Citation Nr: 18160900 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-36 015A DATE: December 28, 2018 ORDER Entitlement to service connection for bilateral pes planus is denied. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran's bilateral pes planus existed prior to his period of active service and was not aggravated as a result of such service. 2. By a rating action in August 2013, the RO denied entitlement to service connection for bilateral hearing loss; the Veteran did not perfect an appeal, and no new and material evidence was received within one year of the determination. 3. Evidence received since the August 2013 decision, that was not previously of record, relates to an unestablished fact necessary to substantiate the claim for bilateral hearing loss and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral pes planus have not all been met. 38 U.S.C. §§ 1110, 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. 2. The August 2013 rating decision that denied service connection for bilateral hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 3. The criteria for reopening a claim of entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1976 to November 1978. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Offices (RO) in Indianapolis, Indiana. By a rating action in May 2015, the RO denied the Veteran’s attempt to reopen his claim of entitlement to service connection for bilateral hearing loss. Subsequently, in April 2016, the RO denied the Veteran’s claim of entitlement to service connection for bilateral pes planus. He perfected timely appeals to both decisions. On February 1, 2017, the Veteran appeared at the RO and testified at a videoconference hearing before the undersigned Veterans Law Judge, sitting in Washington, DC. A transcript of the hearing has been associated with the file. After the hearing, the Veteran submitted additional evidence along with a waiver of consideration by the agency of original jurisdiction (AOJ). 38 C.F.R. § 20.1304 (2017). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air 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. § 1153. 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 C.F.R. § 3.306 (b). The Veteran can provide competent reports of factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Similarly, laypersons are competent to diagnose and provide nexus opinions to some extent, notably where the diagnosis or opinion is not of a complex nature. Id., see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 1. Entitlement to service connection for bilateral pes planus The Veteran contends that his bilateral pes planus condition is related to service. In his notice of disagreement, the Veteran maintains that while his condition existed prior to service, his feet were asymptomatic before service. The Veteran indicates that he was told in service that he had bilateral pes planus and was issued orthopedic shoes. Generally, a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. 38 U.S.C. §§ 1111, 1137 (2012); 38 C.F.R. § 3.304 (b) (2017). A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (a) (2017). 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. § 1153 (2012); 38 C.F.R. § 3.306 (b) (2017). The Veteran's August 1976 enlistment examination noted pes planus, moderate, bilateral, non-symptomatic and nondisabling. As such, the Veteran is not considered sound upon entrance into service with regard to the condition of pes planus. The remaining question is whether there was an increase in symptoms that could lead to a conclusion that the Veteran's pre-existing bilateral pes planus was aggravated during his military service. The Veteran contends that his condition was aggravated by running in combat boots three miles a day every day in service. A review of the service treatment records (STRs) do show that the Veteran sought treatment in December 1977 for complaints of painful feet, exacerbated by running and marching; the assessment was pes planus. He was issued arch supports. However, at his separation examination in September 1978, clinical evaluation of the feet was normal. This is evidence against a finding of aggravation. Moreover, following a DBQ examination for evaluation of his feet in April 2016, the examiner found that pes planus clearly and unmistakably existed prior to service, and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner noted that the separation examination stated that there was no foot trouble and the x-rays taken for the current examination revealed borderline pes planus on the right foot and no pes planus on the left. As such, the record is negative for any indication, other than the Veteran’s own lay assertions, that he has bilateral pes planus and that it was aggravated by service. The Board acknowledges the Veteran’s contentions that his bilateral pes planus was aggravated by service as a result of running in combat boots every day. The Veteran is competent to report observable symptoms. However, determining