Citation Nr: 21077342 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 16-28 635 DATE: December 29, 2021 ORDER New and material evidence has been received, and the petition to reopen a claim of entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to an evaluation in excess of 10 percent for bilateral plantar fasciitis is remanded. FINDINGS OF FACT 1. A January 1992 rating decision denied service connection for bilateral hearing loss. The Veteran did not file a timely notice of disagreement; therefore, the decision became final. 2. Evidence received since the 1992 decision, by itself, or in conjunction with previously considered evidence, relates to unestablished facts necessary to substantiate the underlying claim. CONCLUSION OF LAW New and material evidence has been received to reopen a claim of service connection for bilateral hearing loss. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1988 to December 1991. This case comes to the Board of Veterans' Appeals (Board) from a June 2013 rating decision that found that new and material evidence had not been received to reopen a previously denied claim of service connection for bilateral hearing loss and continued a 10 percent disability evaluation for bilateral plantar fasciitis (previously rated as pes planus). In July 2020, the Board denied the petition to reopen a previously denied claim of service connection for bilateral hearing loss because new and material evidence had not been received and denied an evaluation in excess of 10 percent for bilateral plantar fasciitis. The Board also denied a compensable rating for the residuals of a distal fracture of the right ring finger and denied service connection for gastrointestinal disorder due to a medically unexplained chronic multi-symptom illness. In July 2021, the United States Court of Appeals for Veterans Claims (Court) granted the parties' Joint Motion for Remand and vacated the Board's decision denying the petition to reopen a previously denied claim of service connection for bilateral hearing loss because new and material evidence had not been received and denying an evaluation in excess of 10 percent for bilateral plantar fasciitis. The Veteran did not appeal the claims for the right ring finger and gastrointestinal disorder; accordingly, these issues are not pending before the Board. The Board notes that VA treatment records and VA examinations were associated with the Veteran's claims file after the June 2016 Statement of the Case. While the Veteran has not waived initial review of this evidence, there is no prejudice to the Veteran because this evidence will be considered on remand. New and material evidence for bilateral hearing loss The Board must perform its own de novo review of whether new and material evidence has been received to reopen the claim of service connection for bilateral hearing loss before addressing the claim on the merits. 38 U.S.C. § 7104; Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). An appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. §§ 19.20, 19.52. A rating decision that is not timely appealed becomes final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is received. 38 U.S.C. § 5108. In general, a claim will be reopened if new and material evidence is received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156. 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. Id. New and material evidence must raise a reasonable possibility of substantiating the claim. Id. This is a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). A January 1992 rating decision considered only the Veteran's service treatment records and denied service connection because hearing loss existed prior to service and was not aggravated by service. The Veteran did not file a notice of disagreement; therefore, the rating decision became final. Since this rating decision, lay statements from the Veteran, his wife, and his ex-wife were added to the claims file. The Veteran stated that he did not have hearing difficulties before service. The Veteran's wife and ex-wife, both of whom knew the Veteran before service, also stated that the Veteran did not have hearing difficulties before service. The Board finds that new and material has been received. The Veteran, his wife, and his ex-wife are competent to state whether the Veteran had hearing difficulties, and this evidence is presumed credible. This evidence relates to whether the Veteran had a hearing loss disability at the entrance of service and satisfies the low threshold of raising a reasonable possibility of substantiating the claim. Because new and material evidence has been received, the petition to reopen a claim of entitlement to service connection for bilateral hearing loss is granted. REASONS FOR REMAND Service connection for bilateral hearing loss The Veteran asserts that bilateral hearing loss is related to service, to include noise exposure to explosives and machine guns. Hearing loss is a disability for compensation purposes if audiometric results show either (1) 40 decibels or greater in any of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz; or (2) 26 decibels at three of these frequencies. 38 C.F.R. § 3.385. A veteran is presumed sound if the entrance audiometric results do not satisfy either requirement. McKinney v. McDonald, 28 Vet. App. 15, 21 (2016). (Continued on the next page.) An October 1988 entrance examination showed the following audiometric results: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 10 5 10 LEFT 10 0 5 10 5 The audiometric results at 6000 Hertz were 75 decibels in the right ear and 70 decibels in the left ear. At a June 2013 VA examination, Dr. J.B. opined that it was less likely than not that the Veteran's bilateral hearing loss was related to service. Dr. B. stated that the Veteran had pre-existing hearing loss at 6000 Hertz and that there was no aggravation of pre-existing hearing loss at separation. Dr. B. also stated that the Veteran's hearing was otherwise normal at separation. The Board finds that remand is required to obtain a new VA examination. Dr. B.'s opinion was based on an inaccurate factual premise because the entrance audiometric results do not show a hearing loss disability and, thus, the Veteran should have been presumed to be in sound condition. 38 C.F.R. § 3.385; McKinney, 28 Vet. App. at 21. Dr. B.'s opinion was also inadequate because service connection cannot be denied due to otherwise normal audiometric results at separation. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). On remand, the Veteran's claims file should be updated. The Veteran's VA treatment records showed that several private hearing reports were scanned into the Tools menu on March 14, 2013. Because the Board does not have access to the Tools menu, these reports must be associated with the claims file. The Veteran should also be provided a VA Form 21-4142 to identify any private treatment for bilateral hearing loss. Evaluation for bilateral plantar fasciitis In July 2021, the Court vacated the Board's decision denying an evaluation in excess of 10 percent for bilateral plantar fasciitis. The Court stated that the Board failed to consider that this disability is rated by analogy and all criteria in a diagnostic code does not have to be met when a disability is being rated by analogy. The Court stated that remand was warranted to determine whether the Veteran was entitled to an increased evaluation under Diagnostic Code 5278. The Board finds that remand is required to obtain a new VA examination. While prior VA examiners stated that the Veteran did not have acquired claw foot, neither considered whether plantar fasciitis should be rated by analogy under Diagnostic Code 5278. On remand, the examiner should opine whether the Veteran's symptoms are functionally equivalent to the criteria in Diagnostic Code 5278. The matters are REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records for the period from February 2021 to the present. 2. Associate the private hearing reports scanned into the Tools menu on March 14, 2013, with the claims file. 3. Ask the Veteran to complete a VA Form 21-4142 for private treatment for bilateral hearing loss or bilateral plantar fasciitis. Make two requests for the authorized records from each identified provider, unless it is clear after the first request that a second request would be futile. 4. Schedule the Veteran for a VA examination for his bilateral hearing loss. The examiner must opine whether it is at least as likely as not that the Veteran's bilateral hearing loss (1) is related to service, to include exposure to explosives and machine guns; (2) manifested within one year after discharge from service; or (3) was noted during service with continuity of the same symptomatology since service. The examiner must review the claims file and provide a rationale for all opinions. The examiner should consider the lay statements from the Veteran, his wife, and his ex-wife. The examiner is advised that a negative opinion cannot be based solely on the normal audiometric results at separation. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral plantar fasciitis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In particular, the examiner should opine whether the Veteran's symptoms of plantar fasciitis are functionally equivalent to (1) unilateral or bilateral marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity; (2) unilateral or bilateral all toes tending to dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia, and marked tenderness under metatarsal heads; or (3) slight, unilateral, or bilateral great toe dorsiflexed, some limitation of dorsiflexion at ankle, definite tenderness under metatarsal heads. In providing this opinion, the examiner is advised that all criteria are not required for functional equivalence. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner also must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups or after repetitive use. The examiner must describe the additional functional loss in terms of range of motion during flare-ups and after repetitive use. If the examination is not conducted during a flare-up or after repetitive use, the examiner must estimate the additional functional loss based on the medical evidence and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ormson, 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.