Citation Nr: 21074958 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 16-53 934 DATE: December 16, 2021 ORDER New and material evidence having been received, the Veteran's service connection claim for bilateral pes planus is reopened. REMANDED Entitlement to service connection for bilateral pes planus is remanded. FINDINGS OF FACT 1. An October 1970 rating decision denied entitlement to service connection for bilateral pes planus. The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of that rating decision. 2. Evidence submitted since the October 1970 rating decision includes information that was not previously considered by VA and that establishes a fact necessary to substantiate the claim for service connection for bilateral pes planus. CONCLUSIONS OF LAW 1. The October 1970 rating decision which denied the Veteran's claim of entitlement to service connection for bilateral pes planus is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103. 2. New and material evidence has been received since the October 1970 rating decision, and the requirements to reopen the claim of entitlement to service connection for bilateral pes planus have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1962 to February 1964. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision by a Department of Veterans Affairs Regional Office (RO). In May 2019, the Veteran testified at a hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. In a July 2020 decision, the Board denied reopening service connection claim for bilateral pes planus. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In a July 2021 Order, the Court vacated the Board's July 2020 decision and remanded for readjudication in compliance with the Joint Motion for Remand (JMR). New and Material The Veteran's claim for service connection for bilateral pes planus was originally denied in an October 1970 rating decision. The Veteran was notified of the decision but did not file a notice of disagreement and new and material evidence was not received within one year of notice of that decision. Therefore, the October 1970 rating decision became final. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103. The Agency of Original Jurisdiction (AOJ) denied the claim on the basis that the Veteran's bilateral pes planus was found to be a congenital preexisting condition, and that the condition had not been aggravated by service. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of an appellant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 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(a). At the time of the October 1970 rating decision, the record contained service treatment records (STRs) including a February 1962 enlistment examination which noted abnormal feet identified as 2 degree pes planus. In May 1962, the Veteran complained of flat feet and arch pain. He was treated with arch supports. A September 1962 STR shows he complained of plantar longitudinal arch fatigue and cramping. He was refitted for shoes with inserts. The Veteran again complained of foot pain in November 1962, and stated he believed a slight lift in his shoes might help. The clinician noted that new shoes might also help. New shoes were issued in December 1962. Ten days later the Veteran reported the same complaints, and his shoes were resoled. The Veteran reported slight relief in symptoms in January 1963. The clinician noted that the relief was not as good as it could be, and further noted that the Veteran would be issued form fitted shoes. A March 1963 STR noted the Veteran still had not received his form fitted shoes and that he still had sharp pain in his metatarsal area since the previous January. He was given new arch supports. A second pair of supports was provided approximately two weeks later. The form fitted shoes were noted to be of no help in June 1963. The Veteran was provided additional arch supports in August and September 1963, and new shoes and arch supports in October 1963. He was further provided new arch supports in November 1963. In October 1963, he was treated at Madigan General Hospital, orthopedic clinic. The physician noted a history of foot pain the past year and that the Veteran had been treated with corrective footwear, including arch supports and metatarsal bars with relief. The physician recommended treatment including new shoes approximately a half size longer, a Thomas heel and new combination arch supports. It was further noted the Veteran did not have to be admitted to the hospital for treatment and that such treatment could be done on an out-patient basis. A January 1964 separation examination noted 3 degree bilateral pes planus and that the Veteran was physically disqualified for continued military service. Another January 1964 STR shows that a clinician opined that the Veteran was not qualified to perform worldwide duties and that he should be separated from service due to his congenital bilateral pes planus. Symptoms of the right foot were noted worse than the left. The clinician noted that several braces had been used in the past and that the Veteran presently had adequate arch support and his shoes appeared to fit adequately. However, the Veteran still complained of severe and disabling pain in both feet and legs which interfered with his ability to sleep after being on his feet all day. In addition, the clinician noted the Veteran had been evaluated by a local orthopedist who concurred with the conclusion that little could be offered in terms of active orthopedic treatment other than maintaining adequate shoes and braces. It was further noted that the Veteran reported being unable to participate in athletics as an adolescent due to difficulties with his feet. After he separated from service, the post-service records reflect that the Veteran underwent a VA examination in September 1970. During that examination, the examiner noted the Veteran developed bilateral foot symptoms in 1962 at Lackland Air Force Base, including difficulty in forward bending due to a pulling sensation behind the knees and aching in the calves of his legs. The Veteran reported continued left leg symptoms since separation from service. Arch supports were noted as ineffective. The examiner noted that the heel cords were tight, but that mobility of the subtalar and mid-tarsal joints were good. His feet were unable to be dorsiflexed past neutral position with the heel in the long axis of the leg. Inversion was noted to have even greater limitation of foot dorsiflexion. Evidence added to the claims file since the October 1970 rating decision includes a September 2021 letter, submitted after the July 2020 Board decision that was subject the JMR, from private podiatrist, Dr. Rutan. Dr. Rutan stated that he had seen the Veteran once for evaluation of pes planus. Based on findings during that examination, Dr. Rutan stated that he would expect the Veteran to have had some degree of deformity prior to his enlistment, and that it was his opinion that the pes planus deformities were "more likely than not made worse during his period of enlistment, given the degree of deformity, the progressive nature of pes planus his duties as a jet mechanic and its requirements of extended periods of weight beating." Dr. Rutan further stated that the Veteran's in-service duties would have been a new stress to his lower extremities which likely worsened his condition. Additionally, in consideration that the Veteran did not have or need orthotics prior to his enlistment, and in further consideration that VA has subsequently provided him orthotics, such would suggest that the pre-enlistment deformities worsened due to his service. The Board finds this evidence raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral pes planus. Accordingly, the petition to reopen that claim is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see Shade, 24 Vet. App. 110. REASONS FOR REMAND As noted above, the Veteran submitted a nexus opinion from a podiatrist in September 2021. In a separate August 2021 letter, the podiatrist further noted that he had reviewed several of the Veteran's records, including his discharge summary, the JMR, and medical records. However, there is no indication that he reviewed or had access to the Veteran's claims file, including his STRs. Moreover, he inferred that his nexus opinion was based on a statement provided by the Veteran that he did not experience any bilateral foot pain until he began working on the flight line during service. The Board finds the September 2021 nexus opinion inadequate. First, the Board finds the opinion speculative in nature. In this regard, it was provided without a review of the claims file, including relevant STRs. Additionally, a review of the rationale shows that it was based, in part, on findings that his in-service duties "likely worsened" his condition, and that subsequent VA provided orthotics "would suggest" the pre-enlistment foot condition worsened. The Board notes that speculative language such as "likely worsened" and "would suggest" does not create an adequate nexus for the purposes of establishing service connection, as it does little more than suggest a possibility of a relationship. See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Utendahl v. Derwinski, 1 Vet. App. 530, 531 (1991); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993). Second, the medical opinion appears based largely on the Veteran's lay statements. In this regard, the Board notes that he has provided several conflicting statements. For example, in a September 2016 VA Form 21-4138, Statement in Support of Claim, he asserted that he did not have bilateral pes planus prior to service, and that the condition was first brought to his attention when he was standing watch on the tarmac or working grinders on aircraft. However, his enlistment examination clearly noted the condition. Moreover, a January 1964 STR also shows he reported being unable to participate in athletics as an adolescent because of his foot disabilities. Accordingly, as he has provided conflicting lay statements, the Board finds his lay statements of little probative value. Therefore, any nexus opinion based largely on those statements are of equally little probative value. The only other bilateral foot examination of record is a September 1970 VA examination. That examination did not provide any nexus opinion. Therefore, in order to properly adjudicate this issue on appeal, the Board finds that a Remand is necessary to obtain a VA opinion. The matter is REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from his VA treatment facilities, and all private treatment records not already associated with the file. 2. Then, obtain a VA opinion by an appropriate examiner to determine the nature and etiology of his diagnosed bilateral pes planus. The Veteran should be scheduled for an examination if determined necessary. The examiner should provide the following opinions: (a) Did the preexisting bilateral pes planus undergo an increase in disability during the Veteran's service? (b) If the examiner concludes the preexisting bilateral pes planus underwent an increase in severity during service, the examiner should explain whether the increase in disability was undebatably the result of natural progress of the disease rather than the result of activities and/or incidents of active service. (c) For any preexisting bilateral pes planus that was worsened beyond normal progression (aggravated) during service, please opine whether any current bilateral pes planus is at least as likely as not (50 percent or greater probability) related to that in-service aggravation. In rendering the above opinions, the examiner is asked to consider the STRs showing treatment for bilateral foot pain during service, including the enlistment examination noting 2 degrees pes planus, and the separation examination noting 3 degrees pes planus. The examiner is also asked to consider the September 2021 nexus opinion letter issued by Dr. Rutan. The examiner should review pertinent documents in the Veteran's claims file including this Remand. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lamb, 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.