whether the Veteran's pre-existing bilateral pes planus was aggravated in service requires medical inquiry into the biological processes, anatomical relationships, and physiological functioning; such internal physical processes are not readily observable and are not within the competence of the Veteran who, in this case, has not been shown by the evidence of record to have the training, experience, or skills needed to provide a competent opinion on aggravation of his pes planus. Although he is competent to report the persistence of his observable symptoms, he is not competent to provide an opinion as to increase in severity during his service. As a result, his lay opinion is not probative. For the above reasons, the Board finds that the opinion from the April 2016 DBQ examiner is more probative than the Veteran's lay statements. Further, the Veteran has not provided any probative evidence in support of the claim that his bilateral pes planus was aggravated during training in service. Therefore, service connection for service connection for a bilateral pes planus must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss Once the AOJ makes a determination as to a claim, it must mail to the claimant, and his or her representative if there is one, proper notice of the decision, including notice of the claimant's procedural due process and appellate rights. 38 U.S.C. § 7105 (b) (1) (2012); 38 C.F.R. §§ 3.103 (b) (1), 19.25, 20.1103 (2017). An appeal of an AOJ decision to the Board is initiated by the filing of a notice of disagreement (NOD) with the decision. 38 U.S.C. § 7105 (a) (2012); 38 C.F.R. § 20.200 (2017). Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new" and "material." Smith v. West, 12 Vet. App. 312 (1999). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran's claim of entitlement to service connection for bilateral hearing loss was denied in a rating action in August 2013. The evidence considered at the time of the August 2013 rating decision included the Veteran’s Certificate of Release from Active Duty (DD Form 214), the service treatment records (STRs), and a VA audiological examination report. Significantly, the Veteran’s DD Form 214 indicates that his military occupational specialty (MOS) was that of cannon field specialist; he was awarded the Marksman Qualification Badge and the Hand grenade qualification badge. The record also indicates that he was awarded the National Defense Service Medal. At his induction examination in August 1976, an audiometric examination revealed pure tone thresholds of 5, 10, 5, and 5 at the 500, 1000, 2000, and 4000 Hertz level in the right ear, and 5, 15, 5, and 5 at the same Hertz levels in the left ear. Another audiometric examination was conducted in April 1978, at which time he had pure tone thresholds of 20, 15, 15, 20 and 20 at the 500, 1000, 2000, 3000, and 4000 Hertz levels in the right ear, and 15, 25, 10, 15, and 15 at the same Hertz levels in the left ear. At the separation examination in September 1978, an audiometric examination revealed pure tone thresholds of 10, 10, 10, and 10 at the 500, 1000, 2000, and 4000 Hertz levels in the right ear, and 30, 10, 10, and 10 at the same Hertz levels in the left ear. Clinical evaluation of the ears was normal. No hearing loss was noted during service. Also considered in August 2013 were results of a DBQ audiological examination conducted in August 2013. The examination revealed pure tone thresholds of 5, 10, 5, 20, and 15 at the 500, 1000, 2000, 3000 and 4000 Hertz levels in the right ear, and 10, 10, 10, 15, and 20 at the same Hertz levels in the left ear. Speech recognition was 100 percent in both ears. The diagnosis was sensorineural hearing loss in the frequency range of 6000 Hz or higher. The examiner stated that the Veteran does not meet VA criteria to be considered disabling hearing loss; he noted that hearing was normal through 6000 Hz. By a rating action in August 2013, the RO denied the Veteran's claim of entitlement to service connection for bilateral hearing loss. This decision was based on a finding that hearing was shown to be within normal limits for VA purposes. The Veteran did not file a notice of disagreement (NOD) with that determination within one year of the notification thereof in September 2013. Consequently, as no timely NOD or new and material evidence was received during the appeal period following the September 2013 notice of determination, that decision became final. See 38 C.F.R. § 3.156 (b); Buie v. Shinseki, 24 Vet. App. 242, 252 (2010); 38 C.F.R. §§ 20.200, 20.201, 20.1103 (2017). New and material evidence is therefore required to reopen the claim of service connection for bilateral hearing loss. See 38 U.S.C. § 5108 (2012); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. The Veteran's request to reopen his claim for service connection for bilateral hearing loss (VA Form 21-526EZ) was received in May 2015. New evidence added to the record since the August 2013 rating decision, includes additional VA medical records dated from February 2014 to May 2015, VA progress notes dated from July 2011 to December 2016, statements from the Veteran and February 2017 testimony from the Veteran. Specifically, the treatment records show that the Veteran was seen for complaints of decreased hearing in November 2014 and noted a finding of normal to mild hearing loss in both ears. Also among the records is a March 2016 VA audiology note, indicating that the Veteran reported that his hearing was getting worse, especially with left which fluctuates; the objective findings were normal sloping to mild hearing loss in the right ear and normal sloping to moderate hearing loss in the left ear. Additionally, at his personal hearing in February 2017, the Veteran maintained that his hearing loss started after he began experiencing ringing in his ears, which he has had since service. The Board finds this evidence is new because it was not previously before VA decision makers. Additionally, the November 2014 and March 2016 VA treatment reports and February 2017 argument raises the reasonable possibility of substantiating the claim in that each provides an indication that bilateral hearing loss for VA purposes may exist. As noted above, the August 2013 rating decision, in part, denied the claim for bilateral hearing loss as hearing loss for VA purposes was not demonstrated by audiometric testing. The Veteran’s testimony that his hearing loss began after he developed tinnitus, which had its onset in military service, is deemed credible for the purpose of reopening the claim. See Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). Such evidence meets the low threshold standard for reopening endorsed by the Court in Shade. Thus, the evidence relates to an unestablished fact necessary to substantiate the claim, and it raises a reasonable possibility of substantiating the claim. Accordingly, entitlement to service connection for bilateral hearing loss is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS FOR REMAND Entitlement to service-connection for bilateral hearing loss is remanded. The matter of entitlement to service connection for bilateral hearing loss has been reopened herein. For the reasons set forth below, the Board finds that the merits of the claim must be remanded for further evidentiary development. The Veteran was last afforded a VA examination to determine the nature and etiology of his bilateral hearing loss in August 2013 wherein it was found that he had normal hearing. There is currently no evidence of hearing loss by VA standards. See 38 C.F.R. § 3.385. Inasmuch as the Veteran testified at the February 2017 video conference hearing that his hearing has gotten worse, including since the prior VA examination, the Board finds that the Veteran should be afforded a new audiological examination to determine the nature and etiology of his bilateral hearing loss. In this regard, the Board notes that recent VA treatment reports indicate that the Veteran has sensorineural hearing loss and it has gotten worse. Significantly, a March 2016 VA audiology note indicates that the Veteran reported that his hearing was getting worse, especially on the left which fluctuates; the objective findings were normal sloping to mild hearing loss in the right ear and normal sloping to moderate hearing loss in the left ear. Furthermore, service connection for the Veteran’s tinnitus has been established. In light of his February 2017 testimony that his hearing loss began after the ringing in his ears started, the Board must remand this claim to obtain an etiology opinion that addresses the question of whether the Veteran's bilateral hearing loss is related to service or to his service-connected tinnitus. This matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. 2. Then schedule the Veteran for a VA examination to determine the current nature and etiology of his bilateral hearing loss. The claims file must be provided to the examiner in conjunction with the examination. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The examination must describe the functional effects of the Veteran's bilateral hearing loss, if found. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed hearing loss had its onset in service or is otherwise related to the Veteran's military service, to include as a result of acoustic trauma sustained therein. It is at least as likely as not (50 percent probability or greater) that the current diagnosis of bilateral hearing loss was caused or aggravated by his service-connected tinnitus? The examiner should provide a detailed rationale for any opinion expressed. If an opinion cannot be rendered without resorting to speculation, the examiner should state why that is so, to include a recitation of any missing facts necessary to render a non-speculative opinion. 3. Thereafter, readjudicate the claim on appeal. If the benefit on appeal remains denied, furnish the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs