Citation Nr: 18160379
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 16-59 786
DATE:	December 27, 2018
ORDER
New and material evidence has not been received to reopen the claim of entitlement to service connection for bilateral pes planus and the appeal is denied.
FINDING OF FACT
1. In November 2006, the RO denied entitlement to service connection for bilateral pes planus; the decision is final.
2. The evidence received since the November 2006 rating decisions is not cumulative of the evidence previously of record, but does not relate to an unestablished fact necessary to substantiate merits of the claim, and does not raise a reasonable possibility of substantiating the claim for service connection for bilateral pes planus.
CONCLUSIONS OF LAW
1. The November 2006 rating decision is final. 38 U.S.C. § 7104(b) (2012); 38 C.F.R. § 20.100 (2017).
2. New and material evidence has not been received to reopen the claim of entitlement to service connection for bilateral pes planus. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty in the United States Marine Corps from December 1978 to February 1979. 
This matter comes to the Board of Veterans’ Appeals (Board) from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office in Waco, Texas. 
1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral pes planus (flat feet).
The Veteran contends that the claims file contains evidence sufficient to reopen his claim for service connection for bilateral pes planus.
Generally, a claim which has been denied by the RO may not thereafter be reopened and allowed, and a claim based upon the same factual basis may not be considered. 38 U.S.C. § 7105 (2012). The exception to this rule is 38 U.S.C. § 5108 (2012), which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA shall reopen the claim and review the former disposition of the claim.
New evidence means existing evidence not previously submitted to VA 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 (2017). 
When a veteran seeks to reopen a final decision based on new and material evidence, the Board must first determine whether the veteran has, in fact, presented new and material evidence under 38 C.F.R. § 3.156 (2017). Evidence offered by a claimant to reopen a claim is presumed credible for the limited purpose of ascertaining its materiality. Justus v. Principi, 3 Vet. App. 510 (1992). 
If new and material evidence is presented, the Board may then proceed to evaluate the merits of the claim but only after insuring that the duty to assist the veteran in the development of her claim has been fulfilled. See Elkins v. West, 12 Vet. App. 209 (1999).
In a November 2006 Rating Decision, the RO determined that new and material evidence had not been submitted to reopen the previously denied claim of service connection for pes planus on the basis the additional evidence was not new and material and did not show that the pre-existing pes planus was aggravated by service.  
A review of the Veteran’s claim file demonstrates that relevant evidence added to the record since the November 2006 rating decision includes:
Duplicate copies of Service Treatment records submitted in May 2013. The duplicate service treatment records are not new and material as they were of record at the time of the November 2013 Rating decision.
May 2015, VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits
June 2016, VA Form 27-0820, Report of General Information
July 2015, Notice of Disagreement
Treatment Records from the Central Texas Veterans Healthcare System (VAMC Temple, Waco, Austin Outpatient clinic, and all Outpatient Clinics in the Central Texas Healthcare System jurisdiction) for the period of August 2001 – September 2016.
VA Form 9, December 2016
Such evidence, with the exception of the duplicate service treatment records, is new in the sense that it has not previously been before VA. However, it is not material as it does not relate to an unestablished fact necessary to substantiate the claim. Specifically, it does not show that the preservice pes planus was aggravated by service. Expressly, the following relevant treatment records, which were previously contained in the claims file, demonstrate the Veteran complained or received treatment for his pes planus; however, these records do not show the condition was aggravated by his military service. 
August 2007 treatment record shows the Veteran complained of pain in knees, feet and back rating 10/10, but do not demonstrate the Veteran’s feet pain was aggravated by military service. 
The January 2009 record also shows the Veteran complained of low back pain and feet pain, but the record does not evidence the condition was aggravated during active duty, in fact, the record merely shows the Veteran was treated for chronic low back pain. 
In February 2010, the Veteran reported some pain in the arch of the left foot, denied any injuries or unusual activities, and reported he has inserts for his shoes but has not been using [them]. Nonetheless, the record is devoid of any evidence that the Veteran’s pes planus was aggravated by military service. 
May 2010 treatment records note the Veteran’s foot pain continues, and denotes the Veteran gained 13 pounds since the last visit; however, these do not contain any clinical evidence of military service aggravation.
In June 2010, the Veteran reported foot pain and stated that he works lots of 12-hour shifts and is on his feet most of the time. The record does not relate the Veteran’s pes planus active service nor does it show the condition was aggravated by such service.
In September 2010, the Veteran complained of lower back pain and knee pain, reported increasing his hours at work and being on his feet a lot; however, the record contains no clinical evidence of military service aggravated the condition.
The May 2012 record shows continued foot pain, denote that the Veteran’s employment required him to be on his feet all the time; and show that he was referred to podiatry for his foot pain. But, the record does not in any manner show the condition was aggravated by military service.
The next relevant record comes from August 2015, when the Veteran complained of pain in both feet, reported that his work requires him to be on his feet all the time, reported pain improves if he rests for a day. Markedly, this record also does not show the Veteran’s pes planus condition was aggravated by military service.
In January 2016, the Veteran complained of pain in both feet, knees and low back pain, averred he has had these symptoms since 1980, he also reported that he works at a juvenile correction center where he is required to be on his feet for a long time. Akin to previous clinical records, there is no evidence that demonstrates the Veteran’s condition was aggravated by his period of active duty.
In February 2016, the Veteran reported back and knees and both feet, more so on the left, was assessed with chronic low back pain. The record is devoid of any treatment for his pes planus and is equally negative for evidence showing the condition was aggravated by military service.
Most recently, in July 2016, the Veteran reported periodic flare-ups with increased pain in feet or knees or low back pain, reported pain occurs 2-3 times a month, lasting one-to-two days per episode. Analogous with the records, the July 2016 treatment record does not show the Veteran’s pes planus condition was permanently worsened as a result of his 39 days of boot camp training.
In sum, the newly added clinical evidence does not support reopening the claim because the evidence does not show that the Veteran’s pes planus was permanently aggravated due to service. 
Indeed, evidence of the Veteran being asymptomatic at 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). 
In his substantive appeal the Veteran avers that his flat feet condition was aggravated due the military issued boots during basic training from running and jumping. (See VA Form 9, December 2016). These lay statements are cumulative and redundant of the statements already of record. (See VA treatment records, November 2001). These statements indicate that the Veteran engaged in physical activities which required him to be on his feet during boot camp training. However, this assertion was already contained in previous lay statements and are essentially cumulative and redundant.
The Board acknowledges the VA treatment records associated with the claims folder, which reflect continued complaints and treatment of bilateral foot pain. However, as discussed above, the additional records, coupled with the records previously of record, do not provide an unestablished fact necessary to substantiate the claim, nor do they raise a reasonable possibility of substantiating the claim.  Because the additional evidence is negative for any evidence of aggravation of his pre-service pes planus, it is cumulative or redundant of the evidence of record. Even when considered with the evidence previously of record, it does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for pes planus. Therefore, it is not new and material for the purpose of reopening the claim. Cox v. Brown, 5 Vet. App. 95, 99 (1993).
(Continued on the next page)
 
In summary, the Board finds that the evidence received in conjunction with the claim to reopen entitlement ot service connection for pes planus is not new and material, and does not serve to reopen the claim for service connection. See 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2017). Having found the evidence is not new and material, no further adjudication of the claim is warranted. Because the Veteran has not fulfilled his threshold of burden of submitting new and material evidence to reopen his finally disallowed claim, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
 
K. J. ALIBRANDO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	E. Steele, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.