Citation Nr: 1329139 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 10-11 686 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to a rating in excess of 10 percent for the service-connected residuals of a right great toe bunionectomy with hallux valgus and degenerative changes, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from May 1972 to September 1977. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from an April 2009 rating decision issued by the RO. The Board remanded the case in October 2012 in order to afford the Veteran the opportunity for a hearing before a Veterans Law Judge. However, in a letter from the Veteran's representative dated in April 2013, It was noted that the request for a hearing was being withdrawn. Therefore, no hearing was held in this matter. The Board notes that the Veteran's representative indicated that the Veteran wanted to claim secondary service connection for damage to "other body systems or structures" that he believed was caused by the service-connected right foot disability. However, the Veteran did not identify a particular disease or body part for which he was claiming secondary service connection. Thus, at this time, this cannot constitute a valid claim requiring action on the part of the Board. If the Veteran wishes to seek service connection for a current condition he believes was caused or aggravated by the service-connected right foot disability, he should identify a specific symptom or disorder in his claim at the RO. The issues of service connection for bilateral hearing loss and an increased rating for the service-connected right foot disability are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDING OF FACT The currently demonstrated tinnitus is shown as likely as not to have had its clinical onset during service following the Veteran was routinely exposed to hazardous noise level incident to his duties while on active duty. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his disability manifested by tinnitus is due disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION To the extent that the action taken hereinbelow is favorable to the Veteran, a discussion of VCAA is not required at this time. The Veteran was afforded a VA audiological examination in March 2009. At that time, the Veteran was found not to have a hearing loss disability. His claimed hearing loss did not meet the thresholds set forth in 38 C.F.R. § 3.385. The VA examiner noted that current audiological findings and a normal hearing examination at discharge did not support the Veteran's claim of service connection. The examiner also opined that the Veteran's tinnitus was not related to service because it developed much later and that an onset in service was not supported by the Veteran's excellent hearing at his discharge examination. Significantly, the Veteran asserted in his September 2009 Notice of Disagreement that, contrary to what the VA examiner reported, he had suffered from tinnitus since his time in service. Given that the VA examination did not fully address the Veteran's lay assertions of having had continuous manifestations of tinnitus due to his exposure to elevated and harmful noise levels during service, the opinion is found to be of limited probative value. To the extent that these lay assertions of the Veteran are credible and consistent with the circumstances of his service, the Board finds the evidence to be in relative equipoise in showing that the tinnitus diagnosed in connection with the VA examination as likely as not had its clinical onset during service. In resolving all reasonable doubt in favor of the Veteran, service connection is warranted. ORDER Service connection for tinnitus is granted. REMAND The Veteran contends that he has a hearing loss disability as a result of his military service. He also contends that his right foot disability is more severe than is reflected in the currently assigned 10 percent rating. His representative in this regard argues that the Veteran has multiple right foot manifestations for which he should be assigned separate ratings. For the purpose of applying the laws administered by the VA, hearing impairment is considered to be a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of these thresholds 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. The Veteran was afforded a VA audiological examination in March 2009. At that time, he did not have findings of a hearing loss disability for VA compensation purposes. His claimed hearing loss did not meet the thresholds set forth in 38 C.F.R. § 3.385. The VA examiner added that current audiological findings and the normal hearing examination at discharge did not support the Veteran's claim of service connection for hearing loss. However, a review of the claims file reveals that there is no discharge examination report of record at this time. The only hearing examinations were the 1972 entrance examination and a February 1977 reference audiogram. Neither of these tests was administered in conjunction with a separation examination. The Veteran was discharged after a Medical Evaluation Board was held to evaluate his now service-connected right foot disability, and it is unclear whether he actually underwent a separation examination. Moreover, at the time of the VA examination in 2009, the Veteran was noted to have a bilateral sensorineural hearing loss. On his VA Form 9, the Veteran is found to have asserted that his hearing had slowly declined since service. Thus, further worsening since the March 2009 examination cannot be excluded. With respect to the Veteran's claim that he should be afforded a higher rating for the service-connected right foot disability, including receiving separate ratings for multiple problems associated with his right foot, the Board notes that the disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code "5280-5284" by the RO. Diagnostic code 5280 references hallux valgus, while diagnostic code 5284 refers to "other foot injuries." The Veteran is service connected for a postoperative right great toe bunionectomy and hallux valgus with degenerative changes. It is possible that the degenerative changes could cause symptoms that are different than those caused by the hallux valgus condition, which, under appropriate circumstances, could warrant a separate rating. While the Veteran can only receive one rating under diagnostic code 5284 for a single foot, the Veteran's representative raises the issue of the possibility of separate ratings pursuant to diagnostic codes 5280 and 5284. Moreover, the Veteran's representative contends that the Veteran suffers from neurologic and circulatory symptoms as a result of his right foot disability. A review of the private treatment records from 2009 show additional diagnoses including metatarsalgia, bunionette and neuritis/neuroma. The VA treatment records from 2009 reflect findings of a bunion, neuroma, tarsal tunnel, pes planus and Achilles equinus. The Veteran also underwent surgery on his right foot in September 2010. While the April 2012 VA examination took place after that, the most recent treatment records of record pertain to that in November 2010, shortly after the surgery. More recent treatment records should be obtained to assess the Veteran's right foot disability after surgery. Moreover, a VA examination is necessary to determine the current severity of the service-connected right foot disability, to include identifying all disabling manifestation attributable thereto. Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran and request that he identify any VA or private treatment that he received for his claimed hearing loss and service-connected right foot disability since November 2010 and provide appropriate releases to enable VA to attempt to obtain copies of any identified private treatment documents. If any records are identified, but not obtained, this should be documented in the claims file, and the RO should inform the Veteran of VA's inability to obtain the records. 2. The RO then should have the Veteran scheduled for a VA hearing examination in order to ascertain the nature and likely etiology of the claimed hearing disorder. The examiner should review the claims file in connection with the examination. If the Veteran has a current hearing loss disability per 38 C.F.R. § 3.385, the examiner should opine whether it is at least as likely as not (at least 50 percent likely) that the current hearing loss disability is due to the documented exposure to harmful noise levels or another event or incident of the Veteran's period of active service. A complete rationale must be provided in the report of examination, including a discussion of the audiological principles applied in arriving at the conclusion that was reached. If the examiner is unable to provide the requested opinion without resort to undue speculation, this should be explained. 3. The RO also should have the Veteran scheduled for a VA examination in order to determine the current severity and extent of his service-connected right foot disability. The examiner should review the claims file in conjunction with the examination. All symptoms and functional impairment caused by the service-connected right foot disability should be identified. The examiner should also indicate whether the Veteran has any additional right foot disorders other than postoperative bunionectomy with hallux valgus and degenerative joint disease, including any neurological or circulatory abnormalities. For any additional right foot disorder that is diagnosed, the examiner should opine as to whether it is at least as likely as not (at least 50 percent likely) that the identified disability is caused or aggravated by the Veteran's service connected right foot disability. Additionally, the symptoms of each additional right foot disorder that is diagnosed should be separately documented in the report of examination to the extent possible. If the symptoms of these additional right foot disorders cannot be separated from those due to the service-connected disability then an assessment of the severity of the Veteran's overall right foot disability should be provided. 4. After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). _________________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs