Citation Nr: 1325325 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 09-15 128A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for a bilateral foot disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to June 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from June 2008 and October 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The June 2008 rating decision denied entitlement to service connection for a bilateral foot disability. The Veteran filed a notice of disagreement with this decision in July 2008. The October 2008 rating decision reopened the previously-denied, final claims of entitlement to service connection for bilateral hearing loss and tinnitus and denied these issues on their merits. The Veteran filed a notice of disagreement with these denials later that month. The RO issued a statement of the case for all of the issues on appeal in April 2009, and the Veteran filed a substantive appeal for all of these issues in May 2009. In December 2010, the Veteran testified at a personal hearing before a Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. In March 2011, the Board reopened both the hearing loss and tinnitus claims and remanded all of the issues on appeal for additional development. Following completion of that development, the case was returned for further appellate review. In June 2012, the Veteran was notified that the Veterans Law Judge who had conducted the December 2010 hearing was no longer with the Board. He was offered an opportunity to testify at another hearing. 38 C.F.R. §§ 20.707, 20.717 (2012). He accepted this offer and the case was remanded in June 2012 in order to schedule the new Board hearing. In November 2012, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. During the course of this appeal, the Veteran filled out a VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, appointing Disabled American Veterans as his accredited representative, revoking prior representation of the Florida Department of Veterans' Affairs. The issues of entitlement to service connection for bilateral hearing loss and a bilateral foot disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, tinnitus first manifested during active duty service and has persisted since that time. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012)). In addition, VA published regulations, which were created for the purpose of implementing many of the provisions of VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in pertinent part, at 38 C.F.R. § 3.159 (2012)). In light of the favorable decision as it relates to the issue of entitlement to service connection for tinnitus, any error by VA in complying with the requirements of VCAA is moot. II. Analysis The Veteran has claimed entitlement to service connection for tinnitus, which he essentially claims was incurred as a result of in-service noise exposure. In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prevail on the issue of service connection, there must be evidence of a current disability; medical evidence, or in certain circumstances, lay evidence, of in-service occurrence or aggravation of a disease or injury; and evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran seeks service connection for tinnitus on a direct basis. He asserts that he has experienced tinnitus since his service in Vietnam. He has competently testified that he was exposed to noise from gunfire, .22 millimeter rockets, and bazookas during the Tet Offensive. With respect to the issue of current diagnosis, the first Hickson element, a May 2011 VA audio examination report reflects that the Veteran currently has tinnitus. In addition, the Veteran has reported that he experiences tinnitus, and he is considered competent to report the observable manifestations of this claimed disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board thus finds the foregoing evidence sufficiently establishes a current tinnitus diagnosis. See Hickson, supra. With respect to the second Hickson element, the Veteran's service treatment records are silent as to complaints, treatment, or diagnoses relating to tinnitus. The Board notes, in particular, that the Veteran's service personnel records reflect that he served in the Republic of Vietnam from May 1967 to June 1968 as a wireman and switchboard operator. He was assigned to the Headquarters and Headquarters Company (HHC), 79th Engineering Group, while serving in Vietnam. The Veteran has consistently described having been exposed to loud noise during service in Vietnam. He testified at his November 2012 Board hearing that: We had a lot of gunfire during Tet Offensive, and we had the .22 millimeter rockets and several - I don't know what you call it - like a bazooka. And had one hit right behind me once, and my ears just started ringing. They rang for - I don't know - several weeks. And then seems like every time I turn around for then on, anything could aggravate it and they start ringing again. In light of the foregoing, the Board readily concedes that the Veteran was exposed to acoustic trauma while in the military and that he also had the onset of tinnitus in service. The third Hickson element is established by the Veteran's own competent lay evidence showing the onset of tinnitus and continuation of tinnitus after service to the present. In granting this claim, the Board acknowledges that the only medical opinion of record, a May 2011 VA audio examination report, weighs against the claim. Specifically, this examination report found that the Veteran's tinnitus was not caused by or a result of military noise exposure from 1966 to 1968 because "[t]here is no complain[t] of tinnitus, no record or diagnosis or mention of tinnitus in any treatment document from 8-28-2000 through and including 9-10-2004." The Board notes, however, that, given the nature of a tinnitus condition, the Veteran is uniquely situated to competently identify and report on the onset and duration of tinnitus. Weighing the above evidence, the Board finds the statements of the Veteran to be reliable in this case, as the evidence of record also fails to demonstrate that the Veteran's statement are not credible. Resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. See 38 U.S.C. § 5107(b). The claim is granted. ORDER Entitlement to service connection for tinnitus is granted. REMAND The Veteran has also claimed entitlement to service connection for a bilateral foot disability and bilateral hearing loss. With respect to the bilateral foot disability claim, under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. The Court in McLendon observed that the third prong, which requires an indication that the claimant's disability or symptoms 'may be' associated with the established event, is a low threshold. Id. at 83. The Board finds that the McLendon requirements are satisfied with respect to the Veteran's bilateral foot disability claim. The evidence reflects that the Veteran has been diagnosed with bilateral foot disabilities. Specifically, a November 2010 physical examination and x-ray report reveals degenerative joint disease in the right foot, bilateral calcaneal spurs, and bilateral pes cavus deformity, thus satisfying the first McLendon element. The second McLendon element is satisfied by the Veteran's own competent lay assertions, which were made at his November 2012 Board hearing, that his feet were hurt when the sergeants made them do "slap walking" on marches, in which "[a]s you walk, you slap one foot on the ground real hard to make a noise." Thus, the second McLendon element, evidence of an in-service injury, is met. The Board further finds that the low threshold of the third McLendon requirement, an indication of a link between the current disability and service, is also met in this case as there may be a relationship between the Veteran's current disabilities and his in-service "slap walking" and his increased foot pain. There is, however, insufficient competent medical evidence on file for VA to make a decision on the claim. The Board thus finds it necessary to remand this claim for an examination and a medical opinion. The Veteran has also claimed entitlement to service connection for bilateral hearing loss, and the record reflects that the Veteran has undergone VA examinations in order to determine the etiology of any current hearing loss disability. The Board finds, however, that the examination reports are inadequate for the purpose of deciding this claim. Therefore, another remand is required in order to obtain a new examination and etiology opinion. Specifically, the Board notes that the May 2011 VA examiner opined that the Veteran's bilateral hearing loss is not caused by or a result of military noise exposure. Part of the rationale, however, was that "[e]ntrance and separation records as well as the service medical records do not indicate evidence of hearing loss ... associated with the 22mm rocket explosion or any other military service period event." The Board notes, however, that the Veteran expressly endorsed past or current hearing loss on his June 1968 separation medical history report, while he had denied any such hearing loss on the June 1966 pre-induction medical history record. This record constitutes a contemporaneous report from the Veteran of hearing loss in service, and it was not addressed in either the August 2008 or May 2011 VA examination report. Considering that no audiology testing was conducted at separation and that the Veteran is confirmed to have been exposed to hazardous levels of noise in service, the Board finds the Veteran's contemporaneous reports of hearing loss at separation to be significant in this claim and must be addressed. Therefore, the Board finds it necessary to remand the Veteran's hearing loss claim for a new examination and opinion. While this case is on remand, the AMC should update the Veteran's VA medical records to ensure that a full copy is of record. Accordingly, the case is REMANDED for the following action: 1. Obtain a complete copy of the Veteran's VA medical records and associate them with the claims file. 2. Following completion of the above, arrange for the Veteran to undergo a VA examination to determine the nature and etiology of any current bilateral foot disability. The claims folders must be thoroughly reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary should be conducted. All findings should be reported in detail. The examiner should identify any pertinent pathology found and should diagnose all current foot disabilities. As to any pertinent foot disability identified on examination, the VA examiner should express an opinion as to whether it is at least as likely as not (a 50 percent probability or more) that any such disability had its onset in service or is otherwise related to any incident of service. The examiner should expressly discuss any service treatment records that document a relevant in-service injury or medical treatment and the Veteran's lay statements regarding his being made to "slap-walk" on marches. In rendering the opinion, the Board has found that the record demonstrates that the Veteran entered service without a current bilateral foot disability. Any opinion expressed must be accompanied by a complete rationale. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his current hearing loss. The claims folders must be thoroughly reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran, to include his reports of in-service and post-service noise exposure, as well as the Veteran's history of hearing loss in service. Any tests and studies deemed necessary should be conducted. All findings should be reported in detail. The examiner should express an opinion as to whether it is at least as likely as not (at least a 50 percent probability or more) that any hearing loss disability was incurred in service or is related to service, including to any in-service acoustic trauma. In offering this opinion, the examiner should note that the Board finds that the Veteran was exposed to hazardous noise in service. In determining the onset of the Veteran's hearing loss, the examiner must consider the fact that the Veteran denied any past or current hearing loss on his June 1966 pre-induction medical history report, but expressly endorsed past or current hearing loss two years later on his June 1968 separation medical history report. Any opinion expressed must be accompanied by a complete rationale. 4. After the development requested above has been completed, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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). ______________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs