Citation Nr: 19134591 Decision Date: 05/03/19 Archive Date: 05/03/19 DOCKET NO. 18-10 713 DATE: May 3, 2019 ORDER New and material evidence having not been received, the application to reopen the claim of service connection for right ear hearing loss is denied. New and material evidence having been received, the application to reopen the claim of service connection for a right foot disorder is granted. New and material evidence having been received, the application to reopen the claim of service connection for a gastrointestinal (GI) disorder is granted. REMANDED Service connection for a left leg disorder. Service connection for a right foot disorder. Service connection for a GI disorder. FINDINGS OF FACT 1. The Veteran had periods of active service from August to November 1984, from June 1999 to October 2009, from July 2012 to July 2013, and from January 2014 to January 2015. 2. Service connection for right ear hearing loss, a right foot disorder, and a GI disorder were denied in an October 2011 rating decision. The Veteran did not appeal and that decision became final. 3. Evidence submitted since the October 2011 rating decision is new and raises a reasonable possibility of substantiating the claims of service connection for a right foot disorder and a GI disorder but not service connection for right ear hearing loss. CONCLUSIONS OF LAW 1. The October 2011 rating decision, which denied the claim of entitlement to service connection for right ear hearing loss, a right foot disorder, and a GI disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2018). 2. Evidence submitted to reopen the claim of entitlement to service connection for right ear hearing loss is new but not material and the claim is not reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a), 3.385 (2018). 3. Evidence submitted to reopen the claim of entitlement to service connection for a right foot disorder is new and material and the claim is reopened. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2018). 4. Evidence submitted to reopen the claim of entitlement to service connection for a GI disorder is new and material and the claim is reopened. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence to Reopen Claims Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). In order to be “new and material” evidence, the evidence must not be cumulative or redundant, and “must raise a reasonable possibility of substantiating the claim,” which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). Right Ear Hearing Loss Turning to the evidence, the claim for service connection for right ear hearing loss was denied in October 2011 for lack of a current disability for VA purposes. Evidence submitted since the October 2011 rating decision includes a January 2018 examination report in which right ear hearing loss was not found to be normal for VA compensation purposes. Specifically, the auditory thresholds at each of the frequencies of 500, 1000, 2000, 3000, and 4000 were measured as less than 40 decibels; three frequencies were not measured at 26 decibels or greater; his speech recognition score in his right ear was higher than the 94 percent. No other evidence submitted since the prior final denial shows hearing loss for VA purposes. As such, new evidence is not material as it fails to show a current disability.   Right Foot Disorder As to the right foot, the claim for a right foot disorder other than pes planus was denied in an October 2011 rating decision for lack of a current disability and lack of an in-service incurrence. Evidence submitted since the prior final denial includes VA and government medical records which show continued treatment of a right foot disorder, and listed pain in the joints involving the ankle and foot as active problems. At the time of the prior final denial, this evidence did not exist. Thus, the evidence is potentially material to the claim. As the evidence is new, and potentially supports finding a current diagnosis as well as alternative theories of entitlement that were otherwise unestablished at the time of the prior final denial, the application to reopen is granted. The appeal is granted to this extent. GI Disorder As to a GI disorder, the claim, previously characterized as gastroesophageal reflux disease (GERD) or acid reflux, was denied in an October 2011 rating decision for lack of a current diagnosis or in-service incurrence. Evidence submitted since the prior final denial includes VA and government medical records that contain treatment notes for GERD, dysphagia, and show that a medical procedure was necessary to correct esophageal stenosis. At the time of the prior final denial, this evidence did not exist. As the evidence is new and shows current disabilities that were unestablished at the time of the prior final denial, the application to reopen is granted. The appeal is granted to this extent. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Additional development is needed regarding the claims of service connection for a left leg disorder, a right foot disorder, and a GI disorder. The latter two claims were initially denied in part for lack of an in-service incurrence. The claim of service connection for a left leg disorder was denied due to a lack of a medical nexus. The RO made reasonable attempts and was unable to locate service treatment records (STRs) for some of the Veteran’s periods of active duty. However, since the original claim, the Veteran served an additional period of active duty between January 2014 and January 2015. The associated STRs are not in the claims file, and there is no evidence that the RO attempted to associate them with the claims file. As a lack of an in-service incurrence was a missing element of the claims for service connection for a right food and GI disorder, and a new in-service incurrence from that period could help substantiate a nexus with a left leg disorder, the RO must take all reasonable efforts to associate these records with the claims file. The matters are REMANDED for the following actions: 1. Identify and obtain any outstanding VA treatment records and associate them with the claims file. 2. Identify and obtain any outstanding service treatment records, specifically for the period between January 2014 and January 2015, and associate them with the claims file. 3. Readjudicate the issues on appeal. Then, if the decision remains adverse to the Veteran, issue a supplemental statement of the case and wait the   appropriate time for response. Then, return the case to the Board. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brendan A. Evans, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.