Citation Nr: 21040682 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 14-33 312 DATE: July 6, 2021 ORDER Service connection for pes planus (claimed as flat feet) is denied. New and material evidence has not been received to reopen the claim for service connection for a left knee disability, and therefore, the claim is denied. New and material evidence has not been received to reopen the claim for service connection for a right knee disability, and therefore, the claim is denied. New and material evidence has not been received to reopen the claim for service connection for shin splints, and therefore, the claim is denied. REMANDED Service connection for a low back disability is remanded. FINDINGS OF FACT 1. The Veteran's pes planus, which clearly and unmistakably preexisted his active duty service, was clearly and unmistakably not aggravated due to his active service. 2. An August 2012 rating decision denied service connection for a left knee disability, a right knee disability, and bilateral shin splints; the Veteran did not file a Notice of Disagreement with that decision or submit new and material evidence within one year. 3. Evidence received subsequent to the expiration of the appeal period for the denial of service connection for a left knee disability, a right knee disability, and bilateral shin splints does not relate to any unestablished fact necessary to substantiate the claims. CONCLUSIONS OF LAW 1. The criteria for service connection for pes planus have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. 2. The August 2012 rating decision which denied service connection for a left knee disability, a right knee disability, and bilateral shin splints is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.202, 20.302, 20.1103. 3. New and material evidence has not been received to reopen the claims for service connection for a left knee disability, a right knee disability, and bilateral shin splints. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1978 to March 1985. These claims are on appeal from a December 2013 rating decision. Although all the evidence of record has been thoroughly reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis in this decision focuses on what the evidence shows or fails to show with respect to the matters decided herein. The Veteran should not assume that pieces of evidence not explicitly discussed herein have been overlooked. See Allday v. Brown, 7 Vet. App. 517, 527 (1995). Service Connection Service connection may be established for disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, in order to prevail on the issue of service connection the evidence must show: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111. In its prior remand, the Board determined the Veteran's pes planus clearly and unmistakably preexisted his active duty service; accordingly, the Board must determine whether this disability was aggravated beyond the natural progression of the disease due to the Veteran's active service. In determining whether there has been aggravation, the statute and regulation indicate that the first question to be asked is whether there was an increase in disability. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a preexisting injury or disease will be considered to have been aggravated by service "where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease"). In other words, if there is an increase in disability during service, aggravation is presumed, and this presumption can only be rebutted with clear and unmistakable evidence that the increase was due to the natural progress of the disease. 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993). If VA determines that there has been an increase in disability, the presumption of aggravation applies regardless of whether the degree of worsening is enough to warrant compensation under the VA rating schedule. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). An important distinction between section 1111's aggravation prong of the presumption of soundness and section 1153 presumption of aggravation is the burden of proof. Under section 1111, the burden is on the Government to show by clear and unmistakable evidence that the disability was not aggravated during service. Under section 1153, however, the Appellant bears the burden of showing that his preexisting condition worsened in service; once the veteran establishes worsening, the burden shifts to the Secretary to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). 1. Service connection for pes planus The Veteran contends he has pes planus which preexisted his active duty service, and which was aggravated by his service. See February 2013 Supplemental Claim. As noted above, the Board has found clear and unmistakable evidence that the Veteran's pes planus preexisted his active duty service. Thus, the Board will consider whether service connection is warranted on the basis of aggravation. The Veteran's entrance examination revealed no deformities of the feet. In February 1980, the Veteran went to sick call and indicated he had pain in both feet and that his feet sweat. The examiner diagnosed Athlete's foot and prescribed a powder. In August 1981, the Veteran went to sick call and indicated he had bilateral foot pain mainly on the toe; the examiner assessed tinea pedis. At a November 1984 examination, the Veteran's feet were normal, and he denied present or past history of foot pain. VA treatment records dated August 1997 reflect the Veteran sought treatment for a skin break on his right foot that was slow to heal and itchy along with small blisters between his toes. The examiner assessed tinea pedis. In July 2008, the Veteran sought VA treatment for Athlete's foot and blisters in between his toes. At an August 2012 VA primary care appointment, the Veteran indicated he was having issues on both feet on and off for several months and denied any other complaints. The examiner assessed bilateral pes planus, tinea pedis, dry pedal skin, and onychomycosis. In March 2013, he was fitted for custom foot orthotics for his pes planus. In an August 2013 letter, the Veteran stated he had been seeking VA treatment for his feet since approximately September 2012. In his September 2014 Substantive Appeal (VA Form 9), he stated that during service he did a lot of marching, walking, and physical training, which he felt aggravated his flat feet. At an April 2019 VA foot conditions examination, the Veteran reported he began having bilateral foot pain in 2009, was told he had flat feet, and that he was "born with flat feet." He was sent for custom orthotics in 2009 and 2013 which helped "somewhat." The examiner diagnosed bilateral pes planus, bilateral tinea pedis, and bilateral onychomycosis. Notably, service connection was granted for bilateral tinea pedis with onychomycosis in an April 2020 rating decision. The examiner concluded there was clear and unmistakable evidence that the Veteran's pes planus was not aggravated beyond its natural progression due to any in-service injury, event, or illness. The examiner explained that while the Veteran was treated for tinea pedis during service, the record was silent for any evidence of any other foot condition. Significantly, the Veteran's separation physical did not reflect any complaints of foot pain or any foot condition, and therefore, there was no evidence of worsening of pes planus. In a separate opinion, the examiner noted that the Veteran did not begin to experience foot pain until 2009. The Board finds the above opinion is adequate and provides a rationale for why service connection is not warranted. Notably, the Veteran has not stated that his feet hurt during service; rather, his contention is that the physical duties he performed aggravated a preexisting condition. His feet were normal at separation from service. At appointments in 1997 and 2008, the Veteran's feet were examined for complaints of tinea pedis and examiners did not note that the Veteran's feet were flat. By his own admission, the Veteran did not begin to experience foot pain until 2009, which the Board notes is more than three decades following his separation from service, and which weighs heavily against his claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability); see also Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when a veteran failed to provide evidence demonstrating continuity of symptomatology and failed to account for the lengthy time period following his service during which there was no clinical documentation of the claimed disorder). The Board recognizes that the Veteran is competent to report symptoms, such as foot pain, as this is based on personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Veteran has not been shown to have the experience, training, or education necessary to give a probative etiology opinion on his pes planus. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issue in this case in light of the education and training necessary to make a finding with regard to the complexities of the foot. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Based on the foregoing, the Board finds service connection must be denied as there is clear and unmistakable evidence that the Veteran's bilateral pes planus was not aggravated by service. Claims to Reopen Generally, rating decisions that are not timely appealed are final. 38 U.S.C. § 7105. An 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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. See 38 C.F.R. § 3.156. The question of whether new and material evidence has been received to reopen a previously denied claim must be addressed by the Board in the first instance, because the issue goes to the Board's jurisdiction to reach and adjudicate the underlying claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The focus is not exclusively on whether evidence remedies the principal reason for denial in the last prior final decision, but on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Id. at 118. 2. Whether new and material evidence has been received to reopen the claim for service connection for a left knee disability 3. Whether new and material evidence has been received to reopen the claim for service connection for a right knee disability Initially, the Board notes that in its August 2018 remand, the issues were incorrectly characterized as service connection claims. Service connection for a bilateral knee disability was previously denied in an August 2012 rating decision because there was no evidence of a nexus; the Veteran did not file a notice of disagreement with that decision or submit new and material evidence within that appeal period. Therefore, the August 2012 rating decision became final. In February 2013, the Veteran sought to reopen his claims for a bilateral knee disorder. The medical evidence associated with the record since the prior final denial merely demonstrates continued treatment for bilateral knee disabilities already known to exist at the time of the prior rating decision. Thus, this evidence is not new and material. The only evidence the Veteran has submitted is a new theory of entitlement: that his bilateral knee disabilities are secondary to pes planus. See February 2013 Supplemental Claim; see also September 2014 VA Form 9. Previously, he had claimed his bilateral knees were directly related to service. See September 2002 Claim Form (alleging onset in 1980); September 2003 Statement (stating that he believes his conditions originated during service); August 2011 Statement (indicating that he has had problems with these disabilities