Citation Nr: 21074298 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-52 375 DATE: December 14, 2021 ORDER New and material evidence having been received, the appeal to reopen service connection for bilateral pes planus is granted. REMANDED Entitlement to service connection for bilateral pes planus, including as secondary to other service-connected disabilities, is remanded FINDINGS OF FACT 1. A June 2013 rating decision denied service connection for bilateral pes planus, the Veteran received notice of the decision and he did not file a timely appeal. 2. Evidence received since the June 2013 rating decision is not cumulative, it relates to an unestablished fact necessary to substantiate the claim and it raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The June 2013 denial of the claim for service connection for bilateral pes planus became final. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 3.156, 20.1100 (2020). 2. New and material evidence has been received to reopen service connection for bilateral pes planus. 38 U.S.C. §§ 5103, 5103A, 5107, 5108 (2012); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1979 to February 1983. 1. Reopening service connection for bilateral pes planus In general, rating decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.1103, 20.1105. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. New evidence is evidence not previously submitted to agency decision makers. Material evidence means existing evidence which, 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. The credibility of the evidence is presumed and the threshold for submission is low. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). The Board first notes in its review of the record a decision denying the claim for service connection for bilateral pes planus (also claimed as bilateral flat feet, left-foot condition and right-foot condition) was issued on June 20, 2013. A notification letter was sent to the Veteran later on June 28, 2013. The Veteran did not initiate an appeal of that decision. Therefore, the June 2013 rating decision is the last final decision denying the claim for bilateral pes planus. In December 2014, the Veteran submitted a Statement in Support of Claim, which included a request to reopen the claim for bilateral pes planus. The Agency of Original Jurisdiction (AOJ) in its February 2015 rating decision stated the claim is considered reopened, but denied it because the evidence, to include a recent VA opinion, continues to show this condition was not incurred in or aggravated by military service. Regardless of a decision by the AOJ to reopen a claim, deny its reopening or, in effect, reopen the claim by addressing its merits, the Board must make its own determination, as this in turn establishes the Board's jurisdiction to reach the underlying claim and to adjudicate it de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g, 8 Vet. App. 1 (1995)). On this basis and looking to the June 2013 rating decision, new and material evidence would consist of medical evidence showing bilateral pes planus, which pre-existed active service, was aggravated beyond its natural progression by active service. Since the June 2013 rating decision, the record now includes the Veteran's statement accompanying the August 2015 Notice of Disagreement and his statement accompanying the October 2017 Veterans Appeals Form 9, providing detailed observations as to the causes during active service of the worsening of his disorder. The Board finds this evidence not of record at the time of the June 2013 final rating decision and is therefore new. Moreover, it is material, as it provides information which may support the Veteran's assertions and thereby presents a reasonable possibility of substantiating the claims. The evidence is neither cumulative nor redundant of the evidence previously of record and it is pertinent to the issues on which the Veteran's claims will turn. For these reasons, the claim is reopened. REASONS FOR REMAND 2. Service connection for bilateral pes planus is remanded. In response to the requested opinion addressing whether the Veteran's pes planus is at least as likely as not aggravated beyond its natural progression by the Veteran's left and right-ankle degenerative arthritis, the January 2015 VA examiner stated "the literature including the NIH [National Institutes of Health]" did not address issues of aggravation of pes planus. Specifically, the literature did not detail what normal progression of pes planus was. Therefore, the examiner opined that, without the known likely natural progression and specific known aggravating causes of pes planus, it would be mere speculation as to whether the Veteran's service-connected ankle disorder aggravated his non-service-connected pes planus. The examiner appears to state all current medical knowledge does not provide the necessary information for the opinion and further states what information would be necessary for an opinion, thereby providing a reason for his statement, although the Board defers at this time to make a finding whether his statement is sufficiently detailed and reasoned as an explanation. See Jones v. Shinseki, 23 Vet. App. 382, 391 (2010). Before the Board can accept such a statement, it must be clear that it is based on the lack of knowledge among the medical community at large and not the insufficient knowledge of this particular examiner. See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). However, more pertinently, the Veteran in his December 2014 Statement in Support of Claim requesting reopening quite specifically stated his claim as aggravation "by the physical demands of the United States Marine Corps." He observed that service branch is particularly demanding regarding physical fitness generally and, in particular, his occupational duties as an aircraft mechanic "added additional wear and tear on his feet for numerous hours at a time." He acknowledged he entered active service with mild pes planus, but continued to have problems with his feet and was seen by medical treatment providers during active service. The January 2015 examiner did not consider this statement and proceeded to address aggravation only due to service-connected ankle disorders. Since the January 2015 examination and opinion, the Veteran in his statement accompanying the August 2015 Notice of Disagreement (NOD) asserts resulting foot corns, callosities, ulcers, and blisters occurred during active service and adds that his height and "size," in conjunction with intense physical training, caused additional damage to his feet. The Veteran has further stated in the statement accompanying his October 2017 Veterans Appeals Form 9 that, because of his large foot size, he was consistently equipped with ill-fitting boots and other foot wear, thereby causing further damage to his feet. Furthermore, the Board notes from is review of the service treatment records (STRs), in the period between February 1979 and December 1982 the Veteran's treatment plan included arch supports, he received 2 treatments for foot blisters and he was treated for pain and callouses on the plantar surface of 1 or both feet. The previous VA opinion of record did not address the Veteran's lay statements addressing his observations pertaining to aggravation, it did not address the Veteran's active-service treatment history found in the STRs and, significantly, the Veteran has since provided another a theory of entitlement for aggravation of bilateral pes planus, as being due to activities and events during active service, to include intense physical training and the physical demands of his assigned duties. Remand is therefore necessary to obtain an addendum opinion addressing the evidence of record accordingly. The matters are REMANDED for the following actions: 1. Request that a VA medical professional, other than the January 2015 VA examiner, review the electronic file and provide the VA addendum opinions requested below for the claimed bilateral pes planus. If the VA examiner determines that additional examination(s) of the Veteran is necessary to provide reliable opinions as to causation, such examination(s) should be scheduled; however, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. A rationale should be provided for all opinions. The VA examiner should provide the following opinions: a) It is at least as likely as not (a 50 percent or greater probability) that preexisting bilateral pes planus was clearly and unmistakably worsened beyond its natural progression by activities and events during active service, to include the following: (1) intense physical training, (2) physical demands of the Veteran's active-service occupation of aircraft mechanic, (3) the effects of the above physical demands in conjunction with the Veteran's height and weight, and (4) the effects of arch supports and improperly fitting boots and other footwear, due to the Veteran's large-sized feet. The examiner is requested to address each of the 4 activities. b) Is it at least as likely as not (a 50 percent or greater probability) that bilateral pes planus, was worsened beyond its natural progression by any of the Veteran's service-connected disorders, to include right and/or left ankle arthritis. (Continued on the next page) The examiner's attention is directed to the service treatment records (STRs) between February 1979 and December 1982, showing a treatment provider's treatment plan to include arch supports, 2 treatments for foot blisters and treatment for pain and callouses on the plantar surface of 1 or both feet. E. Choi Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Franke, 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.