Citation Nr: 18146113 Decision Date: 10/31/18 Archive Date: 10/30/18 DOCKET NO. 15-38 070 DATE: October 31, 2018 ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for a left foot disability. 3. Entitlement to service connection for a right foot disability. ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for a right foot disability is remanded. FINDING OF FACT The competent, credible, and probative lay and medical evidence is in relative equipoise as to whether the Veteran’s tinnitus had its onset during service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, tinnitus was incurred in service. 38 U.S.C. §§ 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1983 to June 1987. This matter is before the Board of Veterans Appeals (Board) on appeal from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The Veteran and his representative submitted an October 2018 Informal Hearing Presentation (IHP). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Board observes that where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In this matter, the Board’s has been able to render a favorable decision with respect to one issue. Additional development is necessary as it relates to obtaining government treatment records from during service from Walter Reed Medical Center, as discussed in the Remand section below. The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection To establish service connection a Veteran must generally 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.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d), Hensley v. Brown, 5 Vet. App. 155, 158 (1993). VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) 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). Lay evidence cannot be determined not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. The Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Entitlement to service connection for tinnitus By way of background, the Service Treatment Records (STRs) contain an enlistment examination, but no separation examination. The November 1982 examination disclosed a clinically normal evaluation of the ears. The Veteran’s Certificate of Discharge from Active Service (DD Form 214) shows that he served as a computer/machine operator. The Veteran filed his initial claim for service connection, received by VA in December 2013. He contends that he worked as a main frame computer operator and was exposed to loud noise, with consistent cooling fans running in work areas. Next, the Veteran was afforded a May 2014 VA audiological examination. The VA examiner found that the Veteran’s hearing was within normal limits for the right ear, and that he had sensorineural hearing loss in the left ear. The VA examination shows, “Veteran reported military noise exposure as a mainframe computer operator for approximately four years. Civilian occupational noise exposure as a mainframe computer operator for approximately two years and as a brick mason for approximately thirteen years.” Regarding tinnitus, it shows, “Veteran reported bilateral tinnitus since his military service.” The VA examiner opined, “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.” The VA examiner provided no rationale to support this conclusion. The Veteran filed his Notice of Disagreement (NOD), received by VA in May 2015. He made several contentions, as reiterated in his VA Form 9. Regarding tinnitus, he wrote in part, “As of this date there is still yet an unrelenting, constant whining/ringing in my ears that becomes particularly noticeable in quiet surroundings. The noise has not erased or subsided since my Army tour.” The Veteran perfected his appeal in October 2015. Regarding tinnitus, the Veteran contends that he has had tinnitus since getting out of service. The Veteran highlights that the VA examination shows that he reported recurrent tinnitus. He notes that he has remained consistent in his contentions, as these are also made in his NOD. Second, the Veteran explains that his theory of entitlement is not as secondary to hearing loss. He explains, “A person can have tinnitus and not have hearing loss.” The Veteran concludes, “Therefore a 27 year gap shouldn’t be relevant as its noted in SMR of treatment. Since I wasn’t able to afford health insurance to be seen by a doctor, doesn’t mean I didn’t have the condition.” The Veteran attached previous medical treatment records, excerpts from VA examinations, and excerpts from his STRs. The Veteran through his representative submitted an October 2018 Informal Hearing Presentation (IHP). They contend that the Veteran is entitled to service connection for tinnitus. Specifically, they aver, “It is argued that the tinnitus had onset while on active duty due to firing weapons and explosives exposure, not acknowledged by VA, albeit warranting service connection.” The Veteran is competent to report difficulty hearing. The Veteran is competent to provide evidence of that which he experiences, including a history of noise exposure in service. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is competent to report a current diagnostic impression of tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation). The Board also observes that the Veteran is competent to report that his symptoms of tinnitus continued since service. There is no separation examination of record. Consequently, the Board does not have a basis upon which to question or doubt the credibility of the Veteran’s lay contentions. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Thus, the most probative evidence of record is the Veteran’s self-reported history as to the onset of his tinnitus, and he is competent and credible to report when he first noticed ringing in his ears. The Board has also considered the constancy of the Veteran’s reports of a ringing noise in his ears. Additionally, the Board notes that the Veteran’s report of the onset has not waivered throughout the period on appeal. He highlights this in his VA Form 9. To the extent the May 2014 VA examination could be construed as finding against tinnitus being directly attributable to service, the VA examiner’s opinion is inconsistent with the Veteran’s own noted competent and credible lay reporting of an onset in service. Indeed, the VA examination shows, “Veteran reported military noise exposure as a mainframe computer operator for approximately four years.” The opinion rendered is also regarding secondary rather than direct service connection based upon continuity of symptomatology. At the very least, the evidence of record is in relative equipoise as to the onset of the Veteran’s tinnitus. Therefore, resolving reasonable doubt in the Veteran’s favor, the Board finds that it is at least as likely as not that the Veteran’s tinnitus was incurred in service. He has had tinnitus continuously since service. The Veteran is therefore entitled to the benefit of the doubt. See 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017). Accordingly, service connection for tinnitus is warranted. 38 C.F.R. § 3.303 (d). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Entitlement to service connection for a left foot disability is remanded. 2. Entitlement to service connection for a right foot disability is remanded. The Board incorporates its discussion from the sections above by reference. A remand is necessary for additional development. The Service Treatment Records (STRs) generally show ongoing reports of pain in the feet and related treatment, including a March 1987 Consultation Report from not long before discharge. The Veteran was afforded a May 2014 VA examination. The VA examiner noted the lack of complaints for 27 years after discharge, and rendered a negative nexus opinion. The VA examiner listed the Veteran’s notations relevant to his claimed disabilities in the STRs, however, the March 1987 notation of pain with running is not listed. The VA examiner, however, did not have the benefit of reviewing the detail later provided by the Veteran regarding the onset of his bilateral foot pain. This is discussed further below. In the Veteran’s May 2015 Notice of Disagreement (NOD), he explains that his feet first became damaged during his eight weeks of basic training in 1983. He did not see a physician because going on sick call was informally discouraged, and even disparaged, by drill instructors. The Veteran reported that the pain on the balls of his feet subsided somewhat after leaving the physical trauma of basic training, but it continued through the entirety of his tour, through 1987. The Veteran asserts that he remembers very clearly getting medical help for foot pain while in service. The Veteran reported that the doctor at Walter Reed Army Medical Center had both of his feet fitted for white plastic arch supports, custom fitted for each foot. The arch supports helped ease the pain, but he could not run in them because they were firm plastic. He wore them for several years, even post service as a civilian. The Veteran reported that he was told by his doctor that his foot pain might subside after he left the army for a less physically strenuous civilian life, however, that did not come to pass. The Veteran reported that he now must wear special boots and socks. The Veteran reported that recently, a primary care physician at the Iowa City VA Medical Center (VAMC) told him that x-rays show that he has (a) bone spur(s). The Board observes that the Veteran is competent to report what he has been told by a physician. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Next, the Veteran perfected his appeal in October 2015. He asserts in part, “Not all of my records have been reviewed for my claim. Why was no attempt done to get my Walter Reed Medical Records…I was treated for both foot conditions while at Walter Reed Medical Center from 1986-1987, while on active duty.” A remand is required to allow VA to request these potentially highly relevant records, which the Veteran specifically contends will show treatment for and impressions of a bilateral foot disability in service. Next, in the October 2018 Informal Hearing Presentation (IHP), the Veteran through his representative contends, “It is argued that the onset of the veteran’s bilateral foot issues was while on active duty, and that as time passed post service the foot issues became exacerbated brought on by bilateral degenerative arthritis and calcaneal spurs developing from the in-service foot issues, warranting service connection.” After the requested records have been obtained, the Veteran should be afforded a supplemental VA examination. The VA examiner should also specifically consider the March 1987 STR showing a notation of foot pain with running. As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As such the Board finds that a supplemental VA examination is warranted. In addition, the entire claims file should be made available to the VA examiner for review. The matters are REMANDED for the following action: 1. If the Veteran identifies other evidence, obtain updated copies of the Veteran’s VA treatment records, and associate them with the Veteran’s claims folder. 2. Obtain records of any inpatient treatment at Walter Reed Medical Center in 1986 and 1987. Document all requests for information as well as all responses in the claims file. 3. Please schedule the Veteran for a VA examination to determine the nature and etiology of any right and/or left foot disability. The claims file should be made available to the VA examiner. The VA examiner should then elicit a history of the Veteran’s symptoms from him. The Board notes that the Veteran is competent to report what he has been told by a treating physician. For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran’s active military service. Attention is directed to a March 1987 STR showing foot pain when running. The VA examiner should comment on whether this is related to any earlier foot pain reported during service. Attention is also directed to the Veteran’s lay reporting of his symptoms, as outlined in his May 2015 NOD. The examiner should provide a rationale for all opinions expressed. 4. After completing the above, and any other necessary development, the claims remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority. If any benefits sought are not granted, issue the Veteran and his representative an appropriate supplemental statement of the case (SSOC). Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Bodi, Associate Counsel