Citation Nr: 1801686 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-09 907 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a left foot disability. 2. Entitlement to service connection for a hearing loss disability of the left ear. 3. Entitlement to service connection for bilateral tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Tunis, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1976 to May 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2013 rating decision of the Phoenix, Arizona, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran had requested a hearing and was scheduled for a Board videoconference hearing to be held in December 2016. The Veteran was notified of the scheduled hearing by a November 2016 letter, but did not report. As such, his hearing request was considered withdrawn. 38 C.F.R. § 20.704 (2017). The Veteran has since filed a November 2016 Appellate Brief, but has not made any assertions concerning his hearing and has not requested a rescheduled hearing. Therefore, the Board continues to consider the hearing request withdrawn. The Board notes that the Veteran's March 2014 VA Form 9 indicates that he wishes to appeal all of the issues listed on his statement of the case (SOC), but that he also wrote "hearing loss." In the Veteran's November 2016 Appellate Brief, the Veteran included all of the issues as stated in his SOC, to include his left foot disability and bilateral tinnitus disabilities. Given these facts, the Board does not consider the issues of entitlement to service connection for a left foot disability and bilateral tinnitus to be withdrawn. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND I. Left Foot Disability The Veteran asserts that he has a current left foot disability as a result of his service. Specifically, the Veteran states that he tore the ligaments of his left foot in boot camp and that he did not have surgery but experienced pain throughout his service. See July 2013 Statement in Support of Claim. Service treatment records are silent for a left foot injury. Of record are VA treatment records that indicate complaints of and treatment for foot pain. See June 2011 and September 2011 VA treatment records. A June 2011 treatment record further indicates "bilateral foot surgery (15 years ago). Multiple surgeries. Denies any trauma." The Veteran has not been afforded a VA examination for his left foot disability. VA's duty to assist includes, when necessary, conducting a thorough and comprehensive medical examination. Under 38 U.S.C.A. § 5103A (d)(2) (West 2014), VA must provide a medical examination and, or, obtain a medical opinion, when there is: (1) competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing circumstances under which a VA examination is required). The third element, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. Id. at 83. The Board notes that the absence of documented treatment in service or thereafter is not fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, service connection may be granted where there is a current diagnosis, credible evidence of an in-service event or injury, and a sound basis upon which to attribute the post-service findings to the injury or event in service. See Hensley, 5 Vet. App. at 159; see also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case, treatment records show care for the Veteran's foot, and the Veteran has asserted an in-service injury. The remaining issue is whether there is a nexus between the Veteran's current left foot disability and his service. As there is evidence regarding in-service occurrence, a current disability, and a potential link between the two, examination is required to obtain an opinion regarding the current nature and etiology of the Veteran's left foot disability. 38 C.F.R. § 3.159 (c)(4); McLendon, 20 Vet. App. at 79. Thus, given the lack of sufficient medical evidence to make a decision on this matter, the Veteran should be afforded a VA examination to address the current nature and etiology of his left foot disability. II. Left Ear Hearing Loss and Bilateral Tinnitus The Veteran contends that he is entitled to service connection for his left ear hearing loss disability and tinnitus as a result of noise exposure in service. The Veteran asserts that he was exposed to loud noises onboard ship, where he worked just beneath the flight deck. See February 2012 Statement in Support of Claim; July 2013 Statement in Support of Claim. The Veteran also contends that he experienced acoustic trauma from the military practice of shooting ship guns. See February 2012 Statement in Support of Claim. The Veteran's DD-214 confirms that he served onboard ship in a water transportation occupation. The Veteran asserts that he has experienced symptoms of tinnitus "for 20-30 years." See November 2012 VA Examination. Upon review of the Veteran's claims file, the Board concedes in-service acoustic trauma. The Veteran's military personnel and service records corroborate the Veteran's assertions. See DD-214. Thus, the Board finds that the Veteran's assertions as to his acoustic trauma in service are generally consistent with his service as documented and described. Given the above discussion, the Board considers the Veteran to be a reliable historian as to his in-service experiences, and concedes acoustic trauma from both his active and reserve service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board remands the issues of hearing loss of the left ear and bilateral tinnitus for an additional VA examination and opinion. Concerning the issue of bilateral tinnitus, a November 2012 VA audiology examination indicates a current diagnosis of tinnitus. At the VA examination the Veteran reported "constant tinnitus in his left ear for 20-30 years." See November 2012 VA Examination. However, the examination report is unclear as to the Veteran's assertions as to tinnitus in his right ear. Therefore, upon remand, the Board directs the RO to afford the Veteran an additional VA examination to provide clarification of the Veteran's assertions and symptomatology with regard to any perceived tinnitus in his right ear. As for the Veteran's asserted tinnitus in his left ear, the VA examiner opined that "The Veteran has a diagnosis of clinical hearing loss, and his or her tinnitus is at least as likely as not (50% probability or greater) a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss." Given the medical examiner's opinion, the Board finds that the issue of tinnitus of the left ear is inextricably intertwined with the issue of entitlement to service connection for left ear hearing loss disability. Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). As will be discussed in detail below, the issue of entitlement to service connection for a left ear hearing loss disability is being remanded. Therefore, the Board finds that the intertwined issue of entitlement to service connection for tinnitus of the left ear must be remanded as well. Id. Last, concerning the Veteran's left ear hearing loss, the November 2012 VA audiology examination indicates a diagnosis of mixed hearing loss in the Veteran's left ear. The VA examiner opined that the Veteran's left ear hearing loss was not at least as likely as not caused by or a result of the Veteran's military service. The examiner's rationale states, "STRs show normal hearing in both ears at separation from military." The Board notes that the absence of in-service evidence of a disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, service connection may be granted for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service medical findings of hearing loss, and a medically sound basis upon which to attribute the post-service findings to the injury in service. Therefore, the Board remands this matter for an additional VA opinion as to the whether the Veteran's current left ear hearing disability is related to the Veteran's service in light of his assertions as to hearing loss as a result of his exposure to the acoustic trauma in service. See Buchanan, 451 F.3d at 1336; see also Barr, 21 Vet. App. at 311; Stegall, 11 Vet. App. at 271. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide the name and address of any non-VA healthcare provider who treated him for the claimed disabilities, to include any surgeries performed. See June 2011 treatment record ("bilateral foot surgery (15 years ago). Multiple surgeries. Denies any trauma"). After obtaining authorization from the Veteran, request copies of any outstanding treatment records from any treatment provider identified by the Veteran. If VA is unable to obtain such records, the Veteran should be afforded the opportunity to furnish such records directly to VA. All records received should be associated with the claims file. 2. Obtain any outstanding VA treatment records. Should such exist, associate the records with the Veteran's electronic claims file. 3. Thereafter, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's left foot disability. The electronic claims file, to include the Veteran's service treatment records, statements, and treatment records, must be reviewed by the examiner. After reviewing the claims file and examining the Veteran, the examiner should answer the following: i. Identify the Veteran's current left foot disability(ies). The examiner's attention is directed to June 2011 and September 2011 VA treatment records (foot pain and "bilateral foot surgery (15 years ago). Multiple surgeries. Denies any trauma"). ii. For each left foot disability identified, opine whether it is at least as likely as not (a fifty percent probability or greater) that the Veteran's left foot disability had its onset in service or is related to an event, injury or disease in service? The examiner's attention is directed to July 2013 Statement in Support of Claim (asserting that the Veteran tore the ligaments of his left foot in boot camp and that he did not have surgery but experienced pain throughout his service). A rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. After completing directives (1) and (2), schedule the Veteran for a VA examination to determine the current nature and etiology of the Veteran's left ear hearing loss and bilateral tinnitus. The electronic claims file, to include the Veteran's service treatment records, statements, and treatment records, must be reviewed by the examiner. The examiner should provide an opinion addressing the following questions: i. Identify whether the Veteran has a current diagnosis of tinnitus in his right ear. Specifically, report any of the Veteran's assertions as to his perceived symptomatology related to tinnitus in his right ear. ii. Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's left ear hearing loss was incurred in or aggravated by service to include acoustic trauma in service? iii. Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's tinnitus of the left ear was incurred in or aggravated by service to include acoustic trauma in service? The examiner is to address the Veteran's assertion of experiencing symptoms of tinnitus in his left ear "for 20-30 years." See November 2012 VA Examination. iv. Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's tinnitus of the right ear was incurred in or aggravated by service to include acoustic trauma in service? In rendering the requested opinions, the examiner is instructed to specifically acknowledge the Veteran's noise exposure consistent with his duties onboard ship while in service. See DD-214; see February 2012 Statement in Support of Claim; July 2013 Statement in Support of Claim. The examiner should view the Veteran as a reliable historian as to his service and his report of his activities in furtherance of his perceived hearing loss. See Jandreau, 492 F.3d at 1377. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 328 (2010). 5. The AOJ should then review the record and readjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case (SSOC) and afford the Veteran and his attorney the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant 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 2014). _________________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).