BVA9507694 DOCKET NO. 92-56 124 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Whether new and material evidence has been submitted to reopen claims for service connection for an acne vulgaris and dermatophytosis. 2. Entitlement to service connection for bilateral pes planus. 3. Entitlement to service connection for arteriosclerotic heart disease and hypertensive cardiovascular disease. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. P. Gallagher, Counsel INTRODUCTION The appellant had active service from October 1951 to September 1953. A decision by the Board of Veterans' Appeals (Board) in June 1956 denied entitlement to service connection for acne vulgaris, pes planus, and dermatophytosis. This appeal arises from rating decisions by the Department of Veterans Affairs (VA) San Juan, Puerto Rico, Regional Office (RO). A rating decision in November 1990 denied service connection for heart disease and the veteran's attempt to reopen his claim for service connection for a skin disorder and for pes planus. This case was remanded by the Board in March 1992 for further development. It was returned to the Board in February 1995. One issue before the Board at the time of the March 1992 remand was whether new and material evidence to reopen a claim for service connection for pes planus had been submitted. The Board concludes now that new and material evidence has been submitted, and that the claim has been reopened for de novo review. As such, that issue has been recharacterized on the title page. In view of the action taken below, there is no prejudice to the veteran in the Board's consideration of the issue on the merits. Bernard v. Brown, 4 Vet.App. 384 (1993). The Board notes that during the course of this appeal, in January 1993, the veteran raised the issue of entitlement to service connection for a psychiatric disorder. That issue is not inextricably intertwined with the issues before us, accordingly, this issue is referred to the RO for further consideration. See Kellar v. Brown, 6 Vet.App. 157 (1994); Parker v. Brown, 7 Vet.App. 116 (1994). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that in regard to his pes planus, the presumption of soundness was not applied to his case. He maintains that he received an L3 profile which represents a serious defect. His dermatophytosis of the feet and hands was treated at a private hospital and by the VA shortly after discharge from service. In addition, he maintains the VA cannot demonstrate that he had not suffered hypertension at the time of discharge. He asserts that he has a cardiovascular disease secondary to his foot and leg pain. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all the evidence and material of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that the appellant has not submitted both new and material evidence to reopen claims for entitlement to service connection for a acne vulgaris and dermatophytosis. It is also the decision of the Board that the preponderance of the evidence is against the veteran's claim for service connection for arteriosclerotic heart disease and hypertensive cardiovascular disease. It is the further decision of the Board that the claim for service connection for pes planus has been reopened, and that based on all the evidence on file, there is a basis for granting service connection for bilateral pes planus. FINDINGS OF FACT 1. The Board of Veterans' Appeals, in a decision in June 1956, denied entitlement to service connection for acne vulgaris, pes planus, and dermatophytosis. 2. Evidence submitted since that prior denial and considered in association with the application to reopen the claims would not tend to change the outcome of the prior decision as to the issues of service connection for acne vulgaris and dermatophytosis. 3. Evidence added to the record since the prior denial of service connection for pes planus would tend to change the outcome of the prior decision with regard to the issue of service connection for pes planus. 4. The entire evidence of record suggests that the veteran was first found to have symptomatic pes planus during service. 5. A cardiovascular disorder, including hypertension, did not have its onset during service, nor was it manifested during the one-year presumptive period following discharge from service. 6. There is no medical evidence on file that there is any relationship between the veteran's feet and the onset of cardiovascular pathology, including hypertension. 7. Current cardiovascular disease is not shown to be related to any in-service occurrence or event. CONCLUSIONS OF LAW 1. Evidence received since the Board's June 1956 decision which denied service connection for acne vulgaris and dermatophytosis is not both new and material. 38 U.S.C.A. § 5108(West 1991); 38 C.F.R. § 3.156 (1994). 2. The decision of the Board in June 1956 denying entitlement to service connection for acne vulgaris, and dermatophytosis is final and may not be reopened. 38 U.S.C.A. §§ 5107, 7104 (West 1991). 3. A cardiovascular disorder, including hypertension, was not incurred in or aggravated by service, nor may the incurrence of a cardiovascular disorder during service be so presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). 4. Evidence added to the record since the June 1956 Board decision denying service connection for pes planus is new and material; the claim as to that issue is reopened. 38 U.S.C.A. §§ 5107, 5108, 7104 (West 1991); 38 C.F.R. § 3.156 (1994). 5. Bilateral pes planus were most likely incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1994). 6. There is no medical evidence showing a relationship between the veteran's foot disorder and the cardiovascular disease, including hypertension. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.310 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Whether New and Material Evidence Has Been Submitted to Reopen Claims for Service Connection for Acne Vulgaris, Dermatophytosis, and Pes Planus Decisions of the Board are final with the exception that a claim may later be reopened by the submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7104 (West 1991). The question now presented is whether new and material evidence has been submitted, since the prior adverse decision of December 1990, to permit reopening of the claim. Manio v. Derwinski, 1 Vet.App. 140 (1991). Where a claim is reopened, de novo consideration of the claim will be undertaken. Id. For the evidence to be deemed new, it must not be cumulative or redundant; to be material, it must be relevant and probative to the issue at hand; and, when viewed in the context of all the evidence, it must raise a reasonable possibility of a change in the prior adverse outcome. 38 C.F.R. § 3.156 (1994); Colvin v. Derwinski, 1 Vet.App. 171 (1991). As noted above, and discussed in greater detail below, it is the conclusion of the Board that the claim of service connection for pes planus is reopened and can be granted. As to the skin disorder, the evidence is not new and material and does not provide a basis for reopening the claims. A. Factual Background The evidence which was of record at the time of the Board's June 1956 decision may be briefly summarized. An examination prior to induction in November 1950 and the examination at the time of induction disclosed no complaints or manifestations of pes planus. On the induction examination, acne on the face, moderate, was noted. In October 1951, the veteran was seen for complaints of right ankle pain of 2 days duration. In November he was thought to have twisted the right ankle. He complained of pain in several joints. In early December, he complained of pain in the ball of a foot for the last 3 days after a walk. He was to go to the orthopedic clinic. Later in December 1951, he was seen at the orthopedic clinic with complaints of pain in both feet, It was described as dull and aching in character after walking approximately 150 to 200 yards. This pain radiated up to the posterior aspects of the legs. Examination revealed rather marked pes planus and also rather marked dermatophytosis between the toes. Diagnoses were pes planus, both feet, moderate, and dermatophytosis (athlete's foot). Recommendations included medial wedges to both feet, powder, and a temporary change of profile which resulted in him being considered unfit for strenuous exercises involving the lower extremities such as heavy marching or standing for a long period of time. In January 1952, he was examined concerning complaints of pain in both lower extremities on long periods of walking and marching. There was definite evidence of third degree pes planus, bilaterally. The examiner reported that medial wedges, Thomas' heels and arch supports for all of his shoes were being ordered. He stated that the profile of 3 for the lower extremities should be maintained. The veteran was seen in the orthopedic clinic in July 1952 with the same complaint of pain in both feet upon walking and standing. Physical examination revealed third degree pes planus. He reported he had been seen several times from November 1951 to June 1952. Reportedly in June 1952, his temporary profile was extended for 6 months. The veteran was seen again in August 1952 with the complaint of painful feet. He reported that the symptoms had started shortly after his training had begun. It was reported the orthopedic correction measures had done little good and he sought help from a civilian physician. The diagnosis was pes planus, moderately severe, bilateral. X-rays of both feet in September 1952 demonstrated no abnormalities. In November 1952, the veteran was hospitalized for treatment of dermatophytosis of the feet. It was reported he had a history of chronic "athlete's foot" off and on for the past several years. He stated that he had associated vesiculation of the hands. One week prior to admission, he noted considerable itching and scaling between the toes. The skin in these areas began to peel off in layers. He also complained of increased sweating on the feet. A physical examination was within normal limits except for the maceration of the skin between all the toes. On the palms, there was a vesicular eruption, chiefly limited to the hypothenar eminence. Over the face, back and chest were papulopustular acneform lesions with scarring on the face. Mild cellulitis of the feet was noted. During hospitalization, it was reported he had mild secondary infection of the toes and dorsum of the feet. At the time of hospital discharge, there was minimal maceration of the skin between the toes and it was felt he could be discharged to duty with instructions as to follow-up care. The final diagnoses were dermatophytosis of the feet, fungus undetermined, improved, and dermatophytid of the hands, improved. In September 1953, he was referred for an evaluation as a result of bilateral third degree pes planus. It was recommended that he be given a permanent profile of L3 