Citation Nr: 1637242 Decision Date: 09/22/16 Archive Date: 09/30/16 DOCKET NO. 13-01 123 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for systemic lupus erythematosus (SLE). 2. Whether new and material evidence has been received to reopen a claim of service connection for chronic urticaria. 3. Whether new and material evidence has been received to reopen a claim of service connection for migraine headaches. 4. Whether new and material evidence has been received to reopen a claim of service connection for anemia. 5. Whether new and material evidence has been received to reopen a claim of service connection for depression. 6. Whether new and material evidence has been received to reopen a claim of service connection for an ankle disorder. 7. Whether new and material evidence has been received to reopen a claim of service connection for a disorder manifested by bladder infections. 8. Whether new and material evidence has been received to reopen a claim of service connection for a disorder manifested by tunnel vision. 9. Entitlement to service connection for a bilateral foot disorder. REPRESENTATION Appellant represented by: John M. Dorle, Agent WITNESSES AT HEARING ON APPEAL The Veteran and her husband ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from August 1984 to June 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2009 and February 2010 rating decisions of the VA Regional Office (RO) in Winston-Salem, North Carolina. In April 2015, the Veteran and her husband testified at a hearing conducted before the undersigned. A transcript of the hearing has been associated with the claims file. In August 2015, the Board reopened a previously denied claim of service connection for a bilateral foot disorder and remanded the underlying service connection issue to obtain additional treatment records and provide the Veteran with a VA examination. Review of the record indicates substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also remanded the petitions to reopen on appeal for the RO to adjudicate claims of clear and unmistakable error (CUE) in an August 2004 rating decision denying service connection for SLE, chronic urticaria, migraine headaches, anemia, depression, an ankle disorder, a disorder manifested by bladder infections, and a disorder manifested by tunnel vision. In a September 2015 rating decision, the RO denied the Veteran's CUE claims; the Veteran did not appeal. As discussed below, the Board is reopening the Veteran's claims. The underlying service connection issues being remanded are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. By an unappealed August 2004 rating decision, the RO denied service connection for SLE on the basis that there was no evidence showing a relationship to her military service or that it was manifest to a compensable degree within one year of discharge from service. 2. Evidence received after the August 2004 denial relates to unestablished facts necessary to substantiate the claim of service connection for SLE and raises a reasonable possibility of substantiating the underlying claim. 3. By an unappealed August 2004 rating decision, the RO denied service connection for chronic urticaria on the basis that there was no evidence showing a permanent residual or chronic disability. 4. Evidence received after the August 2004 denial relates to unestablished facts necessary to substantiate the claim of service connection for chronic urticaria and raises a reasonable possibility of substantiating the underlying claim. 5. By an unappealed August 2004 rating decision, the RO denied service connection for migraine headaches on the basis that there was no evidence showing a current diagnosis related to her military service. 6. Evidence received after the August 2004 denial relates to unestablished facts necessary to substantiate the claim of service connection for migraine headaches and raises a reasonable possibility of substantiating the underlying claim. 7. By an unappealed August 2004 rating decision, the RO denied service connection for anemia on the basis that there was no evidence showing a current diagnosis related to her military service. 8. Evidence received after the August 2004 denial relates to unestablished facts necessary to substantiate the claim of service connection for anemia and raises a reasonable possibility of substantiating the underlying claim. 9. By an unappealed August 2004 rating decision, the RO denied service connection for depression on the basis that there was no evidence showing a current diagnosis related to her military service. 10. Evidence received after the August 2004 denial relates to unestablished facts necessary to substantiate the claim of service connection for depression and raises a reasonable possibility of substantiating the underlying claim. 11. By an unappealed August 2004 rating decision, the RO denied service connection for an ankle disorder on the basis that there was no evidence showing a current diagnosis related to her military service. 12. Evidence received after the August 2004 denial relates to unestablished facts necessary to substantiate the claim of service connection for an ankle disorder and raises a reasonable possibility of substantiating the underlying claim. 13. By an unappealed August 2004 rating decision, the RO denied service connection for a disorder manifested by bladder infections on the basis that there was no evidence showing a permanent residual or chronic disability. 14. Evidence received after the August 2004 denial relates to unestablished facts necessary to substantiate the claim of service connection for a disorder manifested by bladder infections and raises a reasonable possibility of substantiating the underlying claim. 15. By an unappealed August 2004 rating decision, the RO denied service connection for a disorder manifested by tunnel vision on the basis that there was no evidence showing a current diagnosis related to her military service. 16. Evidence received after the August 2004 denial relates to unestablished facts necessary to substantiate the claim of service connection for a disorder manifested by tunnel vision and raises a reasonable possibility of substantiating the underlying claim. 17. Bilateral pes planus and hallux valgus clearly and unmistakably preexisted the Veteran's service and clearly and unmistakably was not permanently worsened beyond normal progression during or as a result of the Veteran's service. CONCLUSIONS OF LAW 1. The RO's August 2004 denial of service connection for SLE, chronic urticaria, migraine headaches, anemia, depression, an ankle disorder, a disorder manifested by bladder infections, and a disorder manifested by tunnel vision is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 3.104, 20.200, 20.302, 20.1103 (2015). 2. Evidence received since the final August 2004 rating decision is new and material. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2015). 3. A bilateral foot disorder was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 & 3.326(a) (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Such notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the petitions to reopen, as the Board is granting those benefits in full, no discussion of VA's duties to notify and assist as to those issues is necessary. As for the issue of service connection for a bilateral foot disorder, the Veteran was notified in a letter dated in July 2009 regarding the type of evidence necessary to establish her claim. She was instructed on how to establish service connection. The Veteran was notified of what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The letter notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, VA obtained the Veteran's service treatment records (STRs), post-service medical records, Social Security Administration (SSA) records and also secured an examination in furtherance of her claim. A pertinent VA examination was obtained in December 2015. 38 C.F.R. § 3.159(c)(4). The examination obtained in this case is sufficient, as the examiner conducted a complete examination, recorded all findings considered relevant under the applicable law and regulations, and offered well-supported opinions based on consideration of the full history of the disorder. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issue of service connection for a bilateral foot disorder adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). II. Analysis A. New and Material A decision of the RO becomes final and is not subject to revision on the same factual basis unless an appeal is initiated within one year of the notice of decision, or within 60 days of the issuance of the statement of the case (SOC). 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103 (2015). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Id. at 1384. Butler v. Brown, 9 Vet. App. 167, 171 (1996). "New" evidence is evidence not previously submitted to agency decision makers. "Material" evidence is 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 denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. SLE Service connection for SLE was denied in August 2004 because the evidence did not show that SLE was related to the Veteran's military service or was manifested to a compensable degree within one year of discharge from service. After receiving notice of the August 2004 decision, the Veteran did appeal the denial of that issue. Later, however, she applied to have this claim reopened. Here, relevant evidence of record at the time of the August 2004 rating decision consisted of the Veteran's STRs and post-service medical records beginning from 2001. Her STRs showed no diagnosis of, or treatment for, SLE. Post-service treatment records showed a diagnosis of SLE, but no opinion relating such diagnosis to the Veteran's military service. A July 2001 record shows that the Veteran was suspected of having SLE as far back as 1991 based on her symptoms. It was reported that she was diagnosed in 1997. Accordingly, at the time of the denial in August 2004, the claims folder contained no competent evidence that the Veteran's SLE was related to her military service or was manifest to a compensable degree within one year of discharge from service. Thus, the RO, in August 2004, denied service connection for that issue. The Veteran did not appeal the RO's decision, and that denial became final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 3.104, 20.200, 20.302, 20.1103 (2015). In reaching the conclusion that that decision is final, the Board is cognizant of the holding of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Bond v. Shinseki, 659 F.3d 1362 (2011). In that case, the Federal Circuit found that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions during relevant time periods to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim. Bond, 659 F.3d 1362. Here, no additional evidence pertinent to the issue of service connection for SLE was received prior to the expiration of the appeal period. The August 2004 rating decision is thus final. The relevant evidence received since the denial consists of SSA records, additional post-service treatment records, a VA examination in November 2009, a private medical opinion dated in May 2015, and the Veteran's contentions. The November 2009 VA examiner opined that they were unable to resolve the issue of whether the Veteran's SLE was at least as likely as not related to her military service without resorting to mere speculation. The examiner reported that important information was missing. The examiner noted that if records could be obtained related to the Veteran's treatment in 1991, that information could verify the types of symptoms she was having back then. The May 2015 private opinion related in-service complaints of urticaria, headaches, skin rash, swelling around parotid gland, and hives as consistent with SLE and representing the early manifestations. The evidence of record obtained since the August 2004 rating decision, particularly the private opinion, suggests that the Veteran's SLE began during service. Thus, this newly received evidence relates to unestablished facts necessary to reopen the previously denied claim of service connection for SLE. Therefore, the Board concludes that new and material evidence has been submitted sufficient to reopen this claim. Accordingly, and based on this evidentiary posture, the Board grants the Veteran's application to reopen this previously denied claim. 2. Chronic Urticaria Service connection for chronic urticaria was denied in August 2004 because the evidence did not show any permanent residual or chronic disability following service. After receiving notice of the August 2004 decision, the Veteran did appeal the denial of that issue. Later, however, she applied to have this claim reopened. Here, relevant evidence of record at the time of the August 2004 rating decision consisted of the Veteran's STRs and post-service medical records beginning from 2001. Her STRs showed several instances of treatment for urticaria. Post-service treatment records showed skin rashes, but no diagnosis of urticaria or any diagnosed residuals or chronic disability resulting from her in-service urticaria. Accordingly, at the time of the denial in August 2004, the claims folder contained no competent evidence that the Veteran had any permanent residual or chronic disability resulting from her urticaria during service. Thus, the RO, in August 2004, denied service connection for that issue. The Veteran did not appeal the RO's decision, and that denial became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104, 20.200, 20.302, 20.110. In reaching the conclusion that that decision is final, the Board is cognizant of the holding in Bond, 659 F.3d 1362. Here, no additional evidence pertinent to the issue of service connection for chronic urticaria was received prior to the expiration of the appeal period. The August 2004 rating decision is thus final. The relevant evidence received since the denial consists of SSA records, additional post-service treatment records, a private medical opinion dated in May 2015, and the Veteran's contentions. The Veteran's contentions include her hearing testimony in which she reported that she continued to have urticaria following service. See April 2015 Hearing Transcript (T.) at 3. The evidence of record obtained since the August 2004 rating decision, particularly the Veteran's contentions, suggests that she continues to experience chronic urticaria that began during service. Thus, this newly received evidence relates to unestablished facts necessary to reopen the previously denied claim of service connection for chronic urticaria. Therefore, the Board concludes that new and material evidence has been submitted sufficient to reopen this claim. Accordingly, and based on this evidentiary posture, the Board grants the Veteran's application to reopen this previously denied claim. 3. Migraine Headaches Service connection for migraine headaches was denied in August 2004 because the evidence did not show a current diagnosis related to her military service. After receiving notice of the August 2004 decision, the Veteran did appeal the denial of that issue. Later, however, she applied to have this claim reopened. Here, relevant evidence of record at the time of the August 2004 rating decision consisted of the Veteran's STRs and post-service medical records beginning from 2001. Her STRs showed treatment for migraines during service. Post-service treatment records showed no current diagnosis of migraine headaches. Accordingly, at the time of the denial in August 2004, the claims folder contained no competent evidence that the Veteran had a current diagnosis of migraine headaches. Thus, the RO, in August 2004, denied service connection for that issue. The Veteran did not appeal the RO's decision, and that denial became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104, 20.200, 20.302, 20.110. In reaching the conclusion that that decision is final, the Board is cognizant of the holding in Bond, 659 F.3d 1362. Here, no additional evidence pertinent to the issue of service connection for migraine headaches was received prior to the expiration of the appeal period. The August 2004 rating decision is thus final. The relevant evidence received since the denial consists of SSA records, additional post-service treatment records, a private medical opinion dated in May 2015, and the Veteran's contentions. The Veteran's contentions include her hearing testimony in which she reported that she continued to have migraine headaches following service. See T. at 8. The evidence of record obtained since the August 2004 rating decision, particularly the Veteran's contentions, suggests that she continues to experience migraine headaches that began during service. Thus, this newly received evidence relates to unestablished facts necessary to reopen the previously denied claim of service connection for migraine headaches. Therefore, the Board concludes that new and material evidence has been submitted sufficient to reopen this claim. Accordingly, and based on this evidentiary posture, the Board grants the Veteran's application to reopen this previously denied claim. 4. Anemia Service connection for anemia was denied in August 2004 because the evidence did not show a current diagnosis related to her military service. After receiving notice of the August 2004 decision, the Veteran did appeal the denial of that issue. Later, however, she applied to have this claim reopened. Here, relevant evidence of record at the time of the August 2004 rating decision consisted of the Veteran's STRs and post-service medical records beginning from 2001. Her STRs were silent for any diagnosis of anemia. A July 2001 record showed a diagnosis of anemia, while A September 2002 treatment record showed that the Veteran's past history included anemia. The evidence does not suggest that the Veteran's anemia was related to her military service. Accordingly, at the time of the denial in August 2004, the claims folder contained no competent evidence that the Veteran had anemia related to her military service. Thus, the RO, in August 2004, denied service connection for that issue. The Veteran did not appeal the RO's decision, and that denial became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104, 20.200, 20.302, 20.110. In reaching the conclusion that that decision is final, the Board is cognizant of the holding in Bond, 659 F.3d 1362. Here, no additional evidence pertinent to the issue of service connection for anemia was received prior to the expiration of the appeal period. The August 2004 rating decision is thus final. The relevant evidence received since the denial consists of SSA records, additional post-service treatment records, a private medical opinion dated in May 2015, and the Veteran's contentions. The Veteran's contentions include her hearing testimony in which she reported that she was diagnosed as being anemic within one year following discharge from service and that she continue to have anemia. See T. at 12. She also testified that her anemia was from her SLE. Id. at 13. The evidence of record obtained since the August 2004 rating decision, particularly the Veteran's contentions, suggests that she has anemia that began during service. Thus, this newly received evidence relates to unestablished facts necessary to reopen the previously denied claim of service connection for anemia. Therefore, the Board concludes that new and material evidence has been submitted sufficient to reopen this claim. Accordingly, and based on this evidentiary posture, the Board grants the Veteran's application to reopen this previously denied claim. 5. Depression Service connection for depression was denied in August 2004 because the evidence did not show a current diagnosis related to her military service. After receiving notice of the August 2004 decision, the Veteran did appeal the denial of that issue. Later, however, she applied to have this claim reopened. Here, relevant evidence of record at the time of the August 2004 rating decision consisted of the Veteran's STRs and post-service medical records beginning from 2001. Her STRs and post-service treatment records were silent for any diagnosis of depression or any other psychiatric disorder. Accordingly, at the time of the denial in August 2004, the claims folder contained no competent evidence that the Veteran had a current diagnosis of depression. Thus, the RO, in August 2004, denied service connection for that issue. The Veteran did not appeal the RO's decision, and that denial became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104, 20.200, 20.302, 20.110. In reaching the conclusion that that decision is final, the Board is cognizant of the holding in Bond, 659 F.3d 1362. Here, no additional evidence pertinent to the issue of service connection for depression was received prior to the expiration of the appeal period. The August 2004 rating decision is thus final. The relevant evidence received since the denial consists of SSA records, additional post-service treatment records, a private medical opinion dated in May 2015, and the Veteran's contentions. The Veteran's SSA records include a May 2006 record showing a diagnosis of reactive depression. The private medical opinion relates the Veteran's depression to her chronic physical disorders, including her SLE. The evidence of record obtained since the August 2004 rating decision, particularly the SSA records and private medical opinion, show a current diagnosis of depression as well as being related to the SLE, for which the Veteran is currently seeking service connection. Thus, this newly received evidence relates to unestablished facts necessary to reopen the previously denied claim of service connection for depression. Therefore, the Board concludes that new and material evidence has been submitted sufficient to reopen this claim. Accordingly, and based on this evidentiary posture, the Board grants the Veteran's application to reopen this previously denied claim. 6. Ankle Disorder Service connection for an ankle disorder was denied in August 2004 because the evidence did not show a current chronic diagnosed condition. After receiving notice of the August 2004 decision, the Veteran did appeal the denial of that issue. Later, however, she applied to have this claim reopened. Here, relevant evidence of record at the time of the August 2004 rating decision consisted of the Veteran's STRs and post-service medical records beginning from 2001. Her STRs showed treatment for a right ankle sprain in 1988. An October 2002 treatment record showed that the Veteran reported having swelling and pain; no ankle disorder was diagnosed. Accordingly, at the time of the denial in August 2004, the claims folder contained no competent evidence that the Veteran had a current diagnosis of a chronic ankle disorder. Thus, the RO, in August 2004, denied service connection for that issue. The Veteran did not appeal the RO's decision, and that denial became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104, 20.200, 20.302, 20.110. In reaching the conclusion that that decision is final, the Board is cognizant of the holding in Bond, 659 F.3d 1362. Here, no additional evidence pertinent to the issue of service connection for an ankle disorder was received prior to the expiration of the appeal period. The August 2004 rating decision is thus final. The relevant evidence received since the denial consists of SSA records, additional post-service treatment records, a private medical opinion dated in May 2015, and the Veteran's contentions. The Veteran's contentions include her hearing testimony in which she reported that she suffered with ankle swelling, related to her SLE and a kidney disorder resulting from her SLE. See T. at 19-20. The evidence of record obtained since the August 2004 rating decision, particularly the Veteran's contentions, suggests that she has current ankle complaints related to her SLE, for which she is seeking service connection. Thus, this newly received evidence relates to unestablished facts necessary to reopen the previously denied claim of service connection for an ankle disorder. Therefore, the Board concludes that new and material evidence has been submitted sufficient to reopen this claim. Accordingly, and based on this evidentiary posture, the Board grants the Veteran's application to reopen this previously denied claim. 8. Disorder Manifested by Bladder Infections Service connection for a disorder manifested by bladder infections was denied in August 2004 because the evidence did not show any permanent residual or chronic disability following urinary tract infections in service. After receiving notice of the August 2004 decision, the Veteran did appeal the denial of that issue. Later, however, she applied to have this claim reopened. Here, relevant evidence of record at the time of the August 2004 rating decision consisted of the Veteran's STRs and post-service medical records beginning from 2001. Her STRs showed treatment on several occasions for urinary tract infections. Post-service treatment records did not show any residuals from those in-service infections or any chronic disability. Accordingly, at the time of the denial in August 2004, the claims folder contained no competent evidence that the Veteran had any residuals from in-service urinary tract infections or a chronic disorder manifested by bladder infections. Thus, the RO, in August 2004, denied service connection for that issue. The Veteran did not appeal the RO's decision, and that denial became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104, 20.200, 20.302, 20.110. In reaching the conclusion that that decision is final, the Board is cognizant of the holding in Bond, 659 F.3d 1362. Here, no additional evidence pertinent to the issue of service connection for a disorder manifested by bladder infections was received prior to the expiration of the appeal period. The August 2004 rating decision is thus final. The relevant evidence received since the denial consists of SSA records, additional post-service treatment records, a private medical opinion dated in May 2015, and the Veteran's contentions. The Veteran's contentions include her hearing testimony in which she reported that she had lupus nephritis affecting her bladder. See T. at 25. The evidence of record obtained since the August 2004 rating decision, particularly the Veteran's contentions, suggests that she has a current disorder manifested by bladder infections. Thus, this newly received evidence relates to unestablished facts necessary to reopen the previously denied claim of service connection for a current disorder manifested by bladder infections. Therefore, the Board concludes that new and material evidence has been submitted sufficient to reopen this claim. Accordingly, and based on this evidentiary posture, the Board grants the Veteran's application to reopen this previously denied claim. 9. Disorder Manifested by Tunnel Vision Service connection for a disorder manifested by tunnel vision was denied in August 2004 because the evidence did not show a chronic diagnosed condition related to her military service. After receiving notice of the August 2004 decision, the Veteran did appeal the denial of that issue. Later, however, she applied to have this claim reopened. Here, relevant evidence of record at the time of the August 2004 rating decision consisted of the Veteran's STRs and post-service medical records beginning from 2001. Her STRs showed eye treatment, but no diagnosis of a disorder manifested by tunnel vision. Post-service treatment records did not show any diagnosed disorder manifested by tunnel vision. Accordingly, at the time of the denial in August 2004, the claims folder contained no competent evidence that the Veteran had a disorder manifested by tunnel vision. Thus, the RO, in August 2004, denied service connection for that issue. The Veteran did not appeal the RO's decision, and that denial became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104, 20.200, 20.302, 20.110. In reaching the conclusion that that decision is final, the Board is cognizant of the holding in Bond, 659 F.3d 1362. Here, no additional evidence pertinent to the issue of service connection for a disorder manifested by tunnel vision was received prior to the expiration of the appeal period. The August 2004 rating decision is thus final. The relevant evidence received since the denial consists of SSA records, additional post-service treatment records, a private medical