Citation Nr: 25003535 Decision Date: 03/13/25 Archive Date: 03/13/25 DOCKET NO. 17-59 342 DATE: March 13, 2025 ORDER Entitlement to an effective date of December 8, 1990, but no earlier, for the award of service connection for bilateral pes planus is granted. REMANDED Entitlement to an effective date prior to July 27, 2011, for the award of service connection for left foot hallux valgus is remanded. Entitlement to an effective date prior to July 27, 2011, for the award of service connection for right foot hallux valgus is remanded. Entitlement to special monthly compensation (SMC) at the rates payable under 38 U.S.C. § 1114(m), (o), and (r)(1) prior to July 27, 2011, is remanded. FINDING OF FACT A legally sufficient informal service connection claim for bilateral pes planus was submitted by written communication received on December 17, 1990. CONCLUSION OF LAW The criteria for an effective date of December 8, 1990, but no earlier, for the award of service connection for bilateral pes planus have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.159, 3.400. INTRODUCTION The Veteran served honorably on active duty in the United States Army during Peacetime and the Gulf War Era, from June 1981 to December 1990. These matters return to the Board of Veterans' Appeals (Board) on appeal from a June 2013 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The appeal has been developed under VA's Legacy system of review. The extensive procedural history of these matters has been set forth in the Board's prior decisions and will not be repeated again in detail here. Most recently, the Board issued a January 2024 decision granting the Veteran earlier effective dates of July 27, 2011, for service-connected bilateral pes planus and SMC at the § 1114(m), (o), and (r)(1) rates, and denying effective dates earlier than July 27, 2011, for service-connected left and right foot hallux valgus. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court) which, pursuant to a Joint Motion for Partial Remand (JMPR) entered into between the parties, issued a November 2024 Order remanding the matters back to the Board for action consistent with the terms of the JMPR. REASONS AND BASES FOR FINDING AND CONCLUSION Effective Dates Except as otherwise provided, the effective date of an award of compensation based upon an original claim, a claim reopened after final disallowance, or a claim for increase shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. However, if a claim is received within one year after separation from service, the effective date is generally the day following separation. 38 C.F.R. § 3.400. Otherwise, the effective date is the receipt of the claim, or the date entitlement arose, whichever is later. Id. The Board must determine whether the evidence persuasively favors the claim or if there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, with the Veteran prevailing in either event, or whether the evidence persuasively weighs against the claim in which case it must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021). Entitlement to an effective date of December 8, 1990, but no earlier, for the award of service connection for bilateral pes planus is granted. By way of background, on December 17, 1990, the Veteran submitted an original service connection claim (VA Form 21-526e) for "lumbarization with pseudoarthrosis." Therein, he also noted several times to "see medical records" regarding the nature of the sickness, disease, or injury being claimed. Subsequently, a January 1991 Rating Decision (issued July 1991) granted the Veteran service connection for "spondylosis with low back pain" (as well as hypertension and duodenal ulcer disease) effective December 8, 1990, the first day following his active service separation. After submitting an appeal regarding the initial ratings assigned for his back (and hypertension) disability, the Board issued an October 1993 decision remanding the matter for additional development. A November 1994 Rating Decision granted increased ratings for the Veteran's back (and hypertension) disability, and an April 1995 Board decision denied a higher rating. As there was no appeal to the Court, the Board's decision became final regarding those specific claims. 38 C.F.R. § 20.1100. On July 27, 2011, the Veteran submitted a claim seeking an increased rating for his back disability, as well as service connection for, among other things, "foot deformity with hallux valgus." The June 2013 Rating Decision on appeal granted service connection for left and right foot hallux valgus disabilities effective July 27, 2011, and bilateral pes planus effective October 3, 2011. After submitting an appeal regarding the assigned effective dates, the Board issued a May 2019 decision denying same. The Veteran then appealed to the Court which issued an April 2022 Memorandum Decision that vacated and remanded the matters for further proceedings consistent with the decision. In December 2022, the Board issued another decision denying earlier effective dates. The Veteran again appealed to the Court which, pursuant to a JMPR, issued an October 2023 Order remanding the matters for action consistent with the terms of the JMPR. As noted previously, the Board issued a January 2024 decision granting the Veteran an earlier effective date of July 27, 2011, for service-connected bilateral pes planus and denying effective dates earlier than July 27, 2011, for service-connected left and right foot hallux valgus. Thereafter, he again appealed to the Court which, pursuant to a JMPR, issued a November 2024 Order remanding the matters for action consistent with the terms of the JMPR. According to the JMPR, the Board erred when it provided an inadequate statement of reasons or bases when it adjudicated the Veteran's earlier effective date claims. Before March 24, 2015, a "claim" could be either "a formal or informal communication in writing requesting a determination of entitlement[,] or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). In addition to being in writing, a formal or informal claim was required to indicate an intent to apply for VA benefits and identify the particular benefit sought. 38 C.F.R. § 3.155(a); see Shea v. Wilkie, 926 F.3d 1362, 1367 (Fed. Cir. 2019). The reference to "benefit sought [...] refers to the condition giving rise to the entitlement rather than the ultimate recovery." Id. A legally sufficient claim is required to provide information, "even at 'a high level of generality,' to identify the sickness, disease, or injury for which benefits are sought." See Sellers v. Wilkie, 965 F. 3d 1328, 1335 (Fed. Cir. 2020). Notably, "the identification need not be explicit in the claim-stating documents," but rather, "can also be found indirectly through examination of evidence to which those documents themselves point when sympathetically read." See Shea, 926 F.3d at 1368. With respect to pro se pleadings, VA is required to "give a sympathetic reading to the Veteran's filings by 'determining all potential claims raised by the evidence, applying all relevant laws and regulations.'" See Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004) (quoting Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001)). Further, "'ambiguity' in a pro se filing that could be construed as an informal claim 'should be resolved in favor of the Veteran.'" See Shea, 926 F.3d at 1368 (quoting Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). Turning to the evidence, the Veteran's VA Form 21-526e received on December 17, 1990, explicitly stated that "lumbarization with pseudoarthrosis" were the conditions for which benefits were being sought. Therein, however, he also noted several times to "see medical records" as to the nature of the sickness, disease, or injury being claimed. Given the Veteran had separated from active service just 10 days prior to submitting his VA Form 21-526e, and because he did not submit any medical evidence at that time, he was presumably referring to his service medical records (SMRs) when he noted "see medical records." While the claims file does not reflect that all of the Veteran's SMRs had been associated therewith at the time of issuance of the January 1991 Rating Decision (issued July 1991) that granted service connection for, inter alia, "spondylosis with low back pain," it appears his SMRs were indeed reviewed and considered therein. Specifically, in addition to identifying the evidence considered as "[SMRs] October 29, 1980, to December 7, 1990," the Rating Decision addressed multiple pertinent in-service medical treatment and examination reports. Further, in the JMPR approved by the Court in November 2024, the parties agreed that the Veteran's SMRs were reviewed by the January 1991 Rating Decision. As such, the Board will proceed accordingly. SMRs dated April 1983 reflect the Veteran was seen for a "foot problem." In November 1983, he was noted to have "sore feet" and "infected blisters on second toe" of both feet. The Veteran was seen in November 1984 complaining of "his toe nails coming off on both feet" for one month that was "painful whenever he wears his boots and while running." In August 1985, he endorsed left foot pain for one week that was assessed as "due to indirect trauma." An undated SMR reflects the Veteran complained of "foot problems" and he was assessed with a left foot "corn" that was shaved two different times. He endorsed that "any pressure causes pain" and "he must walk on side of foot," and he was advised to "have it removed completely" upon return to his unit. The Veteran complained of a left foot callous in December 1985 that had persisted for three weeks and caused "pain when walking" and "from just having on his boots," which was then shaved down. In April 1986, he was seen for "friction blisters on [left] foot [...] located under [left] big toe" that developed during the prior week and had "ruptured," which were then cleaned and bandaged. According to a May 1994 VA examination conducted in relation to the Veteran's claim for an increased initial rating for his back disability pending at the time, his orthopedic diagnoses included "severe flat feet." The examination noted that "since he wore combat boots[,] he felt pain in both the lower limbs and feet." As the Court's April 2022 Memorandum Decision directed, the Board must answer in the first instance "whether the [Veteran's] service medical records 'contain a reasonably ascertainable diagnosis of a [foot] disability' sufficient to raise an informal claim for that disability under [38 C.F.R.] § 3.155(a)." An October 2023 JMPR also indicated "the Board must address whether [his] [SMRs], and the May 1994 VA examination, contain a reasonably ascertainable diagnosis of a foot disability sufficient to raise an informal claim" under the version of § 3.155(a) applicable here. Based upon the foregoing, and sympathetically reading the Veteran's pro se VA Form 21-526e received on December 17, 1990, and resolving ambiguity in his favor, the Board finds he indirectly identified the benefits sought when he pointed VA to SMRs which contained a reasonably ascertainable diagnosis of a bilateral foot disability sufficient to raise an informal claim for such disabilities under the version of 38 C.F.R. § 3.155 applicable here. See Szemraj, 357 F.3d at 1373; Shea, 926 F.3d at 1368. Therefore, he submitted a legally sufficient informal service connection claim for a bilateral foot disability on December 17, 1990. Next, under the applicable version of 38 C.F.R. § 3.160(c), a "pending claim" is "an application, formal or informal, which has not been finally adjudicated." More specifically, "a reasonably raised claim remains pending until there is either a recognition of the substance of the claim in an RO decision from which a [Veteran] could deduce that the claim was adjudicated," or until "an explicit adjudication of a subsequent 'claim' for the same disability." See Ingram v. Nicholson, 21 Vet. App. 232, 243 (2007). If there is no final denial of the original claim prior to the granting of the subsequent 'claim,' then, as part of his or her appeal of the effective-date decision, [a Veteran] can raise the fact that he [...] filed the original claim for the same disability at an earlier date than the claim which was subsequently granted. Id. The Board finds the Veteran's informal original service connection claim for a bilateral foot disability received on December 17, 1990, remained unadjudicated and pending until July 27, 2011, the currently assigned effective dates for his service-connected bilateral foot disabilities based upon his subsequent claim received on that date. Notably, the January 1991 Rating Decision (issued July 1991) did not address in any fashion the bilateral foot disabilities, nor did the November 1994 Rating Decision that granted an increased initial rating for his back disability or any other Rating Decision issued prior to the June 2013 Rating Decision on appeal. As there was no final Rating Decision that adjudicated the Veteran's service connection claims for bilateral foot disabilities, collateral attack by asserting clear and unmistakable error (CUE) is not required here. See Ingram, 21 Vet. App. at 255. Instead, the Veteran has continued to properly appeal the assigned effective dates as originally adjudicated by the June 2013 Rating Decision. Id. For the reasons explained below, the Board finds the evidence is at least approximately balanced in establishing the Veteran's bilateral pes planus disability had arisen at the time he submitted his informal claim on December 17, 1990, such that direct service connection is warranted as of December 8, 1990, the first day following his active service separation. Because the Board is granting this claim in full, remand to the RO for adjudication in the first instance is not necessary as there is no prejudice to the Veteran. Generally, service connection requires: (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. 38 C.F.R. § 3.303(a); see Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In the present matter, an October 1980 Report of Medical History indicates the Veteran denied "foot trouble" prior to entry into active service and, while he had reportedly fallen five days earlier and injured his right foot/ankle, his feet were otherwise assessed as normal by an October 1980 Report of Medical Examination. Although bilateral pes planus (i.e., "severe flat feet") was not formally diagnosed until the May 1994 VA examination, as discussed previously and as acknowledged in the Court's April 2022 Memorandum Decision, the Veteran's SMRs reflect "numerous instances of treatment of the lower legs and feet." Moreover, the May 1994 examination noted that "since he wore combat boots[,] he felt pain in both the lower limbs and feet." VA opinions received in June 2013 found it was at least as likely as not that the Veteran's bilateral pes planus was incurred in or caused by active service. The opinion noted his "flatfoot and foot problems" were "already present in service" and "treated with arch support in Army boots and bunions treatment during service." The Board observes a positive secondary nexus opinion was also rendered, which reported his "weight and weight bearing [...] constant pain in back and excessive obesity already present in service" worsened his condition and led to "metatarsalgia" in 2010. Although the Board will address the earlier effective date claims for the award of service connection for left and right hallux valgus in the Remand section of this decision below, considering the Veteran's SMRs contain "numerous instances of treatment" of the feet, the May 1994 VA examination reported bilateral foot pain "since he wore combat boots" and diagnosed as "severe flat feet," and the June 2013 positive direct nexus opinion, the Board finds the evidence is at least in relative equipoise in establishing his bilateral pes planus first manifested during active service and has persisted since that time. Thus, based upon the informal original claim received in December 1990, and resolving reasonable doubt in the Veteran's favor, entitlement to an earlier effective date of December 8, 1990 (the first day following his active service separation), for the award of service connection for bilateral pes planus on a direct (as opposed to secondary) basis must be granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to an effective date prior to July 27, 2011, for the award of service connection for left foot hallux valgus is remanded. Entitlement to an effective date prior to July 27, 2011, for the award of service connection for right foot hallux valgus is remanded. The Veteran contends that effective dates prior to July 27, 2011, are also warranted for the award of service connection for left and right foot hallux valgus deformities. The June 2013 Rating Decision on appeal granted service connection as secondary to his service-connected back and associated peripheral nerve disabilities effective July 27, 2011, based upon his claim received on that date. In a September 2017 statement, the Veteran indicated that "direct service connection instead of secondary" is warranted. Because his left and right foot hallux valgus deformities have been service-connected for 10 years or more, they are protected from severance as provided under 38 C.F.R. § 3.957. As the Board determined in the Order section of this decision above regarding the earlier effective date claim for the award of service connection for bilateral pes planus, the Veteran submitted a legally sufficient informal original service connection claim for a bilateral foot disability on December 17, 1990, under the version of 38 C.F.R. § 3.155 applicable here. Moreover, the claim remained unadjudicated and pending until July 27, 2011, the currently assigned effective dates for the award of service connection for left and right foot hallux valgus deformities. 38 C.F.R. § 3.160(c); see Ingram, 21 Vet. App. at 243. While the Board has determined the evidence of record is at least in relative equipoise to warrant an earlier effective date of December 8, 1990, for the award of service connection for bilateral pes planus on a direct basis, which constitutes a full grant of that benefit sought on appeal, additional development is necessary regarding the earlier effective date claims for the award of service connection for left and right foot hallux valgus deformities. Unlike bilateral pes planus for which there is sufficient evidence of a direct link to active service, the earliest reference to a "valgus" deformity is an April 1999 VA medical record (VAMR) that generally noted "flat valgus feet on both sides." Also, although an abbreviated June 2013 VA opinion noted that "foot problems" were "already present in service" and the Veteran received "bunions treatment during service," his SMRs do not report treatment for "bunions" or diagnosis of same. A secondary service connection opinion also referenced bunion treatment during service and noted that "weight and wrong weight bearing" due to "constant pain in back and excessive obesity already present in service" worsened his condition and led to "metatarsalgia" in 2010; however, aside from the direct service connection opinion which appears to be based upon incorrect facts, the abbreviated opinion offers no insight into when left and/or right foot hallux valgus deformity actually manifested. As such, the VA opinions are inadequate for purposes of determining whether entitlement to service connection for left and/or right foot hallux valgus deformities is warranted on a direct or secondary basis prior to July 27, 2011. See Barr v. Nicholson, 21 Vet. App. 303 (2007). "All questions in a matter which [...] is subject to decision by [VA] shall be subject to one review on appeal." 