Citation Nr: 22016753 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 19-10 894 DATE: March 23, 2022 ORDER New and material evidence having been received, the claim of entitlement to service connection for a bilateral foot condition, to include flat feet, is reopened. New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is reopened. Entitlement to service connection for a bilateral foot condition, to include flat feet, is granted. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is granted. FINDINGS OF FACT 1. A June 2013 rating decision denied the claim of entitlement to service connection for flat feet. The Veteran did not timely appeal the decision; thus, the decision became final. 2. In June 2018, the Veteran filed a request to reopen his claim of entitlement to service connection for bilateral flat feet. 3. The evidence received since the final June 2013 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a bilateral foot condition. 4. A January 2014 rating decision denied the claims of entitlement to service connection for a mental condition and PTSD. The Veteran did not timely appeal the decision; thus, the decision became final. 5. In June 2015, the Veteran filed a request to reopen his claim of entitlement to service connection for a psychiatric disorder. 6. The evidence received since the final January 2014 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder. 7. The Veteran's preexisting bilateral foot condition was aggravated beyond the natural progression of the disorder during active service. 8. The Veteran's acquired psychiatric disorder began during service. CONCLUSIONS OF LAW 1. The June 2013 rating decision, which denied the Veteran's claim of entitlement to service connection for bilateral flat feet is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received; the claim of entitlement to service connection for a bilateral foot condition, to include flat feet, is reopened. 38 U.S.C. §§ 5107, 5108, 7105; 38 C.F.R. § 3.156. 3. The January 2014 rating decision, which denied the Veteran's claims of entitlement to service connection for a mental condition and PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. New and material evidence has been received; the claim of entitlement to service connection for an acquired psychiatric disorder is reopened. 38 U.S.C. §§ 5107, 5108, 7105; 38 C.F.R. § 3.156. 5. The criteria for establishing entitlement to service connection for a bilateral foot condition, to include flat feet, have been met. 38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 6. The criteria for establishing entitlement to service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Veteran had honorable active duty service with the United States Army from December 1986 to May 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal from April 2018 and July 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran has claimed service connection specifically for PTSD. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claimant seeks service connection for the symptoms of a disability, regardless of how those symptoms are diagnosed or labeled. Therefore, the claim has been recharacterized as one of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The issue has thus been restated. As for the service connection claim for the feet, the Board has also recharacterized the issue to afford the Veteran a broader scope of review. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009); see also Clemons, 23 Vet. App. at 4-6. In May 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's electronic claims file. NEW AND MATERIAL EVIDENCE Governing regulations provide that an appeal consists of a timely filed notice of disagreement (NOD) in writing and, after a statement of the case (SOC) has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has emphasized that the final sentence of 38 C.F.R. § 3.156(a), especially the phrase "raise[s] a reasonable possibility of substantiating the claim," does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id. The Court has elaborated on what constitutes "new and material evidence." New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App. 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. at 273. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a bilateral foot condition, to include flat feet. The Veteran seeks to reopen his claim of entitlement to service connection for a bilateral foot condition, to include flat feet. In a June 2013 rating decision, the RO denied the Veteran's claim of entitlement to service connection for flat feet, as the evidence did not show that the preexisting disorder was aggravated by service. The Veteran did not timely appeal the decision; thus, it became final. The Veteran submitted a request to reopen his claim of entitlement to service connection for a bilateral foot condition in June 2018. Evidence received subsequent to the final June 2013 rating decision includes VA treatment records, private treatment records, and the Veteran's testimony from the May 2021 asserting that his preexisting bilateral foot condition worsened in service. The Board finds that this evidence is new, as it was not previously of record. It is also material because it tends to relate to a previously unestablished fact necessary to substantiate the underlying claim of service connection. Consequently, the claim of entitlement to service connection for a bilateral foot condition is reopened. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Veteran seeks to reopen his claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. In a January 2014 rating decision, the RO denied the Veteran's claims of entitlement to service connection for a mental condition and PTSD, as the evidence did not show that the Veteran had a psychiatric disorder that was related to service. The Veteran did not timely appeal the decision; thus, it became final. The Veteran submitted a request to reopen his claim of entitlement to service connection for an acquired psychiatric disorder in June 2015. Evidence received subsequent to the final January 2014 rating decision includes VA treatment records, private treatment records, and the Veteran's testimony from the May 2021 asserting that his mental condition preexisted service and worsened in service. The Board finds that this evidence is new, as it was not previously of record. It is also material because it tends to relate to a previously unestablished fact necessary to substantiate the underlying claim of service connection. Consequently, the claim of entitlement to service connection for an acquired psychiatric disorder is reopened. SERVICE CONNECTION Generally, to establish service connection, a Veteran 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection may also be granted for aggravation of a preexisting injury suffered or disease contracted in the line of duty. VA law provides that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Patrick v. Shinseki, 668 F.3d 1325, 1329 (Fed. Cir. 2011) (to rebut the presumption of soundness in the case of a wartime veteran, the evidence must clearly and unmistakably show not only that the disorder at issue preexisted entry into service, but clear and unmistakably show that the disorder did not undergo aggravation in or as a result of service). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson, 7 Vet. App. at 39-40; Gilbert, 1 Vet. App. at 57. Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno, 6 Vet. App. at 469. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker, 10 Vet. App. at 74; Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether the evidence weighs persuasively against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for a bilateral foot condition, to include flat feet, is granted. In this case, the Veteran seeks entitlement to service connection for a bilateral foot disability. He contends that his bilateral foot condition, which preexisted active service, was aggravated by his active service. For the reasons discussed below, the Board agrees, and finds that service connection for a bilateral foot disability is warranted. The evidence includes an August 1986 entrance examination report, which indicates that the Veteran had pes planus. In the accompanying Report of Medical History, the Veteran noted "yes" to foot trouble at entrance. As such, the Board finds that the Veteran's bilateral foot disability was noted upon entry to his period of service. Because a preexisting foot disorder was "noted" at the time of enlistment, the presumption of soundness at service entrance did not attach with regard to the preexisting flat feet. 38 U.S.C. § 1111. Therefore, the question before the Board with regard to the claimed bilateral foot disability is whether the preexisting bilateral foot disorder was aggravated by active service. A preexisting injury or disease will be considered to have been aggravated by active 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. 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). Under certain circumstances, aggravation may be presumed. However, a preexisting disease or injury will only be presumed to have been aggravated by service if the evidence shows that the underlying disability underwent an increase in severity. Evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat Veteran to establish an increase in disability. The mere occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Indeed, evidence of a disorder being asymptomatic upon entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder became worse during service and then improved due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder is not presumed to have been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). Turning to the most relevant evidence of record, as noted above, the August 1986 entrance examination report indicates that the Veteran had pes planus. The examiner noted that the condition was asymptomatic at that time. During the May 2021 hearing, the Veteran testified that he participated in athletics prior to service, including football, wrestling, and boxing. He indicated that he continued to box in service. The Board notes that the Veteran's service treatment records note that he played football and boxed. The Veteran further testified that his athletic training in service, notably boxing, caused pain in his feet due to all the jumping and running. As a result of the foot pain, he was no longer able to box after service. Post-service medical records show that the Veteran is diagnosed with bilateral flat feet and bilateral hallux valgus. See July 2018 VA examination report. On VA examination in July 2018, the Veteran reported that, during service, his foot pain progressively worsened in service and after discharge. The examiner opined that the Veteran's flat feet, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression in service. The examiner indicated that, while temporary aggravation is plausible, there is no evidence of permanent aggravation of the preexisting bilateral foot condition. An August 2021 private treatment record shows that Dr. F.B. interviewed the Veteran and reviewed his medical records. Based on his interview of the Veteran and review of the records, Dr. F.G. opined that the Veteran's bilateral foot conditions represent end stage conditions of both feet more likely than not aggravated by military service and more likely than not existing as a flatfoot deformity asymptomatic prior to military service and rendered symptomatic by mechanical stresses of marching, standing, and running during military service. While there is conflicting medical evidence that weighs both for and against the claim of entitlement to service connection for a bilateral foot condition, the Board finds that there is competent evidence to support the claim that his current diagnosed bilateral foot disability was aggravated beyond the normal progression of active service. Significantly, moreover, when there are two conflicting opinions and the evidence is in relative equipoise, reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, the Board finds that the evidence for and against the claim is in relative equipoise. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for a bilateral foot condition based on aggravation is warranted. 4. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is granted. The Veteran essentially asserts that symptoms associated with his acquired psychiatric disorder preexisted service and worsened during his period of active service. Post-service medical records show that the Veteran has been diagnosed with an acquired psychiatric disorder. Specifically, a May 2021 private psychiatric report shows diagnoses of polysubstance dependence, PTSD related to childhood trauma, and unspecified mood disorder with psychotic features. Therefore, current disorders have been shown. Next, an acquired psychiatric disorder was not "noted" upon the Veteran's entrance into service. Service treatment records include an August 1986 entrance examination, which found his psychiatric evaluation normal. In the accompanying Report of Medical History, he self-reported that he had never attempted suicide and had no present or previous history of frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, nervous trouble of any sort, or periods of unconsciousness. Therefore, he is presumed to be sound at service entrance. Documents in the Veteran's service records reflect the Veteran was exhibiting behaviors indicative of mental instability during active duty, which resulted in disciplinary action and his early discharge from military service. The Veteran's service personnel records show several incidents involving disrespectful action and language towards superiors, drunk and disorderly conduct, and failure to report to his duty assignment. As a result of the Veteran's unstable behavior, he underwent a psychiatric examination in April 1989. The examiner noted that the Veteran's behavior had improved; however, "it was still erratic." The examiner further noted that the Veteran did not behave normally all the time, and that he was very unpredictable and unstable. An April 1989 memorandum shows that action was initiated for the Veteran's separation from service due to his patterns of misconduct. As to a preexisting disorder, the record is suggestive that the Veteran's psychiatric symptomatology existed prior to service. This is based on his own statements that he had difficulties prior to enlistment. See January 2014 VA psychiatric examination; May 2021 Board Hearing transcript; May 2021 private psychiatric report. However, of note, no medical records have been submitted to confirm a preexisting psychiatric disorder. Notably, an October 1998 VA treatment record shows that the Veteran had never been treated for a psychiatric problem. Furthermore, in a May 2021 private psychiatric report, Dr. Q.A., indicated that the Veteran had no history of psychiatric symptoms, treatment, or diagnosis. The clear and unmistakable evidence standard is a formidable evidentiary burden that has not been met in this case. It is onerous and requires that the preexistence of a condition must be supported by evidence that cannot be misunderstood or misinterpreted and is undebatable. While the Veteran may have experienced difficulties prior to service, the evidence does not clearly and unmistakably establish that he had a diagnosed acquired psychiatric disorder or that his symptoms met the criteria for such diagnosis at that time. Therefore, an acquired psychiatric disorder did not preexist service and the issue is one of service connection on a direct basis. As such, the threshold question is whether the in-service psychiatric symptoms are related to the current disorders. To that end, the record reflects that the Veteran underwent a VA psychiatric examination in January 2014. The examiner provided diagnoses of alcohol dependence (in recent remission), cannabis use disorder, and stimulant use disorder. The examiner noted that the Veteran did not have a diagnosis of PTSD. The examiner further noted that the Veteran was claiming PTSD due to military sexual trauma (MST) on active duty in 1987. The examiner opined that it is less likely as not the treatment in the Veteran's service treatment records and personnel issues noted in service are markers indicative of MST, and thus, based on these markers, it is less likely as not that the sexual trauma occurred. The examiner continued by stating that the question of whether the sexual trauma occurred while on active duty is moot since the Veteran did not have a diagnosis of PTSD. The Board finds this opinion to be inadequate, as the examiner did not address the other diagnosed psychiatric disorders. The record also reflects that the Veteran underwent a private psychiatric evaluation in May 2021 by Dr. Q.A. As previously noted, Dr. Q.A., indicated that the Veteran had no history of psychiatric symptoms, treatment, or diagnosis. However, Dr. Q.A. concluded that the Veteran had a diagnosis of PTSD related to childhood trauma, and that his psychiatric condition as likely as not was worsened beyond its ordinary course of military service events. The Board assigns this evidence limited probative value because the examiner based his opinion on the finding of a preexisting disorder, which is not shown by clear and unmistakable evidence. During the May 2021 hearing, the Veteran testified that, during service, superiors would "get us drunk" and "try to take advantage of us as far as us obeying commands." He further testified that, on occasion, his superiors would try to molest him when he was drunk. The Veteran indicated that he started to develop distress of authority, as well as with fellow members of society. As a result of his psychiatric issues, the Veteran stated that he has not worked a full year since separation from service, and he does not think that he can work full-time. The Board notes that during the January 2014 VA psychiatric examination and May 2021 private psychiatric evaluation, the Veteran provided statements consistent with his May 2021 testimony. Notably, during the January 2014 VA psychiatric examination, the Veteran reported that, since being out of the military in 1989, he was dealing with anger and depression. The Board notes that, while the record does not include an adequate positive opinion relating the Veteran's acquired psychiatric disorder directly to service, the Board finds that the foregoing evidence of record, including the Veteran's service records and his statements, is at least in equipoise as to whether the Veteran's acquired psychiatric disorder is a direct result of service. As discussed above, the Veteran's service treatment records show that he had no psychiatric issues at entrance. His service personnel records show that he had several incidents of misconduct in service, specifically involving issues with authority. The Veteran underwent an in-service psychiatric examination in April 1989, at which time the examiner noted that the Veteran did not behave normally all the time, and that he was very unpredictable and unstable. As a result of his repeated behaviors of misconduct, action was initiated for the Veteran's separation from service. In addition, the competent and credible statements, as discussed above, show that the Veteran's psychiatric disorder began during active service and continued post-service. The Veteran is certainly competent to testify to symptomatology such as depression. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In sum, the evidence establishes that the Veteran's current diagnosis is related to service. Accordingly, the evidence weighs in favor of the claim and there is no doubt to be otherwise resolved. As such, service connection for an acquired psychiatric disorder is warranted and the appeal is granted. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.