Citation Nr: 21067550 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-28 829A DATE: November 4, 2021 ORDER New and material evidence having been received, the appeal to reopen the claim of entitlement to service connection for bilateral hearing loss is granted. New and material evidence not having been received, the appeal to reopen the claim of entitlement to service connection for bilateral pes planus is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. A September 2006 rating decision denied the Veteran's petition to reopen her claim for entitlement to service connection for bilateral hearing loss. The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of the notice of that rating decision. 2. Some of the evidence received since September 2006, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for bilateral hearing loss. 3. A September 2011 rating decision denied the Veteran's claim for entitlement to service connection for bilateral pes planus. The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of the notice of that rating decision. 4. The additional evidence associated with the claims file following the September 2011 rating decision does not relate to an unestablished fact necessary to substantiate the Veteran's claim for entitlement to service connection for bilateral pes planus, nor does it otherwise raise a reasonable possibility of substantiating her claim. CONCLUSIONS OF LAW 1. The September 2006 rating decision, which denied the Veteran's petition to reopen the claim of entitlement to service connection for bilateral hearing loss, is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103. 2. The additional evidence received since the September 2006 rating decision is new and material, and the claim of entitlement to service connection for bilateral hearing loss is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The September 2011 rating decision, which denied the Veteran's claim of entitlement to service connection for bilateral pes planus, is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103. 4. The additional evidence received since the September 2011 rating decision is not new and material, and the claim of entitlement to service connection for bilateral pes planus is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1973 to December 1973 with additional Active Duty for Training. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2016 (bilateral pes planus) and April 2017 (bilateral hearing loss) rating decisions by the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a hearing in March 2021 regarding bilateral hearing loss. A transcript of the hearing has been associated with the claims file. By way of background, in October 2019, the Board denied the Veteran's petition to reopen her claim for entitlement to service connection for bilateral pes planus. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In March 2021, the Court issued a Memorandum decision and vacated and remanded the issue for further development and adjudication. New and Material Evidence In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to VA. 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. New and material evidence having been received, the appeal to reopen the claim of entitlement to service connection for bilateral hearing loss is granted. By way of background, in the January 1990 rating decision, the RO found that the Veteran did not have bilateral hearing loss for VA purposes and as such denied service connection for bilateral hearing loss. In the November 1990 rating decision, the RO determined that the evidence did not show that she developed hearing loss in service, to include inactive duty for training. In the March 1991 rating decision, the RO found that the evidence did not constitute a new fact adequate to establish service connection for hearing loss that was previously denied. She timely filed a Notice of Disagreement and initiated an appeal. In July 1991, the Board found that her bilateral hearing loss was not incurred in or aggravated during active duty for training nor shown to be due to an injury incurred in or aggravated during inactive duty training. She appealed this decision to the Court of Appeal for Veterans Claims (Court). In August 1992, the Court found that the Veteran did not demonstrate that the Board committed either factual or legal error which would warrant a reversal. As such, the Court affirmed the Board's decision. In November 2005, she filed a petition to reopen her claim for entitlement to service connection for bilateral hearing loss. In a September 2006 rating decision, the RO denied the petition to reopen her claim as the evidence was not new and material as it did not relate to an unestablished fact necessary to substantiate the claim and did not raise a reasonable possibility of substantiating the claim. The Veteran did not initiate an appeal for that decision and new and material evidence was not received within a year of the decision. Accordingly, the September 2006 decision is final. In this case, the Veteran filed her claim to reopen in June 2016. Since the September 2006 rating decision, there are multiple medical opinions, medical literature, and testimony associated with the claims file. Specifically, in June 2018, Dr. David Eibling provided an opinion indicating that noise exposure may have resulted in "hidden" hearing loss. Accordingly, the Board finds the medical opinions and medical literature are new as they were not previously considered, and they are material as they pertain directly to the question on appeal. Thus, the Veteran's petition to readjudicate her claim is granted. 2. New and material evidence not having been received, the appeal to reopen the claim of entitlement to service connection for bilateral pes planus is denied. In the September 2011 rating decision, the RO denied the Veteran's claim for entitlement to service connection for bilateral pes planus as the RO found that her condition did not began in service or was caused by some event or experience in service. She did not initiate an appeal for that decision and new and material evidence was not received with regard to the issue within a year of the decision. Accordingly, the September 2011 decision is final. In June 2015, she filed a petition to reopen her claim for entitlement to service connection for bilateral pes planus. In a November 2015 rating decision, the RO denied her petition to reopen her claim as the evidence continued to show this condition was not incurred in or caused by military service. In December 2015, the Veteran filed a Notice of Disagreement (NOD). However, in a March 2016 correspondence, she requested that this NOD be considered as a new claim. See March 2016 VA 21-0820 Report of General Information. In connection with the new claim, she submitted new evidence. As new evidence was received within a year of the November 2015 rating decision, the November 2015 rating decision is not final. In an April 2016 rating decision, the RO determined that the evidence submitted did not constitute new and material evidence as it did not relate to an unestablished fact necessary to substantiate the claim and did not raise a reasonable possibility of substantiating the claim. She initiated an appeal and in October 2019 the Board found that new and material evidence was not received since the September 2011 rating decision and thus denied the Veteran's petition to reopen her claim for entitlement to service connection for bilateral pes planus. She appealed this decision to the Court. In March 2021, the Court vacated the October 2019 Board decision and remanded the issue to determine whether the Veteran's statement that her foot problems were caused by military activities such as walking, marching, and running repetitively while on active duty training that has progressively worsened over the years is new and material evidence. The Board finds the Veteran's statement that her foot problems were caused by military activities such as walking, marching, and running repetitively while in service not new. A review of the records shows that in October 2009 she stated that she had problems with her feet since basic training. See October 2009 Correspondence. Specifically, she stated that she wore Oxford shoes for walking and marching on a daily basis. She stated that she marched, walked, and ran in combat boots and that she wore combat boots every time she was on duty. As this correspondence was submitted in October 2009 in connection to her November 2009 claim for entitlement to service connection for bilateral pes planus, the Board finds that this statement is not new. The Board concludes that the additional evidence, such as VA and private medical records and lay statements, received since the September 2011 rating decision is not new and material because it does not relate to an unestablished fact necessary to substantiate the Veteran's claim, nor does it raise a reasonable possibility of substantiating his claim when considered by itself or in conjunction with the evidence that was previously of record. The evidence shows that the Veteran has a diagnosis of pes planus. This is not new. She alleged that her pes planus manifested as a result of service. This is also not new. As the Veteran's statements and the records are not new and material, the Board finds that the additional evidence submitted is either redundant or does not pertain to a reason why the claim was previously denied. Based on the Veteran's statement and the medical evidence of record, there is no evidence to qualify as new and material evidence sufficient to reopen her previously denied claim. Thus, the additional evidence submitted since the September 2011 rating decision, when considered by itself and in conjunction with the evidence that was previously of record, is not new and material. There is still no evidence that the Veteran's pes planus manifested in service or as a result of service. As new and material evidence has not been received, the claim for service connection for bilateral pes planus is not reopened. See 38 C.F.R. § 3.156(a). REASONS FOR REMAND 3. Entitlement to service connection for bilateral hearing loss is remanded. The Board finds that a new VA examination should be afforded to the Veteran to determine whether she has bilateral hearing loss in accordance with VA standards. A review of the service treatment records (STRs) shows that she had normal ears and drums with no hearing loss or ear trouble in the May 1973 enlistment examination, May 1977 examination, October 1979 examination, and August 1980 examination. Further, she attested that she did not experience any significant illness or injury since her last examination in a June 1974 STR, April 1975 STR, and April 1976 STR. However, in a May 1981 STR she complained of ear pain and had purulent drainage of her left ear and purulent with septic edema of her right ear. Further, in the March 2021 hearing, the Veteran attested that she was exposed to loud noises as her Reserve unit was by an airport. A review of the post-service treatment records shows that the Veteran was afforded several VA examinations. For instance, in the November 1989 VA examination, it was determined that her air conduction and bone conduction pure tone threshold tests, speech threshold and discrimination tests, and tympanometry revealed good inter-test consistency and hearing that were within normal limits bilaterally with no evidence of middle ear pathology. The examiner concluded that she had normal bilateral hearing. In the August 2013 VA examination, the examiner determined that the Veteran did not have a current diagnosis of bilateral hearing loss based on VA standards. In the August 2015 VA ear examination, the examiner opined that it is at least as likely as not her tinnitus is secondary to her mild right sided hearing loss that could be related to military noise exposure. In the June 2018 Veterans Health Administration (VHA) medical opinion, the examiner addressed the Veteran's claim for entitlement to service connection for bilateral tinnitus. However, the examiner also stated that it is well recognized that the sensation of phantom sound, termed tinnitus, originates within the brainstem in the dorsal cochlear nucleus as a physiologic response to hearing loss. Audiometric testing is reported as an objective measure that is based on the subjective perception of sound as reported by the test subject. The reported degree of loss compares the test subject sound perception level with that reported by a defined 'normal' population. As such, audiograms do not report actual sound pressure levels, but rather are comparisons with a defined 'normal.' Research-grade audiologic testing of individuals with tinnitus often demonstrates subtle hearing abnormalities in patients who have a 'normal' audiogram. Many auditory scientists opine that the presence of tinnitus is sufficient to confirm hearing loss, even if standard audiometric testing is 'normal.' Moreover, it is a well-recognized fact that hearing loss due to noise exposure in early life often occurs in subjects who do not demonstrate objective evidence of hearing loss on routine audiologic testing. Such loss often remains 'hidden' for many years until unmasked by progressive age-related hearing loss. Therefore, it is more likely than not that the noise exposure experienced by the Veteran resulted in 'hidden' hearing loss. A remand is warranted to determine whether the Veteran has a current diagnosis of bilateral hearing loss. The matter is REMANDED for the following action: Arrange for a VA examination from an appropriately qualified examiner to determine whether the Veteran has a current diagnosis of bilateral hearing loss. The claims file, including a copy of this remand, must be made available to be reviewed by the examiner. The examiner must determine if the Veteran has bilateral hearing loss at a level that is considered to be a disability for VA purposes. If so, the examiner should opine as to whether it is at least as likely as not that in-service noise exposure is etiologically related to the current hearing loss. Please explain why or why not. A detailed rationale for all opinions must be provided. If the examiner is unable to offer any requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Noh, 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.