Citation Nr: 21070745 Decision Date: 11/25/21 Archive Date: 11/25/21 DOCKET NO. 17-25 820 DATE: November 25, 2021 ORDER New and material evidence has been received and the claim for entitlement to service connection for bilateral pes planus is reopened; to this extent only, the appeal is granted. REMANDED Entitlement to service connection for bilateral pes planus is remanded. FINDINGS OF FACT 1. An August 2009 rating decision denied the Veteran's claim for entitlement to service connection for bilateral pes planus; the Veteran did not appeal this decision. 2. The evidence associated with the claims file following the August 2009 rating decision is new and material to the Veteran's claim for entitlement to service connection for bilateral pes planus. CONCLUSIONS OF LAW 1. The August 2009 rating decision is final as to the denial of service connection for bilateral pes planus. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence sufficient to reopen the issue of entitlement to service connection for bilateral pes planus has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1973 to August 1979. This matter comes before the Board of Veterans Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. New and Material Evidence The Veteran's claim for service connection for a bilateral pes planus was denied in an August 2009 rating decision. The Veteran did not appeal this decision and it became final. The Veteran submitted a claim for service connection for bilateral pes planus in March 2021. VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). When making a determination as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Whether new and material evidence has been presented to reopen the claim for entitlement to service connection for a bilateral pes planus The Veteran's claim for entitlement to service connection for bilateral pes planus was denied in August 2009 on the basis that the evidence did not show a bilateral pes planus disability was currently diagnosed. In connection with the Veteran's claim to reopen, VA treatment records associated with the claims file in July 2015 note a current diagnosis of bilateral pes planus. Thus, the Board finds that new and material evidence has been received sufficient to reopen his previously denied claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). REASONS FOR REMAND Entitlement to service connection for bilateral pes planus is remanded. The Board finds that additional development is needed prior to adjudication to the issue on appeal. Remand is required to obtain an addendum VA opinion, or a new VA examination if necessary. When VA undertakes to obtain an opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran received a VA examination in May 2015. The examiner provided a negative opinion but did not address the Veteran's lay statements regarding in-service onset and continuity of foot pain since service. The Veteran contends his bilateral pes planus began during his active duty service and progressively worsened over the years. When a Veteran has provided competent lay statements of an in-service injury, the examiner must consider and address them when developing his rationale. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016). Accordingly, remand is warranted. The matters are REMANDED for the following action: Obtain an addendum opinion to determine the nature and etiology of the bilateral pes planus. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand, the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. After examining the Veteran if deemed necessary by the examiner and considering his pertinent medical history and lay statements regarding his reported symptoms, the examiner should opine as to: Whether it is at least as likely as not (a 50 percent probability or greater) that his bilateral pes planus was incurred in, aggravated by, or etiologically related to his military service. The examiner should specifically address the Veteran's and his wife's contentions of in-service onset and continuity of symptoms. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Javed, 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.