Citation Nr: 23019308 Decision Date: 03/29/23 Archive Date: 03/29/23 DOCKET NO. 19-05 257 DATE: March 29, 2023 ORDER New and material evidence having been received, the Veteran's claim for entitlement to service connection for bilateral pes planus is reopened and, to that extent only, the claim is granted. REMANDED Entitlement to service connection for bilateral pes planus is remanded. FINDINGS OF FACT 1. An unappealed April 2017 rating decision denied entitlement to service connection for bilateral pes planus, and no new and material evidence was received within the appeal period of one year. 2. Evidence added to the record since the January 2009 decision relates to an unestablished fact necessary to substantiate the claims of service connection for bilateral pes planus. CONCLUSIONS OF LAW 1. The April 2017 rating decision denying service connection for bilateral pes planus is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103 2. The criteria for reopening the claim for service connection for bilateral pes planus have been met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. REASONS FOR REMAND The Veteran had active-duty service in the United States Navy from April 1990 to April 1994, as well as periods of active duty, active duty for training (ACDUTRA), and inactive duty for training (INACDUTRA) in the United States National Guard and/or the United States Army Reserve. This appeal comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) September 2018 rating decision of the Agency of Original Jurisdiction (AOJ). In November 2021 the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. During the Veteran's hearing, he requested that his claim for service connection for bilateral plantar fasciitis, which was adjudicated in the Appeals Modernization System, most recently in an April 2021 rating decision, be kept separate and that the scope of his legacy claim be limited to the disability of bilateral pes planus. New and Material Evidence In general, decisions of the AOJ and the Board that are not appealed in the prescribed period are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. In the present case, as noted above, the AOJ issued a rating decision in April 2017 denying the Veteran's claim, characterized as bilateral flat foot. The claim was denied because the disability existed prior to service and there was no evidence of worsening during service. The Veteran did not appeal the decision or submit new evidence within the appeal period. Therefore, the April 2017 rating decision became final. In the time since the prior, final rating decision, the AOJ has denied (several times) the Veteran's claim for service connection. However, the Board has an obligation to make an independent determination of its jurisdiction regardless of findings/actions by the AOJ. Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 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 threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). New and material evidence can be construed as that which would contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's disability or injury, even when it would not be enough to convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since his April 2017 rating decision, numerous treatment records and VA examinations have been added to the Veteran's claims file. In addition, the Veteran has submitted a buddy statement from a fellow servicemember as well as his own testimony during his November 2021 hearing regarding his symptoms in service. This evidence is new and material, as it raises a reasonable possibility of substantiating the Veteran's claim. The Veteran's hearing testimony and the buddy statement in particular provide additional evidence regarding the Veteran's condition and symptoms in service. Accordingly, the claim for service connection for bilateral pes planus is reopened. REMANDED 1. Entitlement to service connection for bilateral pes planus is remanded. The Veteran contends that his bilateral pes planus was caused by, or otherwise due to, his military service. In the alternative, the Veteran argues that his bilateral pes planus was aggravated by his service in the United States Navy. At his Board hearing, the Veteran stated that he had "active duty" service in the National Guard from June 1986 until April 1990, at which point he entered service with the Navy. The Veteran's service treatment records (STRs) from his time in the National Guard appear to be incomplete, as the current available records cover only 1986 to 1987, with a break until his 1990 enlistment in the Navy. Given the incomplete STR and personnel records, a remand is necessary to confirm the Veteran's periods of active-duty, ACDUTRA, and INACDUTRA. The available records show that upon entering the Navy, the Veteran had mild, "asymptomatic" pes planus. However, at his 1994 separation examination, the Veteran described his health as "good" and specifically denied any foot trouble. The examining physician found no evidence of any foot conditions. Further, the Veteran's June 1986 Army National Guard enlistment medical examination does not assess the Veteran with pes planus. The record does not contain an opinion that addresses whether the Veteran's bilateral pes planus actually preexisted service, and the existing opinions regarding direct and secondary service connection are inadequate. The January 2019 VA examiner checked a box indicating a positive direct nexus opinion, but then provided a rationale that did not address whether the Veteran's bilateral pes planus was related to service. Instead, it addressed whether the Veteran's bilateral plantar fasciitis was related to his pes planus. The August 2020 VA examiner relied upon the Veteran's 1990 entrance examination to establish a baseline for the Veteran's pes planus but determined that the Veteran's current severity is not greater than the baseline. However, the August 2020 VA examiner also noted the Veteran's report that his condition had worsened since its onset. The March 2021 VA examiner provided a negative opinion regarding whether the Veteran's bilateral pes planus is secondary to his lumbar spine disability but provided only a conclusory rationale. A remand is necessary to obtain outstanding records and adequate opinions. The matters are REMANDED for the following action: 1. Confirm the Veteran's periods of active duty, active duty for training, and inactive duty for training service, including in the Army National Guard, Army Reserves, and the United States Navy. Provide a memorandum outlining the Veteran's verified periods of service. 2. After completing #1, obtain the Veteran's complete service personnel and service treatment records from his periods of service with the National Guard, Army Reserves, and the United States Navy. Document all attempts made to locate and obtain the required records. 3. After completing #1 and #2, schedule a VA examination, to be carried out by a qualified medical practitioner at a time and place convenient to the Veteran, regarding the Veteran's bilateral pes planus. The examiner should review this remand as well as the claims file and answer the following: (a) Whether the Veteran's bilateral pes planus clearly and unmistakably (reasonable minds could not disagree) existed prior to his period of active service in April 1990? (b) If the answer to (a) is yes, then whether it clearly and unmistakably was not aggravated by his period of active service? (c) If the answer to (a) or (b) is no, whether it is at least as likely as not (likelihood in approximate balance or greater) that the Veteran's bilateral pes planus began during or was aggravated by his active service, or is otherwise related to his active service, to include wearing combat boots? (d) If the answer to (a) or (b) is no, whether it is at least as likely as not (likelihood in approximate balance or greater) that the Veteran's bilateral pes planus began during a period of ACDUTRA or INACDUTRA; is the result of a disease or injury during a period of ACDUTRA; or is the result of an injury during a period of INACDUTRA? (e) Whether the Veteran's bilateral pes planus is at least as likely as not caused by service-connected disability? (f) Whether the Veteran's bilateral pes planus is at least as likely as not aggravated by service-connected disability? If the examiner finds the Veteran's bilateral pes planus is congenital: (g) Whether it is a congenital defect or a congenital disease? VA's general counsel held that "defects" are structural or inherent abnormalities or conditions which are more or less stationary in nature and generally incapable of any improvement or deterioration. In contrast, diseases are any deviation from or interruption of the normal structure or function of any part, organ or system of the body and are capable of improving or deteriorating. VAOPGCPREC 82-90 (July 18, 1990). The examiner must consider the Veteran's lay statements about the onset of his condition, including during his November 2021 hearing, as well as the lay statement of Mr. S.T. and evidence in the private treatment records submitted by the Veteran. **At the Veteran's request during his November 2021 Board hearing, opinions are being requested only for his bilateral pes planus. Please provide complete rationales and medical explanations to support each opinion. The examiner is reminded that the mere absence of complaints of treatments in STRs is not, by itself, a sufficient rationale. If the examiner finds speculation would be required, the examiner should explain why. Marissa Caylor Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Neville, 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.