Citation Nr: 1801324 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-13 184 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for a bilateral foot disability. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD R. I. Sims, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1980 to March 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas that denied service connection for the claimed disabilities. This appeal has previously been before the Board, most recently in October 2015, when it was remanded to obtain a VA examination and opinion. As is discussed in greater detail below, the Board finds that its remand instructions have been substantially complied with, and the Board will proceed in adjudicating the Veteran's claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that when the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran's bilateral hearing loss disability began during his military service, was caused by his service, or is otherwise etiologically related to his military service. 2. The weight of the evidence is against a finding that the Veteran's bilateral foot disability began during his military service, was caused by his service, or is otherwise etiologically related to his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2017). 2. The criteria for service connection for a bilateral foot disability have not been met. 38 U.S.C. §§ 1101, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. With respect to the duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records, VA treatment records, and private treatment records have been obtained, to the extent available. The Veteran did not present testimony at a Board hearing. The Veteran was afforded two VA examinations in connection with his claim. Upon review of the evidence, the Board finds that the examination reports indicate the examiner conducted appropriate evaluations and rendered appropriate diagnoses consistent with the remainder of the evidence of record. An October 2015 Board decision found the December 2011 VA examination regarding the Veteran's claim for a bilateral foot disability to be inadequate, and to opinion regarding bilateral hearing loss to have provided inadequate reasons and bases. As such, the Veteran's claim was remanded to obtain an addendum opinion. An August 2016 VA examination is of record and notes review of the Veteran's claims file, records his current complaints, and provides an etiological opinion. Additionally, an August 2016 addendum opinion is of record and provides sufficient reasons and bases for its conclusions. The existing medical evidence of record is therefore adequate for the purpose of rendering a decision in the instant appeal. 38 C.F.R. § 4.2 (2017); Barr, 21 Vet. App. 303 (2007). Neither the Veteran, nor his representative objected to the adequacy of the examinations. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). The Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, that the record includes adequate, competent evidence to allow the Board to decide this matter, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. II. Service Connection The Veteran filed a claim for service connection for arthritis of the bilateral feet and bilateral hearing loss in June 2010. He asserts that his work in the military as a machine gunner exposed him to significant noise and lead to his current hearing loss disability. Additionally, the Veteran asserts that the physical requirements of service lead to his current bilateral foot disability. 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. § 1131. Service connection can be established by evidence that shows "(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-the so-called "nexus" requirement." 38 C.F.R. § 3.310(a) (2016); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The nexus requirement, in pertinent part, can be established through objective medical evidence; the application of statutory presumptions for chronic diseases like arthritis, when manifested to a compensable degree within a year of separation from service; or based on a continuity of symptomatology. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Bilateral Hearing Loss As an initial matter, the Veteran is currently diagnosed with bilateral sensorineural hearing loss in accordance with VA regulations. Additionally, his service records and written statements indicate he was a machine gunner during active service and was exposed to artillery noise on a regular basis. The Board finds this information sufficient to establish in-service noise exposure. As such, the remaining determination is whether the record demonstrates a nexus between the Veteran's current disability and any in-service event. The Veteran was afforded a VA examination in December 2011 at which he reported experiencing difficulty hearing. He also reported that he has to ask others to repeat themselves and stated that he could not hear his coworkers. The examiner opined that the Veteran's hearing loss was less likely than not related to his military noise exposure. An addendum VA opinion was obtained in August 2016. The examiner opined that it was less likely than not related to his military noise exposure. As rationale for the opinion, the examiner noted that the Veteran's enlistment and separation examinations revealed hearing within normal limits, with no significant decibel threshold shifts observed. The examiner noted that the Veteran's military noise exposure does not concede trauma and that the objective medical evidence indicated that the Veteran's noise exposure had no lasting effects on his hearing during service. The examiner then cited research from the Institute of Medicine indicating there is no scientific basis to conclude that hearing loss that appears many years after noise exposure can be casually related if hearing was normal immediately after such noise exposure. The examiner went on to not that "based on current knowledge of cochlear physiology there is no sufficient scientific basis for the existence of delayed-onset hearing loss." The VA examiner's opinion is afforded great weight. This opinion is supported by scientific research and gives full consideration to the Veteran's medical records and lay statements. Additionally, this opinion represents a thorough and reasoned medical analysis regarding the question of causation of the Veteran's hearing loss disability. The examiner clearly explained why she did not believe the Veteran's hearing loss was etiologically related to his military service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, the Veteran has not offered any medical evidence to refute the examiner's opinion. The Veteran has submitted written statements indicating that he experiences hearing loss, that the VA has issued him hearing aids, and that his job in service was to work daily around artillery which caused his current hearing loss. The Board acknowledges that the Veteran experienced some loss of auditory acuity since active service in the military. The Veteran is found competent to report observable symptomatology such as diminished hearing acuity. Layno v. Brown, 6 Vet. App. 465 (1994). However, the determination of whether the Veteran's hearing loss is etiologically related to his military service is a medical determination and the Veteran is not shown to have the medical training or expertise to render such a determination. The Board has considered the Veteran's assertions and the objective evidence or record. There is no dispute that the Veteran served as a machine gunner and riffle sharpshooter while on active duty. Additionally, there is no dispute that the Veteran was given hearing aids by VA in October 2011. However, the medical evidence of record does not indicate that the Veteran's hearing loss is causally related to any in-service noise exposure. As such, service connection for bilateral hearing loss is not warranted. Bilateral foot condition The Veteran currently diagnosed with bilateral foot conditions of plantar fasciitis, osteoarthritis, pes cavus (claw foot) / cavus foot (high arched foot), metatarsalgia, polyneuropathy, and degenerative arthritis. The Board finds these diagnoses sufficient to establish the existence of a current bilateral foot disability. Additionally, the medical evidence of record shows that the Veteran reported significant walking during his active service. The Board finds the Veteran's statements credible and finds this sufficient to establish an in-service event. As such, the remaining determination is whether the record demonstrates a nexus between the Veteran's current disability and any in-service event. In August 2012, Dr. Brelsford, the Veteran's private physician, submitted a written stating regarding the Veteran's bilateral foot disability. Dr. Brelsford stated that he treats the Veteran for plantar fasciitis, osteoarthritis, and cavus foot. Dr. Brelsford indicated that he questioned the Veteran about his history of running and was informed that the Veteran was in the infantry during his active service. Additionally, Dr. Brelsford stated, "if he was not issued the proper foot wear for the high arches this could be one of the biggest factors causing his current pain." The Veteran was afforded a VA examination in August 2016. The examiner noted that the Veteran has experienced foot pain for many years. The Veteran reported the pain is exacerbated with dorsiflexion and plantar flexion of both feet, walking, siting, standing, uneven surfaces, and work. The Veteran also reported pain on the balls of both feet and toes. The examiner noted that VA treatment records from 2010 document progressive bilateral foot pain over five to six years. The examiner opined that the Veteran's bilateral foot condition was less likely than not incurred in or caused by his military service. As rationale for the opinion, the examiner noted that VA treatment records indicate the Veteran began experiencing foot pain in approximately 2004 or 2005. The onset of these symptoms was noted to be many years after the presumptive period from military service. Additionally, the examiner noted that bilateral foot x-rays dated July 2010 indicated no abnormality, while feet x-rays dated August 2016 revealed mild osteoarthritic changes of the interphalangeal joints and small calcaneal spurs, suggesting a new and separate condition. The examiner also noted that the Veteran did not begin treatment for plantar fasciitis, polyneuropathy, and polyarthritis until approximately 2012 or 2013. Lastly, the examiner addressed the medical opinion of Dr. Brelsford. The examiner found "this opinion was based on speculation without citing any evidence to substantiate / support his opinion." The examiner went on to note that the Veteran's current examination and x-ray findings are not consistent with improper footwear during military service more than thirty years ago. The examiner found that the current examination was consistent with degenerative changes of both feet. When evaluating the evidence of record, the Board must assess the credibility and probative value of the evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). Here two medical opinions are of record, both of which were provided by medical professionals who are presumed to have the training and expertise to opine on the etiology of the Veteran's bilateral foot disability. As such, each opinion is considered to constitute both competent and credible evidence, which is deemed to be probative. However, the Board must determine what evidence is the most probative. The Board finds that the most probative opinion of record is the August 2016 VA opinion. The VA examiner's opinion is afforded great weight. This opinion is supported by a thorough review of the Veteran's medical records. Additionally, it is provided with full consideration of the Veteran's lay statements. This opinion represents a thorough and reasoned medical analysis regarding the question of causation of the Veteran's bilateral foot disability. The examiner clearly explained basis for the conclusion, noting medical evidence, manifestation of the Veteran's symptoms, and the time between service, symptom manifestation, and treatment. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Conversely, the opinion of Dr. Brelsford provides no support or basis in the medical records or scientific research for the conclusions reached. Additionally, this opinion addresses the Veteran's pain, rather than the etiology of the Veteran's various foot conditions or their link to his military service. After review of the medical and lay evidence of record, the Board finds that direct service connection for a bilateral foot disability is not warranted as the most probative evidence shows it is not related to the Veteran's military service. Similarly, the evidence of record does not support service connection based on a statutory presumption or a continuity of symptomatology. There is no medical indication that the Veteran had a foot disability upon separation from service, or within one year of his separation. Further, there is insufficient medical evidence to demonstrate a pattern of bilateral foot disability symptoms since separation from service. The Veteran's treatment records and attempts at service connection indicate treatment gaps and acute, rather than a continuity of symptomatology. The evidence of record suggests that the Veteran did not experience foot related problems until at least 2004, approximately two decades after separation from service, and did not seek treatment until 2010. The significant time between separation from service and manifestation of symptoms cannot meet the requirements for a one-year manifestation or continuity of symptomatology. Accordingly, service connection for a bilateral foot disability and a bilateral hearing loss disability are denied. ORDER Service connection for bilateral hearing loss is denied. Service connection for arthritis of the bilateral feet is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs