Citation Nr: 22014086 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-56 794 DATE: March 11, 2022 ORDER The petition to reopen the claim of service connection for bilateral pes planus with plantar fasciitis is granted. Service connection for bilateral pes planus with plantar fasciitis is denied. FINDINGS OF FACT 1. A March 2005 Board decision denied reopening the claim for service connection for a bilateral foot disability. 2. The evidence received since the March 2005 Board decision is new and relates to an unestablished fact necessary to substantiate the claim. 3. The Veteran's pes planus was shown at entry into service and was not aggravated by military service. CONCLUSION OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral pes planus with plantar fasciitis. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.102, 3.156(a). 2. The criteria for service connection for bilateral pes planus with plantar fasciitis have not been met. 38 U.S.C. §§ 1153, 5107; 38 C.F.R. §§ 3.102, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1967 to January 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from February 2017 and April 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript is associated with the claims folder. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. The petition to reopen the claim of service connection for bilateral pes planus with plantar fasciitis is granted. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. See 38 U.S.C. § 5108; Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means 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). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Id. at 117. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection for a bilateral foot disability was originally denied in a November 1980 RO rating decision. The November 1980 rating determination indicated that the Veteran's bilateral foot disability pre-existed service and was not aggravated therein. This decision became final. Service connection was denied again in a June 2002 rating decision and the Veteran appealed to the Board. In March 2005, the Board denied a petition to reopen the claim of service connection for a bilateral foot disability had not been submitted. Board decisions are final when issued. 38 U.S.C. § 7104. The Veteran sought to reopen his claim in April 2014. Evidence associated with the file since the March 2005 Board decision includes lay statements, VA treatment records, December 2016 VA examination and opinion, and a September 2016 private opinion. This evidence is new because it was not previously considered by the RO. In the September 2016 private opinion, the clinician opined that the Veteran's bilateral foot condition worsened during military service. When considered with previous evidence of record, this evidence raises a reasonable possibility of substantiating the claim. Therefore, it is material. Thus, reopening of the previously denied claim of service connection for a bilateral disability is warranted. Having reopened the claim, the Board will proceed to address the underlying merits of the appeal. The Veteran is not prejudiced by this action as the RO has also reopened and adjudicated the claim on the underlying merits. Hickson v. Shinseki, 23 Vet. App. 394 (2010). 2. Service connection for bilateral pes planus with plantar fasciitis is denied. The Veteran seeks service connection for his bilateral pes planus. At the November 2021 Board hearing, the Veteran testified that his flat feet were aggravated by physical training on rough terrain, running, jogging, and standing in formation for a long period of time during service. He indicated that he first began to have symptoms during service with swelling and toe deformity. The Veteran also testified that his foot disabilities have progressively worsened and required more invasive treatment since service, including a surgery in 1969. 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). A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153, 38 C.F.R. § 3.306 (a). 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. §§ 3.304, 3.306(b). Service treatment records show that the Veteran had pes planus, third degree, upon entering service. This was noted during the October 1966 induction examination. A December 1966 physical inspection noted pes planus NCD (i.e., not considered disabling) in the Veteran's defect and diagnosis. In June 1967, the Veteran was noted to have sore flat feet and was given an assessment of third degree pes planus moderate pronation. The July 1967 service treatment records indicate fallen arches with aching and pain in his feet. Physical examination showed third degree pes planus with moderate pronation. In November 1967 service treatment records, a clinician noted that the Veteran's painful feet date back to running track in high school. At that time, the Veteran began having pain in the medial aspect with fallen arches. The Veteran reported that he was unable to continue high school athletics due to pain. A physical examination showed third degree pes planus. The clinician indicated that the Veteran's foot condition is a chronic EPTE (existing prior to entry) condition, which is symptomatic and not responsive to treatment. The clinician recommended discharge based on a medical condition EPTE. These conclusions were reiterated and accepted in a December 1967 cover sheet and medical board report. After service, the Veteran was seen numerous times for pain and symptoms related ot his bilateral foot condition. See August 1980 letter; August 2002 private treatment records. In September 2016, the Veteran underwent a private examination in support of his appeal. That clinician noted a diagnosis of pes planus from October 1967, metatarsalgia from 2000, and plantar fasciitis from 2010. The Veteran reported a history of flat feet since 1960 and that the condition flared during military service. The clinician opined that the Veteran's active service aggravated his flat feet and led to his current condition. The clinician expanded on this in a September 2016 written opinion. The clinician noted the November 1967 service treatment record, indicating that this evaluation showed the Veteran's condition had progressed to the degree where a medical board review for discharge was warranted. The Veteran was afforded a VA foot examination in December 2016. The examiner noted current diagnoses of bilateral flat foot, metatarsalgia, hallux valgus, and plantar fasciitis. In the December 2016 opinion, the examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner explained that the Veteran entered service with a grade 3 pes planus and a significant history of having to drop out of sports due to symptoms. His symptoms began soon into training. Essentially, the Veteran continued to exhibit the same level of functional impairment and symptoms before and during service. Thus, aggravation of the pre-existing disability during service was not shown. In support of his appeal, the Veteran submitted numerous lay statements, include those of his two brothers, a high school friend, his former spouse, his current spouse, and former service members who served with the Veteran. His brothers and high school friend indicated that they did not know the Veteran to have any foot conditions prior to service, but that he complained of foot pain in letters home and after separation from service. The servicemembers who were stationed with the Veteran indicated that he had problems during physical training which continue to this day. The Veteran's former spouse indicated that he had pain, difficulty walking, swelling in feet and ankles, and trouble standing for the duration of their ten year marriage, which began in1969. The Veteran's current spouse indicated that he has had problems with his feet as long as they have been together, and he has attributed aggravation of his condition to basic training. The service treatment records clearly note pes planus at entrance. As such, the question for the Board is whether the Veteran's pre-existing pes planus underwent a permanent increase in the underlying pathology beyond the natural progression during his military service. In this regard, the Board finds the December 2016 VA opinion the most persuasive. The examiner has the appropriate training, expertise, and knowledge to evaluate the claimed disability. The examiner provided a thorough and cogent rationale, which included consideration of the Veteran's reported symptoms, and the clinical history. The opinion provides the Board with a clear description of all relevant data points necessary to evaluate this claim. Conversely, the Board does not find the September 2016 opinion as persuasive. The opinion relied heavily on the November 1967 service treatment record where a clinician recommended that the Veteran be medically discharged. However, the private clinician's opinion and rationale does not reflect adequate consideration of the evidentiary record. The cumulative treatment records do not reflect a permanent worsening of the Veteran's pre-existing pes planus. Rather, they reveal similar functional impairment at service entrance and service discharge. For instance, 'bilateral third degree pes planus' was noted upon entrance to service. This same degree of pes planus was noted at discharge from service. The clinician also relied on an inaccurate factual premise for her opinion and rationale. She stated that 'the Veteran's foot disability was present, but only became a problem after active duty.' However, service treatment record show that when evaluated in November 1967, the Veteran reported that the pain in his feet dated back to high school, before service, when he was running track. He noted that his pain in the medial aspect and fallen arches was present back in high school, he was unable to continue high school athletics due to such pain, and his foot progressively became flatter. The November 1967 record also show that after he joined the military, he continued to have pain and treatment did not afford relief. In fact, he had to drop out of several marches due to painful feet. The Veteran was unable to participate in physical activities prior to service due to painful feet and he was also unable to participate in physical activities during service due to his painful feet. This evidence does not reflect a permanent worsening in the Board's assessment and reveals similar functional impairment at service entrance and service discharge. The Veteran's foot disability clearly was a problem before active duty. The clinician's reliance on an inaccurate factual premise significantly diminishes the probative value of her opinion. Thus, the Board is not persuaded by it. The Board has considered the numerous lay statements in this case. However, the evidence does not show that the identified lay persons are competent to opine as to the aggravation of the Veteran's pes planus. Notably, the Veteran, his family, and other lay individuals are not shown to possess the education or experience to offer a medical opinion on complex matters such as the ability differentiate between degrees of pes planus, or link other foot disabilities to service, particularly in the absence of acute or traumatic injury. Accordingly, these assertions are not competent or probative evidence of aggravation. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 Although the Veteran has other foot diagnoses of record, the competent and probative evidence does not demonstrate that these are related to service. Metatarsalgia, plantar fasciitis, and hallux valgus were not noted in service or at discharge. The in-depth clinical evaluations during service show only pes planus. The VA examiner's report shows the onset of these two disorders was many years after service discharge. The September 2016 private opinion suggests that the current plantar fasciitis is a direct result of the Veteran's pes planus. Service connection for the pes planus is denied because it was neither incurred in, nor aggravated by service. Therefore, service for plantar fasciitis would not be warranted. The related DBQ report includes diagnoses of plantar fasciitis and metatarsalgia and the clinician's opinion that "his feet are in their current state due to his military service." See September 2016 DBQ, page 9. However, this is not supported by a clear rationale in the DBQ itself. The rationale included in the accompanying written opinion does not address metatarsalgia specifically, and it is not probative on plantar fasciitis for the reasons previously discussed above. There is no other competent and probative medical opinion relating metatarsalgia and hallux valgus to service. In sum, the Veteran's pes planus preexisted his active military service, and the competent and persuasive evidence does not demonstrate aggravation of this pre-existing disorder due to service. As such, the benefit of the doubt doctrine does not apply. Service connection is not warranted. See 38 C.F.R. §§ 3.303, 3.306. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Vuong, 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.