Citation Nr: 22010567 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 19-33 564 DATE: February 24, 2022 ORDER The application to reopen the claim for service connection for a bilateral heel condition (pes planus) is granted. REMANDED Entitlement to service connection for a bilateral a bilateral heel condition (also claimed as bilateral pes planus) is remanded. FINDINGS OF FACT 1. A September 2013 rating decision denied service connection for a bilateral heel condition. The Veteran was notified of his rights but did not timely express disagreement or submit new and material evidence during the applicable appellate period. 2. The evidence associated with the claims file subsequent to the September 2013 rating decision denying service connection for a bilateral heel condition, is new, not cumulative of evidence previously of record, and related to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The September 2013 rating decision is final. §§ 5108 (2012), 7105; 38 C.F.R. §§ 20.302, 20.1103 (2013). 2. New and material evidence sufficient to reopen the claim of service connection for a bilateral heel condition has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a), (c) (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1981 to June 1984 and from August 1987 to March 1992. This appeal is before the Board of Veterans' Appeals (Board) from a May 2017 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado that declined to reopen a previous final claim for service connection for bilateral heels and pes planus. In July 2021, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript is included in the claims file. New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). 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. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." See id. The Veteran asserts that his bilateral heel condition (pes planus) and is related to service, and that new and material evidence has been submitted warranting reopening. The Board finds that new and material evidence sufficient to reopen the claim of service connection for a bilateral heel condition (pes planus) has been received. The RO denied service connection for bilateral heel condition (pes planus) in September 2013 and November 2014 rating decisions finding that the Veteran's foot condition was neither occurred in nor was caused by military service. The Veteran was notified of this decision and his appellate rights in September 2013 and in November 2014. Although the Veteran expressed general disagreement with "Gulf War Syndrome" in November 2014, he specifically listed five disorders but not any associated with the feet. The Veteran did not appeal or submit new and material evidence within the applicable time period. Therefore, the November 2014 rating decision is final. As to the Veteran's claim for entitlement to service connection for a bilateral heel condition (pes planus) in September 2013, the record consisted of service treatment records (STRs), VA treatment records and statements from the Veteran. The evidence failed to show that the Veteran's reported current disability was incurred in or attributable to service. Evidence considered in November 2014 included the results of a VA Gulf War General Medical examination that included a detailed examination of the feet with diagnoses of flat feet, hallux valgus, plantar fasciitis in 2011, and degenerative arthritis and right metatarsalgia in 2014. The Veteran reported the onset of foot pain six months prior to discharge from service but was never examined in service. He denied any traumatic injury to the feet. The examiner did not consider this disability to be an undiagnosed illness or a medically unexplained chronic multisymptom illness associated with Persian Gulf War service. However, the examiner did not provide an opinion on the onset or cause of the foot disorders. Evidence associated since the November 2014 rating decision includes additional VA and private treatment records, hearing testimony, as well as the Veteran's and associated lay statement from the Veteran's in-service supervisor. Evidence associated since the September 2013 rating decision includes additional treatment records, testimony and lay statements regarding the Veteran's in-service injuries, ongoing symptoms, and potential in-service injury being caused due to marching. The Veteran's and associated lay statements as well as his July 2021 testimony are new, not cumulative, and indicate the potential that the Veteran's current disability occurred in or was caused by service and shows the potential of an ongoing symptomology since service. As such new and material evidence sufficient to reopen the claim for service connection for a bilateral heel condition (pes planus) have been received. The evidence provided addresses the previously unestablished facts of a potential relationship to service and ongoing symptomology since service. This new evidence is not redundant. Therefore, reopening of the claim for service connection is warranted. REASONS FOR REMAND Bilateral Pain in Heels (also claimed as bilateral pes planus) The Veteran contends that his bilateral heel condition occurred in or was caused by his service; specifically, from in-service 12-mile ruck marches. In July 2021, the Veteran's in-service supervisor submitted a statement. Mr. L.F. was the Veteran's Platoon Sergeant indicated that the Veteran was observed on the flight line performing preventive phase maintenance on his assigned helicopter, struggling to carry a toolbox. The incident was brought to his supervisor's attention by his squad leader. The Veteran's in-service supervisor stated that he called him into his office and the Veteran told him that he had blisters on his feet from his 12-mile ruck march that he had completed the previous day. Mr. L.F. noted that the 12-mile ruck marches were done quarterly, as a requirement by the commanding general. He stated that the training required soldiers to carry 40 pounds of equipment on their backs for 12 miles while wearing combat boots. He also noted as a result the Veteran was confined to bed rest for 2 days while he recovered. The Veteran's in-service supervisor also noted that the Veteran complained of soreness in his lower back and knees. He also recalled seeing the Veteran limp and the Veteran said his legs and feet were painful, throbbing every night and he had to take pain medication to help him cope with the severe pain. The Veteran's supervisor stated that he told him to go on sick call as often as he needed because he could not have soldiers working on a helicopter while being injured, since that was not safe. See July 2021 Buddy/ Lay statement. In July 2021, the Veteran attended a virtual Board hearing. During the hearing the Veteran's representative indicated his claim for service connection for a bilateral foot condition (sometimes referred to as a heel condition or pes planus) was denied due to there being no service treatment records that showed problems with his feet. However, the Veteran and his representative contended that new and material evidence had been submitted; as the Veteran's supervisor in-service had made a statement that was submitted on July 21st. As a result of the statement, the Veteran and his representative requested the Veteran be afforded a nexus opinion based on the statement. See July 2021 Hearing Transcript, p.3. The Veteran testified that he did not have feet problems prior to entering the military in 1981. The Veteran also stated that while in-service they did 12-mile road marches every six months with rucksacks on their backs, while wearing cheap boots. See July 2021 Hearing Transcript, p.6. The Veteran indicated that the road marches caused him to get blisters on his feet. The Veteran testified that the blisters would come and go but he continued to have general pain in his feet and heels. The Veteran stated that sometimes he could not walk when he had pain in his heels, and it felt like the pain was in his Achilles tendon. The Veteran testified that even after his discharge he still had pain, the pain worsened. See July 2021 Hearing Transcript, p.7. It was noted that the Veteran's military occupation was as a helicopter mechanic. The Veteran testified that he began seeking formal treatment around 2012, however prior to that and after his discharge in 1992 he would take over the counter medication, before the pain got bad. The Veteran indicated that in-service he was given inserts for his boots, but they did not work. Then, once he sought treatment after service, he was given inserts from a private hospital. The Veteran testified that he was seen in-service during the Gulf War, but it was not recorded. See July 2021 Hearing Transcript, p.7-10. Therefore, the Board cannot make a fully informed decision on the issue of entitlement to service connection for a bilateral heel condition because no VA examiner has opined whether direct service connection is warranted. As such a remand is warranted for a VA examination. This matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records or private treatment records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any foot/ heel disabilities. The examiner must opine whether: (a.) Identify all foot disabilities. (b.) Then determine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's bilateral heel disability was caused by an in-service injury or disease, to include foot pain and blisters from 12-mile ruck marches? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Attention is invited to the Veteran's July 2021 testimony noting ongoing symptoms of foot pain after 12-mile ruck marches in-service. Attention is also invited to a July 2021 statement from the Veteran's in-service supervisor, who spoke about his observations regarding the Veteran's foot condition. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Long-Ellis, 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.