ever since he got out of the military). Merely presenting a new legal theory of entitlement (here, the Veteran's belief that his bilateral knees are secondary to pes planus) does not constitute new and material evidence. See Ashford v. Brown, 10 Vet. App. 120, 123 (1997). The Board has considered that the Veteran's representative has cited to medical literature discussing a relationship between altered gait and osteoarthritis. See May 2021 Appellate Brief. The Board acknowledges that the Veteran's bilateral knees do demonstrate degenerative changes; however, given that service connection for pes planus has been denied in the instant decision, which is the basis for the Veteran's claim on a secondary basis, this evidence, while new, is not material as it does not support a nexus. Absent new and material evidence which supports a nexus, these claims may not be reopened. Consideration has been given to the benefit of the doubt doctrine; however, as the preponderance of the evidence is against a finding that new and material evidence has been received to reopen these claims, and therefore, it is not applicable. See 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 4. Whether new and material evidence has been received to reopen the claim for service connection for shin splints Initially, the Board notes that in its August 2018 remand, the issue was incorrectly characterized as a service connection claim. Service connection for bilateral shin splints was previously denied in an August 2012 rating decision because there was no evidence of in-service treatment and no nexus; the Veteran did not file a notice of disagreement with that decision or submit new and material evidence within that appeal period. Therefore, the August 2012 rating decision became final. In February 2013, the Veteran sought to reopen his claims for bilateral shin splints. The only evidence the Veteran has submitted since the prior final denial is a new theory of entitlement: that his bilateral shin splints are secondary to pes planus. See February 2013 Supplemental Claim; see also September 2014 VA Form 9. Previously, he had claimed his bilateral shin splints were directly related to service. See September 2002 Claim Form (alleging onset in 1980); September 2003 Statement (stating that he believes his conditions originated during service); August 2011 Statement (indicating that he has had problems with these disabilities ever since he got out of the military). Merely presenting a new legal theory of entitlement (here, the Veteran's belief that his bilateral shin splints are secondary to pes planus) does not constitute new and material evidence. See Ashford v. Brown, 10 Vet. App. 120, 123 (1997). The Board acknowledges that the Veteran's representative has indicated the Veteran experienced shin splints since active duty service. See May 2021 Appellate Brief. However, this was already considered in prior decisions as the Veteran reported the onset date of shin splints was during service. See September 2002 Claim Form; September 2003 Statement; August 2011 Statement. Thus, this statement is duplicative and therefore, not new and material. Absent new and material evidence which supports an in-service occurrence or nexus, the Veteran's claim may not be reopened. Consideration has been given to the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, it is not applicable. See 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. at 56. Additional Considerations Although the claims to reopen service connection for bilateral knees and shin splints were previously characterized by the Board as claims for service connection, this poses no prejudice to the Veteran. This is so because he was informed of the requirement to submit new and material evidence in order for VA to reopen his claims prior to his case reaching the Board. The Board acknowledges that the record reflects the Veteran is in receipt of Social Security Administration (SSA) disability records. Significantly, at an October 2011 knee and lower leg examination, the Veteran indicated he injured his shoulder, neck, and low back and now receives SSA disability benefits. However, there is no prejudice to the Veteran here in deciding the instant claims without these records. Notably, VA is only required to obtain relevant SSA disability records. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Given that the Veteran has indicated he receives disability benefits for disabilities other than those adjudicated herein - pes planus, his bilateral knees, or shin splints - there is no prejudice to the Veteran in deciding the instant claims without these records. REASONS FOR REMAND Service connection for a low back disability is remanded. As noted above, the Veteran has indicated he receives SSA disability benefits for, among other things, a low back injury. Given that these records are relevant to the Veteran's claim, they must be obtained on remand. If, and only if, the records received trigger VA's duty to assist the Veteran by affording him an examination and obtaining an opinion, then this should be accomplished. See McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). The matters are REMANDED for the following action: 1. Obtain the Veteran's outstanding Social Security Administration disability benefits records. If the records are unavailable or it is determined that further attempts to obtain them would be futile, the AOJ must notify the Veteran and his representative in accordance with VA regulation. 2. If, and only if, the above records trigger VA's duty to assist the Veteran by affording him an examination and obtaining an opinion, then this should be accomplished. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board O'Connell, Jessica L. 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.