Citation Nr: 18150999 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 16-34 675 DATE: November 19, 2018 ORDER New and material evidence having been received, the claim of service connection for bilateral pes planus is reopened. New and material evidence having been received, the claim of service connection for a neck disability, to include an impinged nerve, is reopened. The claim of entitlement to service connection for bilateral hearing loss remains denied, as no new and material evidence has been received to reopen the claim. The claim of entitlement to service connection for tinnitus remains denied, as no new and material evidence has been received to reopen the claim. REMANDED Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for a neck disability is remanded. FINDINGS OF FACT 1. Additional evidence received since the August 2012 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection of pes planus, and raises a reasonable possibility of substantiating the claim. 2. Additional evidence received since the August 2012 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection of a neck disability, and raises a reasonable possibility of substantiating the claim. 3. Additional evidence received since the August 2012 rating decision is not new, and does not relate to an unestablished fact necessary to substantiate the claim for service connection of bilateral hearing loss. 4. Additional evidence received since the August 2012 rating decision is not new, and does not relate to an unestablished fact necessary to substantiate the claim for service connection of bilateral hearing loss. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the Veteran’s claim for service connection for bilateral pes planus. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2018). 2. New and material evidence has been received to reopen the Veteran’s claim for service connection for a neck disability, to include an impinged nerve. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2018). 3. New and material evidence has not been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 4. New and material evidence has not been received to reopen the claim of entitlement to service connection for tinnitus. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1988 to July 1990, and from January 1991 to March 1991. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. New and Material Evidence 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. § 5108. See also Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156 (a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. Regardless of the AOJ’s actions, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 (2012) to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). If new and material evidence has been received with respect to a claim that has become final, then the claim is reopened and decided on a de novo basis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. In an August 2012 rating decision, the RO denied the Veteran’s claims of service connection for an impinged nerve in the neck, bilateral pes planus, bilateral hearing loss and tinnitus. He did not appeal the decisions or submit new and material evidence within a year of their issuance. Thus, the August 2012 rating decision is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103 (2018). 1. Whether new and material evidence has been received to reopen the claim of service connection for bilateral pes planus 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for an impinged nerve of the neck In an August 2012 rating decision, the RO denied the Veteran’s claims of service connection for bilateral pes planus and an impinged nerve of the neck. The reason for the denial of the claims was that there was no evidence of in-service occurrence, aggravation or nexus to service. The evidence of record at the time of the last final rating decision included a July 2012 VA examination of the claimed pes planus. There is no VA examination of record for the Veteran’s claimed impingement of the neck. The 2012 VA examiner opined that the Veteran’s bilateral pes planus was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event or illness. The evidence received since the last final August 2012 rating decision, pertinently, includes a private medical opinion dated in September 2014. This private opinion addresses the Veteran’s bilateral foot condition and neck complaints. The medical provider reported that the Veteran complained of pain in both feet with some neuropathy, secondary to frostbite he had while in the military. The Veteran further reported having to endure inclement weather, and stated that his symptoms have continued from his time in service to the present. The private medical provider diagnosed the Veteran with peripheral neuropathy relating to his neck and shoulder complaints, as well as pes planus, and opined that the Veteran’s diagnoses are more likely than not related to his military service. This evidence is new, as it was not part of the record at the time of the August 2012 rating decision. It is also material, as it relates to unestablished facts necessary to substantiate the claims. Specifically, the evidence is suggestive of a nexus between the Veteran’s current disabilities and service. Therefore, the Board finds that the evidence is new and material, and the claims are reopened. 3. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss 4. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus As previously noted, the August 2012 rating decision denying entitlement to service connection for bilateral hearing loss and tinnitus became final. Since the August 2012 rating decision, not a scintilla of evidence regarding the Veteran’s bilateral hearing loss and tinnitus claims has been associated with the claims file. The Board notes that the Veteran was sent a VCAA letter in June 2014, pursuant to the June 2014 petition to reopen his claims. However, no additional evidence was received in response to this correspondence. There is no record of additional VA treatment, and the Board notes that there is no response to the June 2014 development letter. The Board emphasizes that VA’s duty to assist is a two-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The only correspondence from the Veteran or his representative is an October 2014 notice of disagreement, and a June 2016 substantive appeal. The Veteran’s substantive appeal contains a repetition of the Veteran’s initial contention that his hearing loss and tinnitus are both related to service, as he was exposed to acoustic trauma in service, and his ears were always ringing. See Form 9. While the Veteran submitted a statement from a private provider regarding his bilateral feet and neck claims, no medical evidence relative to the Veteran’s hearing loss and tinnitus is of record. The most recent relevant evidence of record to have been associated with the claims file is the August 2012 VA examination – which was considered at the time of the last final rating decision in 2012. The Board finds that a review of the Veteran’s lay statements of record since the 2012 denial of service connection for hearing loss and tinnitus reveals the same tenor of evidence. Specifically, the statements in the Veteran’s substantive appeal only address generalities speaking to his claimed disabilities rather than identifying specific theories of entitlement, or identifying potential in-service injuries or incidents that may have caused or aggravated hearing loss or tinnitus. In fact, there is nothing new about the claim that the Veteran was exposed to loud noise in service, or about the report of symptoms. Furthermore, the Board finds that those general statements do not constitute adequate evidence which could plausibly substantiate the claims for service connection. The Board is cognizant that the threshold bar for new and material evidence is low. However, the competency and sufficiency of the required level of evidence cannot be so low as to make such a standard impotent. As no new evidence has been submitted, let alone any evidence that could substantiate the Veteran’s claims for service connection for tinnitus or hearing loss, the Board finds that new and material evidence has not been submitted. Therefore, the claim cannot be reopened; the petition is denied. 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Entitlement to service connection for bilateral pes planus is remanded. The claim having now been reopened, the Board has examined the evidence of record, and finds that it is conflicting and inadequate for rating purposes. As previously noted, a September 2014 private opinion addresses the nexus between the Veteran’s current bilateral pes planus and service. However, the doctor uses the wrong standard, as the Veteran’s bilateral pes planus pre-existed his service. Indeed, the Veteran’s September 1987 enlistment examination notes “asymptomatic” pes planus. The presumption of soundness, accordingly, did not attach. See 38 U.S.C. § 1111. As the Veteran’s preexisting pes planus was noted at the time of entry into service, service connection may be granted only if it is shown that the condition worsened beyond its natural progression during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The Veteran’s service treatment records (STRs) show that the Veteran sought treatment for foot pain in October 1989, which he reported prevented restful sleep. In addition, a November 1989 STR reflects that the Veteran again sought treatment for his bilateral foot problems due to possible cold weather injury. While the September 2014 private medical provider suggests that the Veteran’s pes planus is related to service, citing his subjective reports of pain, and further suggests that the Veteran’s foot condition was aggravated by service, no rationale is provided. Furthermore, the provider fails to indicate with supportive evidence whether there is clear and unmistakable evidence to rebut the presumption of aggravation. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (2018). An addendum opinion should thus be obtained to reconcile the conflicting opinions of record. Thus, a remand for a new medical opinion is necessary to fairly adjudicate the Veteran’s claim. While in remand status, any pertinent, updated treatment records should be obtained, including all available records of treatment visits and a neurology referral referenced by the 2014 private doctor. 2. Entitlement to service connection for a neck disability is remanded. The Board notes that the Veteran was not afforded a VA examination to assess the nature and etiology of his claimed neck disability. A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2) (2012); 38 C.F.R. § 3.159(c)(4)(i) (2018). These elements are satisfied with regard to the Veteran’s claimed neck disorder. Regarding the first element, private medical records indicate treatment for this disorder. Regarding the second element, the Veteran contends his nerve condition in the neck is a result of inclement weather exposure, to include frostbite in service. Indeed, the Board notes that service treatment records reflect treatment for frostbite. Regarding the third and fourth elements, there is an indication that this claimed neck disorder could be related to service, but insufficient evidence of record by which the Board can make a decision. See September 2014 private medical opinion. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. The matter is REMANDED for the following action: 1. Obtain and associate any outstanding VA and/or private medical records with the Veteran’s claims file. 2. Once the above has been completed, schedule the Veteran for a VA examination to assess the nature and etiology of the Veteran’s bilateral foot disability. Following review of the claims file, including a copy of this remand, the examiner should provide a well-reasoned opinion as to whether there is clear and unmistakable (obvious, manifest, or undebatable) evidence that the Veteran’s preexisting pes planus was not aggravated beyond the natural progression of the condition during active service. The examiner must specifically discuss the September 1987 enlistment examination, which reflects “asymptomatic” pes planus, as well as the Veteran’s treatment for foot pain in October and November 1989. The examiner is advised that the Veteran is competent to report history and symptoms and that his reports must be considered in formulating the requested opinion. If the examiner rejects the Veteran’s reports, the examiner must provide a rationale for doing so. 3. Then, schedule the Veteran for a VA examination to assess the nature and etiology of the claimed neck disability. The examiner must diagnose each cervical spine or other neck disorder found to be present. For each such disorder, the examiner must opine as to whether the disorder had its onset during service or is etiologically linked to the Veteran’s service. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G.C., Associate Counsel