Citation Nr: 21030237 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 18-46 724 DATE: May 18, 2021 ORDER New and material evidence having been received, the application to reopen the claim of service connection for lumbar spine disability is granted. New and material evidence having been received, the application to reopen the claim of service connection for pes planus is granted. Service connection for pes planus is denied. REMANDED Service connection for a lumbar spine disability. FINDINGS OF FACT 1. The Veteran had active duty from October 1988 to October 1992 and from April to July 2003. 2. Service connection for a lumbar spine disability and pes planus was denied in April 2013 and April 2014; evidence submitted since the last final denial in April 2014 is new and material. 3. Pes planus was noted at entry but did not increased in severity during service. CONCLUSIONS OF LAW 1. The April 2014 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103, 20.1100 (2020). 2. New and material evidence has been received to reopen the claim of service connection for a lumbar spine disability. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. §§ 3.104, 3.156, 3.309, 3.311, 20.302, 20.110 (2020). 3. New and material evidence has been received to reopen the claim of service connection for pes planus. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. §§ 3.104, 3.156, 3.309, 3.311, 20.302, 20.110 (2020). 4. Pes planus was not aggravated in service. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran testified at a January 2021 hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. New and Material Evident to Reopen Claims Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. "New" evidence means evidence "not previously submitted to agency decisionmakers." "Material" evidence means "evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim." 38 C.F.R. § 3.156(a). In order to be "new and material" evidence, the evidence must not be cumulative or redundant, and "must raise a reasonable possibility of substantiating the claim," which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). Lumbar Spine Disability The claim for a lumbar spine disability was originally denied in an April 2013 rating decision because there was no indication that this disorder was related to service. The Veteran did not appeal this decision and it became final one year later. The claim was denied again in April 2014 on the basis that no new and material evidence had been submitted. She did not appeal. This was the last final denial on any basis. Evidence since the April 2014 rating decision includes a December 2014 Disability Benefit Questionnaire (DBQ) submitted by the Veteran, a July 2015 private medical opinion, clinical records, lay statements, and the Veteran's January 2021 hearing testimony. In the July 2015 private medical opinion, the treating physician, provided found a nexus between the currently-diagnosed lumbar spine disorder and service. The July 2015 private medical opinion is new, as it was not of record at the time of the April 2014 rating decision, and material as it indicated a nexus between the lumbar spine disability and service. As such, new and material evidence relating to an unestablished element of the claim has been submitted since the prior final rating decision, the application to reopen the claim of service connection for a lumbar spine disorder is warranted, and the appeal, to this extent, is granted. Pes Planus The claim for pes planus was originally denied in an April 2013 rating decision because there was no indication that this disorder was related to service. The claim was denied again in April 2014 on the basis that the Veteran's pes planus was a preexisting disorder but that there was no evidence of aggravation beyond the disorder's natural progression during active service. She did not appeal. This was the last final denial on any basis. Evidence since the April 2014 rating decision includes a July 2015 private medical opinion which suggested aggravation of the disorder during service, clinical records, lay statements, and the Veteran's January 2021 hearing testimony. Accordingly, this evidence is new, and it is material in that it raises a reasonable probability of substantiating the Veteran's claim. The appeal to reopen is granted. Service Connection for Pes Planus Having reopened the claim for pes planus, the Board will address it on the merits. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303 (a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In addition to the laws and regulations outlined above, a veteran is presumed to be in sound condition upon entrance into service, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). If a disorder is noted, the question is whether it was aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C. § 1153. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Moreover, "temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened." Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). The Veteran seeks service connection for pes planus. She contends that wearing steel-toed boots during active duty aggravated pre-existing pes planus. As an initial matter, the Veteran was noted to have pes planus upon her initial entry into service. In this regard, a review of the service treatment records (STRs) reveals that bilateral pes planus, mild and asymptomatic, was noted on the March 1988 entrance examination. This disorder was not considered disabling and she was accepted into service. Because pes planus was noted on entrance, the presumption of soundness does not apply. Therefore, the issue is one of aggravation. The evidence does not show that the Veteran's pes planus underwent an increase in severity while in service. The STRs are silent as to complaints, treatment, or diagnoses of pes planus. Further, her feet were found to be clinically normal at the October 1992 separation examination and the Report of Medical History at separation reflected that she denied foot trouble. The Veteran also underwent several health assessments and no complaints related to flat feet were noted. On an April 2003 pre deployment health assessment, she reported painful blister/corn on right foot but no complaints related to pes planus. On a June 2003 post deployment health assessment, she reported recurrent callous/ corn formation on right foot and she was referred to a podiatrist, but no complaints related to pes planus. This evidence weighs against a finding that pes planus was aggravated during service. In a post-service October 2012 VA examination, the Veteran reported that she would develop arch pain at times throughout her service, and she wore either two pairs of socks or inserts. The examiner diagnosed pes planus and opined that it was less likely than not due to or the result of the in-service complaints as there was no evidence or record documenting complaints or treatment of flat feet. On the other hand, the Veteran submitted a statement from her private physician in July 2015 who noted a diagnosis of pes planus. After reviewing the STRs and post-service medical records, the physician opined that the current pes planus was more likely than not manifested and was attributed to her active duty and Reserve service and had continued since the Veteran's release from service; however, no rationale was offered for that opinion. The Board has weighed the October 2012 VA opinion and the July 2015 private opinion and places more probative weight to the October 2012 VA opinion. The October 2012 VA examiner reviewed and discussed the relevant evidence of record, to include STRs and post-service treatment records, performed a physical examination of the feet, and provided an opinion supported by a well-reasoned rationale. Based on the above, the weight of the medical evidence does not support a finding that pes planus was aggravated by service. As pes planus did not increase in severity during active duty, the medical evidence does not support the claim. The Board has considered the Veteran's lay statements that pes planus was aggravated in service. While she is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses, she is not competent to offer an etiology of this disorder. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to her statements. In light of the above, the preponderance of the evidence is against the claim and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASON FOR REMAND Although the Board has reopened the claim for a low back disorder, a remand is needed. The Veteran asserts that while she was stationed onboard the USS Alamogordo, ARDM-2, which also had a barge attached to the ship, she slipped and fell while walking down an area of the barge. As to in-service incurrence, the STRs reflect that in April 1990 the Veteran complained of sharp and constant back pain after falling while on board, "down the 32 barge walkway." She was found to have an injury to lower back, possible muscle strain. The Veteran submitted a statement from her private physician in July 2015. The Veteran's treating physician noted lumbar degenerative disc disease with right leg pain due to sciatica. After reviewing her STRs and post-service medical records, the physician opined that the Veteran's current lumbar degenerative disc disease was more likely than not manifested and was attributed to active duty and Reserve service and had continued since her release from service. While the July 2015 private medical opinion is sufficient to reopen the claim, it is not sufficient to grant the benefit sought. No rationale was provided. Therefore, a medical opinion is needed. The matter is REMANDED for the following actions: 1. Identify and obtain any VA and private treatment records and associate them with the claims file. 2. Direct the claims file to a clinician to provide an opinion as to the nature and etiology of the Veteran's lumbar spine disorder. The clinician is asked to offer a medical opinion as to the following: whether it is at least as likely as not (a 50 percent or more probability) that a lumbar spine disorder is related to service, to include an in-service complaint of sharp and constant back pain after falling while on board, "down the 32 barge walkway" and injuring the lower back with possible muscle strain assessment in April 1990. A thorough rationale should be given for all opinions and conclusions rendered. It is important that the clinician address the Veteran's assertions and discuss the relevant medical history, to specifically include addressing the July 2015 private opinion. 3. If the clinician determines that an examination is necessary in order to provide the requested opinion, then one should be scheduled. L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Grzeczkowicz 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.