opinion dated in May 2015, and the Veteran's contentions. The Veteran's contentions include her hearing testimony in which she reported that tunnel vision was a symptom of her migraine headaches. See T. at 27. The evidence of record obtained since the August 2004 rating decision, particularly the Veteran's contentions, suggests that she has a current disorder manifested by tunnel vision; namely, migraine headaches for which she is currently seeking service connection. Thus, this newly received evidence relates to unestablished facts necessary to reopen the previously denied claim of service connection for a current disorder manifested by tunnel vision. Therefore, the Board concludes that new and material evidence has been submitted sufficient to reopen this claim. Accordingly, and based on this evidentiary posture, the Board grants the Veteran's application to reopen this previously denied claim. B. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A veteran is 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, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111. Thus, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). Prior provisions of 38 C.F.R. § 3.304(b) only required a finding that clear and unmistakable evidence showed that an injury or disease existed prior to service in order to rebut the presumption of soundness. However, the provisions of 38 C.F.R. § 3.304(b) were invalidated as being inconsistent with 38 U.S.C.A. § 1111. See generally Cotant v. Principi, 17 Vet. App. 116 (2003), Jordan v. Principi, 17 Vet. App. 261 (2003), Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), VAOPGCPREC 3-2003 (July 16, 2003). Pursuant to these developments, it is now clear that, in order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. See 38 C.F.R. § 3.304 (b) (2015). 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. VAOPGCPREC 3-2003 (July 16, 2003). Before these above cited precedent opinions, VAOPGCPREC 3-2003, and the recent regulatory amendment, VA had the burden to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability pre-existed service. If VA met this burden, however, it then had the burden to rebut the presumption by a preponderance of the evidence (a lower standard) that the preexisting disorder was not aggravated by service. Now, VA must also show by clear and unmistakable evidence that the preexisting disorder was not aggravated during service (a higher standard). A preexisting injury or disease will be considered to have been aggravated by 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. 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. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Congenital or developmental defects are not considered to be diseases or injuries within the meaning of VA laws governing the award of service connection for diseases and injuries related to service. 38 C.F.R. § 3.303. However, the VA General Counsel has rendered a legal opinion which holds that service connection may be granted for hereditary diseases which either first manifested during service or which pre-existed service and progressed at an abnormally high rate, presumably due to aggravation or to a superimposed injury during service. VAOPGCPREC 82-90 (July 18, 1990). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Veteran's May 1984 enlistment examination revealed clinically normal feet. In her accompanying report of medical history, she denied swollen or painful joints; arthritis, rheumatism, or bursitis; bone, joint or other deformity; and foot trouble. An August 1984 record shows that the Veteran had flat feet. She was diagnosed with pes planus/hallux valgus that existed prior to service. A record in September 1984 shows that the Veteran needed new shoes because of her pes planus and hallux valgus. A record dated in September with no year legible shows that the Veteran was diagnosed with overuse/strain of left foot secondary to pes planus. A February 1985 periodic examination again revealed clinically normal feet. She continued to deny swollen or painful joints; arthritis, rheumatism, or bursitis; and bone, joint or other deformity in her report of medical history. However, she answered yes to foot trouble; no details were provided. The Veteran complained of foot pain in August 1988 after slipping while walking across a floor; the diagnosis was right ankle sprain. A March 1990 record reveals that the Veteran elected not to have a separation examination. A May 1990 record shows that the Veteran was separating from service tomorrow and there was no time for a physical examination. Her records were reviewed and no significant defects noted. X-rays of the Veteran's feet in July 1992 and June 1995 revealed no evidence of arthritic change. The impression of the 1992 X-rays was normal feet, while the impression of 1995 X-rays was normal feet except for mild hallux valgus deformity bilaterally. A May 2003 record shows that the Veteran complained of bilateral bunions that had been there for quite some time. The Veteran had surgery for her right foot in 2003 and for her left foot in 2004. A May 2012 record shows that she had congenital pes planus and plantar fasciitis. At her April 2015 hearing, the Veteran testified that she had bunions when she went into service and that they got worse ultimately resulting in surgery post-service. T. at 21. She testified that after she separated from service, her feet "just got worse and worse." Id. She testified that she had flat feet upon entering service. Id. The Veteran reported having a preexisting condition with flat feet. Id. at 22. She reported that such worsened during service. Id. at 23. The Veteran submitted a medical opinion from C.B., M.D. dated in May 2015. Dr. C.B. opined that the Veteran's feet were flat and she developed worsening flat feet in service as she was given orthotics. He opined that such was proof that her feet worsened during service as she did not need orthotics prior to service. Dr. C.B. further opined that it was not normal for a young service member to need orthotics; thus, the need for orthotics was beyond natural progression. He opined that, to at least the 90 percent level of probability, her current foot problems were due to experiences/trauma she had during service. He reported that per military records, she entered service fit for duty. He noted that she had medical visits for foot problems while in service. He opined that her records did not support another more plausible pathology for her current foot pathology or other risk factors to explain her problems other than her service time experiences and need for orthotics. He opined that the time lag between injury in service and current pathology was consistent with known medical principles and the natural history of that disease. The Veteran was provided a VA examination in December 2015. She was diagnosed with pes planus and hallux valgus, both with dates of diagnosis of prior to military. The Veteran reported having bilateral hallux valgus and bilateral pes planus prior to joining the military. She reported that she felt her hallux valgus and bilateral pes planus got worse in the military due to her being on her feet and wearing boots. The Veteran recalled being given inserts for her shoes about six months after joining the military. She did not recall being seen for foot pain while on active duty. She reported her surgeries in 2003 and 2004. The examiner opined that the bilateral pes planus and bilateral hallux valgus, which both clearly and unmistakably existed prior to service, were not aggravated beyond their natural progression by an in-service event, injury or illness. The examiner noted that the Veteran was treated for her feet during service in August and September 1984 as well as in the record missing the year. The examiner also noted that the Veteran was seen in 2003 about corrective bunion surgery. The examiner reported that there were two visits within one month of entering active duty military service for her foot pain and then there was one other visit with no date. The examiner noted that after those visits, the Veteran continued in the military for over five years with no documentation that her flat feet or bunions continued to be an issue. The examiner noted that the 1995 X-rays showed mild hallux valgus deformity and that that was five years after leaving active duty. Citing to a medical article, the examiner reported that although there were numerous causes for adult-acquired flat foot, posterior tibial tendon insufficiency was the most common etiology. The article also shows that younger patients who presented with rigid flatfoot should be screened for tarsal coalition, congenital vertical talus, or other forms of congenital hindfoot pathology. The article further revealed that patients with asymptomatic flat feet might eventually progress to symptomatic disease as degenerative processes ensued and turned flexible deformities into rigid ones, though no natural history studies were available to support that often-repeated theory. The article revealed that high-heeled shoes with a small toe box or tight-fitting shoes did not cause hallux valgus; however, such footwear did keep the hallux in an abducted position if hallux valgus was present, causing mechanical stretch and deviation of the medial soft tissue. The article showed that, in addition, tight shoes could cause medial bump pain and nerve entrapment. The article revealed that hallux valgus was known to have numerous etiologies, including biomechanical, traumatic, and metabolic factors. Based on a review of the evidence, the Board concludes that service connection for a bilateral foot disorder is not warranted. Although the Veteran currently has diagnoses of bilateral pes planus and hallux valgus, and has reported that such began in or were worsened by service, the evidence shows fails to show that any currently diagnosed bilateral foot disorder is related to her military service. Initially, the Board finds that the presumption of soundness has been rebutted. Although the enlistment examination did not show any foot disorder, the Veteran herself has testified that she had pes planus and hallux valgus prior to service. The Veteran is competent and credible to report having problems with her feet prior to service. Her STRs show that she was first seen the same month she entered service, August 1984, for her feet and was diagnosed with pes planus/hallux valgus that existed prior to service. Additionally, the medical opinion of the VA examiner show that the Veteran's bilateral pes planus and hallux valgus preexisted her service. As the VA examiner's opinion was formed after interviewing and examining the Veteran, reviewing the records, and is supported by a thorough rationale, the Board accords such opinion great probative value. The Board acknowledges that the 2015 opinion from Dr. C.B. that the Veteran was fit for service. However, this opinion also shows that the Veteran's feet worsened during service, supporting a finding that the Veteran's bilateral pes planus and hallux valgus preexisted service. Additionally, this opinion does not address the Veteran's own testimony in which she competently and credibly testified that she had pes planus and hallux valgus prior to service. As such, in light of the Veteran's testimony, opinion from the VA examiner, and the contemporaneous STRs, the Board finds that the evidence establishes that the Veteran's bilateral pes planus and hallux valgus clearly and unmistakably preexisted service. The evidence also shows that the Veteran's preexisting bilateral pes planus and hallux valgus were clearly and unmistakably not worsened beyond their natural progression due to her military service. As noted by the VA examiner, the Veteran was only seen three times during service, twice within one month of entering service. Also as noted by the examiner, X-rays in 1995, five years after separation from service, revealed only mild hallux valgus. The Veteran did not have surgery until 2003 and 2004, over one decade after she was separated from service. In this case, the opinion of the VA examiner shows that the Veteran's bilateral pes planus and hallux valgus were not aggravated beyond their natural progression by an in-service event, injury or illness. Again, as such opinion was formed after interviewing and examining the Veteran, reviewing the record, and is supported by a thorough rationale, the Board accords it great probative value. The Board acknowledges that the opinion from Dr. C.B. that the fact that the Veteran did not require orthotics until service indicates a worsening as a result of her service. However, unlike the VA examiner's opinion, this opinion does not address the fact that the Veteran's STRs only showed three complaints, two of which occurred within one month of entering service. Dr. C.B. also did not address the mild X-ray findings in 1995 or the fact that the Veteran did not require surgery until over a decade after separation from service. Consequently, the Board concludes that this opinion has less probative value than the negative VA examiner's opinion. Therefore, considering the totality of the evidence, the Board concludes that the Veteran's preexisting bilateral pes planus and hallux valgus clearly and unmistakably did not worsen beyond their natural progression as a result of her military service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the etiology of bilateral pes planus and hallux valgus falls outside the realm of common knowledge of a lay person. See Jandreau at 1377 n.4 (lay persons not competent to diagnose cancer). As such, her own assertions as to etiology have no probative value. Based on the evidence, the Board finds that bilateral pes planus and hallux valgus clearly and unmistakably preexisted the Veteran's military service and the bilateral pes planus and hallux valgus clearly and unmistakably were not permanently worsened beyond normal progression during or as a result of the Veteran's military service. Accordingly, the Board concludes that a bilateral foot disorder was not incurred or aggravated in service. The benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for a bilateral foot disorder is denied. See 38 U.S.C.A §5107 (West 2014). ORDER New and material evidence having been received, the claim for service connection for SLE is reopened. New and material evidence having been received, the claim for service connection for chronic urticaria is reopened. New and material evidence having been received, the claim for service connection for migraine headaches is reopened. New and material evidence having been received, the claim for service connection for anemia is reopened. New and material evidence having been received, the claim for service connection for depression is reopened. New and material evidence having been received, the claim for service connection for an ankle disorder is reopened. New and material evidence having been received, the claim for service connection for a disorder manifested by bladder infections is reopened. New and material evidence having been received, the claim for service connection for a disorder manifested by tunnel vision is reopened. Service connection for a bilateral foot disorder is denied. REMAND Regrettably, a remand is necessary for the reopened issues. The Veteran was provided a VA examination for her claim for service connection for SLE in November 2009; a negative nexus opinion was provided. However, since that examination, additional pertinent evidence has been obtained. As such, the Board finds that a new examination to determine whether the Veteran's SLE is related to her military service would be beneficial. Regarding the Veteran's remaining claims, as the evidence suggests that her other disorders could be related to the SLE, they must also be remanded. Accordingly, the case is REMANDED for the following action: 1. Procure records of post-service treatment that the Veteran has received. If any such records identified by the Veteran are not available, she should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents should be made in the claims file. All such available reports should be associated with the claims folder. 2. Accord the Veteran appropriate VA examinations to determine the nature, extent, and etiology of any diagnosed SLE, chronic urticaria, migraine headaches, anemia, depression, ankle disorder, disorder manifested by bladder infections, and disorder manifested by tunnel vision. The Veteran's claims file, including a copy of this remand, must be made available to the examiners for review in connection with the examinations. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. A) For any diagnosed (a) SLE; (b) chronic urticaria; (c) migraine headaches; (d) anemia; (e) depression; (f) ankle disorder; (g) disorder manifested by bladder infections; and (h) disorder manifested by tunnel vision, the examiners are requested to obtain a detailed history of the Veteran's symptoms as observed by her and others since service, review the record, and offer an opinion as to the whether it is more likely than
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