Citation Nr: 21076969 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 19-17 524 DATE: December 28, 2021 ORDER New and material evidence having been received, the application to reopen the claim for service connection for bilateral hearing loss is granted. New and material evidence has been received, the application to reopen the claim for service connection for tinnitus is granted. New and material evidence having been received, the application to reopen the claim for service connection for flat feet is granted. New and material evidence having been received, the application to reopen the claim for service connection for a skin disorder is granted. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for flat feet is remanded. Entitlement to service connection for a skin disorder is remanded. Entitlement to service connection for severe trench foot (both feet) is remanded. FINDINGS OF FACT 1. A final June 2009 rating decision denied service connection for bilateral hearing loss; newly received evidence raises a reasonable possibility of substantiating the claim. 2. A final June 2009 rating decision denied service connection for tinnitus; newly received evidence raises a reasonable possibility of substantiating the claim. 3. A final June 2009 rating decision denied service connection for flat feet; newly received evidence raises a reasonable possibility of substantiating the claim 4. A final June 2009 rating decision denied service connection for a skin disorder (claimed as granuloma annulare and dyshidrotic eczema); newly received evidence raises a reasonable possibility of substantiating the claim. 5. The Veteran's current bilateral hearing loss is related to his active service. 6. The Veteran's current tinnitus is related to his active military service. CONCLUSIONS OF LAW 1. New and material evidence has been received to warrant reopening the claim for service connection for bilateral hearing loss. 38 U.S.C. § 5107, 5108; 38 C.F.R. §§ 3.156. 2. New and material evidence has been received to warrant reopening the claim for service connection for tinnitus. 38 U.S.C. § 5107, 5108; 38 C.F.R. § § 3.156. 3. New and material evidence has been received to warrant reopening the claim for service connection for flat feet. 38 U.S.C. § 5107, 5108; 38 C.F.R. § § 3.156. 4. New and material evidence has been received to reopen the claim for service connection for a skin disorder. 38 U.S.C. § 5107, 5108; 38 C.F.R. § § 3.156. 5. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385. 6. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army Reserve from February 1986 to May 2005, to include periods of active duty and active duty for training and inactive duty for training. This case comes before the Board of Veterans' Appeals (Board) on appeal from April 2018 and August 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2021, the Veteran testified at a virtual hearing held before the undersigned Veterans Law Judge (VLJ). During the hearing, the Veteran waived initial RO review of evidence received after the statement of the case (SOC) or supplemental statement of the case (SSOC). The Board notes that as the Veteran is also seeking service connection for granuloma annulare and dyshidrotic eczema, which are both skin disorders, the Board has recharacterized the issues on appeal as entitlement to service connection for skin disorders in order to encompass all skin disorders. NEW AND MATERIAL EVIDENCE 1. Whether new and material evidence has been received to reopen the claim for service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen the claim for service connection for tinnitus 3. Whether new and material evidence has been received to reopen the claim for service connection for flat feet. 4. Whether new and material evidence has been received to reopen the claim for service connection for a skin disorder. A previously denied claim may be reopened by submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Evidence is new if it has not been previously submitted to agency decision makers. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is generally to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the United States Court of Appeals for Veterans Claims (Court) clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. The claims for service connection for hearing loss, tinnitus, flat feet, granuloma annulare, and dyshidrotic eczema were originally denied in a June 2009 rating decision based essentially on the finding that there was no indication that the Veteran incurred a disability in the line of duty while performing training; there was no evidence to establish that the Veteran had any chronic condition, according to VA regulation, linked to his active or inactive duty for training with the military. The Veteran did not file a notice of disagreement (NOD) to initiate an appeal with regard to this rating decision; therefore, it became final. In February 2018, the Veteran filed a request reopen his previously denied claims for service connection for bilateral hearing loss, tinnitus, flat feet, granuloma annulare, and dyshidrotic eczema. The evidence since the final June 2009 rating decision includes lay statements from the Veteran, testimony, and military personnel records that the Veteran asserts that his injuries or disabilities occurred while he was in active duty or active duty, active duty for training, or inactive duty for training. The Board finds that this new evidence relates to an unestablished fact necessary to substantiate the claim of service connection and is sufficient to reopen the claim. See Shade, 24 Vet. App. at 117-18. Thus, the Board finds that the additional evidence is both new and material, and the claims for entitlement to service connection for bilateral hearing loss, tinnitus, flat feet, granuloma annulare, and dyshidrotic eczema are reopened. 5. Entitlement to service connection for bilateral hearing loss. 6. Entitlement to service connection for tinnitus. Service connection for bilateral hearing loss and tinnitus is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified puretone and speech recognition criteria. Audiometric testing measures puretone threshold hearing levels (in decibels) over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a Veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. A disorder diagnosed after discharge may be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, to include hearing loss and tinnitus (organic diseases of the nervous system), may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time following separation (one year for organic disease of the nervous system). 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent cause. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Significantly, veteran status must be established as a condition of eligibility for service connection benefits. Bowers v. Shinseki, 26 Vet. App. 201, 206 (2013) (observing that it is "axiomatic that, to receive VA disability compensation benefits, an appellant must first establish veteran status") (citing Cropper v. Brown, 6 Vet. App. 450, 452 (1994)); see also 38 U.S.C. §§ 1110, 1131 The term "veteran" is defined, in relevant part, as "a person who served in the active military, naval, or air service." 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). The term "active military, naval, or air service" includes: (1) active duty; (2) any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). The term "active duty for training" includes, among other things, certain full-time duty in the National Guard. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6(c)(3). Unless and until veteran status is established for any period of active duty for training or inactive duty training - or with regard to the presumption of soundness, veteran status with respect to a prior period of service and a report of examination prior to the training period on which the claim is based-the presumptions of soundness and aggravation, and the presumptions of service connection accorded certain diseases do not apply to such period. Donnellan v. Shinseki, 24 Vet. App. 167, 171 (2010) (holding that the presumption of aggravation does not apply to periods of active duty for training). No presumptions attach (including soundness, aggravation, or presumptive diseases) unless "veteran" status is attained, and certain presumptions (aggravation and presumptive diseases) can never apply to periods of active duty for training and inactive duty training. A claimant who did not serve for any period of time on active duty must establish service connection for a disability on a direct basis first in order to achieve "veteran" status and be entitled to compensation. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Furthermore, it is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60 (1993). The Veteran is seeking service connection for bilateral hearing loss and tinnitus. The Veteran claims that his hearing was damaged while he was on active duty in the military. Specifically, he states that while he was in Belize, he had to work on water treatment equipment, and his hearing was damaged. He did not have hearing protection. The Veteran also had his hearing damaged from explosive courses. See June 2021 Hearing Transcript and May 2018 C&P Exam. Military personnel records contain a September 2004 NCO evaluation report that reveals that the Veteran supervised a water supply section in the performance of water storage and distribution operations and activities. While the Veteran's service treatment records do not show treatment for or complaints of bilateral hearing loss and tinnitus, the Veteran is competent to describe his in-service noise exposure, and such exposure is consistent with the circumstances of his service. 38 U.S.C. § 1154(a). Thus, the Board concludes that the Veteran's loud noise exposure occurred during a period of active duty/active duty for training. The in-service incurrence element of the service connection framework is met for both claims. In May 2018, the Veteran was afforded a VA examination for hearing loss and tinnitus. The Veteran was diagnosed with right ear sensorineural hearing loss and left ear sensorineural hearing loss. The VA examiner opined that the Veteran's bilateral hearing loss was at least as likely as not caused by or result of an event in military service. The examiner explained that considering the Veteran's specialties and regarding infantry, running ranges, and then working 16 hour shifts next to the hazardous noise of the water treatment pumps, it was at least as likely as not that the Veteran's bilateral hearing loss was a result of exposure to those toxic noises. The Veteran also reported that he was discharged for having a change in thresholds, although this paperwork was missing and could not be verified. Additionally, the VA examiner also diagnosed the Veteran with recurrent tinnitus. The VA examiner opined that it was at least as likely as not that the Veteran's tinnitus was caused by or a result of military noise exposure. The examiner explained that the Veteran's reported tinnitus was noticeable and bothersome when he worked 16 hour shifts next to the hazardous noise of the water treatment pumps in Belize. It was at least as likely as not that the Veteran's hearing loss was a result of those toxic noises, and tinnitus was a result of the toxic noise or secondary to the hearing loss that was a result of the toxic noise. The May 2018 VA medical opinion is adequate and weighs greatly in favor of the Veteran's claim. The positive VA medical opinion is supported by a sufficient rationale. The VA examiner considered the Veteran's lay statements regarding history of exposure to loud noises. The examiner favorably opined that the Veteran's tinnitus and bilateral hearing loss were related to his military service. Based on the foregoing, the Board finds that the Veteran's current bilateral hearing loss and tinnitus are related to his active duty/active duty for training military service. Thus, service connection for bilateral hearing loss and tinnitus is granted. REASONS FOR REMAND 1. Entitlement to service connection for flat feet is remanded. 