Citation Nr: 1314540	
Decision Date: 05/02/13    Archive Date: 05/15/13

DOCKET NO.  09-08 480	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas

THE ISSUES

1.  Whether there is new and material evidence to reopen a previously denied claim of entitlement to service connection for bilateral heel spurs.

2.  Entitlement to service connection for bilateral hearing loss.

3.  Entitlement to service connection for tinnitus.

4.  Entitlement to service connection for right foot disability.

REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran-Appellant

ATTORNEY FOR THE BOARD

Jason A. Lyons, Counsel


INTRODUCTION

The Veteran served on active duty (AD) from February 1973 to January 1976, and he had subsequent periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) from March 1983 to February 2003 in the Army Reserves.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a July 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified at a hearing at the RO in October 2011 before the undersigned Veterans Law Judge (VLJ) of the Board (Travel Board hearing).  Relevant to that proceeding, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U. S. Court of Appeals for Veterans Claims (Court/CAVC) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ chairing a hearing fulfill two duties to comply with this VA regulation.  These duties consist of:  (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked.  Here, during the hearing, the presiding VLJ explained the basis of the prior determination denying these claims and discussed the elements of the claims that were lacking to substantiate entitlement to the claimed benefits.  In addition, the VLJ sought to identify any pertinent evidence not then currently of record that might have been overlooked or was outstanding that might tend to substantiate the claims.  Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or otherwise identified any prejudice in the conducting of that hearing.  To the contrary, the hearing focused on the evidence needed to substantiate the claims.  As such, the Board finds that, consistent with Bryant, the presiding VLJ complied with the duties set forth in § 3.103(c)(2).

Also, following the hearing, the Board held the record open an additional 30 days, so until November 27, 2011, to allow the Veteran time to obtain and submit additional supporting evidence.  He did not submit any additional evidence, however, either within this time allotted or even since.  He also did not request more time, such as by filing a motion for an extension.  See Haney v. Nicholson, 20 Vet. App. 301 (2006) (When a VLJ at a hearing exercises discretion to leave the record open for the appellant to submit evidence pursuant to 38 C.F.R. § 20.709, the VLJ must set a deadline as to how long the record will remain open, and if such deadline is not set at the hearing, fair process requires the Board to subsequently set a deadline by which the record will close and notify the appellant of that deadline before the claim can be adjudicated).  The Board therefore proceeded to consider this appeal.

In April 2012, the Board issued a decision denying several other claims that also were on appeal.  But the Board, instead, remanded these remaining claims to the RO via the Appeals Management Center (AMC) for further development.  These remaining claims since have been returned to the Board.

In this decision the Board is deciding the claim for service connection for bilateral hearing loss.  However, the Board is again remanding the remaining claims for service connection for right foot disability and tinnitus, and concerning the petition to reopen the claim for service connection for bilateral heel spurs, because these remaining claims require still further development.  The remand of these remaining claims to the RO again will be via the AMC.

FINDING OF FACT

The Veteran does not presently have sufficient hearing loss in either ear to be considered as a ratable disability according to VA standards.

CONCLUSION OF LAW

He is not shown to have a ratable bilateral hearing loss disability due to disease or injury incurred in or aggravated by his active military service or that may be presumed to have been incurred in service.  38 U.S.C.A. §§ 101(24), 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duties to Notify and Assist the Claimant

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duties to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits.  Implementing regulations were codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2012).

VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf.  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  A regulatory amendment effective for claims pending as of or filed after May 30, 2008, removed the so called "fourth" requirement that VA also specifically request that he provide any evidence in his possession pertaining to the claim.  73 Fed. Reg. 23,353-56 (Apr. 30, 2008), codified later at 38 C.F.R. 3.159(b)(1).

The U. S. Court of Appeals for Veterans Claims (Court/CAVC) further held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), that these VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim:  1) Veteran status, 2) existence of a disability, 3) a connection between the disability and military service, but also concerning the "downstream" 4) disability rating and 5) effective date for the award if service connection is granted.


Here, by way of VCAA notice correspondence dated from August 2005 through October 2005, the RO notified the Veteran as to each element of satisfactory notice set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  The VCAA notice further indicated the joint obligation between VA and him in obtaining pertinent evidence and information, explaining that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records.  See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002).  While there is no indication of notification concerning both the "downstream" disability rating and effective date elements of a pending claim for service connection consistent with the holding in the Dingess/Hartman decision, as the underlying claim for service connection is being denied on its merits, the absence of notice on this subject has no detrimental effect upon adjudicating the appeal of this claim because these "downstream" elements of the claim are moot.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced).  

Consider also that the VCAA notice correspondence was sent to the Veteran prior to the July 2007 rating decision on appeal, thus in accordance with the preferred preadjudicatory timing-of-notice standard.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  

As well, the RO (including through the AMC) has taken appropriate action to comply with the duty to assist the Veteran with this claim by obtaining records of his private outpatient treatment.  There is no indication of outstanding records of VA treatment.

Pursuant to the prior Board remand directives, a VA Compensation and Pension examination was provided to determine the nature and etiology of the Veteran's claimed bilateral hearing loss.  Regarding obtaining his service treatment records (STRs), unfortunately his complete STRs have been unavailable on repeated RO records inquiries with the appropriate records repositories.  Nonetheless, the RO 

undertook proper action to notify him of alternative sources of evidence he could provide to supplement the record.  See VA Adjudication Procedure Manual, 
M21-1R III.iii.2.E.27.6 (Feb. 6, 2012).

In a case, as here, in which records concerning a Veteran's service are unavailable through no fault of his own, there is a heightened duty to assist him in developing his claim and to provide reasons or bases for any adverse decision rendered without the benefit of these records, including with consideration of the benefit-of-the-doubt doctrine.  See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that the heightened duty to assist a Veteran in developing facts pertaining to his claim in a case in which his STRs are presumed destroyed includes the obligation to search for alternative medical records, such as by having him complete and return National Archives (NA) Form 13055 so the RO can obtain abstracts, etc., from the Surgeon General's Office (SGO)).  See also Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996); and Cuevas v. Principi, 3 Vet. App. 542, 548 (1992).

Missing records concerning the Veteran's military service, however, while indeed unfortunate, do not, alone, obviate the need for him to still have evidence supporting his claim by establishing he has the claimed disability and by suggesting a relationship or correlation between the claimed disability and his military service.  See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)).  In other words, missing records concerning a Veteran's service do not lower the threshold for an allowance of the claim.  No presumption, either in favor of the claim or against VA, arises when there are lost or missing service records.  See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (Court declined to apply "adverse presumption" against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown.).  The legal standard for proving the claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened.  See Russo v. Brown, 9 Vet. App. 46 (1996).  Cf. Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996); Arms v. West, 12 Vet. App. 188, 194-95 (1999).

Moreover, at least a portion of his reserve duty STRs were recovered, although his AD records remain missing.  In any event, as indicated below, the available evidence apropos of the missing service records still provides a sufficient basis at this point upon which to adjudicate and decide this claim.  Meanwhile, in furtherance of the claim, the Veteran himself has provided several personal lay statements and additional private treatment records.  There is no indication otherwise of any further relevant evidence or information that has not yet been obtained that is obtainable.  The record as it stands includes sufficient competent evidence to decide the claim.  Under these circumstances, no further action is necessary to assist him with this claim.

He has received all essential notice, has had a meaningful opportunity to participate effectively in the development of his claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  So, in summary, it is difficult to discern what additional guidance VA could have provided him regarding what further evidence he should submit to substantiate his claim.  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran).  This is especially true in this instance, considering there already has been a remand of this claim.

In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims files, both his physical claims file and electronic ("Virtual VA") claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in exhaustive detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Background and Analysis

Service connection is granted for current disability resulting from a disease contracted or an injury sustained in the line of duty during active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

Active military service includes any period of active duty (AD) or active duty for training (ACDUTRA) during which the Veteran was disabled from disease or injury and any period of inactive duty training (INACDUTRA) during which the Veteran was disabled from injury - though not disease - or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training.  38 U.S.C.A. §§ 101(21), (22), (23), (24), 106, 1110, 38 C.F.R. §§ 3.6(a), (d), 3.303(a).  See also Harris v. West, 13 Vet. App. 509, 511 (2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); and Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991).

Certain diseases are considered chronic, per se, including organic diseases of the nervous system such as sensorineural hearing loss, and therefore will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).  It also does not apply to claims predicated on ACDUTRA and INACDUTRA service, only AD, and there equally are no presumptions of soundness and aggravation concerning claims premised on ACDUTRA and INACDUTRA service.  See Biggins, 1 Vet. App. at 477-78; Smith v. Shinseki, 24 Vet. App. 40 (2010).


Reserve and National Guard service generally means ACDUTRA and INACDUTRA.  ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505.  38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c).  Basically, this refers to the two weeks of annual training, sometimes referred to as "summer camp," which each Reservist or National Guardsman must perform each year.  It can also refer to the Reservist's or Guardsman's initial period of training.

INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505.  38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d).  Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year and is often referred to as "weekend warrior" training.  These drills are deemed to be part-time training.

So to the extent the Appellant is alleging he has disability as a result of injury or disease incurred or aggravated during his time in the reserves, it must be remembered that only "Veterans" are entitled to VA compensation under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a).  Thus, to establish his status as a "Veteran" based upon a period of ACDUTRA, he must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA.  38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995).  The same is true for establishing his entitlement to compensation for disability from injury, though not disease, incurred or aggravated during his INACDUTRA.  Id.

So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).


Service connection on a direct-incurrence basis requires competent and credible evidence showing:  (1) the Veteran has the alleged disability or, at the very least, indicating he has at some point since the filing of his claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).

Also of application to claims for direct service connection is the principle that where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  On the other hand, continuity of symptomatology is required where the condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned.  In this circumstance, a showing of continuity of symptomatology since service is required establish chronicity of disease or injury in service and in turn link current disability to service.  38 C.F.R. § 3.303(b).  However, the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) since has clarified in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), that this notion of continuity of symptomatology is limited to where involving those specific diseases denoted as "chronic" (and for which presumptive service connection is otherwise available) under 38 C.F.R. § 3.309(a).

By regulation, sensorineural hearing loss is subject to service connection based upon continuity of symptomatology as an "organic disease of the nervous system".  Moreover, the Veterans Benefits Administration's (VBA's) M21-1MR has a section titled "Determining Impaired Hearing as a Disability," which includes the following note:  "Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)."  M21-1MR III.iv.4.B.12.a.


Ultimately, though, the determination as to whether the requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

All reasonable doubt material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 3.102.

Generally, lay statement evidence may have direct relevance to establishing underlying components of a claim for service connection.  In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit Court commented that competence to establish a diagnosis of a condition can exist when:  (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.

Lay testimony where found credible is also competent to establish the presence of continuity of symptomatology for a claimed disability during and since separation from military service (again, subject to the limitation that a "chronic" disease is involved as defined under 38 C.F.R. § 3.309(a)).  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).

The Federal Circuit Court has further held in Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010) and in Waters v. Shinseki, 601 F.3d 1274, 1278 (2010), that it is error to suggest that lay evidence can never be sufficient to satisfy the requirement of 38 U.S.C.A. § 5103A(d)(2)(B) that there be a nexus between military service and a claimed condition.  But as also observed by the Federal Circuit Court, lay evidence must "demonstrate some competence."  See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted).  When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).

As already alluded to, in situations, as here, where the service records are incomplete, lost or presumed destroyed through no fault of the Veteran, VA has a heightened duty to assist in the development of the claim, as well as a heightened obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt doctrine.  See Marciniak v. Brown, 10 Vet. App. 198, 200 (1997), citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  See also Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006).  Thus far, all reasonable measures to assist the Veteran in obtaining available medical evidence pertinent to and contemporaneous with his military service have been carried out.  The Board further recognizes the concomitant duty to carefully explain the reasons and bases for this decision.

As specifically concerning claims of entitlement to service connection for hearing loss, the threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155 (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)).  But before service connection may be granted for hearing loss, it must be of a particular level of severity.  For purposes of applying the laws administered by VA, impaired hearing only will be considered a ratable 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 threshold 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.


In this particular instance at hand, the Board's review of whether the Veteran has the claimed condition of bilateral hearing loss is constrained by the audiological findings before it, which are encompassed entirely by the report of a May 2012 VA Compensation and Pension examination.  Pursuant to that examination, upon audiological evaluation, pure tone thresholds, in decibels, were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
10
25
30
LEFT
5
5
10
25
30

Speech audiometry revealed speech recognition ability of 100 percent in each ear.

It is readily apparent, then, that the Veteran does not have sufficient hearing loss in either ear to be considered an actual ratable disability by VA standards, meaning according to the threshold minimum requirements of 38 C.F.R. § 3.385.  Although he has hearing loss, meaning, as defined by Hensley, a greater than 20 decibel loss in each ear in the 3,000 and 4,000 Hz frequencies, to reiterate, he simply does not have sufficient hearing loss according to § 3.385 to be recognized as a ratable disability for VA compensation purposes.

The very cornerstone of a valid claim for service connection consists of competent evidence of the current disability claimed.  Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("Compensation for service-connected injury is limited to those claims which show a present disability."); Hicks v. West, 12 Vet. App. 86, 89 (1998); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992).  See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability."); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection may not be granted unless a current disability exists].  A "current disability" means a disability shown by competent evidence to exist.  Chelte v. Brown, 10 Vet. App. 268 (1997).

Here, though, absent evidence of a present hearing loss disability, or at the very least a showing of this require disability at some point since the filing of this claim, the claim for service connection cannot be substantiated.  VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability.  See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997).  In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Federal Circuit Court clarified that this requirement of current disability is satisfied when the claimant has the disability at the time the claim or application for VA disability compensation is filed or during the pendency of the claim, and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim.  But, here, there is no suggestion of the required level of hearing loss in either ear since the filing of this claim.

To the extent the Veteran has had any measure of impairment in auditory acuity, the May 2012 VA examiner nonetheless indicated it was not caused by or a result of military service.  The rationale, in part, explained that, while there were no AD medical records in the claims file, "audiometric data from 1983 in reserves shows normal thresholds at levels that would not show a significant shift, even with the enlistment data missing.  Audiometric data from 1993 again shows normal thresholds with no significant shift from the 1983 data."  Thus, the available evidence tends to show that, even were hearing loss diagnosed within the purview of VA criteria, there still is not the required causal linkage or nexus to the Veteran's military service.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").  Note also that the missing records concerning his service, even if available for consideration, would do little to nothing in the way of providing the required evidence of a present-day ratable hearing loss disability according to the threshold minimum requirements of § 3.385 because these records, again, even if available, necessarily would predate the relevant time period at issue, i.e., since the filing of this claim.  This, then, serves to greatly lessen the ultimate importance of these missing records.

Moreover, since a layman, the Veteran is not competent to say he has sufficient hearing loss to satisfy these threshold minimum requirements of § 3.385 to be considered a ratable disability by VA standards since this determination is based on the results of audiometric testing at specified frequencies and on his speech discrimination scores, so objective data rather than merely subjective lay opinion.  See Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).  Here, the Board did indeed obtain a medical opinion, and it was entirely unfavorable to the claim - both in terms of concluding the Veteran does not have sufficient hearing loss in either ear to be considered a ratable disability by VA standards and, aside from that, in completing disassociating even the hearing loss he has from his military service.

For these reasons and bases, the Board is denying this claim for service connection for bilateral hearing loss.  The preponderance of the evidence is against this claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).


ORDER

The claim of entitlement to service connection for bilateral hearing loss is denied.



REMAND

Further development is still required concerning the remaining claims on appeal, prior to issuance of a final decision concerning them.

With regards to the tinnitus, like his hearing loss, the Veteran alleges having developed this condition from noise exposure during his military service in the process of weapons qualifications and from exposure to "all types of small arms fire, artillery, armor/tanks, and aircrafts in all types of combat ready exercises out in the field."

He is competent to allege noise exposure during his service in these capacities, even in the absence of any actual documentation from service giving the records concerning his service that are missing or unaccounted for, and his contentions regarding noise exposure during his service must receive due consideration when inquiring into the etiology of his claimed tinnitus.  See generally Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (where lay evidence provided is competent and credible, the absence of contemporaneous medical documentation such as actual treatment records does not preclude further evaluation as to the etiology of the claimed disorder).  See, too, Washington v. Nicholson, 19 Vet. App. 363 (2005) (A Veteran is competent to report what occurred in service because testimony regarding firsthand knowledge of a factual matter is competent).

Tinnitus, is "a noise in the ear, such as ringing, buzzing, roaring, or clicking.  It is usually subjective in type."  See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (DORLAND'S) 1956 (31st ed. 2007).  And, indeed, because of the inherently subjective nature of it, it is readily capable of even lay diagnosis.  See Charles v. Principi, 16 Vet. App. 370 (2002).


Given this indication of claimed noise exposure in service, and to afford the Veteran's claim appropriate consideration, the Board previously remanded this claim in April 2012 for a VA compensation examination on the subject of whether tinnitus had a causal connection to his service.  The aforementioned VA audiological examination in May 2012 addressed this issue of his claimed entitlement to service connection for tinnitus.  During that examination, the Veteran reported that his tinnitus would come and go with no specific pattern, no specific event linked to onset.  The VA examiner then opined that the Veteran's hearing loss was less likely than not due to military noise exposure, the rationale being "normal thresholds in reserves, post military work in chemical plant as operator, no specific event linked to onset, they come and go."

In the view of the Board, the foregoing opinion does not properly take into account the Veteran's own reported history of noise exposure arising out of his more than 20-year history of military service when including active duty and reserve duty.  Therefore, it is imperative that a supplemental medical opinion from the May 2012 VA examiner is obtained.  See 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012) (VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim).  See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided).

As for the claim for service connection for right foot disability, the Veteran underwent a separate May 2012 VA examination for this additional condition, following which the diagnosis given was degenerative or traumatic arthritis of the right foot.  (No analogous condition was diagnosed on the left side.)  The VA examiner further opined, however, that this claimed condition was less likely than not "proximately due to or the result of the Veteran's service-connected condition."  

The stated rationale was that:

[T]here is no evidence of complaint, treatment, or evaluation for a foot problem while on active duty.  There is no history of injury to the foot while on active duty, or active duty for training.  The last three years in [the] reserves he did have [a] profile for no running due to his right foot.  Surgery in 2000.  Multiple periodic history and physical exams from 1983 to February 1993 negative for a foot problem.  If in fact this was due to training or activities while on active duty you would expect the same condition to be present in the other foot.  It is not.  Running has not been shown to cause arthritis in one foot and not the other.  It appears from the record and veterans statements that his condition began to bother him in 1999 to 2000 time frame.  Even in amputees there is no increased risk of developing arthritis in the opposite extremity

The Board in its review of the proffered opinion simply does not find the logic stated therein to be fully persuasive.  Clearly, as a general matter of course, medical research, analysis and opinion is within the discretion of a qualified evaluating treatment professional.  See Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991).  This notwithstanding, the Board fundamentally does not find it to strain credulity that one could sustain a right foot injury pursuant to running (or similar service-related trauma) while not simultaneously sustaining a left foot injury.  The VA examiner's opinion on the whole thus does not carry probative weight.  Further comment concerning the posited relationship between this disability and the Veteran's military service therefore is needed before deciding this claim.

