Citation Nr: 21073670 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 20-29 158 DATE: December 9, 2021 ORDER New and material evidence having been received, the petition to reopen the claim for entitlement to service connection for a bilateral foot disorder is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus, to include as secondary to bilateral hearing loss, is remanded. Entitlement to service connection for a bilateral foot disorder is remanded. Entitlement to service connection for a bilateral ankle disorder, as secondary to a foot disorder, is remanded. FINDINGS OF FACT 1. A January 2016 rating decision denied service connection for a bilateral foot disorder; the Veteran was notified of this decision that same month and did not appeal it, and new and material evidence was not received within one year of the notice of this decision. 2. Evidence received since the January 2016 rating decision 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. CONCLUSIONS OF LAW 1. The January 2016 rating decision that denied entitlement to service connection for a bilateral foot disorder is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1100. 2. New and material evidence having been received since the January 2016 rating decision, the criteria to reopen the claim for entitlement to service connection for a cervical spine disorder have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1969 to April 1971. This appeal to the Board of Veterans' Appeals (Board) is from a May 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a hearing before the undersigned; a transcript of the hearing is in the record. 1. New and material evidence having been received, the petition to reopen the claim for entitlement to service connection for a bilateral foot disorder is granted. 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 (1993) (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). The Veteran filed his initial claim for service connection for a bilateral foot disorder in September 2012 and that claim was denied in November 2012. That decision became final because the Veteran did not submit a notice of disagreement and VA did not receive new and material evidence within one year of issuance of the November 2012 decision. Consequently, the decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). The Veteran attempted to reopen his claim in September 2015, and that claim was ultimately reopened and denied in a January 2016 rating decision. The Veteran did not appeal that decision and VA did not receive new and material evidence within one year of issuance of the January 2016 decision, so it became final. Id. There is a July 2020 VA opinion that stated the Veteran's preexisting flat feet were aggravated during service. See July 2020 C&P Exam. This evidence is new because it was not previously considered and it is material because even though there were previously considered private opinions that indicated the Veteran's foot problems began during service, this VA opinion was the only to acknowledge a preexisting disorder and found that it was aggravated during service. In light of the new and material evidence, the claim is reopened. REASONS FOR REMAND 2. Entitlement to service connection for bilateral hearing loss is remanded. The VA opinions of record are inadequate to decide the claim. The May 2018 examiner did not offer an opinion or provide an adequate explanation for why it was speculative to opine as to the etiology of the Veteran's hearing loss. See May 2018 C&P Exam. The July 2020 VA opinion is inadequate because it is based predominantly on evidence that the Veteran's hearing was within normal limits during service. The Board notes that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87 (1992). Competent evidence of a current hearing loss disability meeting the requirements of 38 C.F.R. § 3.385, and a medically sound basis for attributing such disability to service, may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). Given that the examiner also did not address the Veteran's report of noise exposure during service or other relevant evidence of record, another opinion is needed. A September 2006 VA treatment record noted the Veteran had chronic ear inflammation and eustachian tube dysfunction and was seen at "Jackson." See February 2020 CAPRI records. The Board finds that treatment records concerning the Veteran's ears are relevant to the claim. It is unclear if Jackson is a VA facility but regardless, attempts should be made to obtain those records. 3. Entitlement to service connection for tinnitus, to include as secondary to bilateral hearing loss, is remanded. There is evidence to the effect that the Veteran's tinnitus was caused by his hearing loss, so the two issues are inextricably intertwined. As such, a decision on this claim cannot be made until a decision is made for the hearing loss claim. 4. Entitlement to service connection for a bilateral foot disorder is remanded. Although a July 2020 VA opinion indicated that the Veteran's bilateral foot disorder was aggravated during service, there is another VA opinion from a different clinician in July 2020 who opined that there was no aggravation during service. Thus, another opinion is needed to reconcile the conflicting evidence. A February 2006 VA treatment record noted that the Veteran was previously seen at the Green Rivers CBOC, which appeared to be a VA medical facility. Since records from that facility are not in the file and VA treatment records are constructively of record, they must be obtained. 5. Entitlement to service connection for a bilateral ankle disorder, as secondary to a foot disorder, is remanded. There is evidence that indicates the ankle disorders are secondary to the bilateral foot disorder, so those issues are inextricably intertwined. September 2012 VA treatment records noted the Veteran had been seen at "Jackson ortho" and in St. George, Utah. See February 2020 CAPRI records. It is unclear if these are VA facilities, but regardless the RO must attempt to obtain those records as they may be relevant to the Veteran's orthopedic claims. There is also evidence in the service treatment records that the Veteran had an ankle sprain. See September 2015 STR Medical. An opinion will be needed for direct service connection for the ankles. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all treatment records from St. George CBOC, Green Rivers CBOC, and Jackson Ortho. If any one of them is not a VA facility, then obtain the necessary release to request the records and inform the Veteran that he may submit them on his own. 2. After #1 is complete, obtain an addendum opinion as to the etiology of his bilateral hearing loss. It is left to the discretion of the examiner as to whether an in-person examination is necessary. The clinician must address the following: a) Is it at least as likely as not (50 percent or greater probability) that any diagnosed bilateral hearing loss is etiologically related to his period of service? b) The clinician must explain the rationale for the opinion and consider all pertinent evidence, including but not limited to noise exposure and history of ear infections and eustachian tube dysfunction. The opinion cannot be based solely on the lack of any in-service hearing loss. 3. After #1 is completed, schedule the Veteran for a VA examination to determine the etiology of his bilateral foot and ankle disorders. It is left to the discretion of the examiner as to whether an in-person examination is necessary. Based on the record and examination, address the following: a) Is there undeniable evidence that the Veteran's pes planus preexisted service? b) If so, is there undeniable evidence that the preexisting bilateral pes planus was NOT aggravated during service? c) If the response to b) is that there was an increase, then is there undebatable evidence that the increase during service was due to the natural progression of the condition? d) In answering the above, the examiner should consider the August 1965 pre-induction report of medical history with pes planus noted under physician's summary, January 1969 pre-induction report of medical examination with feet marked clinically normal, January 1969 pre-induction report of medical history with "foot trouble" marked, April 1969 STR noting third degree pes planus, April 1969 x-ray showing no significant abnormalities, March 1971 report of medical examination with feet marked clinically normal, and March 1971 report of medical history with "foot trouble" marked. (Continued on the next page) e) Opine whether the Veteran's current right ankle disorder is at least as likely as not (50 percent probability or greater) related to service, to include the right ankle strain treated in May 1969. f) The clinician must explain the rationale for the opinions and consider all pertinent evidence in the record. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Bredehorst, 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.