2. Entitlement to service connection for a skin disorder is remanded. 3. Entitlement to service connection for severe trench foot (both feet) is remanded. The Veteran is seeking service connection for flat feet, a skin disorder, and severe trench foot. A remand is warranted for further development of these claims. The Veteran claims that he developed his skin condition while he was in Korea. His arms, face, stomach, feet, and hands had a bumpy rash like red ringworm effect that would appear. He was given vaccinations over in Korea, but the command did not have any of his medical records to ship to him. He had to get a lot more vaccinations because he did not have proof of what he already had received. He was also a bit by so many insects and flies. Additionally, the Veteran reported that he had painful blisters on his feet that cracked and peeled all the time. He reported that his skin fell off in pieces leaving him with more pain. While he was stationed in Fort Benning, Georgia for basic training, he was road marching and in mainly wet swampy weather, which affected his feet. See February 2018 VA Form 21-4138 Statement in Support of Claim. The Veteran also asserts that his skin condition was exacerbated by the contaminated water and the sun while he was stationed in Belize. The Veteran additionally claims that he had problems with flat feet when he was stationed in Fort Benning, Georgia because he had to do road marching and jump out of trucks without wearing any arch support. See June 2021 Hearing Transcript. First, a remand is warranted to obtain VA examinations for the Veteran's claims for service connection for flat feet, skin disorders, and severe trench foot (both feet) because no VA examinations have been performed. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Second, the Veteran was in the Army Reserve from February 1986 to May 2005, but the Veteran's service treatment records for this whole period are missing from the record. Thus, the Veteran's service treatment records and any missing military personnel records must be obtained on remand. Third, the Veteran claims that he was stationed in Belize in the summer of 2003, Korea around 1996 or 1997, and Fort Irwin, California. The RO should verify through official sources the Veteran's periods of active duty for training, active duty, and inactive duty for training. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment or private treatment records and associate with the claims file. Specifically, the RO should have the Veteran complete and return a VA Form 4142 (Authorization and Consent to Release Information to the VA) for any relevant private treatment records. 2. Obtain all of the Veteran's service treatment records and military personnel records from his time in the Army Reserve from February 1986 to May 2005. All attempts to obtain these records must be detailed in the Veteran's claims file. If any records are unavailable, a formal finding must be made on the record. 3. Verify, through all appropriate research, all periods of active duty, active for training, and inactive duty for training performed by the Veteran while serving in the Army Reserve from February 1986 to May 2005. Additionally, the RO should verify the dates that the Veteran was stationed in Belize, Korea, and in Fort Irwin. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's skin disorders. All necessary tests must be performed. A copy of this remand and claims file must be reviewed. The VA examiner must consider the following: Is it at least as likely as not that the Veteran's skin disorders are related to his period of active duty, active duty for training, or inactive duty for training service? The examiner should consider the Veteran's lay statements that he had a bumpy rash on his arms, face, stomach, hands, and feet while he was in Korea; he was bitten by insects and flies. His skin condition was exacerbated by the contaminated water and the sun while he was stationed in Belize. See February 2018 VA Form 21-4138 Statement in Support of Claim and June 2021 Hearing Transcript. All opinions must be accompanied by a sufficient rationale. A negative opinion cannot be solely based on the absence of medical evidence. The Veteran's lay statements must be considered. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's flat feet. All necessary tests must be performed. A copy of this remand and claims file must be reviewed. The VA examiner must consider the following: Is it at least as likely as not that the Veteran's flat feet are related to his period of active duty, active duty for training, or inactive duty for training service? The VA examiner should consider the Veteran's lay statement that he was stationed in Fort Benning, Georgia when he had to do road marching and jump out of trucks without wearing any arch support. See February 2018 VA Form 21-4138 Statement in Support of Claim and June 2021 Hearing Transcript. All opinions must be accompanied by a sufficient rationale. A negative opinion cannot be solely based on the absence of medical evidence. The Veteran's lay statements must be considered. 6. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's severe trench foot (both feet). All necessary tests must be performed. A copy of this remand and claims file must be reviewed. The VA examiner must consider the following: Is it at least as likely as not that the Veteran's severe trench foot (both feet) are related to his period of active duty, active duty for training, or inactive duty for training service? The VA examiner should consider the Veteran's lay statement that he was road marching in swampy weather in Fort Benning, Georgia, which caused problems with his feet. See February 2018 VA Form 21-4138 Statement in Support of Claim and June 2021 Hearing Transcript. All opinions must be accompanied by a sufficient rationale. A negative opinion cannot be solely based on the absence of medical evidence. The Veteran's lay statements must be considered. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Crawford, 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.