Citation Nr: 23014102 Decision Date: 03/08/23 Archive Date: 03/08/23 DOCKET NO. 19-01 858 DATE: March 8, 2023 REMANDED The application to reopen the previously denied claim for entitlement to service connection for bilateral pes planus is remanded. The application to reopen the previously denied claim for service connection for back pain, to include as secondary to pes planus, is remanded. Entitlement to service connection for right hip pain, as secondary to pes planus, is remanded. Entitlement to service connection for left hip pain, secondary to pes planus, is remanded. REASONS FOR REMAND The appellant served on active duty in the United States Army from July 1981 to June 1984. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, determined that new and material evidence had not been received to reopen previously denied claims of service connection for bilateral pes planus and a thoracolumbar disability, and denied service connection for a right hip disability and for a left hip disability. This decision was appealed in a notice of disagreement (NOD) received by VA in February 2017. A Statement of the Case (SOC) was issued by VA in December 2018. VA received the appellant's Substantive Appeal (Form 9) in January 2019, perfecting the appeal. This case was previously remanded by the Board in January 2020 so that VA could respond to the request of the appellant's representative for a copy of the curriculum vitae (CV) of the November 2014 C&P examiner. This document was generated, and a copy was sent separately to the appellant and his representative in March 2020. 1. The application to reopen the previously denied claim for entitlement to service connection for bilateral pes planus is remanded. 2. The application to reopen the previously denied claim for service connection for back pain, to include as secondary to pes planus, is remanded. 3. Entitlement to service connection for right hip pain, as secondary to pes planus, is remanded. 4. Entitlement to service connection for left hip pain, secondary to pes planus, is remanded. While the Board regrets further delay in adjudicating this appeal, remand is unfortunately necessary so that the AOJ can issue a Supplemental Statement of the Case (SSOC) addressing the issues on appeal. As noted above, the Board remanded this case for further development in January 2020, specifically to obtain the CV for the November 2014 C&P examiner. The appellant's Form 9 had had asserted that the examiner did not have the expertise to render the opinion offered. See Francway v. Wilkie, 930 F.3d 1377, 1381 (Fed. Cir. 2019). The CV was provided by VA and copies were mailed to the appellant and his representative in March 2020. The Board finds that VA has substantially complied with the Board's prior remand of this issue in doing so. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268, 271 (1998)). However, while the appropriate development was completed, VA failed to provide an SSOC to the appellant and his representative as required. See 38 C.F.R. § 19.31(c). In this case the exceptions to that requirement were not met as the evidence being requested was not previously in existence, needed to be generated by VA, and was not properly discussed in the December 2018 SOC. 38 C.F.R. § 19.31(c)(1)-(2). Additionally, in not providing the appellant and his representative an SSOC, the AOJ also committed a due process violation, as it took away the appellant's ability to opt the case into the modernized appeal system. See 38 C.F.R. § 3.2400 (c)(2). Considering this, the Board finds that remand for the purpose of having the AOJ issue a SSOC in relation to these claims is warranted. As a final matter, the Board notes that, to date, neither the appellant, nor his representative have responded to VA with regards to the CV being mailed or presented any substantive argument as to why the examiner did not have the proper training, knowledge, experience, or expertise to render the opinion she did in the November 2014 C&P examination or why the examination was inadequate. Only the bare minimum assertions have been made that the examination was inadequate or that the examiner was not competent to render an opinion on the issue presented. Further, no new evidence has been received since the prior final rating decision which raises a reasonable possibility of substantiating the previously denied claims for service connection and the Board reminds the appellant's representative that VA's duty to provide a medical examination or obtain a medical opinion is not triggered absent the receipt of new and material evidence. 38 C.F.R. §§ 3.156, 3.159. The Board further reminds the appellant's representative that advancing a new theory of entitlement alone does not constitute new and material evidence, absent new and material evidence. Velez v. Shinseki, 23 Vet. App. 199, 205-06 (2009) (explaining that separate theories do not constitute separate claims and a previously denied claim may be reopened on an alternate theory only if new and material evidence is presented). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). However, even that low bar requires the receipt of some evidence in support of the claim. The matters are REMANDED for the following action: 1. Send the appellant and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kleponis, 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.