Citation Nr: 1301595 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 07-14 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a bilateral foot disability, to include pes planus. 2. Entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from October 1968 to August 1992. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified at an August 2008 Board personal hearing in Columbia, South Carolina (Travel Board). The hearing transcript has been associated with the claims file. In an August 2010 decision, the Board denied service connection for obstructive sleep apnea and remanded service connection for a bilateral foot disability, bilateral hearing loss, and tinnitus. The RO granted service connection for right ear hearing loss and tinnitus in a subsequent September 2011 rating decision. For these reasons, the Board finds that the only remaining issues on appeal are service connection for a bilateral foot disability and connection for left ear hearing loss. The August 2010 Board remand directed additional development regarding the issue of service connection for hearing loss that included request to NPRC for service retirement or separation examination report, to obtain outstanding VA treatment records, for any private records released by the Veteran, and for a medical nexus opinion regarding hearing loss. This was accomplished, and the Board concludes that it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). FINDINGS OF FACT 1. A bilateral foot disability was not "noted" at service entrance. 2. The Veteran was not seen for an injury or disease to either foot in service, but experienced chronic symptoms related to bilateral pes planus during service. 3. The Veteran was diagnosed with pes planus within two months of his separation from service and had continuous symptoms of foot pain related to pes planus since service separation. 4. Currently diagnosed bilateral pes planus is related to service. 5. The Veteran experienced acoustic trauma in service. 6. The Veteran experienced chronic symptoms of left ear hearing impairment in service and continuous symptoms of left ear hearing impairment after service separation. 7. A left ear hearing loss disability did not manifest to a compensable degree within one year of service separation. 8. The Veteran's left ear hearing loss meets the criteria for a hearing loss disability for VA compensation purposes. 9. Left ear hearing loss is etiologically related to service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral pes planus have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for left ear hearing loss have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). In the present case, the Board is granting the claims for service connection for bilateral pes planus and left ear hearing loss. Because this decision constitutes a full grant of the benefits sought on appeal, no further discussion regarding VCAA notice or assistance duties is required. Service Connection Laws and Regulations 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.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. With chronic disease 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 causes. 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). 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). In addition, certain chronic diseases, including arthritis and sensorineural hearing loss, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1113. A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). Thus, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). Where the presumption of soundness attaches (where it was not "noted" at entrance into service), in order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service, and there must also be clear and unmistakable evidence that the disorder was not aggravated by service. See 38 C.F.R. § 3.304(b). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The United States Court of Appeals for Veterans Claims (Court) has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Analysis for Service Connection for a Bilateral Foot Disability The Veteran claims that service connection is warranted for bilateral pes planus. He contends that he had problems with his feet in service which he did not seek treatment for. He reported that he did not have flat feet when he entered service, but did upon his retirement. After reviewing all the lay and medical evidence, including the Veteran's statements and testimony, the Board finds that the weight of the evidence demonstrates that currently diagnosed bilateral pes planus was incurred in service. The evidence shows that the Veteran experienced chronic symptoms related to bilateral pes planus during service, that he was diagnosed with pes planus within two months of his separation from service, and that he had continuous symptoms of foot pain related to pes planus since service separation. A September 2010 VA examination reflects a current diagnosis of bilateral pes planus. While the VA examiner provided October 2010 addendum opinion reasoning that pes planus could have been present for all of the Veteran's life, only becoming symptomatic more recently, in this case, a bilateral foot disorder was not "noted" at service entrance. A September 1968 enlistment examination shows that the feet were normal bilaterally. There was no clinical indication of any problems or complaints relating to the feet around the time of the Veteran's service-entrance; therefore, the presumption of soundness of the feet at service entrance attached. See 38 U.S.C.A. § 1111. The Board finds that the evidence is not clear and unmistakable that a bilateral foot disability preexisted service. A chronic foot disability, including pes planus, is not shown to have been diagnosed or treated prior to service. There is no clinical evidence of a preexisting foot disability, including pes planus, prior to service or at service entrance. There is also no medical board or other medical opinion tending to show preservice foot disability. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). As such, the Board finds that the Veteran's feet were in sound condition when he entered service. Having determined that the Veteran's feet were sound at entrance, the Board must determine if a currently diagnosed bilateral foot disability was incurred in service. The Board finds that the Veteran did not sustain an injury or disease of the either foot in service; however, the evidence is at least in equipoise on the question of whether the Veteran experienced chronic symptoms of a bilateral foot disability in service. While the service treatment records, to include a September 1968 enlistment examination and March 1977, March 1981, April 1988, and April 1990 periodic examinations, do not show chronic symptoms or document treatment consistent with chronic symptoms of a foot disability during service, the Veteran has provided consistent and credible lay statements reporting chronic symptoms of foot pain during service. The Veteran reported in a July 2006 statement that he had problems with his feet in service, but did not feel that his problems warranted medical attention. Instead, he used over-the-counter insoles for treatment of his feet. During the August 2008 Board personal hearing, the Veteran testified that he spent a lot of time standing on cement as an airline mechanic in the Air Force. He stated that he never sought medical treatment because it would not have set a good example as a supervisor. He described rolling his feet on glass bottles and wearing insoles to alleviate the pain. The Veteran's wife testified that she soaked and massaged his feet during service. The Veteran further testified that he had a service retirement examination, during which he was diagnosed with flat feet; he contends that he complained to the doctor about his foot pain. A service retirement examination is not of record in this case, and a search for those records at the NPRC shows that they either do not exist or were not located there. The Veteran also submitted a Mach 2006 statement from C.C., a fellow service member noting the Veteran's foot complaints in service. The Board finds that the Veteran, his wife, and friend are competent to report noticing foot symptoms and complaints in service. The Board finds that the Veteran is also competent to report being diagnosed with flat feet at the time of service separation. The Board finds that lay statements and testimony provided by C.C. and the Veteran's wife tend to support the credibility of the Veteran's statements. There is no indication that lay evidence submitted by the Veteran, his wife, and his friend is not credible. See Buchanan, 451 F.3d 1337 (holding that the lack of contemporaneous medical records does not, in and of itself, render lay evidence not credible). The Board notes that, while a separation examination report is not of record, the Veteran submitted a September 1992 claim for acquired bilateral pes planus approximately two weeks after service separation. This claim of having bilateral acquired pes planus, along with objective evidence of a diagnosis of pes planus evidenced in a November 1992 VA examination shortly after service separation further to support the Veteran's contention that he had the onset of bilateral pes planus prior to service separation. Resolving reasonable doubt on this question, the Board finds that bilateral foot symptoms have been shown to be chronic in service. Where there are chronic symptoms of disability during service, such "subsequent manifestations of the same chronic disease" at any later date are to be service connected. 38 C.F.R. § 3.303(b); see also Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993) (lay statements on in-service and post-service symptoms later formed the basis of diagnosis); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The Board finds that the weight of the evidence demonstrates that bilateral foot symptoms have been continuous since service separation. The Veteran was afforded a VA examination of the feet in November 1992, two months after his separation from service. At that time he was diagnosed with bilateral pes planus with mild symptoms. X-rays completed at that time showed a loss of both the longitudinal and transverse arch of both feet. VA treatment records reflect continuing complaints and treatment for bilateral pes planus. A May 2000 VA treatment report reflects moderate pes planus bilaterally, and x-rays of the left foot dated in May 2000 reflect a mild pes planus deformity. The Veteran was issued prosthetic shoes and custom molded inserts with arch supports in July 2000. An August 2004 VA treatment report reflects a diagnosis of severe pes planus. The Veteran had been wearing arch supports for pes planus for the past four years. A June 2006 VA treatment report contains notations of "extremely flat foot" and "very flat foot." A September 2010 VA examination reflects current bilateral pes planus. Based on the foregoing, the Board finds that bilateral pes planus and related symptoms have been continuous since service separation. With regard to the question of whether bilateral pes planus began in service, or is otherwise related to any incident in active service, in an October 2010 addendum opinion, the September 2010 VA examiner stated that he could not resolve the issue without resorting to mere speculation. In that regard, he noted the absence of pes planus on the Veteran's entrance examination, the possibly that pes planus "could have been present all of his life," and he noted no documented evidence of pes planus in service. The Board finds, however, that the VA examiner did not adequately address lay evidence and testimony related to the presence of foot pain in service treated with over-the-counter orthotics, nor did the examiner address findings related to pes planus shown in x-rays shortly after service separation. As the opinion provided was ultimately speculative, the Board finds that it is of no probative value. See Bostain v. West, 11 Vet. App. 124, 127-28 (1998); Obert v. Brown, 5 Vet. App. 30, 33 (1993); Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative.) While the October 2010 opinion does not provide probative evidence in this case, the Board finds that the Veteran has provided competent, credible, and probative lay evidence showing chronic symptoms related to bilateral pes planus during service, and the weight of the evidence, lay and medical, shows that he has had continuous symptoms diagnosed as bilateral pes planus since service separation. Resolving reasonable doubt in the Veteran's favor, the Board finds that currently diagnosed bilateral pes planus is related to service. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Analysis for Service Connection for Left Ear Hearing Loss The Veteran contends that service connection is warranted for bilateral hearing loss due to noise from the flight line while working as a jet aircraft mechanic in service. (Service connection was granted for right ear hearing loss during the course of this appeal). Impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the auditory thresholds for at least three of these frequencies 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. After reviewing all the lay and medical evidence, including the Veteran's statements and testimony, the Board finds that the Veteran was exposed to hazardous noise in service, experienced chronic symptoms of left ear hearing impairment in service and continuous symptoms of left ear hearing impairment after service separation, and current left ear hearing loss meets criteria for a hearing loss disability for VA compensation purposes and is etiologically related to service. In lay statements and testimony, the Veteran described working as a flight mechanic on the flight line during his entire period of service, with noise exposure and hearing loss being most noticeable during his service in Vietnam around 1970 or 1975. The Veteran is competent to describe noise exposure and symptoms related hearing loss in service. The Board finds that the Veteran's statement with regard to experiencing hazardous noise on the flight line and having associated symptoms related to hearing impairment in service is credible as it is consistent with the circumstances of his service. The Veteran's DD Form 214 shows that he served as a Tactical Aircraft Superintendent for over 23 years in service, and the Veteran has described associated duties in aircraft maintenance. While the Duty MOS Noise Exposure Listing referenced in DVA Fast Letter 10-35 for Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus does not include a specific listing for the Veteran's duty MOS, a similar listing shows that individuals with a duty MOS in Tactical Aircraft Maintenance had a high probability of exposure to hazardous noise in service. Based on the foregoing, the Board finds that the Veteran was exposed to hazardous noise in service. The evidence in this case shows that a left ear hearing loss disability did not manifest to a compensable degree within one year of service separation. Multiple audiograms were completed in service. A review of service audiograms dated in September 1968, December 1968, March 1971, February 1972, February 1974, December 1975, March 1977, March 1980, March 1981, February 1982, September 1982, May 1983, October 1984, January 1985, May 1986, September 1987, April 1988, and April 1990 show that a hearing loss disability under 38 C.F.R. § 3.385 did not manifest in service. The earliest post-service audiometric data was provided by VA audiological evaluations dated many years after service separation in March 2007 and September 2010. While a left ear hearing loss disability was not manifest in service, the Board finds that symptoms of left ear hearing impairment were chronic in service and continuous after service separation. The Veteran has provided testimony as to experiencing symptoms related to hearing loss in service, most notable in the 1970s, and the Board finds that he is both competent and credible in his reports. The Veteran's statements tend to be supported by objective findings in service audiograms which reflect an increase in auditory thresholds in December 1975 and March 1977. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (noting that the threshold for normal hearing is zero decibels to 20 decibels and higher threshold levels indicate some degree of hearing loss). While auditory thresholds returned within the normal ranges in subsequent audiological examinations dated from 1980 to 1990, service audiograms reflect slight increase (worsening) in measured auditory thresholds in service. For these reasons, the Board finds that symptoms related to left ear hearing impairment were chronic in service, and the Board finds that the Veteran has provided credible lay evidence with regard to experiencing continuous hearing loss symptoms since service. The Board finds that the Veteran has a current left ear hearing loss "disability" according to VA disability compensation regulation 38 C.F.R. § 3.385. A February 2006 VA audiology/speech consultation indicates that the Veteran had normal hearing sensitivity bilaterally. Puretone threshold measurements were not reported. On a March 2007 VA audiological evaluation, puretone thresholds for the left ear, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 10 15 25 25 25 Speech audiometry revealed speech recognition ability of 92 percent in the left ear. On a September 2010 VA audiological evaluation, puretone thresholds for the left ear, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 10 15 25 25 25 Speech audiometry revealed speech recognition ability of 92 percent in the left ear. Audiometric findings from the March 2007 and September 2010 VA audiograms and speech recognition scores are consistent in this case. While the auditory threshold in the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is not 40 decibels or greater and the thresholds for at least three of these frequencies are not 26 or greater, because the evidence demonstrates that Maryland CNC speech recognition scores were less than 94 percent, the Board finds that the criteria for a current left ear hearing loss "disability" have been met as required by 38 C.F.R. § 3.385. The Board finds that the evidence is at least in equipoise on the question of whether a current left ear hearing loss disability is etiologically related to service. February 2007 and September 2010 VA medical opinions were provided by the same VA examiner in this case. In February 2007, the VA examiner opined that the Veteran's hearing loss was less likely as not due to military service, reasoning that service treatment records documented hearing within normal limits throughout his career. In Hensley, 5 Vet. App. at 163, the Court held that the Board must explain the criteria it used to determine whether a measured worsening of disability constituted an increase in disability in service. The Court also noted that the threshold for normal hearing is zero decibels to 20 decibels and higher threshold levels indicate some degree of hearing. Id. at 157 (citing CURRENT MEDICAL DIAGNOSIS & TREATMENT 110-11 (Stephen A. Schroeder et al. eds., 1988). The Board finds that the February 2007 opinion failed to consider or address the significance of the increase in auditory thresholds shown in December 1975 and March 1977, and failed to address whether there was any increase in hearing threshold levels in service. The same VA examiner who conducted the February 2007 VA examination amended the prior opinion in September 2010, opining that hearing loss was at least as likely as not caused by or a result of military noise exposure. The examiner reasoned that, although the Veteran's hearing was within normal limits at the time of retirement from service, there was a change in the hearing at 6000 HERTZ as compared to the induction examination. He further reasoned that the relationship between noise-induced hearing loss was well documented in the professional literature. According to the Court, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. The Board finds that the amended September 2010 VA opinion is more probative in this case as it was based on specific findings from service audiometric evaluations and adequately addressed both the Veteran's hazardous noise exposure in service and the increase in hearing threshold levels demonstrated in service. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for left ear hearing loss is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for bilateral pes planus is granted. Service connection for left ear hearing loss is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs