Citation Nr: 1754420 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 14-08 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a bilateral lower extremity disorder. 4. Entitlement to service connection for a left foot and ankle disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran had active duty service in the U.S. Marine Corps from April 1964 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In April 2017, the Veteran testified at a videoconference hearing before the undersigned. A transcript of the hearing is of record. Although the representative was not present at the hearing, the Veteran stated on the record that he did not require the assistance of the representative. The Board notes that it has recharacterized the claims for the lower extremities and foot and ankle to conform to the statements made at the hearing and the medical evidence received during the appeal. FINDINGS OF FACT 1. The evidence shows that the Veteran's hearing loss began in service and has continued since service. 2. The evidence shows that the Veteran's tinnitus began in service and has continued since service. 3. The evidence shows that the Veteran's bilateral lower extremity disorder characterized by musculofascial and vascular damage was incurred in service. 4. The evidence shows that the Veteran's left foot and ankle disorder characterized by musculofascial and vascular damage was incurred in service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for hearing loss have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for establishing service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for establishing service connection for a bilateral lower extremity disorder characterized by musculofascial and vascular damage have been met. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for establishing service connection for a left foot and ankle disorder characterized by musculofascial and vascular damage have been met. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a veteran must show: "(1) the existence of a present disability; (2) 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including arthritis and other organic diseases of the nervous system, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309; Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding that 38 C.F.R. § 3.309(a) includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an 'organic disease[ ] of the nervous system'"). Pursuant to 38 C.F.R. § 3.303(b), if a chronic disease is noted in service (or in the presumptive period) but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hearing Loss and Tinnitus The Veteran in this case contends that his tinnitus and hearing loss are the result of in-service noise exposure from being in close proximity to jet airplanes while working in aviation ordinance. In this regard, his DD-214 confirms that he worked in aviation ordinance, an occupation associated with noise exposure. The evidence also demonstrates that the Veteran has met the current disability requirement for both tinnitus and hearing loss. A February 2010 VA examination shows that the Veteran's auditory threshold at 4000 Hertz was 45 dB bilaterally. 38 C.F.R. § 3.385 (2017). The Veteran has reported ringing in his ears and the Board finds his reports both competent and credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Thus, the question is one of nexus. The Veteran asserts that his both his hearing loss and tinnitus began in service and have continued since that time. Although his service treatment records do not reflect a diagnosis of or specific treatment for either disorder, the separation examination shows that high frequency hearing loss was indicated in the left ear. In addition, the Veteran has offered supporting lay statements from his wife who met the Veteran soon after he separated from service and stated that he had reported hearing impairment and ringing in his ears for as long as she had known him. Nevertheless, the record contains a negative nexus opinion. In this regard, the February 2010 VA examiner reasoned that hearing loss and tinnitus were not related to service because his separation examination indicated normal hearing bilaterally and the Veteran reported that tinnitus began four or five years prior and because there is no scientific basis for delayed onset hearing loss at this time although it might exist. The Board does not find this reasoning persuasive. One of the assumptions underlying the rationale appears to be that the Veteran first reported hearing loss and tinnitus only a few years prior; however, the Veteran has offered competent and credible testimony that he has experienced such symptoms since service. Additionally, the examiner stated that audiological testing showed normal hearing bilaterally at separation; however, the examiner but did not address the notation indicating high frequency hearing loss in the left ear at separation. For these reasons, the Board gives little weight to the VA opinion discussed above. What remains are the competent and credible lay statements of the Veteran and his wife indicating that he has experienced symptoms of hearing loss and tinnitus since service. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating that "[l]ay testimony is competent . . . to establish the presence of observable symptomatology"); Charles, 16 Vet. App. 374 (stating that "ringing in the ears is capable of lay observation" and, as such, a veteran is competent to testify as to that symptom). The Veteran's reports are consistent with the type of work he performed in service which involved regular exposure to loud noise from being in close proximity to jet engines. As such, and resolving all doubt in the Veteran's favor, the Board finds that entitlement to service connection for hearing loss and tinnitus is warranted. 38 U.S.C.A. § 5107. Lower Extremities and Left Foot and Ankle Disorders As to the lower extremities and left foot and ankle, the Veteran contends that his current disabilities are the result of having a bomb fall on his legs when it was accidently ejected from an airplane during service. Service treatment records confirm that in July 1966, a 500 pound bomb fell onto his legs. In February 2010, a VA examiner diagnosed the Veteran with osteoarthritis of the left foot with heel spur and degenerative arthritis in both knees. The examiner opined, however, that it was less likely as not that his current knee disabilities were the result of the in-service injury because X-rays showed no fracture or internal derangement and service treatment records were silent for further knee injuries. Rather, the degenerative arthritis reported by the Veteran was consistent with the natural aging process. Similarly, the examiner found that the Veteran's left foot disorder was unrelated to service because the service treatment records were silent for complaints or injury and the separation examination showed a normal ankle. As above, the examiner concluded that osteoarthritis of the left foot with heel spur was consistent with the natural aging process. In a June 2017 opinion, a private orthopedist stated that after a review of the Veteran's history and an evaluation of his symptoms, musculofascial and vascular damage to the lower extremities and an impact injury to the left foot and ankle were related to the in-service injury he sustained when a 500 pound bomb was released onto his lower legs, which resulted in severe injuries when he was propelled backwards out from under the aircraft. The incident resulted in musculofascial and vascular damage and an impact injury of the left foot and ankle also occurred during the incident. As a result, the Veteran experienced swelling and was not able to bear weight on his left foot. At the hearing, the Veteran's wife indicated that the Veteran intended these claims, which were characterized by the RO as claims for arthritis of the knees and left foot with heel spur, to include vascular and neurological damage. In this regard, the Board finds that even though the June 2017 private examiner did not specifically identify the current lower extremity and left foot and ankle disorders characterized by musculofascial and vascular damage, because the examiner is a doctor who indicated that he had been treating the Veteran for such disorders, for the purposes of this appeal, the Veteran has current lower extremity and left foot and ankle disorders characterized by musculofascial and vascular damage. This examiner also indicated that he was familiar with the Veteran's medical history, to include his in-service injury involving a 500 pound bomb, which is also substantiated by the service treatment records. As such, he had sufficient relevant background information in order to render valid medical judgment as to the etiology of the Veteran's current lower extremity and left foot and ankle disorders. Since the VA examiner did not address these disorders, the fact that he rendered a negative nexus opinion does not weigh against the private examiner's opinion. Accordingly, the Board finds that the evidence shows that the Veteran's current lower extremity and left foot and ankle disorders characterized by musculofascial and vascular damage are related to service. 38 U.S.C.A. § 5107. ORDER Entitlement to service connection for hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a bilateral lower extremity disorder characterized by musculofascial and vascular damage is granted. Entitlement to service connection for a left foot and ankle disorder characterized by musculofascial and vascular damage is granted. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs