Citation Nr: 0706282 Decision Date: 03/05/07 Archive Date: 03/13/07 DOCKET NO. 05-22 690 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Whether new and material evidence has been received to reopen a claim for service connection for bilateral pes planus. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The veteran served on active duty from July 1974 to February 1976. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a January 2004 rating decision by the Department of Veterans Affairs (hereinafter VA) Regional Office in St. Louis, Missouri, (hereinafter RO). FINDINGS OF FACT 1. A June 1976 rating decision to which the veteran was notified in that month denied service connection for a back disorder and bilateral pes planus; the veteran did not appeal the decision, and this is the only final decision addressing these issues on any basis. 2. Additional evidence in the form of private medical opinions linking a current back disorder to service raises a reasonable possibility of substantiating the claim for service connection for a low back disorder. 3. The weight of the evidence as to whether the veteran has a low back disorder that is etiologically related to service is in relative balance. 4. Additional evidence submitted in an attempt to reopen the claim for service connection for bilateral pes planus does not raise a reasonable possibility of substantiating the claim for service connection for bilateral pes planus. CONCLUSIONS OF LAW 1. The June 1976 rating decision is final. 38 U.S.C. § 4005(c) (1970); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1975). 2. Evidence received to reopen the claim of entitlement to service connection for a low back disorder is new and material, and therefore, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.156(a) (2006). 3. A low back disorder was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5100-5013A, 5106, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2006). 4. Evidence received to reopen the claim of entitlement to service connection for bilateral pes planus is not new and material, and therefore, the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.156(a) (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to notify and assist The veteran claims that he has submitted sufficient evidence to reopen his previously denied claims of entitlement to service connection for a low back disorder and bilateral pes planus. Initially, it is noted that VA has an obligation to notify claimants of what information or evidence is needed in order to substantiate a claim. 38 U.S.C.A. § 5103 (West 2002 & Supp. 2005); 38 C.F.R. § 3.159 (2006). VA law and regulations dictate that part of notifying a claimant of what is needed to substantiate a claim includes notification as to what information and evidence VA will seek to provide and what evidence the claimant is expected to provide. Further, VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159(a)-(c) (2006). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims held that the notice requirements set forth above applied to all five elements of a service connection claim, which include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. That said, with respect to the application to reopen the previously denied claim of service connection for pes planus, an August 2003 letter informed the veteran of the evidence necessary to establish entitlement to service connection for a disability, what evidence the RO would obtain, and what evidence he was expected to obtain. This letter also, essentially, requested that he provide any medical evidence in his possession that pertained to this claim. In addition, the letter informed the veteran of the evidence and information required to reopen a previously denied claim, and explained what types of evidence qualified as "new" and "material" evidence. See Kent v. Nicholson, 20 Vet. App. 1 (2006). As the Board concludes herein that evidence sufficient to reopen the veteran's previously denied claim of entitlement to service connection for pes planus has not been received, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. Regarding the application to reopen the claim of entitlement to service connection for a low back disorder, it is noted that because this claim on appeal is being granted in full, VA's statutory duties to notify and assist are deemed fully satisfied. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005); see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2006). II. Legal Criteria/Analysis A. Low Back Disorder It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2006). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. A June 1976 rating decision to which the veteran was notified in that month denied service connection for a back disorder and bilateral pes planus. The veteran did not appeal this decision; as such, it is "final." 38 U.S.C. § 4005(c) (1970); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1975). This is the only final rating decision addressing these issues on any basis. A final decision cannot be reopened and reconsidered by VA unless new and material evidence is presented in connection with a request that the previously denied claim be reopened. See 38 U.S.C.A. § 5108; Suttman v. Brown, 5 Vet. App. 127, 135 (1993). New and material evidence can be neither cumulative or 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. The RO found that that claim for service connection for a low back disorder had been reopened. Notwithstanding this decision, the Board must conduct an independent review of the evidence to determine whether new and material evidence has been received. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). After conducting this review, the Board concludes that new and material evidence has been received to reopen the claim for service connection for a low back disability. As opinions from a private physician dated in September 2004 and September 2005 link a back disorder to the veteran's military service, the Board finds that this evidence clearly raises a "reasonable possibility" of substantiating the claim for service connection for a low back disorder, and is therefore material evidence. 38 C.F.R. § 3.156. As such, the claim for service connection for a low back disorder is reopened. The law provides that service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C.A. §§ 1111, 1137; 38 C.F.R. § 3.304(b). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, the VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. It was concluded that the provisions of 38 C.F.R. § 3.304(b) are inconsistent with 38 U.S.C.A. § 1111 insofar as § 3.304(b) states that the presumption of sound condition may be rebutted solely by clear and unmistakable evidence that a disease or injury existed prior to service. It was held that 38 C.F.R. § 3.304(b) is therefore invalid and should not be followed. See VAOPGCPREC 3-03; 69 Fed. Reg. 25178 (2004); see also Cotant v. Principi, 17 Vet. App. 116 (2003) (holding that the clear and unmistakable evidence standard in 38 C.F.R. § 3.306(b) is "onerous" and requires an "undebatable" result). 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.A. § 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.A. § 1153; 38 C.F.R. §§ 3.304, 3.306(b). The July 1974 service entrance examination and medical history compiled at that time contained no references to a back disorder. In May 1975, the veteran was treated for back pain. A June 1975 X-ray demonstrated Grade I spondylolisthesis of L3 and an anomalous left L4, L5 apophyseal joint. Also described at that time was "congenital" tropism of L5, S1. The veteran complained about back pain and spasms according to a service medical record dated in October 1975. The January 1976 separation examination did not refer to a back disability, but the veteran referred to having recurrent back pain on a medical history compiled at that time. In addition, a February 1976 "Statement of Medical Condition" showed the veteran reference medical "changes" since the separation examination involving "Back Inj. + Feet." After service, a February 1996 private medical record noted the veteran stating, incorrectly, that he did not have problems with his back until a work related injury in 1992 in which he fell on some stairs. The impression was chronic back pain secondary to "rather severe spondylolisthesis." An April 1999 VA X-ray noted spondylolisthesis with degenerative changes at L5-S1. An examination conducted at that time resulted in diagnoses of spondylolisthesis, degenerative joint disease, and chronic lumbosacral strain. The veteran reported at this examination that he originally hurt his back during service in 1975 when he fell off of a gun. He presented sworn testimony to this effect at an October 2005 hearing, at which time he stated that he originally hurt his back when he fell from a tank he was cleaning after it was moved. The veteran testified that he had never had any back pain or problems as a child or teenager. The private physician who examined the veteran in February 1996 rendered the medical opinions referenced above in September 2004 and September 2005. The September 2004 opinion stated the back disability was "military related." The September 2005 opinion, after referencing the fact that the veteran related his back disability to a fall during military service, found that based on the veteran's history the veteran's "back problem and pain is military related." A VA physician, after examining the veteran in June 2005, found that he could not resolve the issue of whether the veteran's back pain was related to military service "without resorting to mere speculation." Applying the pertinent legal criteria to the facts summarized above, because a back disability was not noted on the examination at the time of enlistment, the presumption of sound condition attaches in this case. The first question before the Board, accordingly, is whether the presumption that the veteran was in sound condition on entrance is rebutted by clear and unmistakable evidence that he was not sound; that is, that a back disability was present upon entrance to service. In order to rebut the presumption that a back disability did not exist prior to service, there must be clear and unmistakable evidence both that a back disability existed prior to service and that a back disability was not aggravated by service. See VAOPGCPREC 3- 03; Cotant, 17 Vet. App. at 116 (2003). As to the first "prong" of this test, from review of the evidence of record above, while there was a reference during service to there being a "congenital" component to the veteran's back disability, this would not appear to represent "clear and unmistakable" evidence that a back disability existed prior to service. However, with respect to the second "prong," it is obvious that given the reference to back complaints during service from 1975 to the completion by the veteran of his February 1976 "Statement of Medical Condition" referencing a back injury, it cannot reasonably be said that, when viewed in its totality, there is clear and unmistakable evidence that a back disability was as not aggravated by service. As such, the presumption of soundness is not rebutted. Thus, the Board must now address the question of whether a back disability was incurred in service such that service connection would be warranted for this condition. Because under VAOPGCPREC 3-03 the presumption of soundness has not been rebutted in this case, the Board concludes that service connection may not be granted on the basis of aggravation during service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; see VAOPGCPREC 3-03 at para. 4 (Sections 1111 and 1153 establish independent factual presumptions, each of which specifies the predicate facts necessary to invoke the presumption and the facts that must be shown to rebut the presumption). Thus, service connection should be considered on the basis of whether or not a back disorder was incurred in, rather than aggravated by, service. As set forth above, there are two opinions from a private physician linking the veteran's back disability to service. The VA examiner who was asked to address this matter stated that the question of the relationship between the veteran's back disability and military service could not be determined without resort to "speculation." There is other otherwise no medical opinion of record that definitively rules out an etiologic connection between a current back disability and service. Given these facts, the in-service documentation of a back disability, and the veteran's sworn testimony, the Board will exercise its discretion to find that, at a minimum, the positive clinical evidence of record places the evidence, at a minimum, in relative equipoise or balance. As such, service connection for a back disability may thus be granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. B. Pes planus As indicated above, service connection for pes planus was denied in the "final" June 1976 rating decision. Evidence before the adjudicators at that time included the reports from the July 1974 entrance examination, which noted the presence of second degree pes planus. The veteran went to a clinic in February 1975 with complaints of painful feet with marching and an April 1975 service medical record reflects bilateral pes planus with callosities. The veteran was fitted with metatarsal supports. The examination of the feet at the separation examination was negative, but the veteran reported a history of "foot trouble" at that time. As referenced above, a February 1976 "Statement of Medical Condition" showed the veteran referencing medical "changes" involving the feet since the separation examination. The June 1976 rating decision denied the veteran's claim for service connection for bilateral pes planus based on the conclusion that this condition existed prior to service with no evidence of aggravation during service. It is emphasized that unlike the veteran's back disability as set forth above, the entrance examination noted that the veteran had bilateral pes planus. As such, the presumption of soundness at service entry is inapplicable. See 38 U.S.C.A. § 1111 (West 2002)(this provision specifically excepts from the presumption of soundness "defects, infirmities, or disorders noted at time of examination.") The additional evidence submitted in an attempt to reopen the claim for service connection for bilateral pes planus includes private clinical records dated in 2004 referencing treatment for hallux valgus, onychomycosis, plantar fasciitis, bunions and hammertoes. A June 2005 VA examination resulted in a diagnosis of pes planus, but the examiner stated that she could not determine the relationship between the veteran's pes planus and service without resort to "speculation." None of the additional evidence includes any competent medical evidence or opinion which is suggestive of an etiologic relationship between pes planus and service, to include, significantly, by way of aggravation. As such, the Board must find that none of the additional evidence raises a reasonable possibility of substantiating the claim for service connection for bilateral pes planus. The veteran's hearing testimony with respect to the matter is essentially duplicative of contentions previously of record; as such, it does not represent "new" evidence. Thus, the Board finds that the additional evidence is not new and material, and the claim for service connection for bilateral pes planus is not reopened. 38 C.F.R. § 3.156; see Kehoskie v. Derwinski, 2 Vet. App. 31 (1991). ORDER Entitlement to service connection for a low back disorder is granted. New and material evidence having not been received, the claim for service connection for bilateral pes planus is denied. ____________________________________________ J. A. MARKEY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs