Citation Nr: 21020715 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 12-31 546 DATE: April 8, 2021 ORDER New and material evidence having been received, the petition to reopen the claim for entitlement to service connection for right foot disability, including flatfoot (pes planus) (claimed as fallen arches) is granted. Entitlement to service connection for hypertension is granted. Entitlement to service connection for right foot disability, including flatfoot (pes planus), is granted. FINDINGS OF FACT 1. A July 2015 rating decision by the Agency of Original Jurisdiction (AOJ) denied service connection for flatfoot condition of the right foot based on findings that the condition was not caused by the Veteran’s active duty service. The Veteran did not appeal this decision or submit new and material evidence within one year of the denial. 2. The evidence added to the record since the July 2015 rating decision is not cumulative or redundant of the record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim. 3. The probative evidence of record demonstrates that the Veteran’s hypertension is related to his military service. 4. The probative evidence of record demonstrates that the Veteran’s right foot disabilities were caused and/or aggravated beyond their normal progression by the Veteran’s service-connected knee disabilities. CONCLUSIONS OF LAW 1. The July 2015 rating decision denying entitlement to service connection for right foot, flatfoot is final. 38 U.S.C. § 7104(b); 38 C.F.R. §§ 20.1100(a), 20.1104. 2. New and material evidence has been received to reopen the previously denied claim of service connection for right foot, flatfoot. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to service connection for hypertension have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. The criteria for entitlement to service connection for pes planus of the right foot have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from April 1979 to May 1990. These matters come before the Board of Veterans’ Appeals (Board) on appeal from January 2014 and January 2017 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). As a matter of clarification, the record shows that while the Veteran perfected an appeal of the claim for entitlement to service connection for hypertension, he did not perfect an appeal of the remaining claims. Specifically, he did not file a substantive appeal in response to the September 2018 statement of the case (SOC) addressing whether new and material evidence has been received to reopen the claim for entitlement to service connection for a right foot disability. However, the United States Court of Appeals for Veterans Claims (Court) has held that the failure to file a timely substantive appeal does not automatically foreclose an appeal, render a claim final, or deprive the Board of jurisdiction. Percy v. Shinseki, 23 Vet. App. 37, 42-45 (2009) (citing Beyrle v. Brown, 9 Vet. App. 24 (1996) as an example where an appellant had not filed a substantive appeal, yet VA waived the filing requirement). The filing of a substantive appeal may be waived by VA as to the issue of timeliness, substance, or as to any issue embraced within the substantive appeal, or as to the entirety of the claim or claims raised in the substantive appeal. Id. at 45. The Board thus accepts jurisdiction of the right foot disability claim, despite the fact that a substantive appeal was not filed. New and Material Evidence Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, a claim which has been denied in an unappealed decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). 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 is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of what action was taken by the AOJ, the Board is under a statutory obligation to conduct a de novo review of the new and material issue. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The requirement for the submission of new and material evidence is a jurisdictional prerequisite for a claimant to obtain review of a previously denied and final decision. 38 U.S.C. § 5108. 1. New and material evidence having been received, the petition to reopen the claim for entitlement to service connection for right foot, flatfoot (pes planus) (claimed as fallen arches) is granted. The Veteran submitted an initial claim for service connection for a right foot condition, specifically pes planus, or flatfoot, in July 2015. In connection with his claim, the AOJ obtained service treatment records. The claim was denied in a July 2015 rating decision. The Veteran submitted a timely notice of disagreement (NOD) in August 2015. However, the Veteran subsequently submitted correspondence in March 2016, expressing his desire to withdraw his appeal. As such, the appeal for the claim for service connection was withdrawn and the July 2015 rating decision became final. The Veteran later submitted petitions to reopen his claim in July 2016 and October 2016. The AOJ subsequently issued a rating decision in January 2017, where the AOJ indicated that the claim remained denied because the evidence submitted was found not to be new and material. The Veteran then filed a NOD in February 2017 and timely appealed this matter to the Board. The Board finds that the evidence received since the July 2015 rating decision is, in fact, new and material. Specifically, the evidence includes post-service private treatment records for the Veteran's condition and multiple VA examinations with accompanying reports containing nexus opinions. The Board finds that the evidence added to the record since the last final denial in the July 2015 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim. Consequently, the Board finds that new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for flatfoot of the right foot. Service Connection In general, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d). To establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. 2. Entitlement to service connection for hypertension is granted. The Veteran contends that his hypertension began during his active military service and has persisted since then. See e.g., November 2012 statement in support of claim (VA 21-4138). Turning to the evidence of record, the Veteran has a currently diagnosed hypertension disability and is on medication to control his condition. See e.g., November 2013 VA examination. The Veteran’s service treatment records also document several elevated blood pressure readings throughout his military service. For example, In July 1987 the Veteran’s blood pressure was 120/68; in December 1987 the Veteran’s blood pressure was 130/80; in July 1988 the Veteran’s blood pressure was 100/60; in February 1989, the Veteran’s blood pressure was 140/100; in March 1990, measured as 132/82, and in April 1990, the Veteran’s blood pressure measured as 120/72. The Veteran was afforded a VA examination in September 2020 for his hypertension. The VA examiner opined that it is at least as likely as not that the Veteran’s current hypertension was incurred in or caused by the Veteran’s “multiple service treatment reports during service[.]” The VA examiner further explained that the elevated readings recorded during service “indicate that the Veteran was dealing with pre-hypertension while in service. Pre-hypertension increases the risk of developing hypertension. According to a 2005 analysis by the Framingham Heart Study, people with pre-hypertension are twice as likely to develop high blood pressure as are people with normal pressures.” The Board finds this opinion to be highly probative on the inherently medical question before it. It was based on the pertinent records and provided the underlying reasons for the conclusions reached. As such, the Board finds that entitlement to service connection for hypertension is warranted. Accordingly, the Veteran’s appeal is granted. 3. Entitlement to service connection for right foot, flatfoot (pes planus), is granted. The Veteran contends that his current pes planus of his right foot is related to his active duty service, to include as secondary to his service-connected knee disabilities. See e.g., March 2017 notice of disagreement. The record reflects that the Veteran has current diagnoses of flat foot (or pes planus) of the right foot and hallux valgus of the right foot. See September 2020 VA examination. As such, the first element of service connection, a current disability, has been established. The Veteran’s STRs do not contain complaints or treatment for his right foot conditions during his active duty service. However, in his March 2017 notice of disagreement, the Veteran asserted that his current right foot disability is either a result of or has been aggravated by his service-connected knee disabilities, contending the secondary service connection theory of entitlement is warranted. The Veteran was first afforded a VA examination for his right foot conditions in September 2018. Regarding etiology, the VA examiner did not provide an adequate opinion addressing the Veteran’s secondary service connection theory of entitlement. As such, pursuant to the Board’s October 2019 remand, an additional VA examination and opinion were obtained. The September 2020 VA examiner opined that the Veteran’s right foot conditions, diagnosed as pes planus and hallux valgus, is at least as likely as not caused by and/or aggravated beyond their natural progression by the Veteran’s service-connected right and left knee conditions. The VA examiner reasoned that “[t]he altered biomechanics of walking due to the stressors of the Veteran’s knee disabilities has led to structural changes of the foot, given the prolonged and repetitive antalgic gait placing abnormal pressures on the joint.” The Board finds the opinion of the September 2020 VA examiner to be robust and well-reasoned. Thus, it is entitled to great probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As such, entitlement to service connection for a right foot disability is granted. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. M. Lowman, 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.