Citation Nr: 21039688 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 14-37 468 DATE: July 1, 2021 ORDER New and material evidence has been received, and the service connection claim for a right knee disorder is reopened. Prior to November 17, 2011, a rating in excess of 30 percent for bilateral pes planus, on the basis of substitution, is denied. From November 17, 2011, a rating of 50 percent for bilateral pes planus, on the basis of substitution, is granted. REMANDED Entitlement to service connection for a right knee disorder, to include as secondary to service-connected bilateral pes planus, on the basis of substitution, is remanded. FINDINGS OF FACT 1. Evidence received since an April 2008 Board decision relates to an unestablished fact, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim of service connection for a right knee disorder. 2. The Veteran increased rating claim has been pending since November 20, 2000, as the November 19, 2001 rating decision is not final. 3. Prior to November 17, 2011, the Veteran's bilateral pes planus did not result in marked pronation, marked inward displacement, and severe spasm of the achilles tendon. 4. From November 17, 2011, the Veteran's bilateral pes planus resulted in extreme tenderness of the plantar surfaces. CONCLUSIONS OF LAW 1. Evidence received since an April 2008 Board decision is new and material; therefore, the Veteran's claim of entitlement to service connection for a right knee disorder is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(a), 20.1100, 20.1104. 2. Prior to November 17, 2011, the criteria for a rating in excess of 30 percent for bilateral pes planus were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5276. 3. From November 17, 2011, the criteria for a 50 percent rating for bilateral pes planus were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1971 to December 1974 This appeal is before the Board of Veterans' Appeals (Board) from multiple VA rating decisions from Department of Veterans Affairs (VA) Regional Offices (RO). On June [REDACTED], 2015, the Veteran passed away, and the Appellant is his surviving daughter. The Board and the undersigned Veteran's Acting Law Judge (AVLJ) extend our deepest sympathy and wish to extend our sincere gratitude for the Veteran's service. Under 38 U.S.C. § 5121A, a person who could be considered an accrued benefits claimant may substitute for a deceased claimant to continue adjudication of the deceased claimant's claim. The statute applies to claims of any claimant who died on or after October 10, 2008. See Pub. L. No. 110-389, 212, 122 Stat. 4145, 4151. Here, as the Veteran died in June 2015, the substitution benefits provisions apply. In a December 2018 notification letter, the Agency of Original Jurisdiction (AOJ) recognized the Appellant as a substitute claimant for the Veteran's claims that were pending when he died. The procedural history for these claims is as follows: In January 2019 the Board remanded the Veteran's and Appellant's claims for further development. Specifically, the Board determined the claims file contained missing documents such as notice of disagreements, filed claims, and medical records. As such, with these records absent from the claims file, the Board was unable to determine the scope of review for the increased rating claim and determine whether new and material evidence was present to warrant reopening of the claim. In June 2020 a VA Form 21-0820 Report of General Information was entered into the claims file which reported, "All documents requested were not successfully uploaded because the documents are not on file." However, after a second review of the claims file, the Board finds the evidence of record indicates the Veteran's and Appellant's noninitial increased rating claim is actually an initial increased rating claim that has been pending since November 20, 2000. Specifically, a January 2001 rating decision determined new and material evidence was not present to reopen the Veteran's claim of service connection for pes planus. Further development followed and in a March 2007 rating decision, the RO granted service connection and assigned a 20 percent rating effective November 20, 2000. The Veteran then filed a July 2007 notice of disagreement (which is erroneously dated in the claims file as June 14, 2008) and on June 14, 2008 the RO simultaneously issued a rating decision and a statement of the case (SOC) which each granted the Veteran a 30 percent rating. On June 20, 2008 the RO mailed the Veteran a VA Form 20-8993 Notification Letter informing the Veteran of the June 14, 2008 rating decision. No similar Notification Letter was sent regarding the June 14, 2008 SOC. In April 2009, the Veteran filed a NOD to the June 14, 2008 rating decision seeking an increased rating. On March 3, 2011 the RO issued a Deferred Rating incorrectly stating the Veteran's April 2009 NOD was untimely and invalid. The Veteran then subsequently submitted a March 2011 letter to the VA disagreeing with the March 2011 Deferred Rating. However, no response to the Veteran's March 2011 letter occurred. However, since the April 2009 NOD was timely, as it was submitted within one year of the rating decision on appeal, and the Veteran never received notification of the issuance of the June 14, 2008 SOC, the initial January 2001 rating decision on appeal never became final. Therefore, the Veteran's and Appellant's claim has been pending since the initial increased rating claim filed on November 20, 2000. As to the right knee claim, in October 2011, the Veteran filed to reopen his claim of entitlement to service connection for a right knee disorder, and in a February 2012 rating decision, the RO denied his claim to reopen citing new and material evidence was not present. In January 2019 the Board remanded the claim for further development culminating in a June 2020 supplemental statement of the case once again denying the claim to reopen. Lastly, in August 2003 the Veteran appeared and provided testimony before a separate Veteran's Law Judge (VLJ), and a transcript of that hearing is associated with the claims file. The Board also notes, the claims were previously remanded in May 2004 and April 2019. The claims have since returned to the Board and, for the reasons described herein, the Board finds substantial compliance with all remand directives. Stegall v. West, 11 Vet. App. 268 (1998). New and Material The VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). "New" evidence is evidence not previously submitted to agency decision makers and "material" evidence is 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 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 determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, whether a decision on the underlying merits or, a petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996). In Shade v. Shinseki, 24 Vet. App. 100 (2010), the United States Court of Appeals for Veterans Claims (Court) held that § 3.159(c)(4) does not require new and material evidence as to each previously unproven element of a claim for the claim to be reopened and the duty to provide an examination triggered. In a fact pattern where a prior denial was based on lack of current disability and nexus, the Court found that newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. Regardless of any RO determinations that new and material evidence has been submitted to reopen service connection, the Board must still determine whether new and material evidence has been submitted in this matter. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Here, the Veteran's claim was denied in an April 2008 rating decision based on a finding that there was no in-service event, injury, or disease and that he did not have a current knee disability. This decision was not appealed to the Board and the April 2008 rating decision is final. 38 U.S.C. § 7105(c). The evidence of record at the time of the April 2008 final rating decision consisted of the Veteran's service treatment records, service personnel records, lay statements, and VA treatment records from VAMC Birmingham from March 2007 to June 2007 and VAMC Tuscaloosa from March 2006 to November 2007. Since the April 2008 final rating decision, the evidence of record consists of multiple lay statements of the Veteran, VAMC Tuscaloosa treatment records from February 2000 to July 2015, VAMC Birmingham treatment records from March 2007 to June 2015, VAMC Montgomery treatment records from April 2009 to September 2009, July 2013 and June 2014 VA knee and lower leg examination reports, Social Security Medical Records, and various VA Podiatry treatment records from October 2010 to September 2014. The February 2012 rating decision did not reopen the Veteran's claim stating, "The evidence reviewed in connection with the current claim does not constitute new and material evidence because it does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim." However, as previously discussed, regardless of the RO's decision to reopen the claim, the Board is required to assess the evidence of record and determine whether reopening is warranted. See Jackson, 265 F.3d at 1369. In this case, the Board finds reopening is appropriate. Evidence received since the April 2008 final rating decision includes a February 2014 VA treatment record indicating he was diagnosed with right knee arthritis; a diagnosis confirmed in a June 2014 VA knee and lower leg examination. Indeed, the April 2008 final rating decision cited to a lack of a current disability as one reason his claim was denied. As such, since this evidence was not previously considered at the time of the April 2008 rating decision and reflects a diagnosed right knee disability, this evidence relates to an unestablished fact and is not cumulative or redundant of the evidence previously submitted. Thus, this evidence is both "new," as it has not previously been considered by VA, and "material," as it raises a reasonable possibility of substantiating the Veteran's and Appellant's service connection claim; the claim is reopened. Accordingly, new and material evidence has been received, and the Veteran's claim of entitlement to service connection for a right knee disorder is reopened. 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. 110. Increased Rating Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran asserted that he was entitled to a higher rating for his bilateral pes planus. The Veteran was in receipt of a 30 percent rating under Diagnostic Code 5276 for his bilateral pes planus. A 30 percent rating is assigned for bilateral pes planus that is severe with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 50 percent is assigned for bilateral pes planus that is pronounced with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the Achillis tendon on manipulation, not improved by orthopedic shoes or appliances. Turning to the evidence of record, in May 2004, the Veteran underwent a VA Flatfoot (Pes Planus) examination report which included a review of the claims file, a recitation of complaints and medical history, and physical examination results. He subjectively reported he feels pain all the time even at rest, after walking for 30 minutes he experienced pain rated as 9/10, and that he felt "markedly restricted" due to his pain. An inspection of the feet revealed callouses, tender upon palpitation over the ball of the feet and metatarsal joints, decreased range of motion, and normal achilles alignment. In February 2006, VA records indicate he sought treatment for callouses and corns. In October 2010, VA podiatry records indicate he received treatment for his bilateral pes planus. The assessment section stated that his feet were painful. In November 2011, the Veteran underwent a VA Flatfoot (Pes Planus) examination report which included a review of the claims file, a recitation of complaints and medical history, and physical examination results. The report noted he had the following bilateral conditions and symptoms: pes planus with accentuated pain, accentuated pain with manipulation, extreme tenderness of the plantar surfaces, decreased longitudinal arch heights, and characteristic calluses. The report determined there was no indication of swelling, neither feet's symptoms were relieved by arch supports, he had no objective evidence of marked deformity or marked pronation, no indication of extremity deformity other than pes planus, no indication of "inward" bowing of the achilles tendons, and no inward displacements and severe spasms. In June 2014, the Veteran underwent a VA Flatfoot (Pes Planus) examination report which included a review of the Veteran's VA treatment records, a recitation of complaints and medical history, and physical examination results. The Veteran subjectively reported "sharp" pain that occurs "all the time," the ends of his toes "curl," flare-ups occurring with ambulation, and functional loss. The report noted he had bilateral pain with the use of his feet, decreased longitudinal arch height, bilateral characteristic calluses, and used bilateral arch supports. The report determined his foot pain was not accentuated on manipulation and there was no pain on manipulation and no swelling. On July 28, 2015, the Veteran passed away. The evidence of record also contains various treatment records documenting routine treatment for foot pain; however, these records do not include physical examinations or descriptions of the Veteran's feet. After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds the preponderance of the evidence is against finding the Veteran's bilateral pes planus disability warranted a disability rating in excess of 30 percent prior to November 17, 2011. The evidence of record does not establish that the Veteran's bilateral pes planus resulted in objective evidence of marked pronation, extreme tenderness of plantar surfaces of the feet, or marked inward displacement and severe spasm of the achilles tendon on manipulation not improved by orthopedic shoes or appliances. Accordingly, prior to November 17, 2011, a rating in excess of 30 percent for the Veteran's bilateral pes planus was not warranted. On November 17, 2011, the Veteran's bilateral pes planus resulted in extreme tenderness of the plantar surfaces. As such, beginning November 17, 2011, a 50 percent rating for the Veteran's bilateral pes planus was warranted. Diagnostic Codes 5277, 5278, 5279, 5280, 5281, 5282, 5283, and 5284 also address ratings for foot disabilities. However, in this case, the evidence does not demonstrate bilateral weak foot (Diagnostic Code 5277), claw foot (Diagnostic Code 5278), Morton's disease (Diagnostic Code 5279), hallux rigidus (Diagnostic Code 5281), or malunion of tarsal or metatarsal bones (Diagnostic Code 5283). Regarding hammer toes, while the Veteran had hallux valgus (Diagnostic Code 5280) and hammer toes (Diagnostic Code 5282), he was not service connected for these disabilities. The only other potentially applicable Diagnostic Code is 5284 which is specifically designated for "Foot injuries, other." In Copeland v. McDonald, 27 Vet. App. 333 (2015), the Court interpreted the regulations governing conditions of the feet and found that the eight-foot conditions specifically listed under 38 C.F.R. § 4.71a could not be rated under Diagnostic Code 5284 (other foot injuries), because "to hold that DC 5284 applies to the other eight listed foot conditions would essentially render those (other) DCs redundant." Id. at 337 38. As such, the Diagnostic Codes pertaining to such impairments are not applicable. Accordingly, prior to November 17, 2011, the criteria for a rating in excess of 30 percent for the Veteran's bilateral pes planus were not met, and the claim is denied. However, beginning November 17, 2011, the criteria for a 50 percent rating for the Veteran's bilateral pes planus were met, and in that regard, the claim is granted. REASONS FOR REMAND Regarding the service connection claim for a right knee disorder, February 2012 VA treatment records revealed he was diagnosed with right knee arthritis. Moreover, during a July 2013 VA knee and lower leg examination report, the examiner determined it was at least as likely as not the Veteran's left knee arthritis was proximately due to or the result of the Veteran's service-connected bilateral pes planus. However, the claims file does not contain any opinion evidence regarding the etiology of the Veteran's right knee disorder. Consistent with VA's duty to assist, VA must provide a medical examination when there is evidence of (1) a current disability; (2) an in-service injury; (3) some indication that the claimed disability may be associated with the established injury; and (4) insufficient competent evidence of record for VA to make a decision. See McClendon v. Nicholson, 20 Vet. App. 79, 84 (2006). Here, there is insufficient competent evidence of record for the VA to make a decision and the Board must acquire a VA addendum opinion to address the etiology of the Veteran's right knee disorder to determine whether his right knee disorder was the result of or aggravated by his service-connected bilateral pes planus. As such, this case must be remanded to ensure a complete record upon which to decide the claims on appeal. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. This matter is remanded for the following actions: 1. Acquire a VA addendum opinion to determine the etiology of the Veteran's right knee disorder. The VA examiner should provide the following opinions: a. Is it least as likely as not (50 percent or greater) that a right knee disorder was caused by the Veteran's service-connected bilateral pes planus? Why or why not? If the examiner determines the Veteran's right knee disorder is not the result of his service-connected bilateral pes planus, the examiner must explain how the Veteran's right knee disorder was different than the Veteran's service-connected left knee disability. b. Is it at least as likely as not (50 percent or greater) that a right knee disorder was aggravated by the Veteran's service-connected bilateral pes planus? Why or why not? If aggravation is found, the examiner should identify the baseline level of severity of the right knee disorder before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the level of severity of the right knee disorder. 38 C.F.R. § 3.310. Timothy Berryman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.