Citation Nr: 18153312 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 18-12 321 DATE: November 27, 2018 ORDER Whether new and material evidence has been received to reopen a claim for service connection for a left foot disorder is granted. Whether new and material evidence has been received to reopen a claim for service connection for a right foot disorder is granted. Whether new and material evidence has been received to reopen a claim for service connection for bilateral hearing loss is granted. Whether new and material evidence has been received to reopen a claim for service connection for tinnitus is granted. REMANDED Entitlement to service connection for a left foot disorder, to include as secondary to service-connected lumbar spine and bilateral knee conditions is remanded. Entitlement to service connection for a right foot disorder, to include as secondary to service-connected lumbar spine and bilateral knee disabilities is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. New evidence that tends to substantiate the claim of service connection for a left foot disorder has been received since the final rating decision that denied service connection for a left foot disorder. 2. New evidence that tends to substantiate the claim of service connection for a right foot disorder has been received since the final rating decision that denied service connection for a right foot disorder. 3. New evidence that tends to substantiate the claim of service connection for bilateral hearing loss has been received since the final rating decision that denied service connection for bilateral hearing loss. 4. New evidence that tends to substantiate the claim of service connection for tinnitus has been received since the final rating decision that denied service connection for tinnitus. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for a left foot disorder is reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). 2. New and material evidence has been received, and the claim of service connection for a right foot disorder is reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). 3. New and material evidence has been received, and the claim of service connection for bilateral hearing loss is reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). 4. New and material evidence has been received, and the claim of service connection for tinnitus is reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection 1. Whether new and material evidence has been received to reopen claims for service connection for a left foot disorder, a right foot disorder, bilateral hearing loss, and tinnitus A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence is defined as existing evidence not previously submitted to the VA, and material evidence is defined as 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. The Court of Appeals for Veterans Claims (Court) has held the phrase "raises a reasonable possibility of establishing the claim" must be viewed as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Court emphasized that 38 C.F.R. § 3.156 "does not require new and material evidence as to each previously unproven element of a claim." Id. at 120. The Court further explained the provisions of 38 C.F.R. § 3.156 (a) creates a "low threshold" for finding new and material evidence that is favorable to the claimant. Id. When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Id. at 117. A May 2015 rating decision denied service connection for a left foot disorder and a right foot disorder, stating that the Veteran did not have a current left foot disorder and that there was no link between the Veteran’s current right foot condition and his military service or his service-connected right knee disability. The Veteran did not file a notice of disagreement, and VA did not receive additional evidence regarding the claim within one year of notice of the decision. Thus, the May 2015 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b), 20.302. A June 2015 rating decision denied service connection for bilateral hearing loss and tinnitus, stating that the Veteran did not have a current bilateral hearing loss or tinnitus disorder and that acoustic trauma was not shown by the evidence of record. The Veteran did not file a notice of disagreement, and VA did not receive additional evidence regarding the claim within one year of notice of the decision. Thus, the June 2015 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b), 20.302. In this case, Board finds reopening of the Veteran's service connection claims is warranted. In his June 2017 notice of disagreement, the Veteran stated that he believed his foot problems had been caused by a change in gait due to his knees and back pain. In his February 2018 appeal to the Board, the Veteran further stated that the conditions at issue in his appeal had gotten worse. With respect to the Veteran’s claimed bilateral hearing loss and tinnitus, those claims had previously been denied as the RO determined that the Veteran did not have current bilateral hearing loss or tinnitus disabilities; the puretone thresholds recorded at his previous May 2015 VA contract examination did not show that the Veteran had hearing loss for VA purposes, and the Veteran denied experiencing ringing in his ears at that time. However, as noted above, the Veteran’s February 2018 appeal indicated that his bilateral hearing loss and tinnitus had worsened. This evidence indicates raises a reasonable possibility of establishing the claim; therefore, the service connection claims on appeal must be reopened. REASONS FOR REMAND 1. Entitlement to service connection for a left foot condition and a right foot condition, to include as secondary to service-connected lumbar spine and bilateral knee conditions is remanded. The Veteran previously underwent an April 2015 VA contract examination addressing his claimed left foot and right foot conditions, in which the examiner diagnosed the Veteran with right foot pes planus, right foot plantar fasciitis, and a right foot calcaneal bone spur. Ultimately, the examiner opined that the Veteran’s left foot problems had resolved, and that the Veteran’s current right foot problems were less likely than not related to service, noting that the Veteran received treatment in service for athlete’s foot, pain in the right little toe and removal of the right big toe, and stating that none of those instances had any correlation to his current right foot problems. However, as noted above, the Veteran has since alleged that his current bilateral foot problems have worsened over time and are related to an altered gait caused by his bilateral knee and lumbar spine disabilities. Additional medical records associated with the claims file in April 2017 document that during a February 2015 podiatric examination, excessive pronation of the feet and an abnormal gait were noted in connection with a diagnosis of plantar fasciitis. In light of the above evidence, a remand is required to obtain a new VA examination to address the nature and etiology of the Veteran’s claimed left and right foot disorders. 2. Entitlement to service connection for bilateral hearing loss and tinnitus is remanded. The Veteran previously underwent a May 2015 VA audiological contract examination, in which the examiner concluded that the Veteran did not have a current bilateral hearing loss or tinnitus disability, noting that the Veteran had normal hearing in both ears and did not report ringing in the ears. However, as noted above, the Veteran has since alleged that the conditions on appeal have worsened; consequently, a remand is required to obtain a new VA examination to determine whether the Veteran has current bilateral hearing loss or tinnitus disabilities and if so, whether such disabilities are related to his service. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his claimed bilateral hearing loss and tinnitus. If a hearing loss or tinnitus disability is found, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disorder began in or is otherwise caused by the Veteran's active service. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 2. Schedule the Veteran for examinations by an appropriate clinician to determine the nature and etiology of his claimed bilateral foot disorders. For any such disorder found, the examiner must opine as to whether it is at least as likely as not related to an in-service injury, event, or disease. If not, then the examiner most opine as to whether the diagnosed foot disorder is at least as likely as not either proximately due to, or aggravated by, his service-connected back and bilateral knee disabilities. The opinions must address both causation and aggravation in the context of secondary service connection to be deemed adequate. The examiner is advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. The examiner is advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The examination report must include a complete rationale for the opinions provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Reed, Associate Counsel