Citation Nr: 21040051 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 17-65 961 DATE: July 2, 2021 ORDER The previously denied claim of entitlement to service connection for cervical strain is reopened. The previously denied claim of entitlement to service connection for pes planus is reopened. Entitlement to service connection for degenerative disc disease of the cervical spine is granted. Entitlement to service connection for pes planus (claimed as flat feet or fallen arches) is granted. FINDINGS OF FACT 1. The November 1991 rating decision continuing the denial of service connection for cervical strain is final. 2. Additional evidence received since the November 1991 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for cervical strain, and raises a reasonable possibility of substantiating the claim. 3. The January 2010 rating decision continuing the denial of service connection for pes planus is final. 4. Additional evidence received since the January 2010 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for pes planus, and raises a reasonable possibility of substantiating the claim. 5. Resolving doubt in favor of the Veteran, his cervical spine disability began in service and is proximately due to his service-connected back disability. 6. Resolving doubt in favor of the Veteran, his pes planus began during service. CONCLUSIONS OF LAW 1. The November 1991 rating decision continuing the denial of service connection for cervical strain is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.1103. 2. New and material evidence has been received to reopen the Veteran's claim for service connection for cervical strain. 38 U.S.C. §§ 1110, 1131, 5108; 38 C.F.R. §§ 3.303, 3.156. 3. The January 2010 rating decision continuing the denial of service connection for pes planus is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.1103. 4. New and material evidence has been received to reopen the Veteran's claim for service connection for pes planus. 38 U.S.C. §§ 1110, 1131, 5108; 38 C.F.R. §§ 3.303, 3.156. 5. The criteria for service connection for cervical spine disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 6. The criteria for service connection for pes planus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1981 to August 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2014 and December 2014 rating decisions. In January 2021, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is in the claims file. Although the Veteran also perfected an appeal of service connection for left knee disability, his service connection claim was granted in full in a June 2019 rating decision as noted in the January 2021 Board hearing. The Board notes that the Veteran filed a January 2021 statement arguing that the grant of service connection was not complete as the Veteran was granted service connection for left knee disability following knee replacement surgery and should have been granted service connection for pre-knee replacement diagnoses. The Veteran also argued for entitlement to a separate rating for instability of the knee. However, viewing the June 2019 grant of service connection in light of the procedural history and evidence, it is clear that the Veteran's claim for service connection for left knee disability was granted in full. There is no case or controversy left regarding the Veteran's left knee disability service connection claim. To the extent that the Veteran asserts entitlement to an earlier effective date for service connection for left knee disability, or to higher or separate ratings, these are downstream issues from the June 2019 rating decision and are not before the Board at this time. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. The previously denied claim of entitlement to service connection for cervical strain is reopened. 2. The previously denied claim of entitlement to service connection for pes planus is reopened. In a November 1991 rating decision, the Regional Office (RO) continued the denial of service connection for cervical strain on the basis that there was no new and material evidence submitted since the August 1989 rating decision denying service connection for lack of a nexus to service. The RO notified the Veteran of its decision, and of his appellate rights, but he did not initiate an appeal of the RO's decision within one year. Nor was any new and material evidence received within a year. As a result, the RO's decision became final. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. In a January 2010 rating decision, the Regional Office (RO) continued the denial of service connection for pes planus on the basis that there was no new and material evidence submitted since the November 1991 rating decision denying service connection for lack of a nexus to service. The RO notified the Veteran of its decision, and of his appellate rights, but he did not initiate an appeal of the RO's decision within one year. Nor was any new and material evidence received within a year. As a result, the RO's decision became final. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. Evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is 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 determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence received since the time of the November 1991 and January 2010 rating decisions includes private opinions linking the Veteran's pes planus to service and linking the Veteran's cervical spine disability to his service-connected back disability. This evidence was not before adjudicators when the Veteran's claims were last finally denied and it is not cumulative or redundant of the evidence of record at the time of those decisions. The new evidence relates to an unestablished fact necessary to substantiate the claims for service connection for pes planus and cervical spine disability and raises a reasonable possibility of substantiating the claims. Accordingly, the claims are reopened. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a 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 showing that a current disability exists and that the disability was caused by or aggravated by a service-connected disability. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for degenerative disc disease of the cervical spine is granted. The Veteran seeks service connection for cervical spine disability, asserting that his condition began after an injury in service and is secondary to his service-connected back disability. The Veteran reported that he injured his back and neck when he fell from a horse during service and the horse landed on him. The Veteran reported that he has had neck pain since then which has worsened with time. The Veteran's service treatment records show the Veteran was treated for severe pain and stiffness in the neck following a fall involving a horse in July 1982, during service. The service treatment record notes the possibility of occult fracture of C-3. After examination and observation, the Veteran was provided a final diagnosis of minor cervical sprain-strain and no fracture. The service treatment records show the Veteran underwent physical therapy for his cervical sprain-strain. The Veteran reported that he has had neck pain since this in-service injury. The record shows that the Veteran claimed a neck disability related to the in-service incident in 1988 and 1991, at separation from service and a few years later. The Veteran has a current diagnosis of degenerative disc disease of the cervical spine. In June 2014, the Veteran's primary care physician opined that it is more likely than not that the Veteran's neck problems started with his in-service injury and were exacerbated by later injuries to the same area. The physician explained that he has been the primary care provider for the Veteran since the 1990s. The physician explained that he also reviewed the Veteran's service medical records, including the July 1982 service treatment record showing the fall from the horse resulting in emergency room treatment for severe pain and stiffness in the neck. Although the physician noted that the Veteran was diagnosed with an occult fracture of C-3, when this was not the final diagnosis in the service treatment record, but rather a potential diagnosis, the physician correctly noted the facts surrounding fall and the Veteran's pain and stiffness and that at discharge the Veteran was provided a cervical collar. The physician explained that the Veteran's neck injury from service was exacerbated by an automobile accident and a fall down the stairs, resulting in his current condition. Although this opinion cited an occult fracture in service that was ruled out, the remainder of the opinion makes it clear that the nexus to service is based on the Veteran's continuous neck problems since the July 1982 fall rather than a connection specifically to an in-service fracture. A finding that the Veteran experienced neck problems since service is supported by the record. An October 2014 VA examiner also opined that the Veteran's current condition is at least as likely as not incurred in or caused by the Veteran's July 1982 neck injury. The VA examiner explained that the Veteran's service treatment records show treatment for cervical strain in July 1982 and that the current neck condition could be a continuation. The VA examiner noted that the Veteran's symptoms began in 1982 and worsened over time. Although a November 2014 VA examiner opined that the Veteran's current neck disability is less likely as not related to service, the November 2014 VA medical opinion is inadequate. The November 2014 VA examiner relied on the passage of time since the in-service neck injury without addressing the Veteran's reports of pain since service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Viewing the lay and medical evidence as a whole, and resolving all doubt in favor of the Veteran, the Board finds the Veteran's cervical spine disability began in service. In addition, a February 2019 private examiner opined that the Veteran's neck disability developed secondarily to his service-connected lumbar spine disability. The examiner explained that studies have shown that there is a relationship between thoracolumbar and cervical spine columns which allow for the transmission of force along the vertebral column so that one region may impact another. The examiner noted that cervical deformity may be a compensatory measure resulting from thoracolumbar deformity. After reviewing the records and medical literature, and conducting a history and physical examination, the examiner opined that the Veteran's situation was similar enough to those in the studies and that it is as likely as not that his neck condition was secondary to his lumbar spine condition. There is no contrary opinion. Accordingly, resolving any doubt in favor of the Veteran, the Board finds the cervical spine disability is due, at least partly, to the service-connected back disability. Accordingly, service connection for degenerative disc disease of the cervical spine is warranted. 4. Entitlement to service connection for pes planus (claimed as flat feet or fallen arches) is granted. The Veteran seeks service connection for pes planus, asserting that his condition began during service. The Veteran reported that his arches collapsed in 1982, that he was treated, and that he has been wearing arch supports since that time. The Veteran reported that his pain has worsened over time. Review of the Veteran's service treatment records shows that the Veteran was diagnosed with pes planus in January 1982 and again treated for pes planus in February 1982. The Veteran's service treatment records note that the Veteran has pain with ambulation and that he needs foot appliances to raise his arches. The Veteran's August 1984 report of medical history shows that the Veteran continued to report foot trouble. A February 2019 private examiner opined that the Veteran's current chronic pes planus disability is directly linked to the condition that first developed during service and continued to be aggravated during service. The examiner explained that this opinion is based on a review of the records and a history and physical examination of the Veteran. The examiner noted that the Veteran was diagnosed with symptomatic pes planus in January 1982, during service, and that he continued to be treated for the condition in February 1982. The examiner also noted that the Veteran's August 1984 reenlistment report of medical history, in the middle of his active duty period, listed foot trouble. The examiner explained that there has been continuity of symptoms from service to the present. (Continued on the next page) Viewing the evidence as a whole, and resolving any doubt in favor of the Veteran, the Veteran's pes planus began in service. Accordingly, service connection for pes planus is granted. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Purcell 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.