Citation Nr: 0007270 Decision Date: 03/17/00 Archive Date: 03/23/00 DOCKET NO. 98-00 819 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been submitted to reopen the veteran's claim for service connection for pes planus, and, if so, whether the reopened claim should be granted. 2. Whether new and material evidence has been submitted to reopen the veteran's claim for service connection for bilateral ankle disability. 3. Entitlement to service connection for bilateral leg disability. 4. Entitlement to service connection for bilateral knee disability. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD T. S. Tierney, Counsel INTRODUCTION The veteran served on active duty from December 1976 until June 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Board notes that the veteran had requested a personal hearing and a Travel Board hearing was scheduled in November 1999. The veteran, however, failed to report for the hearing and did not request rescheduling of the hearing. The Board also notes that in a statement submitted in April 1997, the veteran raised the issue of entitlement to service connection for post-traumatic stress disorder. The RO has not addressed this claim. Therefore, it is referred to the RO for appropriate action. FINDINGS OF FACT 1. In an unappealed January 1989 administrative decision, the RO denied entitlement to service connection for bilateral ankle disability; evidence which is not cumulative or duplicative of evidence previously of record and is of such significance that it must be considered in order to fairly decide the merits of the claim has been received since the January 1989 decision. 2. The claim for service connection for bilateral ankle disability is not plausible. 3. In an unappealed August 1990 administrative decision, the RO denied entitlement to service connection for pes planus; evidence which is not cumulative or duplicative of evidence previously of record and is of such significance that it must be considered in order to fairly decide the merits of the claim has been received since the August 1990 decision. 4. The veteran was found to have bilateral pes planus on service entrance examination; it increased in severity during service; the increase in severity during service is not shown to have been clearly and unmistakably due to natural progress. 5. The claim for service connection for bilateral leg disability is not plausible. 6 The claim for service connection for bilateral knee disability is not plausible. CONCLUSIONS OF LAW 1. New and material evidence to reopen the veteran's claims for service connection for bilateral pes planus and bilateral ankle disability has been received. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 2. Bilateral pes planus was aggravated by active duty. 38 U.S.C.A. §§ 1111, 1131, 1137, 1153 (West 1991); 38 C.F.R. § 3.306 (1999). 3. The claim for service connection for bilateral ankle disability is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 4. The claim for service connection for bilateral leg disability is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 5. The claim for service connection for bilateral knee disability is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1131 (West 1991). 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 the increase is clearly and unmistakably due to natural progress. 38 U.S.C.A. §§ 1111, 1153 (West 1991); 38 C.F.R. § 3.306 (1999). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). Service incurrence of arthritis may be presumed if it is manifested to a compensable degree within a year of the veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Service connection may be granted for any disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). I. New and Material Evidence to Reopen Claims for Service Connection for Bilateral Pes Planus and Bilateral Ankle Disability Service connection for disabilities of the feet and ankles was previously denied in a January 1989 RO administrative decision which was not appealed. Service connection for a foot disability was also previously denied in an August 1990 RO administrative decision which was not appealed. Both of these denials were based on the veteran's failure to appear for VA examinations deemed necessary by the RO. Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105 (West 1991). The exception to this rule is 38 U.S.C.A. § 5108 which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New and material evidence is evidence not previously submitted to decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). New evidence will be presumed credible solely for the purpose of determining whether the claim has been reopened. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence which must be considered in determining whether there is a basis for reopening a claim is that evidence added to the record since the last disposition in which the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 284 (1996). Lay assertions of medical causation cannot serve as a predicate to reopen a claim. Moray v. Brown, 5 Vet. App. 211, 214 (1993). In Hodge v. West, 155 F.3d 1356 (1998), it was held that the definition of "new and material" evidence provided by 38 C.F.R. § 3.156(a) is for application rather than the definition of "new and Material" evidence enunciated by the United States Court of Appeals for Veterans Claims in Colvin v. Derwinski, 1 Vet. App. 171 (1991) (there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome). The evidence of record at the time of the January 1989 administrative denial consisted of the veteran's service medical records and his claim dated in August 1988 noting that he had had problems with his feet and ankles in May 1978 during service. The evidence of record at the time of the August 1990 administrative denial also included a statement of the veteran dated in May 1990 noting that he had treatment for a foot disorder in 1979. The service medical records show that at the enlistment examination in December 1976, it was noted that the veteran had pes valgo plano, L2. The veteran reported no foot trouble, no swollen or painful joints, no cramps in his legs, and no bone, joint or other deformity. A medical entry dated January 3, 1977, notes flat feet. Another entry dated that same day notes that the veteran complained of a painful left ankle for five days. It was noted that he had twisted the ankle while running. The examination showed that the range of motion was within normal limits, there was no edema, and there was no discoloration. The diagnosis was slight ankle sprain. Another entry dated January 26, 1977, shows that the veteran complained of pain in the calf of the left leg and that the leg muscles were tight. The impression was muscle strain. An entry dated May 8, 1978, shows that the veteran complained of pain in both feet. It was also noted that his job required ambulation about a ship. Another entry dated May 18, 1978, notes that the veteran had bilateral pes planus deformity and that arch supports did not help. It was also noted that this existed prior to enlistment. A Medical Board Report dated in June 1978 notes that X-rays of both feet were consistent with severe, bilateral pes planus deformity. The primary diagnosis was bilateral pes planus, severe. It was noted that this disorder existed prior to enlistment and was not aggravated by service. The veteran was found unfit for further service by reason of severe, bilateral pes planus and received a medical discharge from service. Evidence added to the record since the January 1989 and August 1990 administrative denials consists of VA outpatient treatment records, reports of VA examinations completed in October 1996 and September 1998, and additional statements from the veteran. The VA outpatient treatment records are negative for treatment of pes planus or ankle disorders. At a VA examination of the veteran's feet in October 1996, the veteran reported a history of bilateral foot pain in service. He reported that his arches had fallen and that he also had ankle and knee pain. He reportedly underwent physical therapy and took medications, but never had any surgery. The veteran also reported that after service, he continued to have foot and leg pain and that the symptoms had progressively worsened. The examination showed that the veteran walked with a significant degree of lateral deviation of each foot. While standing, the veteran's entire right foot, beginning at the ankle, deviated 30 degrees lateral to its expected position. His left foot deviated 10 degrees lateral to its expected position. X-rays were taken and the diagnoses were bilateral pes planus , hypertrophic changes and spurring of the tarsal bones bilaterally and the base of the right fifth metatarsal, very minimal hyperostoses of the calcaneus bilaterally, and mild degenerative changes of the bones of each foot. A VA orthopedic examination of the veteran's ankles was also performed in October 1996. The pertinent diagnosis was post- traumatic changes of the medial and lateral malleoli, bilaterally. A VA examination report dated in September 1998 notes that the veteran was born with flat feet. The diagnosis was grade 3 pes planus with mild varus deformities bilaterally. Examination of the ankles showed normal range of motion and no abnormalities. X-rays revealed early arthritic changes in the right ankle and calcaneus spurs in the left ankle. He also had calcaneus spurs on his feet. In statements from the veteran, he indicates that his feet and ankles were injured during service, and that these conditions have become worse since service. Since the claims were previously denied because the veteran failed to appear for scheduled VA examinations, the VA examination reports documenting the current presence of the claimed disabilities are new and material. Therefore, the claims have been reopened. II. Service Connection for Bilateral Pes Planus As noted above, the veteran has submitted new and material evidence to reopen the claim for service connection for bilateral pes planus. Accordingly, the Board considers the claim in light of all the evidence of record. Initially, the Board notes that the veteran's claim for service connection for bilateral pes planus is well grounded within the meaning of 38 U.S.C.A. § 5107(a). Further, the Board is satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). The service medical records show that second degree pes planus was found on the enlistment examination. Therefore, the presumption of soundness at entrance does not apply to the pes planus. 