Citation Nr: 21071568 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-24 725 DATE: November 30, 2021 ORDER New and material evidence having been received, the application to reopen the claim for service connection for a left foot disorder is granted. New and material evidence having been received, the application to reopen the claim for service connection for a right foot disorder is granted. New and material evidence having been received, the application to reopen the claim for service connection for a bilateral eye disorder is granted. REMANDED Entitlement to service connection for a left foot disorder is remanded. Entitlement to service connection for a right foot disorder is remanded. Entitlement to service connection for a bilateral eye disorder is remanded. Entitlement to service connection for right ear hearing loss is remanded. Entitlement to an initial compensable rating for left ear hearing loss is remanded. FINDINGS OF FACT 1. In a final rating decision issued in December 2009, the Agency of Original Jurisdiction (AOJ) denied service connection for left foot, right foot, and bilateral eye disorders. 2. Evidence added to the record since the final December 2009 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claims of entitlement to service connection for left foot, right foot, and bilateral eye disorders. CONCLUSIONS OF LAW 1. The December 2009 rating decision that denied service connection for left foot, right foot, and bilateral eye disorders is final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2009). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for a left foot disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. New and material evidence has been received to reopen a claim of entitlement to service connection for a right foot disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. New and material evidence has been received to reopen a claim of entitlement to service connection for a bilateral eye disorder. 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 1972 to September 1974. This matter comes before the Board on appeal from a rating decision issued in March 2014 by a Department of Veterans Affairs (VA) Regional Office. In July 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. At such time, the undersigned held the record open for 90 days for the submission of additional evidence; however, none has been received. 1. Whether new and material evidence has been received in order to reopen claim of entitlement to service connection for a left foot disorder. 2. Whether new and material evidence has been received in order to reopen claim of entitlement to service connection for a right foot disorder. 3. Whether new and material evidence has been received in order to reopen claim of entitlement to service connection for a bilateral eye disorder. By way of background, VA received the Veteran's original claim for service connection for left foot, right foot, and bilateral eye disorders in January 2009. In a rating decision issued in December 2009, the AOJ considered the Veteran's service treatment records (STRs), VA treatment records, and a December 2009 VA examination. In this regard, the AOJ observed that his STRs were negative for complaints, treatment, or diagnoses referable to a right foot and bilateral eye disorders and the contemporaneous evidence of record failed to show a current disability related to such claims. The AOJ further noted that, while the Veteran's STRs reflected treatment for callus and plantar warts on the left foot in 1974, his contemporaneous VA treatment records showed no treatment for a left foot disorder and a December 2009 VA examination was negative for a current disability related to such claim. Therefore, service connection for left foot, right foot, and bilateral eye disorders was denied. In December 2009, the Veteran was advised of the decision and his appellate rights, but he did not enter a notice of disagreement with such decision. Additionally, no new and material evidence was physically or constructively associated with the record within one year of the issuance of such decision, and no relevant service department records have since been received. Therefore, the December 2009 rating decision is final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2009). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence received since the final December 2009 rating decision includes additional VA treatment records, private treatment records, and the Veteran's lay statements, to include his testimony at the July 2021 Board hearing. In this regard, the Veteran offered additional details regarding the in-service events that he believed resulted in his current left foot, right foot, and bilateral eye disorders. Specifically, he reported that he believed that his bilateral foot disorders developed as a result of participating in long road marches with heavy equipment, and his bilateral eye disorder resulted from exposure to flashes from mortar blasts. Moreover, the newly received treatment records reflect current left foot, right foot, and bilateral eye disorders. Specifically, a July 2013 X-ray revealed an impression of bilateral calcaneal spurring and mild degenerative changes at the first metatarsophalangeal (MTP) joint, with a subsequent diagnosis of chronic heel spurring, and recurrent chalazion of the bilateral upper eyelids and cataract extraction in September 2008. Consequently, as the newly received evidence addresses the bases of the prior final denial, i.e., details regarding the in-service events that the Veteran believes led to his current disorders and evidence of a current disability related to his left foot, right foot, and bilateral eye claims, the Board finds that the evidence added to the record since the final December 2009 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claims of entitlement to service connection for left foot, right foot, and bilateral eye disorders. Accordingly, new and material evidence has been received and such claims are reopened. REASONS FOR REMAND As relevant to all claims, the Board observes that the Veteran testified to receiving private treatment for his left foot, right foot, and bilateral eye disorders and bilateral hearing loss. While he indicated that some records may be unavailable, the Board finds that a remand is necessary in order to provide him an opportunity to submit, or authorize, VA to obtain any available outstanding private treatment records referable to such claims. 4. Entitlement to service connection for a left foot disorder. 5. Entitlement to service connection for a right foot disorder. As noted previously, the Veteran contends he has left and right foot disorders that are related to his military service. Specifically, he testified that he experienced foot pain, and the skin on his feet rubbed off due to long road marches with heavy equipment. The Veteran's STRs reveal that, in May 1974, he had callus and a plantar wart removed on his left foot. However, at the December 2009 VA examination, the examiner noted an impression of plantar wart and callus of the left foot that had healed. In this regard, he explained that the plantar wart and callus were removed in 1974 and had healed well. There was no evidence of any calluses or plantar warts at the time of the examination. Thus, he opined that it was less likely than not that any foot complaints at the time were related to his in-service foot condition. However, as noted previously, newly received treatment records include a July 2013 X-ray that revealed bilateral calcaneal spurring and mild degenerative changes at the first MTP joint, with a subsequent diagnosis of chronic heel spurring. Thus, in light of the Veteran's reports regarding his in-service duties and symptoms, with documented treatment in May 1974, and his current diagnoses of a bilateral foot disorder, the Board finds that a remand is necessary in order to afford him a new VA examination to determine the nature and etiology of such disorders. 6. Entitlement to service connection for a bilateral eye disorder. As noted previously, the Veteran contends he has a bilateral eye disorder as a result of exposure to flashes from mortar blasts in service. In this regard, his STRs reveal that, in July 1973, he got a bump under the side of left eye's upper lid following class work. Additionally, the Veteran's post-service treatment records reflect recurrent chalazion of the bilateral upper eyelids and cataract extraction in September 2008. Consequently, light of the Veteran's reports regarding his in-service duties and symptoms, with documented treatment in July 1973, and an indication of a current diagnosis of a bilateral eye disorder, the Board finds that a remand is necessary in order to afford him a new VA examination to determine the nature and etiology of such disorder. 7. Entitlement to service connection for right ear hearing loss. The Veteran contends he has right ear hearing loss as a result of being exposed to loud noises consistently while serving as an indirect fire infantryman. The Board notes that the Veteran's noise exposure has been acknowledged and he is in receipt of service connection for left ear hearing loss as a result of such exposure. Furthermore, February 2014 and February 2017 VA examinations revealed right ear hearing loss for VA purposes; however, the former examiner opined that such disorder was not at least as likely as not caused by or a result of an event in military service. In this regard, she explained that the Veteran's right ear hearing loss was mild to profound with very poor word discrimination. The examiner noted that these levels were significantly greater than would be expected from the Veteran's reported in-service noise exposure, and found that such was due to another etiology, but did not identify such etiology. She also did not address the downward shift in the Veteran's hearing acuity from his induction examination in September 1972 to his separation examination in July 1974 at 1000 and 2000 Hertz in the right ear. Thus, the Board finds that a remand is necessary to obtain an addendum opinion that addresses such concerns. 8. Entitlement to an initial compensable rating for left ear hearing loss. The Veteran seeks an initial compensable rating for his service-connected left ear hearing loss as he contends such disability is more severe than is contemplated by the currently assigned rating. In this regard, the Board notes that VA regulations governing the evaluation of hearing loss provides that right and left ear hearing loss are rated together. Consequently, the instant claim is inextricably intertwined with the remanded claim for service connection for right ear hearing loss. Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, adjudication of the Veteran's initial rating claim must be deferred until resolution of his service connection claim. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to submit, or authorize VA to obtain, any outstanding private treatment records referable to his left foot, right foot, and bilateral eye disorders and bilateral hearing loss. After obtaining any necessary authorization, all outstanding records should be obtained. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies thereof. 2. The Veteran should be afforded an appropriate VA examination in order to determine the nature and etiology of his claimed left and right foot disorder. The record, to include a copy of this Remand, must be made available to the examiner, and any indicated evaluations, studies, and tests should be conducted. Thereafter, the examiner should address the following inquiries: (A) Please identify all of the Veteran's left and right foot disorders that have been present at any time proximate to his August 2013 claim, even if such are asymptomatic or resolved. In doing so, the examiner should consider the July 2013 X-ray that revealed bilateral calcaneal spurring and mild degenerative changes at the first MTP joint, with a subsequent diagnosis of chronic heel spurring. (B) For each identified left and right foot disorder, the examiner should opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disorder had its onset in, or is otherwise related to, the Veteran's military service, to include his documented treatment for callus and plantar wart in May 1974 and/or as a result of long road marches with heavy equipment. In offering such opinions, the examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran's STRs are silent as to any left and/or right foot disorder, or complaints thereof. He or she is also advised that a lack of medical records demonstrating a continuity of care after service cannot form the sole basis of a negative opinion. The examiner must further consider the lay statements of record regarding the onset of his claimed disorders and the continuity of symptomatology of his bilateral foot pain since service. A rationale for any opinion offered should be provided. 2. The Veteran should be afforded an appropriate VA examination to determine the nature and etiology of his claimed bilateral eye disorder. The record, to include a copy of this Remand, must be made available to the examiner, and any indicated evaluations, studies, and tests should be conducted. Thereafter, the examiner should address the following inquiries: (A) Please identify all of the Veteran's bilateral eye disorders that have been present at any time proximate to his August 2013 claim, even if such are asymptomatic or resolved. In doing so, the examiner should consider the diagnoses of recurrent chalazion of the bilateral upper eyelids and cataract extraction in September 2008. (B) For each refractive error, the examiner should opine whether such was subject to a superimposed disease or injury during service, to include as a result of exposure to flashes from mortar blasts, that resulted in additional disability. If so, please identify the additional disability. (C) For each identified bilateral eye disorder other than a refractive error, the examiner should opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disorder had its onset in, or is otherwise related to, the Veteran's military service, to include his complaint of a bump under the side of left eye's upper lid following class work in July 1973 and/or as a result of exposure to flashes from mortar blasts. In offering such opinions, the examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran's STRs are silent as to any bilateral eye disorder, or complaints thereof. He or she is also advised that a lack of medical records demonstrating a continuity of care after service cannot form the sole basis of a negative opinion. A rationale for any opinion offered should be provided. 3. Forward the record, to include a copy of this Remand, to an appropriate VA examiner so as to offer an addendum opinion regarding the etiology of the Veteran's right ear hearing loss. Following a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's current right ear hearing loss had its onset in, or is otherwise related to, his military service, to include his acknowledged in-service noise exposure, or manifested within one year of his separation from service in September 1974, i.e., by September 1975. If such manifested in the first post-service year, please describe the manifestations. In offering such opinion, the examiner must consider and discuss the downward shift in the Veteran's hearing acuity from his induction examination in September 1972 to his separation examination in July 1974 at 1000 and 2000 Hertz in the right ear, and his lay statements regarding the onset and continuity of symptomatology of his right ear hearing loss. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Clark 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.