Moreover, the petition to reopen the claim for service connection for bilateral heel spurs is "inextricably intertwined" with the issue of entitlement to service connection for right foot disability, and the disposition of the petition to reopen the heel spurs claim therefore must be deferred pending this additional development and eventual resolution of the claim for right foot disability.  Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered).  See also Parker v. Brown, 7 Vet. App. 116 (1994).  Because the Board is remanding for further development his inextricably intertwined claim of entitlement to service connection for right foot disability, so, too, must the Board remand this claim for bilateral heel spurs to avoid piecemeal adjudication of claims with common parameters.  See Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (Where the facts underlying separate claims are "intimately connected," the interests of judicial economy and avoidance of piecemeal litigation require the claims be adjudicated together.).  See also Hoyer v. Derwinski, 1 Vet. App. 208 (1991) and Holland v. Brown, 6 Vet. App. 443, 446 (1994).

Accordingly, these remaining claims are REMANDED for the following additional development and consideration:

1. Request a supplemental or addendum opinion from the May 2012 VA audiological examiner concerning the questions below; or in the alternative, in the event the May 2012 audiological VA examiner is unavailable or unable to provide a supplemental opinion, schedule the Veteran for another appropriate VA compensation examination to determine the etiology of his tinnitus.  The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history.

In particular, the examiner must provide a supplemental opinion regarding whether the claimed tinnitus is as likely as not (50 percent or greater probability) etiologically related to the Veteran's alleged noise exposure in service over a more than 20-year military history (including active duty and reserve duty).  In commenting, the VA examiner is requested to expressly take into consideration the Veteran's averred acoustic trauma in service as set forth through hearing testimony and his May 2012 written statement associated with the claims file.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied entirely on the absence of evidence in the STRs to provide a negative opinion).

The examiner must provide a complete rationale for all opinions expressed and conclusions reached, whether favorable or unfavorable, if necessary citing the objective medical findings supporting the opinions and conclusions.

* It is left to the designees' discretion whether the Veteran needs to be reexamined to make these necessary determinations.

2. Schedule the Veteran for a VA examination, preferably with a podiatrist, to determine the etiology of his claimed right foot disability.  The claims folder must be provided to and reviewed by the examiner in conjunction with this requested VA examination.  All indicated tests and studies should be performed, and all findings should be set forth in detail.

The VA examiner is requested to provide an opinion concerning whether it is as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed right foot disability is directly related to or incurred during his active military service.  In providing the requested opinion, the examiner should review the prior May 2012 VA physician assistant's opinion on the matter pursuant to an earlier examination -- please note however, that the Board was unable to ascribe sufficient probative weight to this earlier medical opinion, notably, its finding that necessarily excluded service-related factors as the cause of claimed right foot disability because there was no attendant paired disability of the left foot.

The examiner should include in the examination report the rationale for all opinions expressed.  However, if the examiner cannot respond to the inquiries without resorting to mere speculation, he or she should so state but, more importantly, also explain why it is not feasible or possible to provide a responsive medical opinion.

3. Upon completion of the supplemental medical opinion and examination, review the examiners' reports to ensure substantial compliance with the Board's remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998).  Take any needed corrective action.  38 C.F.R. § 4.2.

4. Then readjudicate these remaining claims on appeal for service connection for tinnitus and right foot disability, and the petition to reopen the claim for service connection for bilateral heel spurs, in light of this and all other additional evidence.  If these claims are not granted to the Veteran's satisfaction, send him and his representative a Supplemental Statement of the Case (SSOC) and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration of these remaining claims.

The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

No action is required of him until further notice.  However, the Board takes this opportunity to advise him that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims.  His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated.  He is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. 

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A.      §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs