Citation Nr: 1806005	
Decision Date: 01/31/18    Archive Date: 02/07/18

DOCKET NO.  12-20 520	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1. Whether new and material evidence has been received to reopen a claim of service connection for bilateral hearing loss disability.

2. Entitlement to service connection for bilateral hearing loss disability.

3. Entitlement to service connection for bilateral ankle condition.

4. Entitlement to service connection for bilateral foot condition.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

Brandon A. Williams, Associate Counsel


INTRODUCTION

The Veteran had active military service from February 1966 until January 1968.

These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2009, January 2010, and April 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

In October 2017 the Veteran testified at a Travel Board hearing before the undersigned; a transcript of that hearing is of record. 


FINDINGS OF FACT

1. The claim for service connection for bilateral hearing loss disability was previously denied in a September 1995 Board decision, the Veteran did not appeal the decision.

2. The evidence submitted subsequent to the September 1995 Board decision does relate to an unestablished fact necessary to substantiate the claim for entitlement to service connection for bilateral hearing loss disability.

3. The Veteran's bilateral hearing loss disability is etiologically related to an in-service injury, event, or disease.

4. The preponderance of the evidence reflects that the Veteran's bilateral ankle condition is not etiologically related to his active military service.

5. The most probative evidence of record supports a finding that the Veteran's metatarsus valgus of bilateral feet is a congenital defect.


CONCLUSIONS OF LAW

1. The unappealed September 1995 Board decision which denied service connection for bilateral hearing loss disability is final. 38 U.S.C. § 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (a), 3.104(a), 20.302, 20.1103 (2017).

2. New and material evidence has been submitted, and the Veteran's claim of entitlement to service connection for bilateral hearing loss disability, the claim is reopened. 38 U.S.C. § 1154 (a), 5108, 7105 (West 2014); 38 C.F.R. § 3.156, 20.302, 20.1103 (2017).

3. The criteria for service connection for bilateral hearing loss disability have been met.38 U.S.C. § 1101, 1110, 1131, 1154, (West 2014); 38 C.F.R. § 3.303, 3.304, 3.307, 3.309 (2017).

4. The criteria for service connection for a bilateral ankle condition have not been met. 38 U.S.C. § 1101, 1110, 1131, 1154, 5107 (West 2014); 38 C.F.R. § 3.303, 3.304 (2017).

5. The criteria for service connection for a bilateral foot condition have not been met. 38 U.S.C. § 1101, 1110, 1131, 1154, 5107 (West 2014); 38 C.F.R. § 3.303, 3.304 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. § 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Whether new and material evidence has been received to reopen a claim of service connection for bilateral hearing loss disability

Legal Criteria

New and material evidence

 In general, RO decisions that are not timely appealed are final. See 38 U.S.C. § 7105 (West 2014); 38 C.F.R. § 20.200 (2017). An exception to this rule is 38 U.S.C. § 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.

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. See 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. See also Butler v. Brown, 9 Vet. App. 167, 171 (1996).

"New" evidence is existing evidence not previously submitted to agency decision makers. "Material" evidence is existing 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). However, lay assertions of medical causation cannot serve as the predicate to reopen a claim under § 5108. See Moray v. Brown, 5 Vet. App. 211, 214 (1993).

In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the appellant in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C. § 5103A (West 2014) (eliminating the concept of a well-grounded claim).

Analysis

Historically, the appellant's claim for entitlement to service connection for bilateral hearing loss disability was denied by the RO in July 1991. The claim was appealed to, and subsequently denied, in a September 1995 Board decision. The Veteran did not appeal the decision and it became final. The appellant requested that his claim for entitlement to service connection for bilateral hearing loss disability be reopened and was subsequently denied in November 2009.

Evidence of record at time of last final denial

At the time of the September 1995 Board decision, the evidence of record consisted of the Veteran's STRs, private treatment records, the appellant's lay statements, and correspondence.

