Citation Nr: 21006290 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-07 137 DATE: February 3, 2021 ORDER An effective date for the grant of service connection for bilateral pes planus earlier than June 18, 2013, is denied. FINDINGS OF FACT 1. An inferred claim for flat foot based on evidence of symptomatic pes planus in service was denied in an unappealed November 1971 rating decision due to no evidence of a current disability. 2. Service treatment records (STRs) obtained by VA subsequent to the November 1971 decision confirmed symptomatic pes planus in service but did not establish a current disability at discharge. 3. Entitlement to service connection for pes planus did not arise until evidence of a current disability was submitted in June 2013. 4. The new service records are not relevant, as they contain information that was already known and not in dispute at the time of the November 1971 rating decision. 5. The September 2013 rating decision that awarded service connection for pes planus was not based all or in part on the STRs obtained by VA subsequent to the November 1971 rating decision. CONCLUSION OF LAW The criteria for an effective date earlier than June 18, 2013, for the grant of service connection for bilateral pes planus have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from November 1969 to July 1971. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. At a July 2015 videoconference hearing, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding is of record. The Veteran died in February 2017. Prior to his death, he perfected an appeal with regard to his claim for an effective date earlier than June 18, 2013, for the grant of service connection for bilateral pes planus. As a matter of law, claims do not survive the death of the appellant, and in an April 2017 Board decision, the claim was dismissed due to the Veteran’s death. However, in April 2017, the Veteran’s surviving spouse timely requested to be substituted as the appellant for the purpose of processing the claim on appeal to completion. See 38 U.S.C. § 5121A (2012); 38 C.F.R. § 3.1010 (b) (2020). In April 2017, the RO found that the appellant is a properly substituted claimant and, therefore, the Veteran’s surviving spouse has been substituted for the Veteran. In a July 2018 decision, the Board denied the claim for an effective date for the grant of service connection for bilateral pes planus earlier than June 18, 2013. In an April 2020 Memorandum Decision, the United States Court of Veterans Claims (Court) vacated the July 2018 Board decision and remanded the claim to the Board for action consistent with the terms of the Court’s decision. An effective date for the grant of service connection for bilateral pes planus earlier than June 18, 2013, is denied. The appellant contends that an earlier effective date for the grant of service connection for bilateral pes planus is warranted because additional service records relevant to the claim were obtained after a decision denying service connection. The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110 (a). Generally, a claim which has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. However, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the requirement that new and material evidence must first be received. 38 C.F.R. § 3.156 (c)(1). Such “relevant official service department records” include, but are not limited to service records that are related to a claimed in-service event, injury, or disease, additional service records forwarded by the Department of Defense or the service department to VA any time after VA’s original request for service records, and declassified records that could not have been obtained because the records were classified when VA decided the claim. An award made based all or in part on such relevant official service department records is effective on the date entitlement arose or the date VA received the previously denied claim, whichever is later, or such other date as may be authorized by the provisions of this regulation applicable to the previously denied claim. 38 C.F.R. § 3.156 (c)(3). Upon the Veteran’s discharge in July 1971, he submitted a claim for benefits for malaria. The RO requested his STRs and obtained a VA examination. The September 1971 examination focused on his malaria residuals. It is unclear what STRs were available for review by the RO. In a November 1971 rating decision, the RO noted that the STRs were incomplete and that entrance and exit reports were unavailable, but that available records did show that there was a symptomatic flat foot condition treated during service, and therefore inferred a service connection claim for flat foot. However, because the September 1971 examination report was negative for any mention of flat foot or other foot conditions, service connection was denied. The Veteran did not appeal the denial of service connection for pes planus. Subsequently, a second request for the Veteran’s STRs was made in November 1971. Several records from the Veteran’s hospitalization for malaria and his July 1971 separation examination report were added to the claims file in early 1972. The separation report was negative for any mention of pes planus or other foot troubles. (The feet were normal on clinical evaluation.) The medical history provided by the Veteran did not report that he had any foot problems, as well. (He indicated he never had any “Foot trouble.”) The RO reviewed the malaria claim in March 1972 on the basis of the additional STRs but did not further discuss the flat foot issue. In April 1972, STRs were added to the claims file. They included a September 1970 record in which it was noted by clinicians that the Veteran had a prior history of pes planus and was having sharp pains in the arches of his feet. A trial of arch supports was prescribed. In March 1971, the Veteran complained of sharp pains in the arch of both feet, with most pain in his left foot. It was noted that he had pes planus and used arch supports for two to three weeks and experienced pain from wearing the arch supports. He reported pain in his left foot from prolonged walking. Upon examination, symptomatic pes planus was diagnosed, and arch supports were again prescribed. His June 1971 records related to his hospitalization from malaria included an extensive review of symptoms and each body system, but did not include a specific review of or assessment of the Veteran’s feet. An April 1972 rating decision noted the addition of STRs, but did not address the issue of pes planus. Along with the request to reopen the claim for service connection for pes planus in June 2013, the Veteran submitted private treatment records from 2001 to 2010 detailing his ongoing foot problems, treatment, and use of custom orthotics. He also provided a private opinion stating that the clinician believed that his current problems were due to his pes planus that was aggravated during military service. Given this evidence, the RO obtained a VA podiatric opinion. In August 2013, a VA clinician determined that because the Veteran developed chronic bilateral foot pain while in service and continued having similar bilateral foot symptoms after service, a nexus to in-service treatment was established. A VA examination was conducted in September 2013 which diagnosed bilateral pes planus and evaluated the extent of the Veteran’s disability. In a September 2013 rating action, the Veteran was service-connected for bilateral pes planus, effective June 18, 2013. At the July 2015 hearing, the Veteran testified that he had problems with his feet starting in 1969 in Germany and continuing through his Vietnam service in 1970 and clinicians would treat them by taping them. He was evacuated from Vietnam due to malaria and treated at a military hospital in Massachusetts. He reported that he was not ambulatory due to his serious condition, and his feet were not the focus of treating clinicians at the time. He did not remember any examination of his feet completed by VA following discharge. He reported that he sought further treatment for his feet a few years after service, but went to a private clinician as he had been denied benefits from VA. He described having treatment ever since that time until the present. Following the appellant’s substitution, additional STRs and personnel records were added to the claims file, including the Veteran’s October 1969 service entrance examination which noted mild pes planus, asymptomatic. The Board notes that it is not entirely clear which STRs were before the RO at the time of the November 1971 rating decision. By admission of the RO, the records were incomplete, as entrance and exit examinations and any treatment of his malaria diagnosis and treatment were unavailable. However, the RO inferred a claim of service connection for pes planus based upon one or more notations that apparently were available at the time. Therefore, the in-service presence of the claimed disability had been established. At issue was whether there was a current disability and a nexus to the in-service findings. The separation examination report obtained shortly thereafter did not suggest any foot complaints or problems. The malaria hospitalization records noted several medical conditions the Veteran had (i.e., multiple carious teeth, mild obesity, and hypacusis) but made no mention of any foot condition. The VA malaria examination, though focused on residuals of that disease, did not note any foot complaints. As such, the records obtained in early 1972 did not include any evidence relevant to the adjudication. Specifically, the service records reflected symptomatic pes planus, which was the basis for the original inferred claim. Furthermore, the Board finds that the additional STRs do not require reconsideration of the claim under 38 C.F.R. § 3.156 (c)(1). Service records are not “relevant” for purposes of § 3.156(c) unless they relate to an element that is in dispute. In Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017), the Court held that if a record is one that VA had no obligation to consider because it would have not mattered in light of the other evidence, then it cannot trigger reconsideration under § 3.156(c). The Court also noted that the Board found “relevant” as used in 38 C.F.R. § 3.156 (c)(1) to mean noncumulative and pertinent to the matter at issue in the case and in turn interpreted this to mean that the later-submitted service records were not relevant to the determination of the claim. See Id. at 1368. It is under this definition that the Board finds the additional records are not relevant. As noted above, the September 1970 and March 1971 service records indicate that the Veteran received treatment for his symptomatic pes planus. The only additional information included in these records is that the specific treatment provided involved arch supports and that he reported pain as a symptom. The Board does not find this evidence relevant for reconsideration of the original claim since the information was essentially cumulative of STRs that had already been considered by the RO. Indeed, the record previously established that the Veteran experienced symptomatic pes planus during service. Thus, these records did not relate to an element in dispute, as the Veteran’s in-service condition and related symptomatology were not at issue. See Kisor, supra. The additional records were simply a reiteration of evidence of a condition treated and diagnosed during service. As such, the new service records are not relevant as they contained information that was not in dispute at the time of the November 1971 rating decision. Further, the additional records did not affect the outcome of the decision. In the August 2013 VA opinion, the examiner based the positive nexus on the documented foot pain during service, which continued after separation from service. There is no indication that the examiner’s rationale was based upon any new evidence contained in the additional STRs, as the Veteran’s in-service symptomatic pes planus had already been established by the STRs of record in November 1971. In short, the additional service treatment records are superfluous and their inclusion in the record does not require reconsideration of the original claim. See Kisor, supra. As such, it is clear that the September 2013 grant of service connection was not based all or in part on the additional STRs. It is evident that the information contained in the new service records was not relied upon by the RO in rendering its decision to award service connection for pes planus. Indeed, the favorable outcome was based on post service evidence of the claimed disability, the nexus to service opinion provided by a medical professional, as well as the previously established in-service foot pain. As discussed above, the Veteran’s pes planus had already been identified by the STRs of record in November 1971. Therefore, the Board does not find that the September 2013 decision to grant service connection for pes planus was based all or in part on the additional STRs. 38 C.F.R. § 3.156 (c)(3). As such, the date of the claim to reopen received in June 2013 is the earliest available date from which service connection may be awarded. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Erin J. Trojanowski, 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.