38 U.S.C. § 7104(a). As the Veteran's informal original service connection claim for a bilateral foot disability, other than bilateral pes planus, received in December 1990 remains unadjudicated and pending for the period prior to July 27, 2011, which is the currently assigned effective date for the award of service connection for left and right foot hallux valgus deformities, remand to the RO to obtain VA opinions and for adjudication in the first instance is required. Entitlement to SMC at the rates payable under 38 U.S.C. § 1114(m), (o), and (r)(1) prior to July 27, 2011, is remanded. The Veteran seeks effective dates prior to July 27, 2011, for the award of SMC at the rates payable under 38 U.S.C. § 1114(m), (o), and (r)(1). However, his entitlement to SMC at such rates is inextricably intertwined with the yet to be assigned initial rating for service-connected bilateral pes planus based upon the granting herein of the earlier effective date of December 8, 1990, as well as the claims for effective dates prior to July 27, 2011, for the award of service connection for left and right foot hallux valgus deformities being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). As a result, remand of the Veteran's claims for effective dates prior to July 27, 2011, for the award of SMC at the rates payable under 38 U.S.C. § 1114(m), (o), and (r)(1) must also be remanded pending adjudication of the inextricably intertwined issues. Accordingly, these matters are REMANDED for the following actions: 1. Obtain a VA medical opinion from an examiner possessing the necessary expertise to fully assess and render opinions regarding the nature, severity, and likely etiology of his left and right foot hallux valgus deformity disabilities. The claims file including this Board decision must be made available to the examiner to review in conjunction with rendering the opinions. The need for an examination or interview of the Veteran in order to provide the requested opinions is left to the discretion of the examiner. If the Veteran is examined or interviewed, the examiner must elicit a full history from him as to such considerations as the onset and any persistence or recurrence of pertinent signs or symptoms, and such history must be fully reported. Based upon review of all pertinent evidence in the claims file and the examination results and/or history elicited from the Veteran (if examined or interviewed), the examiner must offer opinions as to whether it is AT LEAST AS LIKELY AS NOT (i.e., at least approximately balanced, or nearly equal, if not higher) his left and/or right foot hallux valgus deformity first manifested during active service OR is otherwise due to such service; OR is due to or aggravated by a service-connected disability or disabilities. Why or why not? In offering the above opinions, the examiner must address the earliest date(s) on which the evidence reflects left and right foot hallux valgus deformities first manifested. Additionally, the examiner must consider and discuss such evidence as: SMRs dated April 1983 noting "foot problem," November 1983 reporting "sore feet" and "infected blisters on second toe" of both feet, November 1984 noting "toe nails coming off on both feet" that was "painful whenever he wears his boots and while running," August 1985 reporting left foot pain assessed as "due to indirect trauma," and an undated SMR noting "foot problems" and "he must walk on side of foot" with assessed left foot "corn," as well as SMRs dated December 1985 reporting left foot callous pain "from just having on his boots" and April 1986 noting "friction blisters on [left] foot [...] located under [left] big toe." All opinions expressed must be fully articulated and contain clear conclusions with references to supporting data (i.e., pertinent evidence of record and, as warranted, medical literature) and soundly reasoned medical explanations connecting the two. (Continued on the next page) ? 2. After ensuring compliance with the foregoing remand directive, adjudicate in the first instance the Veteran's pending informal original service connection claims for left and right foot hallux valgus deformities received on December 17, 1990, including entitlement to SMC at the rates payable under 38 U.S.C. § 1114(m), (o), and (r)(1) prior to July 27, 2011. Danette Mincey Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Worsham, 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.