Citation Nr: 0002197 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 96-12 173 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for fallen arches. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. N. Booher, Associate Counsel INTRODUCTION The veteran had active service from September 1952 to September 1954. This appeal comes before the Board of Veterans' Appeals (Board) from an August 1995 rating decision by the Department of Veteran's Affairs (VA) Regional Office (RO) in San Diego, California. The veteran has since moved and his claims file has been transferred to the Chicago, Illinois RO. FINDINGS OF FACT 1. In a December 1991 rating decision, the RO denied the veteran's request to reopen a claim of entitlement to service connection for fallen arches. The veteran was notified of the denial and of his appellate rights, but he did not file a timely notice of disagreement. 2. The evidence associated with the claims file subsequent to the RO's December 1991 rating decision is significant, when viewed in conjunction with the evidence previously of record, and it must be considered in order to fairly decide the merits of this claim. 3. There is no competent medical evidence of record linking the veteran's currently diagnosed foot disorder to his period of active service, or to the foot disorder shown during service. CONCLUSIONS OF LAW 1. The RO's December 1991 decision denying entitlement to service connection for fallen arches is final. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 20.302, 20.1103 (1999). 2. New and material evidence has been received to reopen the veteran's claim of entitlement to service connection for fallen arches. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 3. The veteran's reopened claim for service connection for fallen arches is not well-grounded. 38 U.S.C.A. § 5107(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran requests the Board to reopen his claim for service connection for fallen arches on the basis that he has submitted new and material evidence that well grounds his claim. As a general rule, within one year from the date of mailing the notice of an RO's decision, a NOD must be filed in order to initiate an appeal of any issue adjudicated by the RO. 38 U.S.C.A. § 7105(a), (b)(1) (West 1991). If a NOD is not filed within the prescribed period, the RO's determination becomes final. 38 U.S.C.A. § 7105(c). Once an RO's decision becomes final, absent submission of new and material evidence, the claim may not thereafter be reopened or readjudicated by the VA. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a) (1999). The Board is obligated to review all evidence submitted since the claim was disallowed by a final decision and if the Board's decision is favorable to the veteran, his claim must be reopened and decided on the merits. See Elkins v. West, 12 Vet. App. 209 (1999); Winters v. West, 12 Vet. App. 203 (1999). New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself and in connection with evidence previously assembled is so significant that it must be considered to decide fairly the merits of the claim. 38 C.F.R. § 3.156(a). A three pronged analysis is used to determine whether evidence is "new and material" as defined by 38 C.F.R. § 3.156(a). First, it must be determined whether the newly presented evidence "bears directly and substantially upon the specific matter under consideration," i.e., whether it is probative of the issue at hand. Secondly, the evidence must be shown to be actually "new," that is, not of record when the last final decision denying the claim was made, and finally, a determination must be made as to whether the evidence "is so significant that it must be considered in order to fairly decide the merits of the claim." See Hodge v. West, 155 F.3d 1356, 1359 (Fed. Cir. 1998). New evidence will be presumed credible at this point solely for the purpose of determining whether a claim should be reopened. Justus v. Principi, 3 Vet. App. 510, 513 (1992). If all three tests are satisfied, the claim must be reopened. Hodge, supra. Upon reopening the claim, a determination must then be made as to whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(a)(West 1991). If the claim is well grounded, the claim may then be evaluated on the merits after ensuring that the duty to assist pursuant to 38 U.S.C.A. 5107(b) (West 1991) has been fulfilled. See Elkins v. West, 12 Vet. App. 209 (1999); Winters v. West, 12 Vet. App. 203 (1999). Pertinent evidence associated with the claims file since the RO's December 1991 denial includes: (1) VA outpatient treatment records dated December 1991 to June 1995; (2) a VA hospitalization report dated December 1991; (3) a statement from the veteran dated July 1995, and (4) VA examination reports dated April 1996 and December 1998. Collectively this evidence shows that in April 1992, the veteran complained of bilateral foot pain. He was reportedly wearing orthotics with good results. He was diagnosed with bilateral pes planus, calluses and onychomycosis. The veteran was treated for calluses on both feet from June 1993 to September 1993. In April 1996, the veteran was afforded a VA examination. At that time, he reported that he had been diagnosed with bilateral fallen arches and that he had had this disorder since his period of active service. At the time of the examination, the veteran was not wearing his orthotics and he indicated that he was not having any real problems with his feet. X-rays revealed gout, mild bilateral hallux valgus and calcaneal spurs on the left foot. The veteran was diagnosed with bilateral fallen arches, pes cavus, controlled with orthotics. The veteran underwent a second VA examination in December 1998. He again gave a history of having problems with his feet during service. Specifically, he indicated that his boots were too small in service and this caused him to experience problems with his feet. He reported that he continued to experience pain in his feet when standing or walking for any length of time. Physical examination revealed severely flat feet, Grade III. Bilateral mild overpronation and bilateral hallux valgus was also noted. On the left foot, the veteran's second through fourth toes had become hammertoes. The second toe of the right foot showed some lateral valgus. X-rays did not show any evidence of flat feet. The examiner diagnosed the veteran with severe bilateral flat feet, which had been aggravated by overuse. It was the examiner's opinion that the veteran's bilateral flat feet were not related to the foot disorder that manifested during his period of active service. In this case, the Board finds that the recently submitted evidence is both new and material. In this regard, the RO previously denied the veteran's claim for service connection for fallen arches on the basis that the veteran's service medical records were negative for any complaints or treatment of fallen arches. Additionally, the evidence failed to establish that the veteran had a current diagnosis of fallen arches. The newly submitted evidence establishes that the veteran has a current diagnosis of fallen arches and contains an opinion regarding whether there is a nexus between the veteran's current foot disorder and the foot disorder that he experienced during service. This competent evidence was not available to the RO in December 1991. The evidence is significant and must be considered in connection with evidence previously assembled to fairly decide the merits. Having reopened the veteran's claim, the next question before the Board is whether the veteran's claim for service connection for fallen arches is well-grounded pursuant to 38 U.S.C.A. § 5107(a). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. In this regard, the veteran has "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a) (West 1991); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). If the evidence presented by the veteran fails to meet this threshold level of sufficiency, no further legal analysis need be made as to the merits of the claim. See Boeck v. Brown, 6 Vet. App. 14, 17 (1993). For a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of an in service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in service disease or injury and the current disability. Where the determinative issue involves medical causation or diagnosis, competent medical evidence to the effect that the claim is plausible is required. See Epps v. Gober, 126 F.3d. 1464 (Fed. Cir. 1997). A claimant may also establish a well-grounded claim for service connection under the chronicity provision of 38 C.F.R. § 3.303(b) (1999), which is applicable where the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period, and that same condition currently exists. Such evidence must be medical unless the condition at issue is one which, under case law, lay observation is considered competent to prove its existence. If the chronicity provision is not applicable, a claim still may be well- grounded pursuant to the same regulation. To establish well groundedness in this manner, the evidence must show that the condition was observed during service or any applicable presumption period, that continuity of symptomatology was demonstrated thereafter, and there must be competent evidence relating the current condition to that symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). While the evidence of record establishes that the veteran suffers from a current foot disability, in the December 1998 VA examination report, the VA examiner specifically indicates that the veteran's current disability is not related to his period of active service or to the foot disorder which manifested during service. There is no evidence beyond the statements of the veteran linking his current disability to his period of active service, or to the foot disorder shown during service. The veteran as a lay person, is not competent to offer an opinion that requires medical expertise, such as the cause or etiology of the veteran's foot disorder. Espiritu v. Derwinski, 2 Vet. App. 492, 494- 95 (1992) (holding that laypersons are not competent to offer medical opinions). Because the veteran has failed to prove this essential element of his claim, his claim for service connection for fallen arches is not well grounded and must be denied on that basis. Finally, the veteran and his representative have alleged that the VA has a duty to obtain medical records from private medical providers from whom the veteran has received treatment for his fallen arches. However, absent the submission and establishment of a well-grounded claim, the Court has held that the Secretary cannot undertake to assist a veteran in developing facts pertinent to his or her claim. Morton v. West, No. 96-1517 (U.S. Vet. App. July 14, 1999). Therefore, the VA has no obligation to attempt to obtain medical records from medical providers who have treated the veteran. Of course, should the veteran obtain evidence that he believes will well ground his claim, he may request the RO to again reopen his claim for service connection. See McKnight v. Gober, 131 F.3d 1483, 1485 (Fed. Cir. 1997) (per curiam). ORDER 1. New and material evidence having been submitted, the claim of entitlement to service connection for fallen arches is reopened. 2. The claim of entitlement to service connection for fallen arches is not well-grounded and is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals