Citation Nr: 21007713 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-08 345 DATE: February 10, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is dismissed. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is dismissed. New and material evidence having been received, the petition to reopen a claim of entitlement to service connection for bilateral flat feet is granted; the claim is granted to that extent only. REMANDED Entitlement to service connection for bilateral flat feet is remanded. Entitlement to service connection for a bilateral leg disorder, to include bilateral knee disorders, and to include as secondary to bilateral flat feet is remanded. Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU) is remanded. FINDINGS OF FACT 1. At his February 27, 2020 Board hearing, the Veteran testified that he was withdrawing the issues of entitlement to service connection for sleep apnea and an acquired psychiatric disorder. 2. An unappealed May 1978 rating decision denied the claim of entitlement to service connection for bilateral flat feet. 3. The evidence associated with the claims file subsequent to the May 1978 rating decision is not cumulative nor redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for bilateral flat feet. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 2. The criteria for withdrawal of entitlement to service connection for an acquired psychiatric disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 3. The May 1978 rating decision denying the claim for service connection for a bilateral flat feet is final and new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for bilateral flat feet. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1978 to April 1978. These matters come to the Board of Veterans’ Appeals (Board) on appeal from February 2013, September 2014, and November 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the RO in Atlanta, Georgia. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ) of the Board in February 2020. A transcript of the hearing has been associated with the claims file. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his/her authorized representative. 38 C.F.R. § 20.204. At his February 2020 Board hearing, the Veteran indicated that he was withdrawing his claims for entitlement to service connection for obstructive sleep apnea and an acquired psychiatric disorder. The Board finds that the Veteran's withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). As a result, no allegation of error of fact or law remains before the Board for consideration with regard to these issues. Accordingly, the Board does not have jurisdiction over these issues, and the claims for entitlement to service connection for obstructive sleep apnea and an acquired psychiatric disorder is dismissed. Claim to Reopen – Flat Feet As a threshold matter, the Board must determine whether new and material evidence has been submitted to reopen a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial) A rating decision becomes final when it has not been appealed within the prescribed time period and when no additional material evidence was received within a year of the decision; the decision is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In order to reopen a claim, there must be added to the record “new and material evidence.” 38 U.S.C. § 5108. 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 neither be cumulative or 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 law provides that new and material evidence necessary to reopen previously and finally disallowed claims must be secured or presented since the time that the claims were finally disallowed on any basis, not only since the time the claims were last disallowed on the merits. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). 38 C.F.R. § 3.156(a), which defines new and material evidence, requires that evidence raise a reasonable possibility of substantiating the claim in order to be considered “new and material,” and defines material evidence as evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s claim for service connection for bilateral flat feet was denied in a May 1978 rating decision. Specifically, the rating decision indicates that the Veteran complained of foot pain eleven days following induction into active service, with findings of flat feet, no arch. The Veteran was issued a profile and referred to the medical board. Medical board findings showed pronation of both feet, symptomatic, that was congenital and not amenable to treatment; and noted the condition existed prior to service. There was no evidence of aggravation of this preexisting condition. Evidence considered in this rating decision included the Veteran’s service treatment records. There was no further communication regarding his claim of entitlement to service connection for bilateral flat feet was received until January 2012, when VA received his petition to reopen such claim. Therefore, the May 1978 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran’s claim for service connection was received prior to the expiration of the appeal period stemming from May 1978 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Moreover, no additional service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(c). The Veteran filed the instant claim to reopen his claim for entitlement to service connection for bilateral flat feet, which was received by VA in January 2012. The pertinent evidence that has been received since the May 1978 rating decision includes continuing post-service treatment records, Board hearing testimony and a private etiology opinion by Dr. S.K. Presuming the credibility of the Veteran’s sworn testimony before the Board, and the private etiology opinion by Dr. S.K., the Board finds that the evidence is new and material. In this regard, it has not been previously considered by VA and it raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral flat feet. The claim for service connection for bilateral flat feet was previously denied because there was no evidence showing that the bilateral flat feet was etiologically related to active service nor aggravated beyond its natural progression by service. However, the December 2015 private etiology opinion submitted by Dr. S.K. indicates that in her opinion, it was “at least as likely as not,” that the Veteran’s bilateral pes planus was aggravated beyond its normal progression by the Veteran’s military service. Accordingly, reopening of the claim of entitlement to service connection for bilateral flat feet is warranted. REASONS FOR REMAND Service connection for bilateral flat feet is remanded. The Veteran contends that his bilateral flat feet is etiologically related to his active service. Specifically, the Veteran and his attorney assert that his preexisting bilateral flat feet condition was aggravated beyond its natural progression by active service; and in the alternative, that there was no evidence that the Veteran had preexisting bilateral flat feet. See Board Hearing Transcript, February 27, 2020. Service treatment records indicate the Veteran complained on bilateral foot pain in his arches, and the treatment provider indicated the Veteran did not have arches and diagnosed flat feet. See Service Treatment Record (STR), March 28, 1978. A March 1978 Medical Board Report indicates the Veteran was diagnosed with flat feet, probably congenital, that the Veteran’s entrance physical examination occurred on March 10, 1978 and the Veteran entered into active service on March 14, 1978. The Medical Board Report indicates that the Veteran reported to sick call with symptomatic flat feet and complained of pain in both feet on prolonged marching; the evaluator recommended that the Veteran was unfit for enlistment and was medically cleared for separation. At his April 1978 separation examination, the Veteran was diagnosed with “pronation, both feet, symptomatic, congenital, not amenable to treatment.” A December 2015 private etiology opinion submitted by Dr. S.K. indicates the Veteran was diagnosed with bilateral pes planus. Dr. S.K. opined that it was at least as likely as not that the Veteran’s bilateral pes planus was aggravated beyond its normal progression by the Veteran’s military service. In this regard, Dr. S.K. stated that the “Veteran states he has always had flat feet…could not complete [basic training] on account of his foot condition, and [the Veteran] states that his foot pain got aggravated as a result of the training he underwent while in service from March 1978 to April 1978.” However, this opinion was not provided to the appropriate standard of review. The Board notes that there is ambiguity in the record as to whether the Veteran's bilateral pes planus is a congenital disease or defect. A congenital defect is not subject to service connection as it is not a disease or injury within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). However, a congenital defect can be subject to superimposed disease or injury; if such a superimposed disease or injury occurs during military service, then service connection may be warranted for the resultant disability. VAOPGCPREC 82-90 (July 18, 1990). The terms "disease" and "defects" must be interpreted as being mutually exclusive. The term "disease" is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. On the other hand, the term "defects" is defined as structural or inherent abnormalities or conditions that are more or less stationary in nature. Id. Accordingly, a VA opinion as to whether the Veteran’s bilateral flat feet is a defect, a disease or injury was superimposed on the defect that resulted in additional disability, or if the bilateral flat feet is a disease, whether such clearly and unmistakably pre-existed service and was not aggravated by service. Therefore, a remand for an opinion addressing such inquiries is necessary. Entitlement to service connection for a bilateral leg disorder, to include bilateral knee disorders, and to include as secondary to bilateral flat feet is remanded. Entitlement to a TDIU is remanded. The Veteran contends that his bilateral leg disorder is etiologically related to his active service. Specifically, the Veteran and his attorney assert his bilateral leg disorder is secondary to his bilateral flat feet. See Board Hearing Transcript, February 27, 2020. In addition, the Veteran is not currently service connected for any disabilities. Thus, under the circumstances of this case, the Board finds the issues of entitlement to service connection for bilateral flat feet and a TDIU are inextricably intertwined with the issue of entitlement to service connection for bilateral flat feet that is being remanded herein. See Parker v. Brown, 7 Vet. App. 116 (1994) and Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Hence, any Board action on the claim for service connection for a bilateral leg disorder and a TDIU would be premature at this juncture. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, obtain an etiology opinion as to the Veteran’s claimed bilateral flat feet from an appropriate medical professional. The record must be made available to the examiner. The need for an additional examination of the Veteran is left to the discretion of the examiner selected to write the addendum opinion. The examiner should respond to the following questions: (A) Are the Veteran's bilateral flat feet a congenital or developmental disease or defect? The terms "disease" and "defects" must be interpreted as being mutually exclusive. The term "disease" is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. The term "defects" is defined as structural or inherent abnormalities or conditions that are more or less stationary in nature. (B) If the Veteran’s bilateral flat feet are a congenital or developmental defect, the examiner is to provide an opinion as to whether such defect was subject to a superimposed disease or injury during service, to include as a result of physical activity such as marching during service. If so, please identify the additional disability. (C) If bilateral flat feet is a congenital or developmental disease, the examiner is to provide an opinion as to whether such clearly and unmistakably pre-existed service. (D) If there is clear and unmistakable evidence that such disease pre-existed service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing disease did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service. If there was an increase in the severity of the Veteran's disease, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. (E) If there is no clear and unmistakable evidence that the Veteran’s bilateral flat feet are a congenital disease that pre-existed service, the examiner is asked to opine as to whether it is at least as likely as not (probability of 50 percent or greater) that the disorder had its onset during, or is otherwise related to, the Veteran's military service. The examiner should address the Veteran’s contention that his bilateral flat feet are the result of physical activity, to include marching, during service. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mariah N. Sim, 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.