Evidence of record since the last final denial

The evidence received since the last final denial includes additional medical records, lay statements, and a December 2010 VA medical examination in regard to the claim of entitlement to service connection for bilateral hearing loss disability.

Old and new evidence of record considered as a whole

The Board finds that some of the additional evidence raises a possibility of substantiating the claim for entitlement to service connection for bilateral hearing loss disability. In this regard, the Board is mindful of the low threshold for reopening a previously denied claim. Shade, 24 Vet. App. at 110.

The December 2010 VA medical opinion was not within the claims file at the time of the September 1995 Board decision. The new medical records go to the basis of the appellant's claim for entitlement to service connection for bilateral hearing loss disability. Thus, the Board finds the additional medical records new and material.

Accordingly, the Board concludes that evidence has been received which is new and material, and the claim for service connection for bilateral hearing loss disability is reopened.

Entitlement to service connection for bilateral hearing loss disability

The Veteran contends that he has bilateral hearing loss related to his military service.

To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303 (a).

The question for the Board is whether the Veteran has bilateral hearing loss that is etiologically related to, or aggravated by, an in-service disease or injury.

The Board finds that competent, credible, and probative evidence establishes that the Veteran's bilateral hearing loss is etiologically related to the Veteran's active service.

An essential element of a claim for service connection is evidence of a current disability. A December 2010 VA examination report revealed that pure tone thresholds, in decibels, were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
80
85
85
85
80
LEFT
70
80
85
90
100

The Veteran's speech recognition score was 84 percent for the right ear and 66 percent for the left ear. Based on the foregoing, the Veteran has a current bilateral hearing loss disability for VA purposes; thus, an essential element has been met. 38 C.F.R. § 3.385. 

While on active duty, the Veteran served as an Indirect Fire Infantryman. VA has conceded the Veteran had a high probability exposure to acoustic trauma during his military service. 

The Veteran's STRs reflect a couple of notable audiograms during the Veteran's military service. 

The first is an audiogram for induction in January 1966. The Veteran's January 1966 entrance examination reflected the following results: 





HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
10
X
5
LEFT
10
5
0
X
20

The Board notes that in the 1960's, the military changed its standard of measuring hearing acuity. The American Standards Association (ASA) units were replaced with the current International Standards Organization (ISO) units. The Veteran's report of medical examination for induction was dated in January 1966; this is prior to the October 31, 1967 date on which the military was assumed to change standards. To convert the units, the Board adds 15 decibels to 250 Hz., 15 decibels to 500 Hz, 10 decibels to 1,000 Hz, 10 decibels to 2000 Hz, 10 decibels to 3,000 Hz., and 5 decibels to 4,000 Hz. The Veteran's 1966 entrance examination converted to the ISO standard reflects the following:





HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
20
X
10
LEFT
25
15
10
X
25

In Hensley v. Brown, 5 Vet.App. 155, 157 (1993) the Court held that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Therefore, the Veteran's entrance examination report reflects that the Veteran's bilateral hearing was outside normal limits upon entering service. However, the Veteran was not noted with hearing loss.

The second notable in service audiogram was performed just prior to the Veteran's separation from service in December 1967.The audiogram reflected the following:





HERTZ



500
1000
2000
3000
4000
RIGHT
0
10
10
X
10
LEFT
5
20
15
X
15

Though the standards of measuring hearing acuity were to be replaced from ASA to ISO effective November 1, 1967. Through historical research the Board has found that that the conversion date of November 1, 1967, may not have been consistent among all military branches. Thus, the Board finds it necessary to convert audiograms between January 1, 1967 and December 31, 1970 when the standard used is not clearly indicated. In this case, the in service audiograms were not clearly indicated. Thus, the following reflects the Veteran's December 1967 audiogram converted to the ISO standard:





HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
20
X
15
LEFT
20
30
25
X
20

The Veteran was provided a VA medical examination in December 2010. The examiner noted the Veteran with bilateral sensorineural hearing loss. The examiner also noted the Veteran with bilateral tinnitus. Importantly, the examiner explained that the Veteran's bilateral tinnitus is as likely as not a symptom associated with his bilateral hearing loss. 

Noting the Veteran's in-service noise exposure, the December 2010 examiner concluded that the Veteran's bilateral tinnitus is at least likely as not caused by his military noise exposure. The examiner however concluded that the Veteran's bilateral hearing loss was not related to his military service. In support of the medical conclusion the examiner noted the Veteran's audiogram results during his induction and upon separation. The examiner explained that there was a lack "significant" threshold shifts during the Veteran's military service. The Board finds that the December 2010 VA opinion in regard to the Veteran's bilateral hearing loss disability to be of little probative value.

In providing the December 2010 opinion, the examiner incorrectly presumed the December 1967 audiogram to be based on the ISO standards; and as such, provided the medical opinion based on that presumption. As explained above when the standard used is not clearly indicated, as in the case of the December 1967 audiogram, the audiogram must be converted to the ISO standard. 

Additionally, the December 2010 examiner explained that a "significant" change of hearing is commonly considered to be a decrease greater than 10 decibels. Here, the Veteran's hearing acuity in at least one tested frequency shifted at least 15 decibels between his induction and separation audiograms.  

Further, within the same December 2010 VA medical report, the examiner concluded that the Veteran's current tinnitus is at least likely as not caused by or a result of his military noise exposure. The examiner conceded that based on the nature of the Veteran's military service, he would have likely been exposed to levels of noise which could contribute to the onset of noise-induced tinnitus. 

In applying the December 2010 VA medical report, which notes the Veteran's tinnitus as a symptom of his hearing loss, the Veteran's STRs, the Veteran's consistent lay statements of hearing loss; the Board finds that the Veteran's bilateral hearing loss disability, in which his service-connected tinnitus is known to derive from a similar cause, is related to the conceded in-service acoustic trauma. The Board comes to this conclusion due to the December 2010 VA medical report, the Veteran's lay statements, and his in-service auditory threshold shifts.

In light of the Veteran's confirmed in-service incurrence, the objective clinical medical evidence, and his credible and competent statements in support of the claim, the Board finds that the evidence is at least in equipoise regarding service connection for bilateral hearing loss disability and will resolve reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). All the elements necessary for establishing service connection are met and the Veteran's claim for service connection for bilateral hearing loss disability is granted.

Entitlement to service connection for bilateral ankle and foot condition 

The Veteran contends that he has a bilateral ankle and foot condition related to his military service.

To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303 (a).

The question for the Board is whether the Veteran has a bilateral ankle and/or foot condition that is etiologically related to, or aggravated by, an in-service disease or injury. 

The Board finds that competent, credible, and probative evidence is against a finding that the Veteran has a bilateral ankle or foot condition related to his military service.

The Veteran's service treatment records (STRs) reflect complaints of, and treatment for, a right ankle, left ankle, and foot conditions. (See March 1966, January 1967, February 1967 and June 1967 medical records).

The Veteran was afforded a VA medical examination in June 2012. The examiner concluded that the Veteran's claimed left ankle condition is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran's in-service injury to his left ankle and foot was to soft tissue. The examiner noted that no fracture was noted to the Veteran's left ankle/foot during active service. The examiner opined that the Veteran's current arthritis associate with his left ankle is a result of a joint injury post-service based on the degeneration process and the lack of chronic progressive complaints of the left ankle.

In a May 2013 VA medical examination, the examiner concluded that the Veteran's claimed right ankle condition is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that there lacks chronicity from military service. The examiner concluded that the Veteran's right ankle arthritis is most likely due to some other etiology.

A March 2017 VA medical examination reflects the Veteran does not have a bilateral foot condition. However, the examiner did note the Veteran with bilateral metatarsus valgus (duck footed stance), which the examiner explained is congenital. The examiner noted the Veteran was not diagnosed with a foot condition during military service. The examiner further noted a post-service fall and injury in 1998 which resulted in a left foot fracture. The examiner concluded that there is no objective evidence of a chronic condition of either foot originating in service, or evidence of chronic progressive complaints referable to the Veteran's military service. Additionally, the examination explained that x-ray results in 2013 reflect degenerative changes consistent with aging, his post-service fracture at the 1st metatarsal, morbid obesity status and his post-service employment.

The March 2017 VA medical examiner further concluded that the Veteran's claimed bilateral ankle condition is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that there are no
post-service treatment records regarding a right ankle condition until the 2013 VA medical examination, approximately 45 years after military service. The examiner explained the 2013 x-ray finding of mild degenerative joint disease of the right ankle is consistent with aging, physical labor employment, morbid obesity status, and congenital metatarsus valgus. The examiner also noted that there are no post service treatment records regarding a left ankle condition until 2009. The examiner explained the 2009 x-ray finding of medial tibio talar slant is consistent with the congenital metatarsus valgus, the resulting altered weight-bearing from the condition, as well as the effects of aging, physical labor employment, and morbid obesity status.

Based on the above, the Board finds service connection for bilateral ankle and foot condition is not warranted.

In regard to the Veteran's bilateral metatarsus valgus the Board notes that congenital or developmental defects are not diseases or injuries within the meaning of the applicable legislation. 38 C.F.R. § 3.303 (c), 4.9 (2017). Such conditions are part of a life-long defect and are normally static conditions which are incapable of improvement or deterioration. See VAOGCPREC 67-90 (1990). VA regulations specifically prohibit service connection for a congenital or developmental defect, unless such defect was subjected to a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90 (July 18, 1990) (cited as 55 Fed. Reg. 45, 711) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury). See also Carpenter v. Brown, 8 Vet. App. 240, 245   (1995), Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993).

However, service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the condition was incurred in or aggravated during service. While a defect is a structural or inherent abnormality or condition that is more or less stationary in nature, a disease is defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. See VAOPCGPREC 82-90, 56 Fed. Reg. 45,711 (1990). Also, a hereditary condition that cannot change is a "defect" and is not subject to the presumption of soundness under 38 U.S.C. § 1111. O'Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014). However, "a congenital or developmental condition that is progressive in nature-that can worsen over time-is a disease rather than a defect. A progressive congenital or developmental condition does not become a defect simply because it ceases to progress." Id.   

Here, the evidence reflects that the Veteran's bilateral metatarsus valgus is a congenital deformity. The March 2017 VA examiner diagnosed the congenital defect based on the Veteran's bilateral foot structure (duck footed stance). 

As such, the evidence supports that the Veteran's bilateral foot deformity is a congenital defect. Furthermore, the claims file does not reflect that the Veteran's congenital defect was subjected to a superimposed disease or injury in service which created additional disability. Further, the claims folder does not reflect, nor does the Veteran contends, that an additionally disability to his feet resulted from his military service. Instead, the Veteran has conceded that he does not have a bilateral foot condition; but rather a bilateral ankle condition. (See Hearing Transcript pages 17-19). 

The Board notes that the Veteran may sincerely believe that he has a bilateral ankle causally related to active service. However; the most probative clinical etiology opinions with regard to the Veteran's claimed conditions are against such findings. The Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion to the claimed disabilities. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issue in this case in light of the education and training necessary to make a finding with regard to the complexity of the claimed conditions for VA purposes. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).


ORDER

New and material evidence has been received to reopen a previously denied claim of service connection for bilateral hearing loss disability and, to that extent, the claim is granted.

Entitlement to service connection for bilateral hearing loss disability is granted

Entitlement to service connection for bilateral ankle condition is denied.

Entitlement to service connection for bilateral foot condition is denied.



____________________________________________
M. H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs