Citation Nr: 21015719 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 12-07 915 DATE: March 18, 2021 ORDER New and material evidence having been added to the record, the appeal to reopen a claim of entitlement to service connection for pes planus is granted. REMANDED The appeal to reopen a claim for entitlement to service connection for pseudofolliculitis barbae (PFB) is remanded. Entitlement to service connection for a kidney disorder, to include a urinary tract infection, is remanded. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), anxiety with panic disorder, and depression, is remanded. Entitlement to service connection for pes planus is remanded. FINDING OF FACT The evidence added to the record since the November 2002 rating decision is not cumulative or redundant of evidence previously of record, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for pes planus, and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of entitlement to service connection for pes planus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from February 1970 to August 1971. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was most recently before the Board in March 2017 and May 2018. The issue of entitlement to service connection for hypertension was granted in full in an April 2020 rating decision. Therefore, it is no longer before the Board. The Veteran claims that his kidney disorder is related to his military service. Medical records during the appeal period do not show a diagnosis for a kidney disorder; however, the Veteran has been diagnosed with urinary tract infections. In a November 2018 VA treatment record, the Veteran reported that he was having back pain in his kidney area and believed he was having another urinary tract infection. The Veteran appears to associate pain in his kidney area with urinary tract infections. For these reasons, the Board will recharacterize the issue as entitlement to service connection for kidney disability, to include a chronic urinary tract infection disability. The Veteran seeks service connection for PTSD. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court of Appeals for Veterans Claims (CAVC) held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. Therefore, the Board has recharacterized the issue of entitlement to service connection for PTSD to include anxiety and depression. New and Material Evidence Claim Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c) (2012). The 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 Secretary shall reopen the claim and review the former disposition of the claim. 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 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 (a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). But see Duran v. Brown, 7 Vet. App. 216 (1994) (“Justus does not require the Secretary [of VA] to consider the patently incredible to be credible”). 1. New and material evidence having been added to the record, the appeal to reopen a claim of entitlement to service connection for pes planus Service connection for pes planus was most recently denied in a November 2002 rating decision. The AOJ determined that new and material evidence had not been received because the evidence did not show that pre-existing pes planus was aggravated by service. Since the November 2002 rating decision, evidence added to the record includes several statements by the Veteran’s family and friends explaining that the Veteran’s feet were normal prior to service and that only after he returned from service did he have problems with his feet. As there is evidence that the Veteran did not have pes planus prior to service, the Board concludes that a previously identified defect has been cured, and that the claim may be reopened. REASONS FOR REMAND 1. The appeal to reopen a claim for entitlement to service connection for pseudofolliculitis barbae (PFB) is remanded. The Veteran’s representative noted that there are VA treatment records showing current treatment for PFB. Specifically, the Veteran’s representative noted that the Veteran was treated on May 30, 2002 and August 24, 2009, and January 12, 2019. These records are missing from the claims file. The last VA treatment record associated with the claims file from the VA Medical Center in Birmingham is dated on January 3, 2019. A remand is needed to obtain these records. See Bell v. Derwinski, 2 Vet. App. 611 (1992). 2. Entitlement to service connection for a kidney disorder, to include a urinary tract infection, is remanded. The Veteran has been treated for urinary tract infections during the appeal period. The August 1971 Medical Board Proceedings note that the Veteran had a possible urinary tract infection. The Veteran argues that his current kidney/urinary tract infection disability is related to his military service. An examination is needed to determine if his current disability is due to service. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder, anxiety with panic disorder, and depression, is remanded. The Veteran has diagnoses for psychiatric disabilities other than PTSD including anxiety with panic disorder and depression. The Veteran believes his psychiatric disability began when he experienced trauma during service. He explained that a virus killed several of his fellow soldiers at Fort Bragg, North Carolina which caused him to be fearful. The Veteran has not been afforded an examination to determine if his current psychiatric diagnoses are related to his military service. A remand is needed so that an examination can be completed. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). 4. Entitlement to service connection for pes planus is remanded. The Veteran believes his pes planus began during service. The evidence suggests that the Veteran may have had problems with his feet prior to service but his feet problems were aggravated beyond normal progression after service. An opinion is needed to determine whether the Veteran’s pes planus began in service or was aggravated by service. The matters are REMANDED for the following action: 1. Obtain VA records from May 30, 2002 and August 24, 2009, and January 12, 2019. Obtain records from January 3, 2019 to the Present from the Birmingham VA Medical Center. 2. Schedule the Veteran for a VA examination for his kidney/urinary tract infection disability. The examiner must review the claims file. The examiner must also determine if any diagnoses existed during the appeal period. The examiner is asked to provide a response to the following: Is the Veteran’s kidney/urinary tract infection disability at least as likely as not related to service, including the possible urinary tract infection noted in the Medical Board Proceedings? Provide a rationale to support the opinion(s). 3. Schedule the Veteran for a VA examination for his acquired psychiatric disability. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the acquired psychiatric disability at least as likely as not related to or began in service, including seeing other fellow soldiers die from a virus? Provide a rationale to support the opinion(s). 4. Obtain an opinion for the pes planus. The medical professional should explain whether pes planus is a congenital or developmental defect or disease. [Note: a disease generally refers to a condition that is considered capable of improving or deteriorating while a defect is generally not considered capable of improving or deteriorating. VAOPGCPREC 82-90 (1990) (citing Durham v. United States, 214 F.2d 862, 875 (D.C. Circuit 1954)]. If it is a congenital or development defect, medical professional should explain whether it is at least as likely as not (a probability of 50 percent or greater) that there was a superimposed injury or disease in service that resulted in additional foot disability. If it is a disease, medical professional should state whether it is clear and unmistakable (obvious, manifest, and undebatable) that pes planus pre-existed active service. The medical professional should state whether it is clear and unmistakable (obvious, manifest, and undebatable) that pre-existing pes planus WAS NOT aggravated (i.e., permanently worsened) during service or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress. (Continued on the next page)   The medical professional should provide an opinion as to whether the current pes planus diagnosis, at least as likely as not (a probability of 50 percent or greater) began in or are related to active service. 5. Readjudicate the Veteran’s claims with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tahirih S. Samadani, 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.