Citation Nr: 21021852 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-41 255A DATE: April 14, 2021 ORDER The petition to reopen a claim for service connection for bilateral pes planus is granted. Entitlement to service connection for bilateral pes planus is granted. FINDINGS OF FACT 1. In an unappealed June 1970 rating decision, VA denied entitlement to service connection for bilateral pes planus; no new and material evidence was received within one year of the notification of that decision. 2. Subsequent to the June 1970 rating decision, evidence was associated with the claims file that is neither cumulative nor redundant of the evidence of record; relates to an unestablished fact; and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for bilateral pes planus. 3. It is not established by clear and unmistakable evidence that there was no in service increase of the Veteran’s pre-existing bilateral pes planus or that such increase was due to natural progression of the disability. CONCLUSIONS OF LAW 1. The June 1970 rating decision denying entitlement to service connection for bilateral pes planus is final. 38 U.S.C. §§ 7104(b), 7252. 2. The criteria to reopen the claim for service connection for bilateral pes planus have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to service connection for bilateral pes planus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to March 1970. He served honorably in the U.S. Army, including service in Korea. The Board thanks the Veteran for his service to our country. The Veteran testified before the undersigned at a Board hearing in April 2021. 1. The petition to reopen a claim for service connection for bilateral pes planus is granted. Claims are to be reopened when new and material evidence is submitted. 38 U.S.C. § 5108. “New” evidence means existing evidence not previously submitted to agency decision-makers. “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). In this case, no new evidence was submitted within one year of a June 1970 rating decision denying service connection for bilateral pes planus. As the Veteran did not appeal the denial of service connection and no new and material evidence was received within one year of the denial, the June 1970 rating decision is final. In a July 2013 private treatment letter, the provider noted that the Veteran’s medical history from his years spent in service showed that pes planus was well-documented as being severe in nature. Accordingly, the Board finds that the additional evidence is neither cumulative nor redundant, and it is material since the evidence raises the possibility of substantiating the service connection claim for bilateral pes planus. See 38 C.F.R. § 3.156(a). As new and material evidence has been presented for the claim, it is reopened. 2. Entitlement to service connection for bilateral pes planus is granted. The Veteran contends that service connection for bilateral pes planus is warranted as the pre-existing disorder was aggravated due to standing at attention for prolonged periods, marching, and completing physical training in boots. The Board finds that service connection for the disorder is warranted. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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. To substantiate a claim of service connection, there must be evidence of: (1) a current disability; (2) a disease, injury, or event in service; and (3) a nexus or causal relationship between the claimed disability and the disease, injury, or event in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). In this case, the Veteran’s pes planus preexisted his military service from April 1968 to March 1970 as moderate pes planus is noted in his March 1968 entrance exam. In Wagner v. Principi, 370 F.3d 1089, 1096 (2004), the United States Court of Appeals for the Federal Circuit held if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish an increase in disability during service. If the presumption of aggravation attaches, the burden shifts to the government to show by clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. Id; see also 38 C.F.R. § 3.306(b). In this case, while moderate pes planus was noted in the Veteran’s entrance examination, in a December 1969 service treatment note severe pes planus was noted. As the evidence of record shows that there was an increase in the severity of bilateral pes planus during service, the presumption of aggravation attaches. Again, in order to rebut the presumption of aggravation, there must be clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. 38 C.F.R. § 3.306. Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence “‘cannot be misinterpreted and misunderstood, i.e., it is undebatable.’” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). In a February 2013 VA examination report, the examiner noted a diagnosis of bilateral pes planus. The examiner concluded that there was no objective evidence of in-service aggravation of the Veteran’s pre-existing pes planus beyond its natural progression. The examiner stated that a review of the records showed no evidence of any complaint or treatment for pes planus during active service and that there was no evidence of trauma to the bones, rupture of the tendons of the foot, or arthritis of the foot. Further, the examiner noted that the separation examination did not mention pes planus and was silent with respect to any chronic feet problem or diagnoses. However, the examiner did not address the in-service notation of severe pes planus. Further, as noted in the July 2013 private treatment note, his medical history since service documented severe pes planus. There is no evidence that the increase in severity was due to the natural progression of the disease. As there is not clear and unmistakable evidence that there was no increase in severity or that the increase in severity was due to the natural progression of the disease, the presumption of aggravation has not been rebutted and service connection based upon aggravation of a pre-existing disability is granted. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Vashaw, 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.