because of his third degree flat feet. On the separation examination a few days later in September 1953, mild pes planus, bilaterally, was noted. It was also reported that he had acneform eruption of the face, chest and back with moderate residual scarring. Dermatophytosis on the feet was not noted on this examination. In February 1954, J. R. Casanova Diaz, M.D., reported he examined the veteran for complaints of flat feet. On examination, he stated the veteran had pes planus, Grade II on the right and Grade III on the left with eversion, slight to moderate, of the left foot. There was no swelling. Reflexes were normal. He stated that the veteran was very much overweight and this was a tremendous handicap in the correction or improvement of the plantar condition. The veteran was also noted to have pronounced acne vulgaris on the face. No other skin pathology was set forth. The veteran testified at a hearing at the RO in November 1955 that his pes planus disorder was at least aggravated by the rigors of service. He asserted that prior to service he had been symptom free and that his symptoms occurred after a hike. The appellant was examined by the VA in January 1956. He complained of an uncomfortable sensation on standing up and after standing awhile, he felt pain in the feet and legs. On examination, acne vulgaris of the face with scarring and pitting were noted, as seen in long-standing disease. He gave a history of having had the disease since about age 13. On a VA orthopedic examination in February 1956, it was reported that he had moderate obligation of the longitudinal arch in a weight-bearing position without pronation of the os calcis or undue prominence of the scaphoids. Both feet were flexible and except for a chronic dermatophytosis condition, there seemed to be no evidence of objective clinical pathology. The diagnosis was bilateral pes planus, moderate, allegedly symptomatic. The Board decision in June 1956 determined that since acne on the face was noted on the preinduction examination, the issue was for aggravation of such condition. The Board found the records did not show that during service there was superimposed pathology, aggravation or permanent increase in the pre-service level of disablement. The Board concluded that aggravation of the pre- existing acne vulgaris was not warranted. The Board also noted that in December 1951, marked pes planus on the feet was noted. It was not shown by the evidence that there was antecedent injury during service to account for the presence of the marked pes planus within months after he entered service. The Board determined that the bilateral congenital pes planus pre-existed service and that the evidence does not show aggravation during service. The Board also found that notations in the hospital records in November 1952 showed that the veteran's athlete's foot had existed for several years and thus, clearly and unmistakably established that dermatophytosis pre-existed entry upon active duty. The Board noted that when the veteran was examined at the time of separation from active service, dermatophytosis was not noted. Also on the VA examination in 1956, although there was a finding of dermatophytosis affecting the feet, it was not shown there was significant dermatological disability affecting the hands. The Board concluded the evidence did not show that dermatophytosis underwent permanent increase in the pre-service level of disablement during service and that the condition was not aggravated by service. Evidence added to the record since the Board's decision in 1956 includes copies of service medical records, previously of record, numerous private medical records, dated from the early 1960's disclosing treatment for skin disorders of the hands and feet, as well as pes planus, a statement of Enid M. Berrios M.D., physiatrist, and a private x-ray report, dated in May 1993, showing the veteran now has degenerative changes involving the feet. In addition, the veteran testified at a hearing at the RO in July 1993 that when he entered service, he only had acne on the face and that he did not have any skin problems involving the hands and feet. He maintained that these developed in service and he had had problems with a skin disorder involving the hands and feet since that time. He also described the intense pain in his feet which would at times go up above the waist. B. Analysis The RO has conceded that the additional evidence is "new." It is new only in that most of it was not previously of record. However, the United States Court of Veterans Appeals (the Court) in Colvin v. Derwinski, 1 Vet.App. 171 (1991) held that in order to reopen a claim, the additional evidence must also be material in that there is a reasonable possibility that the additional evidence, when viewed in context of all the evidence, both new and old, would change the outcome The Board concludes that the additional evidence submitted is not "material" as to the issues of service connection for acne vulgaris and dermatophytosis. Accordingly, these claims are not reopened and the Board's decision of 1956 remains final as to these issues. In evaluating the additional medical evidence with regard to the skin disorders, the Board observes that in the 1956 decision the Board found that all of the disabilities in issue existed prior to service and were not aggravated by service. In essence the Board determined that there was clear and unmistakable evidence that the disabilities