Citation Nr: 21074169 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 19-22 782 DATE: December 14, 2021 ORDER New and material evidence having not been received, the application to reopen a claim of service connection for a lumbar spine disorder is denied. New and material evidence having been received, the application to reopen a claim of service connection for pes planus is granted. REMANDED Service connection for bilateral pes planus. Service connection for a neck disorder. Service connection for a gastrointestinal (GI) disorder. FINDINGS OF FACT 1. The Veteran served on active service from December 1991 to March 1994. 2. In an unappealed May 2014 rating decision, the regional office (RO) denied the applications to reopen claims of service connection for a lumbar spine disorder and pes planus on the basis that the Veteran did not submit evidence establishing that he had a chronic back disorder that was related to service or then-currently diagnosed pes planus that was aggravated beyond its natural progression by service. He did not appeal and no additional evidence was submitted with a year and that decision became final. 3. The evidence submitted since the May 2014 rating decision, to the extent that it is new, is not material with regard to the claim of service connection for a lumbar spine disorder. 4. The evidence submitted since the May 2014 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for pes planus. CONCLUSIONS OF LAW 1. The May 2014 rating decision, which denied the applications to reopen claims of service connection for a lumbar spine disorder and pes planus, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2021). 2. The evidence received since the May 2014 rating decision is not new and material with respect to the claim of entitlement to service connection for a lumbar spine disorder and the claim is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2021). 3. The evidence received since the May 2014 rating decision is new and material with respect to the claim of entitlement to service connection for pes planus and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran testified at an August 2021 hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. Turning to the relevant laws and regulations, prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. "New" evidence means evidence "not previously submitted to agency decisionmakers." "Material" evidence means "evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim." 38 C.F.R. § 3.156(a). Material evidence is: (1) evidence on an element where the claimant initially failed to submit any competent evidence; (2) evidence on an element where the previously submitted evidence was found to be insufficient; (3) evidence on an element where the appellant did not have to submit evidence until a decision of the Secretary determined that an evidentiary presumption had been rebutted; or (4) some combination or variation of the above three situations. Kent v. Nicholson, 20 Vet. App. 1 (2006). In order to be "new and material" evidence, the evidence must not be cumulative or redundant, and "must raise a reasonable possibility of substantiating the claim," which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). The Veteran was initially denied service connection for a back disorder and pes planus in May 2000 based on findings that the record did not establish an in-service back disorder, a chronic back disorder subject to service connection, or a then-current diagnosis of pes planus. He did not appeal that decision and the May 2000 rating decision became final. He was again denied service connection for the two disorders in a May 2014 rating decision. The RO noted in May 2014 that the Veteran had not provided any new and material evidence stablishing that he had an in-service back disorder, a chronic back disorder subject to service connection, or a then-current diagnosis of pes planus. The evidence at the time of the decision consisted of service treatment records (STRs) and post-service VA medical treatment records. He did not appeal and the May 2014 rating decision became final. The evidence received subsequent to the May 2014 rating decision included additional post-service VA medical treatment records and private medical treatment records diagnosing degenerative disc disorder (DDD) of the lumbar spine, sciatica, lumbar intervertebral disc syndrome (IVDS), and pes planus, to include a February 2017 treatment note offering that the Veteran had "multiple joints with degenerative joint disorder related to old injuries from his Marine Corps service." Additional evidence received included a May 2017 VA examination diagnosing lumbar DDD, sciatica, and IVDS that noted that the Veteran's symptoms began while in service in 1992 after a forced march and finding that it was less likely than not that his back disorder was associated with the Gulf War deployment and related exposures. The record also includes a January 2019 VA examination diagnosing pes planus and offering that, while service may have temporarily aggravated the foot condition, there was no evidence of permanent aggravation. Further, the Veteran testified before the Board in August 2021 claiming that the back disorder was caused or aggravated by service-connected pes planus and shin splints and describing the history and then-current symptoms of pes planus. As to the lumbar spine disorder, the medical treatment records, while new, are not material. In this regard, the May 2017 VA examination diagnosed sciatica but did not establish that it stemmed from service. Further, while the October 2017 clinician opined that the Veteran had multiple joint DJD related to service, the opinion did not specify the joints to which the clinician was referring or otherwise provide a rationale for the finding. The medical evidence therefore fails to raise a reasonable possibility of substantiating the claim and does not support reopening. Similarly, the Veteran's lay testimony regarding the lumbar spine disorder, while new, is not material. To this end, while lay witnesses are competent to report observations and describe in-service experiences, they are not competent to offer an opinion as to the nexus between a currently-diagnosed disorder and either an in-service injury or a service-connected disorder. The lay testimony thus fails to raise a reasonable possibility of substantiating the claim, is not material, and does not support reopening his claim for a lumbar spine disorder. In sum, the application is denied, the claim is not reopened, and there is no doubt to be otherwise resolved. With respect to pes planus, the evidence is new and material within the meaning of applicable laws and regulations because it is probative of the issue. Specifically, the January 2019 VA examination diagnosed pes planus. The evidence is new as it was not of record prior to the May 2014 rating decision. Moreover, the evidence is material as it relates to the unestablished element of a currently diagnosed disorder. Accordingly, the request to reopen the claim of service connection for pes planus is granted and the claim is reopened to this extent. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Pes Planus: Having reopened the claim for pes planus, a January 2019 VA examiner opined that it was less likely than not that pes planus was aggravated beyond its natural progression by an in-service injury, event, or illness, while acknowledging that pes planus, shin splints, achilles tendonitis, and ankle pain were noted during the training phase of the Veteran's career and were treated conservatively. The examiner remarked that temporary aggravation was plausible but found no evidence of permanent aggravation. However, the examiner's determination that temporary aggravation was "plausible" was speculative and did not address the differences between temporary and permanent aggravation or the significance of such temporary aggravation on the Veteran's pes planus. Therefore, clarification is needed. Neck Disorder: As to the neck disorder, the Veteran testified that his neck disorder was caused or aggravated by service-connected pes planus and bilateral shin splints. A May 2017 VA examiner diagnosed cervical DDD, radiculopathy, and IVDS but opined that the neck disorder was not associated with Gulf War deployment and related exposures. However, the examiner did not opine as to whether the Veteran's neck disorder was caused or aggravated by a service-connected disability, to specifically include bilateral shin splints. Accordingly, further development is required. GI Disorder: As to a GI disorder, the Veteran asserted in his August 2021 testimony that his GI disorder began in service. He explained that he did not have heartburn or diarrhea prior to enlistment and that his GI issues began shortly after he got to Camp Lejeune and began eating and drinking water on the base. He said that over time, his GI issues got persistently worse. In May 2019 VA medical opinions, an examiner found that it was less likely than not that a GI disorder, to specifically include GERD and IBS, was incurred in or caused by service. The opinions explained that the records did not contain any then-current diagnosis of IBS, that the Veteran was not diagnosed with GERD until years after his separation from service, that there was no evidence of in-service complaints or symptoms of GERD, and that the separation examination was silent for GERD and its symptoms. However, the examiner's rationales are based on the lack of medical records showing in-service diagnoses or treatment for a GI disorder. Moreover, the rationales do not address December 1991 and May 1992 STRs documenting in-service complaints of gastroenteritis characterized by chills, dizziness, achiness, mild diarrhea, coughing, vomiting, and headaches. Therefore, clarification is needed The matters are REMANDED for the following actions: 1. Identify and obtain any pertinent, outstanding VA and private medical treatment records not already of record and associate them with the claims file. 2. Direct the claims file to a clinician to determine the nature and etiology of the Veteran's pes planus. The claims file must be made available to the clinician. Any indicated studies should be performed. Based on a review of the record, the clinician is asked to opine as to whether it is at least as likely as not (a 50 percent probability or greater) that: pes planus was clearly and unmistakably aggravated beyond its natural progression by an in-service injury, event, or illness. In forming the opinion, the clinician is asked to consider the Veteran's STRs, to specifically include: (1) the March 1990 enlistment examination noting pes planus; (2) April, August, and November 1992 treatment notes documenting in-service complaints of pes planus; and (3) a March 1993 Medical Board examination noting that upon enlistment the Veteran was diagnosed with moderate pes planus, finding that the disorder prevented him from performing his military occupational specialty, and consequently recommending a discharge from active service. The clinician is also asked to consider the Veteran's August 2021 testimony describing continued foot pain since separation from service. Additionally, in forming the opinion, the clinician is asked to address the January 2019 VA medical opinion finding that temporary aggravation was plausible but that there was no evidence of permanent aggravation of pre-existing pes planus. In so doing, the clinician must clarify the differences between temporary and permanent aggravation and discuss the significance, if any, of such temporary aggravation on the underlying severity of the Veteran's pes planus. The rationale for all opinions must be provided. 3. Direct the claims file to a clinician to determine the nature and etiology of the Veteran's neck and GI disorders. The claims file must be made available to the clinician. Any indicated studies should be performed. Based on a review of the record, the clinician is asked to opine as to whether it is at least as likely as not (a 50 percent probability or greater) that: the Veteran's neck disorder is caused or aggravated by a service-connected disability, to specifically include bilateral shin splints; and the Veteran's GI disorder is etiologically related to service, to specifically include in-service gastroenteritis and exposure to contaminated water at Camp Lejeune. 4. In forming the opinions, the clinician is asked to consider the Veteran's August 2021 testimony asserting that his neck pain stemmed from the limping caused by pes planus and shin splints and describing his history of in-service GI issues. The clinician is also asked to address the December 1991 and May 1992 STRs documenting in-service gastroenteritis characterized by chills, dizziness, achiness, mild diarrhea, coughing, vomiting, and headaches. The rationale for all opinions must be provided. 5. If the clinician determines that examinations are necessary in order to provide the requested opinions, then they should be scheduled. L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Spigelman, 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.