38 U.S.C.A. § 1111. Although the available service medical records do not show injury to the feet, the June 1978 Medical Board report shows that the veteran was found to have severe, bilateral pes planus. In fact, the veteran was found to be unfit for further service by reason of the severe, bilateral pes planus. The veteran was accepted into service with some degree of pes planus. However, over a year later, it was determined that the severity of his pes planus rendered him unfit for service. The Board finds that this is evidence of an increase in the disability during service. In addition, the evidence does not show that the increase in severity of the pes planus was clearly and unmistakably due to natural progress. Post- service medical evidence confirms the presence of chronic, bilateral pes planus. Therefore, service connection is warranted for this disability. III. Service Connection for Bilateral Leg, Ankle and Knee Disabilities With regard to the claims for service connection for bilateral leg, ankle and knee disabilities, the threshold question to be answered is whether the veteran has submitted evidence of well-grounded claims. 38 U.S.C.A. § 5107(a). If he has not, his claims must fail, and VA is not obligated to assist the veteran in their development. 38 U.S.C.A. § 5107(a); Grottveit v. Brown, 5 Vet. App. 91 (1993); Tirpak v. Derwinski, 2 Vet. App. 609 (1992). The initial burden is on a claimant to produce evidence that a claim is well grounded. See Grivois v. Brown, 6 Vet. App. 136 (1994); Grottveit at 92; Tirpak at 610-11. A well- grounded claim is a plausible claim, that is, a claim which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court has stated that the quality and quantity of evidence required to meet this statutory burden depends upon the issue presented by the claim. Grottveit at 92-93. Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Id. Further, in order for a direct service connection claim to be considered plausible, and therefore well grounded, there must be evidence of both a current disability and evidence of a relationship between that disability and an injury or disease incurred in service or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). The Board finds that the claims for service connection for bilateral leg, ankle and knee disabilities are not well grounded. The service medical records are negative for complaints of, treatment for, or a diagnosis of a chronic leg, ankle or knee disability. In January 1977, the veteran was seen for complaint of pain in the calf of the left leg and the leg muscles were tight. The impression was muscle strain. A slight ankle sprain was also noted in January 1977. Service medical records document no later evidence of these claimed disabilities, and the medical discharge involved only the veteran's bilateral pes planus. The VA treatment reports are also negative evidence of these claimed disabilities. The VA orthopedic examination in October 1996 showed that the veteran had a healed, nontender scar over the right patella and that he could not recall how he acquired it. The diagnoses relating to the knees were very mild degenerative joint disease of the right knee and left patellofemoral pain syndrome. As noted above, post-traumatic changes of the medial and lateral malleoli, bilaterally, was also diagnosed on the VA orthopedic examination in October 1996. At the September 1998 VA orthopedic examination, the veteran reported the insidious onset of swelling of the knees without any injury and no surgery. X-ray of the knees showed possible exostosis involving the tibial proximal shaft, bilaterally. In regard to the veteran's legs, it was noted that he had stasis dermatitis of the right leg and some redness of the right leg with slight induration secondary to chronic cellulitis. Early arthritic changes in the right ankle and calcaneus spurs in the left ankle were also found on a VA X-ray study in September 1998. The evidence shows that the veteran currently has bilateral knee, ankle and leg disabilities; however, no evidence of any of these disabilities was found in service after January 1977 and there is no post-service medical evidence suggesting the presence of any of these disabilities until many years after the veteran's discharge from service. Moreover, there is no medical evidence suggesting that any of the disabilities are etiologically related to service. The evidence linking these disabilities to service is limited to the veteran's own statements. As a lay person, he is not qualified to render a medical diagnosis or an opinion concerning medical etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Therefore, the Board must conclude that these claims are not well grounded. ORDER New and material evidence having been submitted, reopening of the claim for service connection for bilateral pes planus is granted. Service connection for bilateral pes planus is granted. New and material evidence having been submitted, reopening of the claim for service connection for bilateral ankle disability is granted. Service connection for bilateral ankle disability is denied. Service connection for bilateral leg disability is denied. Service connection for bilateral knee disability is denied. SHANE A. DURKIN Member, Board of Veterans' Appeals