Citation Nr: 1752491 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 11-33 447 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a disability of the left foot and great toe. 2. Entitlement to service connection for bilateral hearing loss disability. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for a disability affecting the left jaw. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel INTRODUCTION The Veteran served on active duty from June 1980 to June 1984, with additional service in the Army National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in March 2010 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had requested an opportunity to appear at a hearing before the Board and offer testimony with respect to his claims. A hearing was duly scheduled in October 2016 and the Veteran was notified of the date, time, and location via a September 2016 correspondence. He did not appear for the hearing or offer any reason for his failure to do so. As such, the Board deems the Veteran's request for a hearing to have been waived and will proceed with adjudication of this claim. These matters were previously before the Board in November 2016 when it was remanded for development, to include obtaining additional records, verifying the specific dates of service in the National Guard, and providing the Veteran VA examinations with respect to the disabilities claimed. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). Additionally, an August 2017 rating decision granted service connection for hypertension. As this is a full grant of the benefit sought and a notice of disagreement with the rating/effective date has not been received, this issue is not currently before the Board. The issue of entitlement to service connection for bilateral hearing loss disability is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran sustained a laceration of the left great toe during ACDUTRA in September 1992. 2. The Veteran is not shown to have tinnitus as a result of his military service. 3. The Veteran is not shown to have a current disability affecting the jaw. CONCLUSIONS OF LAW 1. The criteria for service connection for a left great toe laceration and any residuals thereof have been met. 38 U.S.C. §§ 101(24), 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.1 (d), 3.6, 3.303 (2017). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 101(24), 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.1(d), 3.6, 3.303. 3. The criteria for service connection for a disability of the jaw have not been met. 38 U.S.C. §§ 101(24), 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.1(d), 3.6, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist VA notified the Veteran of the evidence and information necessary to substantiate his claims in August 2009. Concerning the duty to assist, all identified, pertinent treatment records have been obtained and considered. These include payroll records from the National Guard as well as active duty service and VA treatment. Additionally, the Veteran has undergone VA examinations related to the disabilities on appeal. See VA examinations from February 2010 and January 2017. As such, the Board will proceed with consideration of the Veteran's appeal. Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding in veterans cases is to be done by the Board")). When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Principles of Service Connection In a service connection claim, the threshold question is whether or not the Veteran actually has the disability for which service connection is sought. Indeed, a service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability. See Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement is satisfied when a claimant "has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim," McClain v. Nicholson, 21 Vet.App. 319, 321 (2007), or "when the record contains a recent diagnosis of disability prior to ... filing a claim for benefits based on that disability," Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty for training (ACDUTRA) or for an injury incurred or aggravated by inactive duty training (IDT). 38 U.S.C. §§ 101(24), 106, 1110, 1131. ACDUTRA means full-time duty in the Armed Forces performed by Reserves for training and full-time duty as members of the Army National Guard or Air National Guard of any State. 38 U.S.C. § 101(22)(a), (c). IDT means duty other than full-time duty prescribed for Reserves or the National Guard of any state. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). Facts and Analysis In this instance, the Veteran had both active duty military service in the Marine Corps from 1980 to 1984 and National Guard service from 1987 to 2002. The dates of the Veteran's ACDUTRA and IDT service in the National Guard are not completely clear, despite the fact that VA has obtained copies of the Veteran's leave and earning statements. In the circumstances of the present case, however, this lack of specificity does not prevent the Board from adjudicating the claims. Left Great Toe The Veteran's service treatment records from his National Guard service show that he was treated for a laceration of the left great toe in September 1992 when he fell in the shower. (See STRs, received 07/13/2009, p. 66.) The Veteran received sutures in the toe, was issued crutches, and received a modified duty order for a period of time after the injury; the records show that this injury and initial treatment took place in Germany. A treatment record from March 2017 noted that the Veteran was complaining of left foot pain which he felt was related to the laceration of the great toe in Germany. (See Medical Treatment Records, received 04/01/2017, pp. 2-3.) The provider noted diagnoses of onychomycosis in the first and second toe on the left foot, pes planus, and a plantar nodule in the left foot. Having reviewed all of the evidence of record and affording the Veteran the benefit of any remaining doubt, the Board finds that the Veteran sustained a laceration of the left great toe while on ACDUTRA or IDT for the National Guard in September 1992. While the specific nature of the Veteran's status at the time of injury is unclear from the record, service connection is appropriate for an injury sustained during ACDUTRA or IDT. The record shows that the Veteran was attached to his National Guard unit and received treatment as part of that unit in September 1992, and that the initial injury and treatment occurred in Germany. It is reasonable to presume that the Veteran and his National Guard unit were in Germany as part of ACDUTRA or IDT at that time. Service connection for the laceration and any residuals attributable to it, to include scarring, is warranted. Any injury or disability of the foot not related to the laceration in September 1992 is not to be included within the grant of service connection. Tinnitus The Veteran listed tinnitus as a claimed disability in his original claim form, and noted a date of onset in 1984. (See Application, received 07/13/2009, p. 6.) He has provided no additional information on the claim or any evidence of treatment for the disability. He did include it in both his Notice of Disagreement and VA Form 9, but provided no additional information. The February 2010 VA examination specifically noted that the Veteran stated that he does not have tinnitus. (See VA Exam, received 02/18/2010, p. 2.) The January 2017 VA examination noted that the Veteran reported recurrent tinnitus at that time, indicating that he began to notice it in the 1960s when he was in Cuba. (See C&P Exam, received 01/17/2017, p. 5.) It was the examiner's opinion that the Veteran's tinnitus was not related to his military service because his hearing was within normal limits when he separated from the National Guard in 2004 and because he had denied having tinnitus at the 2010 VA examination. After considering all of the evidence of record, the Board finds that service connection for tinnitus is not warranted. The Veteran's active duty military service was from 1980 to 1984 and his National Guard service was from 1987 to 2004. None of those records contain any discussion of tinnitus as a complaint or diagnosis and the Veteran actively denied tinnitus as recently as February 2010. The Veteran has not provided any medical evidence to the contrary, to include any evidence of treatment or diagnosis, nor has he provided any lay statements discussing the nature or onset of his tinnitus. The only actual complaint of tinnitus shown in the record is the Veteran's statement at the January 2017 VA examination that he had recurrent tinnitus and had first noticed tinnitus in Cuba in the 1960s, a time frame well before his military service. Without additional information, the Board finds this statement to be of limited probative value. In addition, it does not tend to prove that current tinnitus was incurred or aggravated by his active service. Indeed, the Board finds that statement is of limited evidentiary value and is outweighed by the evidence to the contrary, to include the February 2010 (wherein the Veteran affirmatively denied tinnitus) and January 2017 VA examination reports. For these reasons, the Board finds the weight of the probative, competent, and credible evidence, weighs against a nexus to service. As such, service connection for tinnitus is denied. Jaw Disability The Veteran included a claim for disability of the left jaw in his original claim form, listing a date of 1984 as the date of onset. (See Application, received 07/13/2009, p. 6.) He provided no additional information on the claim, the nature of the disability, or any treatment received for it. While the Veteran included that claim in his Notice of Disagreement and his VA Form 9, he has provided no additional information of any kind regarding the claim. None of the medical evidence of record contains any reference to current treatment for a jaw disability. While the Veteran's dental records from his active duty military service are included in the claims file, there is no specific diagnosis related to a jaw disability. Even if such diagnosis were shown in service, the threshold question is whether the Veteran has a current disability or current symptoms indicative of a disability. The record is silent as to any disability of the jaw or any symptoms of such a disability since the date of the Veteran's claim or proximately thereto. Therefore, in accordance with Brammer there is no factual basis to support a current disability and a claim of service connection. As the preponderance of the evidence weighs against a finding of a current jaw disability, the benefit of the doubt standard of proof does not apply. 38 U.S.C. § 5107(b). ORDER Service connection for laceration of the left great toe and any residuals thereof is granted. Service connection for tinnitus is denied. Service connection for a disability of the jaw is denied. REMAND The Veteran seeks service connection for bilateral hearing loss disability. He was provided a VA examination in January 2017 which resulted in a negative nexus opinion based in part on a "military examination dated 8/1/04 indicating hearing [within normal limits], bilaterally, with no significant change in hearing since 1980." (See C&P Exam, received 01/17/2017, p. 4.) A review of the entire claims file finds that this opinion is based on a misunderstanding. The Veteran separated from service in 1984 and from National Guard service in 2002 and there is no hearing examination of record in August 2004, nor any reason based on the dates of service to believe that one was previously in the record and is now missing. However, the service treatment records do show a separation examination on August 1, 1984 with audiometric testing results similar to those at the time of service entrance. (See STRs, received 09/14/2009, p. 4.) The electronic copy of that record is of poor quality and confusion over the precise date is a likely explanation for the discrepancies. In light of the significance of this piece of evidence to the January 2017 VA examination, clarification of the opinion regarding service connection should be obtained on remand. Accordingly, the case is REMANDED for the following actions: 1. Ask the January 2017 VA examiner of record or, if not available, any other similarly qualified VA clinician, to clarify the opinion with respect to whether it is at least as likely as not (probability 50 percent or greater) that the Veteran's bilateral hearing loss disability was incurred in service, to include National Guard service. Specifically, the examiner should be informed that the separation examination referred to as occurring in August 2004 was apparently from August 1984. The examiner should be asked to review the remainder of the audiometric evaluations of the Veteran's hearing during his active duty and National Guard service and to cite these findings in the addendum opinion. The examiner is asked to provide a comprehensive rationale for any opinion offered and to provide any information necessary to locate any medical literature or research cited in the opinion. 2. Then readjudicate the issue on appeal. If the benefit sought on appeal is not granted in full, issue a supplemental statement of the case (SSOC) and provide the Veteran and his representative an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter 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 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 2014). ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs