Citation Nr: 1801246 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 16-14 720 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for bilateral pes planus. 4. Entitlement to service connection for a bilateral knee condition. 5. Entitlement to service connection for a bilateral shoulder condition. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Price, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from April 1953 to March 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Jurisdiction has since been transferred to the RO in St. Petersburg, Florida. The Veteran withdrew his request for a hearing before the Board in a September 2016 statement. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to service connection for bilateral pes planus, bilateral shoulder disability and a bilateral knee disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Resolving the benefit of the doubt in favor of the Veteran, the Veteran's bilateral hearing loss is at least as likely as not related to in-service noise exposure. 2. The Veteran suffers from tinnitus that is at least as likely as not related to noise exposure in service or to his service-connected hearing loss. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was incurred during the Veteran's active duty service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2017). 2. Tinnitus was incurred during the Veteran's active duty service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Service Connection Generally, in order to prove service connection, 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. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as sensorineural hearing loss, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 C.F.R. §§ 3.307, 3.309 (2017). As provided by 38 U.S.C. § 1154(a), VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. With specific regard to lay evidence, the type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). For example, lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, the layperson is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Regarding nexus, although without describing specific situations, the Federal Circuit also has explicitly rejected the view that medical evidence is necessarily required when the determinative issue is etiology. See id., at 1376-77. In short, the Board cannot determine that lay evidence as to diagnosis and nexus lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Veteran maintains that he first noticed decreased hearing acuity while on active duty. His military occupational specialty (MOS) included light weapons infantryman; he carried a M1 rifle. First, the Board finds that the audiological examination dated in May 2014 shows bilateral hearing loss and tinnitus disabilities for VA purposes. As such, the requirements of 38 C.F.R. § 3.385 are met. Thus, the question that remains before the Board is whether the Veteran's current hearing loss and tinnitus disabilities were caused or worsened by his military service. Unfortunately, most of the Veteran's service treatment records were destroyed in the 1973 National Personnel Records Center fire. His file was reconstructed and available for review was a March 1955 separation exam, which showed results of a whisper test of 15/15, but no audiogram results. The Veteran submitted a statement in March 2014 indicating his hearing worsened in service due to his exposure to artillery noise and not having proper hearing protection. VA treatment records indicated he had severe hearing loss; he was fitted for hearing aids in May 2014. A private examiner provided an opinion in June 2014 regarding the etiology of the Veteran's 80 percent hearing loss, noting that it may be a result of excessive noise exposure in service. However, no rationale for the opinion was provided. During the April 2014 VA exam, the examiner diagnosed bilateral sensorineural hearing loss and tinnitus, but was unable to provide an opinion without resorting to speculation. As noted above, the claims file was unavailable for review, excluding the separation exam which listed the ears as normal and included results from a whisper test. The examiner noted that whisper tests are unreliable evidence of normal hearing or hearing impairment. The examiner noted that the Veteran denied history of hearing loss in his family, ear infections, surgery, head trauma. The Veteran reported no civilian noise exposure because he was a foreman in his occupation and did not have a noisy hobby. Overall, the examiner was unable to rule out the possibility of acoustic trauma occurring from military noise exposure. The Veteran has competently and credibly indicated that he has experienced bilateral hearing loss and tinnitus during and since service. Upon careful review of the evidence of record, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's currently diagnosed bilateral hearing loss and tinnitus disabilities are related to his military service. The Veteran is also competent to report the onset of decreased hearing acuity and ringing in both ears. In light of his MOS described above, it is highly probable that he was exposed to hazardous noise, and thus his exposure is conceded. The Board assigns the purported April 2014 VA opinion little probative weight, because it failed to provide an opinion regarding etiology of the noted disabilities. Although evidence regarding changes in his hearing acuity during service is lacking, the Veteran has competently and credibly provided consistent statements regarding the onset of his bilateral hearing loss and tinnitus. As such, the Board will resolve all reasonable doubt in his favor and grant entitlement to service connection for bilateral hearing loss and tinnitus disabilities. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. REMAND Although the Board regrets the additional delay, further development is required before a decision can be rendered regarding the above, undecided service connection issues. The Board notes that VA must provide a medical examination or obtain medical opinion when 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, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. Unfortunately, the Veteran's service treatment records were destroyed in the July 1973 fire that occurred at the National Personnel Records Center. VA has a heightened duty to assist the claimant in developing the claim, as well as to consider the applicability of the benefit of the doubt rule and to explain its decision. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). The Veteran's VA and private treatment records indicate he has a right shoulder disability, bilateral knee conditions, and pes planus. In several statements, the Veteran indicated that he suffered injuries to his right shoulder while carrying and firing his assigned rifle. He injured his knees and feet during long marches. He complained of continuous pain and difficulty walking due to problems with his knees and feet. The Veteran is competent to state what he experienced during service and the Board has no reason to doubt his credibility regarding experiencing pain in his shoulders, knees and feet during service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). As the Veteran has not been afforded a VA examination to determine the current nature and etiology of the claimed disabilities, he must be provided such an examination on remand. See McLendon, supra. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Afford the Veteran and his representative the opportunity to submit additional evidence, to include any private treatment records or authorization to obtain evidence, or argument in furtherance of the remanded claims. 2. Schedule the Veteran for appropriate VA examinations to determine the nature and etiology of any current shoulder disability, knee disability, and pes planus. The electronic file and a copy of this remand must be reviewed in conjunction with the examination. The examination report must reflect that these items were reviewed. The examiners should provide a complete explanation and rationale for any opinion. For the Veteran's diagnosed shoulder condition, the examiner should: Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50% or greater) the Veteran's current shoulder condition is (1) etiologically related to or (2) caused by the Veteran's active service. For the Veteran's diagnosed bilateral knee condition, the examiner should: Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50% or greater) the Veteran's current bilateral knee condition is (1) etiologically related to or (2) caused by the Veteran's active service. For the Veteran's diagnosed pes planus, the examiner should: Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50% or greater) the Veteran's current bilateral knee condition is (1) etiologically related to or (2) caused by the Veteran's active service. 3. After the development requested above has been completed to the extent possible, the AOJ should again review the record. If the claims for service connection remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. 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. §§ 5109B, 7112 (2012). ______________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs