Citation Nr: 21003629 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 18-18 915 DATE: January 22, 2021 ORDER New and material evidence having been received, the Veteran's claim of entitlement to service connection for a right foot disability is reopened. Entitlement to service connection for right ear hearing loss is granted. REMANDED Entitlement to service connection for a right foot disability is remanded. FINDINGS OF FACT 1. In a December 1979 rating decision, the Agency of Original Jurisdiction (AOJ) denied the Veteran’s claim of service connection for a bilateral foot disability. The Veteran timely submitted a Notice of Disagreement (NOD), and VA issued a Statement of the Case (SOC) continuing the denial of his claim in July 1980. The Veteran did not appeal the SOC, and the decision became final. 2. In February 2011, the Veteran filed a petition to reopen his previous denial. 3. In December 2012, the AOJ confirmed and continued its previous denial; this denial is the basis of the current appeal. 4. Since the December 1979 rating decision, the Veteran has submitted evidence that is not cumulative or redundant of the evidence of record and supports an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for a right foot disability. 5. The Veteran’s right ear hearing loss is at least as likely as not related to in-service noise exposure. CONCLUSIONS OF LAW 1. The December 1979 rating decision, which denied the Veteran’s claim of entitlement to service connection for a bilateral foot condition, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. Evidence received since the December 1979 decision in support of the service connection claims for a right foot disability is new and material; thus, the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for right ear hearing loss are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from November 1967 to April 1969. These matters appear before the Board of Veterans’ Appeals (Board) on appeal of a December 2012 rating decision of the Regional Office (RO) in Baltimore, Maryland. In January 2020, the Veteran testified before the undersigned Veterans Law Judge at a central office hearing in Washington, District of Columbia; a transcript is of record. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). New and Material The Board does not have jurisdiction to consider a claim that has been adjudicated previously unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, the issue of whether new and material evidence has been received to reopen claims of service connection for left hip replacement, left carpel tunnel syndrome, right carpel tunnel syndrome, and heart disease is as stated on the title page. Regardless of the AOJ’s actions, the Board must make its own determination as to whether new and material evidence has been received to reopen this claim. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). 1. Whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for a right foot disability The Board finds that the evidence supports reopening the Veteran’s previously denied claim of service connection for a right foot disability. The Board notes initially that claims of service connection may be reopened if new and material evidence is received. Manio v. Derwinski, 1 Vet. App. 140 (1991). The veteran requested that his previously denied claim be reopened in a letter submitted through his representative dated February 2, 2011. New and material evidence is defined by regulation. See 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). With respect to the Veteran’s application to reopen the previously denied claims of service connection for a right foot disability, the evidence of before VA at the time of the prior final AOJ decision in December 1979 consisted of the Veteran’s service treatment records, DD-214, a February 1970 VA examination, and a March 1970 rating decision denying service connection for a toenail condition. The AOJ determined that, because the Veteran’s service treatment records showed no complaints of or treatment for the claim condition, they were not related to service. Additionally, the February 1970 VA examination did not find a toenail condition. Thus, the claim was denied. Since the December 1979 decision, evidence associated with the file includes VA treatment records, private treatment records, and the Veteran’s testimony during the January 2020 hearing. The Board finds that the VA treatment records, private treatment records, and Veteran’s testimony are new and have not previously been reviewed by agency decision makers. While the VA and private treatment records are not material, the Veteran’s testimony is material. The Veteran’s testimony is not cumulative of the evidence of record at the time of the prior final denial. The Veteran testified that his right foot condition began while he was stationed in Vietnam. The Veteran testified that that he sought medical attention from a medic who advised him to keep his toe nails trimmed as low as possible. He testified that his boots were too large and while in Vietnam his feet would slide and hit the front of his boots. The evidence of record at the time of the December 1979 decision did not include any statement from the Veteran regarding his time in Vietnam seeking medical treatment from a medic. The Board acknowledges that, in his April 1980 NOD, the Veteran linked his swollen feet to military footwear. However, his new testimony elaborates on the link and does not simply reiterate the contention. During the January 2020 hearing, the Veteran testified that he continued to treat the problem on his own and keep his toenails trimmed back as low as possible until he finally sought treatment at the VA after he separated. The Veteran’s claim was denied because there was no evidence of in-service occurrence. Consequently, any new evidence received must support the unestablished fact necessary to substantiate the claim. The Veteran’s January 2020 testimony directly supports the unestablished fact; thus, the Veteran’s testimony is new and material. Accordingly, the Veteran’s claim of entitlement to service connection for a right foot disability is reopened. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to service connection for right ear hearing loss The Board finds that the evidence to support granting the Veteran’s claim to service connection for right ear hearing loss is at least in equipoise. The Veteran essentially contends that he is entitled to service connection for right ear hearing loss because he shot weapons from his right shoulder and was exposed to weapon fire in Vietnam. The Veteran specifically contends that he noticed a decrease in hearing in his right ear since service in Vietnam. The Veteran’s VA treatment records and a November 2012 VA examination diagnose the Veteran with right ear hearing loss. The Veteran wears a hearing aid in his right ear; however, the Veteran testified during his hearing that it was broken, and he was waiting for a replacement. With a current diagnosis, the next question for the Board is whether the Veteran has in service noise exposure. The Veteran’s DD-214 confirms that he was a combat engineer. Additionally, the Veteran’s DD-214 indicates the Veteran received both the Vietnam Service Medal and Vietnam Campaign Medal. The Veteran’s military personnel records confirm service in Qui Nhon, Vietnam with the 184th Ordinance Battalion. Further, the Veteran testified during his January 2020 hearing that he as a combat engineer he was tasked with clearing the road into Saigon of mines and bobby traps. He testified that on occasion the mines would detonate. Further, the Veteran testified that he was right-handed, so he shot his weapon from his right shoulder. The Veteran also described the 50-caliber weapon attached to the turret on the top of his vehicle, which was located on his right side as well. The Board finds that the Veteran’s competent lay account of having been exposed to military noise, including detonating mines and weapon fire, is consistent with his MOS. Given that the Veteran is competent to report both exposure to military noise and hearing problems thereafter (as these experiences are capable of lay observation, for which no specific expertise is required), and given that the Veteran’s reports of incurring this in-service noise is consistent with the circumstances of his service, and have remained consistent in the record, the Board concludes that his in-service exposure to noise is established. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). Since in-service noise exposure is established, the next question for the Board is whether the Veteran’s current hearing loss is a result of the in-service exposure. The November 2012 examiner diagnosed the Veteran with bilateral hearing loss in high frequencies (6000Hz or higher) and right ear hearing loss between 500-4000Hz. The Veteran reported difficulties hearing in his right ear in all listening situations. The Veteran reported he was a combat engineer and was exposed to explosions and weapon fire in service. Ultimately, the examiner opined that the Veteran’s right ear hearing loss was less likely than not related to service. The examiner noted the Veteran’s hearing was normal at separation and that the Veteran reported hearing difficulties from 2002, approximately 30 years after service. In the Veteran’s VA treatment records there is an initial audiology consult from September 2008. The audiologist diagnosed the Veteran with moderate sensorineural hearing loss in his right ear and normal hearing in his left. The Veteran reported military noise exposure including possible acoustic traumas while serving in Vietnam. The audiologist opined that it was more likely than not that the Veteran’s asymmetry in his hearing loss is due to the Veteran’s reported in-service noise exposure. The Veteran’s asymmetrical hearing loss is documented in two additional audiology progress notes. The Veteran’s hearing loss was reevaluated in September 2014. The progress indicated the Veteran had a history of unilateral hearing loss in the right ear. The results of the audiogram were similar to the initial results in September 2008. The Veteran’s hearing was again reevaluated in June 2016. The audiologist noted the Veteran’s right ear hearing loss ranged from mild to severe, and the Veteran’s left ear hearing loss ranged from mild to moderate. In July 2016, the Veteran was fitted for a hearing aid in his right ear. The Board finds that the November 2012 VA examination and the September 2008 audiologist’s opinions hold equal weight. Both base their opinions on the Veteran’s report of in-service noise exposure, which the Board has found is consistent with the circumstances of his service. Accordingly, the Board finds that the evidence is at least in equipoise to support the Veteran’s claim of entitlement. Therefore, resolving reasonable doubt in the Veteran’s favor, he is entitled to service connection for right ear hearing loss. REASONS FOR REMAND 1. Entitlement to service connection for a right foot disability is remanded. The Veteran contends that he is entitled to service connection for a right foot disability. The Veteran was diagnosed with mild-moderate first metatarsophalangeal joint degenerative changes by x-ray in June 2016. The Veteran testified in his January 2020 hearing that he has been experiencing pain in his feet and his toenails were ingrown while he was stationed in Vietnam. The Veteran testified that he was told to keep his toenails short. After service, the Veteran testified that he had to have his toenails shaved down, and, eventually, he required surgery. Subsequently, his right big toenail was removed. The Veteran underwent VA examination in February 1970, and the examiner found no diagnosis for a toenail disability. Certain chronic diseases, including arthritis, can be presumptively shown if there the disability was (1) began during active service, (2) manifested within a year of service, and (3) shows a continuity of symptomatology, The Veteran first filed for a toenail disability the year he separated from service. The Veteran filed again in 1979 for a bilateral foot disability. Following his hearing, the Veteran submitted treatment records for his right foot disability dating back to 1984. The VA Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (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 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. McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). With respect to the third factor above, the Veterans Court has stated that this element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and the appellant’s service. The types of evidence that “indicate” that a current disability “may be associated” with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McClendon, 20 Vet. App. 79. For the Board to make a complete decision, a new VA examination is necessary. The Veteran has a current right foot disability, he provided competent testimony as to the start of the condition in service, and the Veteran’s file raises a continuity of symptomatology. Specifically, the examiner should address the Veteran’s continuity of symptomatology and whether the Veteran’s toenail condition and currently diagnosed degenerative changes are one in the same. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his right foot disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: a) Is his right foot disability at least as likely as not related to service, including being issued the wrong size footwear and his foot sliding into the front of his boots? b) Is it at least as likely as not that the right foot disability (1) began during active service, (2) manifested within one-year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. The Board considers the Veteran’s statements regarding his foot injuries in service to be credible. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 2. Readjudicate. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. N. Fournier, 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.