject to presumptive service connection if the disease manifests to a compensable degree within one year of separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Additionally, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). Right Knee Disability The Board has reviewed the evidence of record and finds that service connection is not warranted for a right knee disability. In September 2018, the Veteran submitted a statement regarding his claim of service connection for a right knee disability. He stated that he slipped and injured his right knee while cleaning the interior of a fuel tank, sought medical care, and was treated with ice packs and pain medication. He stated that he has experienced knee pain, instability, and buckling since service to the present and that he has not experienced any knee injuries subsequent to the in-service right knee injury. In the June 2021 Board hearing, the Veteran also provided testimony regarding his claim of service connection for a right knee disability. He stated that he slipped and injured his right knee while inspecting the interior of a fuel tank, sought medical care, and was treated with ice packs, crutches, and pain medication. He stated that his right knee symptoms, including pain, have continued since service to the present. Additionally, the Veteran asserted that the February 2019 VA examination did not properly consider his reports of the in-service right knee injury and continuing symptoms since service to the present. The Board has considered the lay statements of the Veteran. Although the Veteran is competent to report his observations and to opine as to some medical matters, his contention that his current right knee disability is related to his in-service right knee injury or is otherwise related to service relates to an internal medical process, which extends beyond an immediately observable cause-and-effect relationship and is the type of evidence that the courts have found to be beyond the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Regarding the Veteran's service treatment records (STRs), in February 2012 the agency of original jurisdiction (AOJ) made a formal finding of unavailability and notified the Veteran in February 2012 correspondence. In November 2017, new service department records were associated with the claims file. The Board has reviewed these newly associated records and finds that this evidence does not include STRs or any documentation regarding the Veteran's right knee injury. Further, in November 2017 correspondence regarding the newly associated records, the AOJ noted that all available records had been associated with the claims file and that no health record was available. Therefore, as the Veteran's STRs are unavailable, the Board has a heightened obligation to explain its findings, to evaluate any evidence that may be favorable to the Veteran, and to provide an adequate rationale for rejecting any evidence. Washington v. Nicholson, 19 Vet. App. 362, 371 (2005). Regarding the Veteran's VA treatment records, in March 2012 he complained of his right knee occasionally giving out and as well as left knee pain and swelling. In November 2012, he underwent left knee arthroscopy with meniscectomy. In March 2013, he complained of constant bilateral knee pain. In November 2013, he complained of several years of bilateral knee pain with the left being more bothersome than the right. In December 2013, he reported experiencing over 40 years of right knee pain since service. In March 2014, he began a course of joint injection with viscosupplementation to treat his right knee symptoms. The Board finds that the Veteran's VA treatment records demonstrate that he presently suffers from a right knee disability; however, his treating physicians do not provide an opinion regarding the etiology of his right knee disability, and the physicians do not provide an opinion stating that his current right knee disability is caused by or related to his in-service right knee injury. As this evidence does not demonstrate a nexus relationship and it does not demonstrate continuity of symptoms based on the clinical evidence, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3), it does not support the claim of service connection. In January 2012, the Veteran underwent a VA examination regarding his right knee. He reported chronic right knee pain and that his right knee occasionally gives out. The examiner noted that x-ray evidence demonstrated mild degenerative changes of the patellofemoral joint and diagnosed the Veteran as having right knee degenerative arthritis. The examiner also noted that the Veteran's right knee infrequently gives out and that his gait is antalgic guarding on the right. In February 2012, the Veteran underwent a second VA examination regarding his right knee. He reported a fall aboard a ship in 1975. The examiner noted that the available records confirmed that the Veteran worked on fuel tanks aboard ships but that there were not available records regarding an in-service right knee injury. The examiner noted that the first evidence of medical treatment for a right knee disability is documented in the Veteran's December 2013 VA treatment records. The examiner also noted that many years after discharge from service the Veteran experienced an amputation of his great right toe, which required the use of crutches for approximately 4 weeks during recovery. The examiner diagnosed the Veteran as having degenerative arthritis of the right knee. The examiner opined that it is less likely than not that the Veteran's right knee disability was incurred in or caused by service. The examiner noted that the Veteran complained of an in-service right knee injury when he slipped and fell while working inside of a fuel tank. The examiner also noted that the Veteran's December 2013 VA treatment records documents complaints of 40 years of right knee pain. The examiner documented that the Veteran's right knee symptoms improved by viscosupplementation joint injections, which is consistent with the diagnosis of arthritis. The examiner determined that the Veteran's arthritis is caused by his age and being overweight. Additionally, the examiner explained that a great toe amputation may alter the mechanics of a person's gait and cause the process of arthritis to increase. The examiner also noted that there is no medical documentation of the Veteran's right knee complaints until 2012, which is 32 years following discharge from service in 1980. Therefore, the examiner concluded that the Veteran's right knee disability is less likely than not caused by the in-service fall while cleaning fuel tanks as the evidence does not support the finding of a nexus relationship with decades between discharge from service and documentation of medical treatment. Rather, the examiner concluded that the most likely causes of the Veteran's right knee disability are his age, weight, and altered gait caused by his toe amputation. There are no medical opinions supporting the Veteran's appeal, and the Board finds the conclusions of the February 2012 VA examination to be sufficient to determine that the Veteran's right knee disability is not related to service. The examiner specifically considered the Veteran's lay statements regarding an in-service right knee injury, but rather found the Veteran's presentation more consistent with the results of aging, weight, and an altered gait. As the examiner expressed a clear conclusion, and offered a reasoned explanation for it, the Board finds the opinion probative. As it is the only medical opinion of record, and the Veteran's opinion as to the cause of his disability is not probative because he lacks the expertise to offer medical opinions relating to the cause of arthritis, the greater weight of the evidence is against the claim. Therefore, the appeal is denied. Pes Planus The Board has reviewed the evidence of record and finds that service connection is not warranted for bilateral pes planus. In September 2018, the Veteran submitted a statement regarding his claim of service connection for bilateral pes planus. He stated that during basic training in 1971 he started experiencing bilateral foot pain during training exercises. He stated that he sought medical care and was prescribed orthotic inserts. He stated that during service he was treated on multiple occasions for bilateral foot pain and was prescribed multiple orthotics. He stated that his bilateral chronic foot pain has continued since service to the present. In the June 2021 Board hearing, the Veteran also provided testimony regarding his claim of service connection for bilateral pes planus. He stated that during basic training he started experiencing bilateral foot pain, sought medical care, and was prescribed orthotics. The Veteran's representative asserted that the Veteran's entrance examination with limited STRs had been associated with the claims file and stated that he believed that a notation regarding a prescription for orthotics was included in these records. Further, the Veteran explained that following discharge from service he experienced a toe amputation but asserted that his bilateral foot pain was present prior to the toe amputation. He also stated that although he also has a diagnosis of varicose veins, he has pain in his bilateral feet and not in the area of the varicose veins located on his calves. Lastly, he stated that his bilateral chronic foot pain has continued since service to the present and that he has used orthotic inserts since service to the present. The Board has considered the lay statements of the Veteran. Although the Veteran is competent to report his observations and to opine as to some medical matters, his contention that his current bilateral pes planus is related to his in-service complaints of bilateral foot pain or is otherwise related to service relates to an internal medical process, which extends beyond an immediately observable cause-and-effect relationship and is the type of evidence that the courts have found to be beyond the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As noted above, the Veteran's STRs are unavailable, and a formal finding of unavailability has been made. The Board acknowledges that new service department records were associated with the claims file in November 2017 and that the Veteran's representative subsequently asserted that the Veteran's entrance examination with limited STRs had been associated with the claims file. However, the Board has reviewed the evidence of record and finds that the evidence does not include STRs or any documentation regarding the Veteran's complaints of foot pain or prescribed orthotics. Further, the Board noted that November 2017 correspondence regarding the newly associated records documented that all available records had been associated with the claims file and that no health record was available. Therefore, the Board has a heightened obligation to explain its findings, to evaluate any evidence that may be favorable to the Veteran, and to provide an adequate rationale for rejecting any evidence. Washington v. Nicholson, 19 Vet. App. 362, 371 (2005). Regarding the Veteran's private treatment records, in March 1986, he was documented as having a great right toe amputation, which was transferred to replace his amputated right thumb. The private treatment records do not include any documentation regarding symptoms of pes planus. Regarding the Veteran's VA treatment records, in March 2014, he was documented as having extensive varicose veins bilaterally from the feet to the knees as well as extensive tinea pedis. The VA treatment records do not include any documentation regarding symptoms of pes planus. In January 2012, the Veteran underwent a VA examination regarding his bilateral pes planus. He reported a chronic foot condition. The examiner documented a finding of bilateral pes planus, flexible. The examiner noted that the Veteran has an ambulatory limit of 4 blocks and standing limit of 10 minutes. In February 2012, the Veteran underwent a second VA examination regarding his bilateral pes planus. The examiner documented that the evidence reviewed included the Veteran's submitted lay statement regarding complaints of in-service foot pain and continuing symptoms of foot pain since service to the present. The Veteran reported that he uses over-the-counter insoles but not custom orthotics and that he experiences bilateral foot pain when walking or standing. The examiner documented that the Veteran did not indicate his arches as his pain area but instead pointed to the varicose veins around his ankles. The examiner diagnosed the Veteran as having bilateral pes planus. The examiner opined that it is less likely than not that the Veteran's bilateral pes planus was incurred in or caused by service. The examiner explained that although the Veteran does have mild pes planus, it is consistent with acquired pes planus over time and is not associated with any one injury. The examiner noted the Veteran's great right toe amputation would be expected to alter the gait but indicated that the Veteran accommodated to this amputation quickly with crutches only required for a few weeks during recovery. The examiner noted that there is no medical treatment documentation of when the Veteran's bilateral pes planus started. The examiner determined that the Veteran's bilateral pes planus is likely caused by stress on the bilateral feet from being overweight. The examiner noted that being overweight is a cause of acquired bilateral pes planus and that the Veteran is documented as being overweight in VA treatment records. The examiner also determined that although the Veteran has varicose veins and a great right toe amputation, these disabilities are not related to his bilateral pes planus. (Continued on the next page) The Board finds the probative evidence of record demonstrates that the Veteran's bilateral pes planus was not incurred in or caused by service. The February 2012 examiner specifically considered the Veteran's lay statements regarding complaints of in-service foot pain during basic training and determined that the Veteran's bilateral pes planus is not is not associated with any one injury. Moreover, the examiner explained the most likely cause of the Veteran's acquired bilateral pes planus is stress on the bilateral feet from being overweight, and the examiner provided a well-reasoned medical rationale in support of the opinion. Additionally, the Veteran's private treatment records and VA treatment records do not indicate any complaints or symptoms related to bilateral pes planus. Thus, the Board finds that the probative evidence of record does not support a finding of continuity of symptoms or a nexus relationship between the Veteran's in-service complaints of foot pain and present bilateral pes planus. Accordingly, the Board finds that the preponderance of the evidence is against the claim of service connection for bilateral pes planus. Therefore, the appeal is denied. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Page-Nelson, 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.