Citation Nr: 0812622 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 06-03 954 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral pes planus. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The appellant is a veteran who served on active duty from January 1955 to December 1956 and from February 1957 to February 1961. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision by the Waco RO. In January 2006, the veteran requested a Travel Board hearing; he later withdrew the request. In March 2008, he submitted a waiver of initial RO consideration of additional evidence received after the most recent supplemental statement of the case (SSOC). The veteran had also initialed an appeal of a denial of service connection for bilateral hearing loss. However, his substantive appeal was limited to the issues being addressed, and the matter of entitlement to service connection for bilateral hearing loss is not before the Board. FINDINGS OF FACT 1. It is reasonably shown that the veteran's bilateral pes planus had its onset in service. 2. Tinnitus was not manifested in service and a preponderance of the evidence is against a finding that any current tinnitus is related to the veteran's service. CONCLUSIONS OF LAW 1. Service connection is warranted for bilateral pes planus. 38 U.S.C.A. §§ 1110, 1111, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). 2. Service connection for tinnitus is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies in the instant case. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). A June 2005 letter (prior to the decision on appeal) informed the veteran of the evidence and information necessary to substantiate the claim, the information required of him to enable VA to obtain evidence in support of the claims, the assistance that VA would provide to obtain evidence and information in support of the claim, and the evidence that he should submit if he did not desire VA to obtain such evidence on his behalf. He was also advised to submit evidence in his possession. March 2006 correspondence provided notice regarding disability ratings and effective dates of awards. A November 2005 statement of the case (SOC) and SSOCs in February 2006, March 2006, December 2006, and March 2007 notified the veteran of what the evidence showed, of the governing legal criteria, and of the bases for the denial of the claims. While complete notice was not provided prior to the initial adjudication of these claims, such defect does not affect the essential fairness of the adjudication process. He has received all critical notice, and has had ample opportunity to participate in the adjudicatory process. The claims were readjudicated (in March 2007) after all critical notice was provided. He is not prejudiced by any technical notice timing or content defect that may have occurred earlier, nor is it otherwise alleged. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). The veteran's available service medical records (SMRs) are associated with his claims file, and VA obtained all pertinent/identified records that could be obtained. All evidence constructively of record (VA records) has been secured. The veteran was afforded a VA examination. VA's duty to assist is also met. Accordingly, the Board will address the merits of these claims. II. Legal Criteria Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. 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. To prevail on the issue of service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). III. Analysis A. Bilateral Pes Planus The veteran had two periods of active duty. While his SMRs from his second period of service appear complete, such is not the case with those from his first period of service since the enlistment and separation examination reports from that period of service are not associated with he claims file. When complete SMRs cannot be obtained, VA has a heightened duty to assist him in developing his claims. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). This duty includes a search for alternate medical records, as well as a heightened obligation on the Board's part to explain its findings and conclusions, and carefully consider the benefit- of-the-doubt rule. See Cromer v. Nicholson, 19 Vet. App. 215 (2005). The veteran is presumed sound as to flat feet on entry in service in January 1955. Notably, while his enlistment examination report is unavailable, he was neither disqualified from service, nor placed on profile on enlistment due to flat feet. The enlistment examination report for the veteran's second period of service notes he had bilateral pes planus which was treated during his first period of service due to pain associated with marching. It was also noted that the problem was alleviated with arch supports. His separation examination from his second period of service also found bilateral pes planus. Postservice records noted bilateral foot complaints and diagnoses of bilateral pes planus. 2003 to 2006 VA treatment records note complaints of left arch pain and pes planus. On June 2006 VA examination, the claims file was reviewed and the veteran's feet were examined. The diagnosis was bilateral pes planus. The veteran essentially contends that he developed bilateral pes planus during his first period of service and that the disability was aggravated by his second period of service. The veteran's service enlistment examination from his first period of service would be the best indication of whether he entered service with bilateral pes planus, but, as noted, that record is not available. Since there are no sources other than the National Personnel Records Center (NPRC) that would maintain that record, further attempts to obtain it would be futile. Thus, the Board must look to the other evidence of record to determine the onset of his disability. His claim indicated that his bilateral pes planus began in 1955, which was during his first year of service. The available SMRs note that he was treated for bilateral foot pain due to pes planus during the first period of service. Notably, the records do not suggest that pes planus pre- existed his first period of service. The Board finds the veteran's statements regarding the onset of his bilateral pes planus credible and consistent with the earliest available evidence of pes planus of record (which is fairly proximate to the alleged time of onset). Resolving any remaining reasonable doubt in the veteran's favor, the Board concludes that his bilateral pes planus had its onset in service, and that service connection for such disability is warranted. B. Tinnitus The veteran's available SMRs are silent for complaints, findings, or diagnosis of tinnitus. Since the veteran has reported that he did not seek treatment for his ears in service, a search for alternate source records of such treatment is not necessary. The veteran contends that exposure to weapons training noise in service, without the use of ear plugs, caused his tinnitus. He recalls a specific incident when a recoilless rifle was fired without prior warning to insert ear plugs, and indicates that his ears rang for over two hours after that incident. The veteran's military occupational specialties (MOS) were light weapons infantry (first period of service) and accounting and financial specialist (second period of service). In light of his MOS for his first period of service, it may be conceded that he was exposed to noise trauma during that period of service. However, noise exposure alone is not sufficient to establish service connection for tinnitus. It must also be shown both that the veteran has chronic (persistent) tinnitus disability, and that such disability is related to an event, injury, or disease in service (here, noise trauma). On May 2006 VA examination, the veteran reported an incident in service when he was not wearing ear protection and a recoilless rifle was fired. He reported that he had ringing in his ears for one to two days after that event, and that there was no recurrence of the ringing since that time. The veteran denied a history of tinnitus, which included ringing, buzzing, or any other type of head noise. Although the physician did not have the claims file at the time, he indicated that the incident in service was a single occurrence and that there was no evidence of a chronic disorder. In an August 2006 addendum, the physician stated that he reviewed the file and reiterated that the veteran did not complain of tinnitus. He opined that even if the veteran had current complaints of tinnitus, such would not be related to his military service or any service event that involved the firing of weapons. A November 2006 VA record notes that the veteran reported having ringing in his ears as a result of rifle training in service. Inasmuch as the diagnosis of tinnitus, generally, is based on subjective reports (as there is no reliable testing for such disability), despite the veteran's earlier denials of ringing in his ears, because he now states he has persistent ringing, it may be conceded that he has such disability. Consequently, the remaining factor that must be established to substantiate his claim of service connection for tinnitus is that there must be competent evidence of a nexus between the current tinnitus and event/noise trauma injury in service that is the alleged etiology for such disability. The only competent evidence of record in this matter is the opinion of the May 2006 VA examiner, who indicated in an August 2006 addendum to the examination report that the veteran's tinnitus is not related to his service. The Board finds this opinion probative (it was based on examination of the veteran and review of his claims file, and included the rationale that there were no complaints of tinnitus in service (as apparently would be expected)) and persuasive. Significantly, there is no competent (medical opinion) evidence to the contrary. In light of the foregoing, the Board finds that the preponderance of the evidence is against the veteran's claim. Accordingly, it must be denied. ORDER Service connection for bilateral pes planus is granted. Service connection for tinnitus is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs