Citation Nr: 20021459 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 17-23 752 DATE: March 25, 2020 ORDER New and material evidence not having been presented, the petition to reopen the claim of service connection for right ear hearing loss is denied. New and material evidence having been presented, the claim of entitlement to service connection for pes planus is reopened. New and material evidence having been presented, the claim of entitlement to service connection for tinnitus is reopened. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for pes planus is remanded. FINDINGS OF FACT 1. The Veteran’s first claims of service connection for hearing loss, tinnitus, and pes planus were denied in an August 2005 rating decision that was not appealed; no further evidence relevant to the Veteran’s service connection claims was submitted for a period of one year following the August 2005 rating decision. 2. The Veteran again claimed service connection for hearing loss, tinnitus, and pes planus, which claims were denied in a January 2013 rating decision that was not appealed; no further evidence relevant to the Veteran’s service connection claims was submitted for a period of one year following the January 2013 rating decision. 3. Evidence relevant to the tinnitus and pes planus claims was submitted since the January 2013 rating decision, and was not previously considered by agency decision makers; is neither cumulative nor redundant of the evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the Veteran’s claims for service connection for tinnitus and pes planus. 4. Evidence relevant to the right ear hearing loss claim was submitted since the January 2013 rating decision, but this evidence is cumulative and redundant of the evidence already of record and does not raise a reasonable possibility of substantiating the Veteran’s claim for service connection for right ear hearing loss. 5. The record reflects a current diagnosis of tinnitus, the in-service incurrence of the disability, and continuity of the symptomatology since service. CONCLUSIONS OF LAW 1. The criteria for reopening the previously denied claim for right ear hearing loss have not been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. New and material evidence has been received since the January 2013 denial became final; the criteria for reopening the previously denied claim for pes planus have been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 3. New and material evidence has been received since the January 2013 denial became final; the criteria for reopening the previously denied claim for tinnitus have been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 4. The criteria for establishing service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from August 2000 to August 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in December 2019. 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 Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The threshold is low and does not require new and material evidence regarding each element of the claim that had not been proved in the prior final decision. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New evidence is defined as 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. 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. 38 C.F.R. § 3.156 (a). Procedural Posture The Veteran filed his initial claims of service connection for hearing loss and tinnitus in August 2004; he filed his initial claim of service connection for pes planus in January 2005. The RO denied service connection for those three claims in an August 2005 rating decision based on a finding that there was no evidence of a current hearing loss, tinnitus, or pes planus disability. The Veteran was notified of that decision in an August 2005 notice letter. The Veteran did not submit any additional evidence respecting the claim or a notice of disagreement with the decision within one year of that notice letter. The Veteran filed to reopen the claims of service connection for hearing loss, pes planus, and tinnitus in June 2012. The RO denied service connection for that claim in a January 2013 rating decision based on a finding that there no new and material evidence had been submitted. The Veteran was notified of that decision in a January 2013 notice letter. The Veteran did not submit any additional evidence respecting the claim or a notice of disagreement with the decision within one year of that notice letter. As no timely notice of disagreement or new and material evidence was received during the appeal period following the August 2005 notice letter, the August 2005 rating decision became final. Likewise, as no timely notice of disagreement or new and material evidence was received during the appeal period following the January 2013 notice letter, the January 2013 rating decision also became final. See 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). New and material evidence is therefore required to reopen the claims of service connection for right ear hearing loss, pes planus, and tinnitus. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). 1. Whether new and material evidence has been received to reopen a claim for service connection for right ear hearing loss Since January 2013 rating decision, VA treatment records have been associated with the record, and the Veteran testified at a Board hearing in December 2019. However, although the VA treatment records contain new evidence, including a June 2017 audiology appointment, the records indicate that the Veteran’s right ear hearing acuity is within normal limits. Likewise, the Veteran’s testimony only reflected that he underwent a hearing test in June 2017; he did not testify that he experienced hearing loss symptoms in his right ear or that his right ear hearing acuity had worsened since that June 2017 hearing test. As the new evidence submitted does not reflect a current disability, it is not material to the Veteran’s claim for service connection for right ear hearing loss. Therefore, the Board finds that new and material evidence which tends to substantiate the Veteran’s claim of service connection for right ear hearing loss has not been received in this case, and the claim is not reopened. 2. Whether new and material evidence has been received to reopen a claim for service connection for pes planus Since the January 2013 rating decision, the Veteran testified at the December 2019 Board hearing that he experiences foot pain after prolonged standing. Therefore, the Board finds that new and material evidence which tends to substantiate the Veteran’s claim of service connection for pes planus has been received in this case, and the claim is reopened. See 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (medical evidence indicating a medical opinion is warranted is sufficient to reopen a claim). 3. Whether new and material evidence has been received to reopen a claim for service connection for tinnitus Since the August 2005 and January 2013 rating decisions, the Veteran testified at the Board hearing that he continues to experience tinnitus symptoms. Therefore, the Board finds that new and material evidence which tends to substantiate the Veteran’s claim of service connection for tinnitus has been received in this case, and the claim is reopened. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303, Hickson v. West, 12 Vet. App. 247, 252-53 (1999). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including tinnitus, will be granted service connection on a presumptive basis if there is evidence they manifested within a year of separation from service. 38 C.F.R. §§ 3.307(a), 3.309(a). Alternatively, for such chronic diseases shown in service, the second and third elements of service connection may be established through demonstrating chronicity or continuity of symptomatology. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (section 3.303(b) only applies to the chronic disabilities listed in 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a)); see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding section 3.309(a) “includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an ‘organic disease[ ] of the nervous system’”). 4. Entitlement to service connection for tinnitus Tinnitus is a condition capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (stating that “ringing in the ears is capable of lay observation” and, as such, a veteran is competent to testify as to that symptom). Therefore, the Veteran is competent to describe his tinnitus symptomatology in service and after service. The Veteran’s military occupational specialty during service was as an administrative clerk, but his service treatment records reflect complaints of hearing loss and ringing in the ears after working adjacent to a construction site with continual jack hammer noise for ten days. At the December 2019 Board hearing, the Veteran testified that he first experienced tinnitus while in service, and that it continues to the present. The Veteran attended a VA audiological examination in October 2004, at which he reported having had tinnitus in the past but not at the examination. The examiner did not offer an opinion regarding the tinnitus. The Board finds that service connection for tinnitus is warranted in this case. The Veteran credibly testified at the December 2019 Board hearing that he first experienced tinnitus symptoms during service, and complaints of ringing in the ears are reflected in his service treatment records. He also testified that he continues to have tinnitus symptoms. Although the examiner noted that the Veteran did not experience tinnitus at the time of the examination, the Veteran’s testimony indicates that recurrent tinnitus had its onset in service. Accordingly, as the record reflects competent and credible evidence that the tinnitus began in service and has continued since, the Board finds that service connection for tinnitus is warranted. REASONS FOR REMAND 1. Entitlement to service connection for pes planus is remanded. The Veteran testified at the Board hearing that he experiences foot pain after prolonged standing. He also testified that he experienced this type of pain during service after physical training in combat boots. As pain alone may be considered a disability where it causes functional loss, Saunders v. Wilkie, 886 F.3d 1356 (2018), there is an indication that a current foot disability may be related to service. An examination is therefore necessary to fulfill VA’s duty to assist the Veteran in developing his claim for service connection for pes planus. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (VA is obliged to provide an examination where there is insufficient information to decide the claim and there is an indication the current disability may be associated with service). The matter is REMANDED for the following action: Schedule the Veteran for an examination with an appropriate clinician to determine whether any current bilateral foot disability is related to the Veteran’s military service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should identify all foot disabilities currently found. The examiner should be instructed that pain can be considered a disability where it causes functional impairment, even in the absence of an underlying diagnosis. Saunders v. Wilkie, 886 F.3d 1356 (2018). For each foot disability identified, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran’s active service. If no current foot disability is diagnosed, the examiner must opine whether it is at least as likely as not that the Veteran’s current complaints of foot pain result in functional impairment. If the foot pain does cause functional impairment, the examiner must opine whether it is at least as likely as not that the foot pain is related to the Veteran’s military service. The examiner should address the Veteran’s lay statements regarding continuity of symptomatology since onset and/or since discharge from service. The examiner should address any other pertinent evidence of record. 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. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Josey, 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.