manifested in service existed before service and that therefore, the presumption of soundness, currently 38 U.S.C.A. § 1111, was rebutted. Also, the Board in essence determined the pre-existing conditions were not aggravated by active service, currently 38 U.S.C.A § 1153. The additional clinical evidence, except for the statement of Dr. Berrios, primarily deals with treatment for the disabilities at issue many years following discharge from service and does not tend to demonstrate an increase in basic pathology or aggravation during service nor does it have any bearing on the contentions that these skin disorders did not pre-exist service. As to the skin disorders, then, the evidence added to the record is not new and material and the claim as to those issues is not reopened. The statement of the physiatrist, Dr. Berrios, in essence reviews the evidence in the service medical records and concludes that the pes planus, if pre-existing service, must have been aggravated by the situations the veteran was exposed to in service. It was his opinion that the foot pathology was made worse by service. The Board concludes that this opinion by Dr. Berrios, after a thorough review of the evidentiary record constitutes new and material evidence to reopen the claim of service connection for pes planus. After reviewing all the evidence, both the new and the old, it is concluded that there is a basis for granting service connection for pes planus on the basis that it was incurred in service. It is the view of the Board that the evidence is now insufficient to conclude that pes planus, or certainly symptomatic pes planus, pre-existed service. There is no history of pre-service existence, and even if present on a congenital basis, the first symptoms were recorded after the veteran had been in service for a time. There is, based on our reading of all the evidence on file, a basis for concluding that service connection for pes planus should be granted. Of note is the fact that when seen in service, after a hike, the veteran complained of foot and ankle pain of recent onset. This is consistent with the opinion recently provided by Dr. Berrios, and raises at least a reasonable doubt as to whether the pes planus were either incurred in or, if pre-existing, became aggravated by service and the activities undertaken therein. The Board has also, considered the veteran's recent testimony to the effect that he had not had skin problems on the hands and legs prior to service. However, there was evidence in the service medical records at the time of the prior decision that did establish the pre-service existence of these skin disabilities. For example, when he was seen in December 1951, dermatophytosis was noted. Also, when hospitalized in for treatment of dermatophytosis he reported a history of "athlete's foot " for many years and he stated he had associated vesiculation of the hands, Dermatophytosis of ether the hands and feet was not found on the separation examination. The Board agrees with the testimony that the veteran had acne only on his face, when he entered service and not on the rest of his body. Also, the record indicated it spread to other parts of the body, the back and chest during service. However, on the VA examination in January 1956, he only manifested acne on the face and neck. Therefore, the evidence, both old and new does not establish a pathological advancement of the pre-existing acne of the face. To the extent the hearing testimony reiterates evidence already on file, it is not new and material. See Reid v. Derwinski, 2 Vet.App. 312 (1992). After review of the additional evidence added to the record on the issue of service connection for a skin disorder, the Board has determined it is not both new and material. As such, there is no basis for reopening the claim. Once new and material evidence is not found, adjudication of the claim should cease. See Kehoski v Derwinski, 2 Vet.App. 31 (1991). II. Entitlement to Service Connection for Arteriosclerotic Heart Disease and Hypertensive Cardiovascular Disease Initially, we note that this claim is well grounded and that all pertinent evidence is of record. 38 U.S.C.A. § 5107. On the examination prior to entrance into service, the veteran did, as contended, complain of soaking sweats, palpitations, and shortness of breath. However, a cardiovascular disorder was not noted on examination and the veteran's blood pressure was 120/80. Service medical records disclose no complaints or manifestations of a cardiovascular disorder, including hypertension. In November 1952, a blood pressure reading of 110/78 was recorded. A chest x-ray that month was normal. On the separation examination, the veteran's blood pressure was 116/72 and no abnormalities involving his heart and vascular system were noted. On examination by Dr. Casanova Diaz in February 1954, the veteran's blood pressure was reported as 160/70 and his heart was described as normal. On the VA examination in January 1956, blood pressure readings of 130/86, 140/90 and 150/80 were reported. Evaluation of his cardiovascular system was normal. A chest X-ray at that time showed the heart shadow was within normal limits in size and shape. A report from the Auxilio Mutuo dated in March 1960 discloses the veteran's blood pressure at that time was 130/80. On a medical history form at that time he denied that he had high blood pressure. A report from the Curso Clinic of the Auxilio Mutuo dated in November 1961 revealed a blood pressure reading of 140/90. The veteran was hospitalized at the Curso Clinic from November to December 1961 for treatment of renal calculi. VA clinical records disclose the veteran was seen for treatment of a cardiovascular disorder in February and March 1988. It was reported that he had recently had a myocardial infarction. When seen in the cardiology clinic in April 1990, it was reported that the veteran suffered from coronary artery disease and high blood pressure and that he sustained a myocardial infarction in 1987. At the hearing at the RO, the veteran testified that the pain in his feet that he complained of during service eventually caused him to develop cardiac neurosis. He admitted that he had no medical evidence of this, and testified that the cardiovascular disability he did develop was high blood pressure. It was also contended that the veteran had problems with kidney stones and that this could have caused his cardiovascular disorder. The veteran testified that he first developed kidney stones in about 1955 and was hospitalized for a week. It was requested the veteran should be afforded a heart examination to confirm or discard the diagnosis of cardiac neurosis and any relationship it could have with the feet and skin conditions. In evaluating the veteran's claim, the Board has considered the record, including the service medical records, the post service clinical record, and the veteran's testimony at the hearing. Initially, the Board stresses that although the veteran did complain on the entrance examination of soaking sweats, palpitations and shortness of breath, this symptomatology was not clinically confirmed at that time, nor at no time during service. Moreover, this history is not automatically diagnostic of cardiovascular pathology, especially with no abnormal clinical findings reported during service. Also, the veteran's blood pressure readings at entrance and on the examination at separation from service were within normal limits. Although the blood pressure reading of 160/70 reported by Dr. Casanova Diaz in February 1954 disclosed an elevated systolic blood pressure reading, the diastolic reading was well within normal limits. In addition, although the veteran had one diastolic reading of 90 on the VA examination in January 1956, the Board notes that when he was hospitalized in March 1960 at the private facility, his blood pressure was 130/80 or well within normal limits. In addition, during the hospitalization for the renal stones in 1961, there was no evidence of any cardiovascular disorder. The objective clinical record does not demonstrate the existence of a chronic cardiovascular disorder until the veteran underwent a myocardial infarction in 1987, many years following discharge from service. Nothing in the clinical record demonstrates medically, that the isolated elevated readings shortly post-service represent the onset of cardiovascular disease. The Board has considered the contentions advanced at the hearing. In regard to the claim of cardiac neurosis as a result of stress and the pain in the veteran's feet during service, the Board observes that this is a medical judgment and no competent evidence on this point is of record. Lay persons are not competent to offer such evidence because they lack the requisite special experience or special knowledge. Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). In addition, the veteran admitted that there has been no diagnosis of cardiac neurosis and as indicated above, the post service clinical record is silent concerning this claimed disability. Also, in regard to the contention concerning a kidney disorder being related to a cardiovascular disorder in this case the veteran testified the kidney stone problem did not begin until after service. This is confirmed by the contemporaneous clinical record and service connection has not been granted for this condition.. Furthermore, there is no medical evidence to establish a relationship between renal stones and cardiovascular disorders and, as indicated above, under Espiritu, the appellant is not competent to make this medical relationship. Also, the Board finds that in view of the foregoing, in which the existence of coronary artery disease and the occurrence of a myocardial infarction have been clearly established, a remand for another examination would serve no useful purpose. In addition, in regard to the contention concerning a kidney disorder being related to a cardiovascular disorder in this case the veteran testified the kidney stone problem did not begin until after service. This is confirmed by the contemporaneous clinical record. Furthermore, there is no medical evidence to establish a relationship between renal stones and cardiovascular disorders and, as indicated above, under Espiritu, the appellant is not competent to make this relationship. After considering the evidence in its entirety, the Board finds that the preponderance of the evidence is against the veteran's claim for entitlement to service connection for a cardiovascular disorder. ORDER Entitlement to service connection for arteriosclerotic heart disease and hypertensive cardiovascular disease is denied. New and material evidence establishing entitlement to service connection for a skin condition has not been submitted and the claim as to that issue is not reopened. Service connection for pes planus is granted. MICHAEL D. LYON Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.