Citation Nr: 18148430 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 17-57 727 DATE: November 7, 2018 ORDER Entitlement to service connection for a lower back disability to include as secondary to pes planus is granted. Entitlement to service connection for a bilateral hip condition to include as secondary to pes planus is granted. Entitlement to service connection for a left knee disability to include as secondary to pes planus is granted. Entitlement to service connection for a bilateral eye disability is granted. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a traumatic brain injury (TBI) is granted. Entitlement to service connection for migraine headaches is granted. REMANDED Entitlement to service connection for a right knee disability to include as secondary to pes planus is remanded. Entitlement to service connection for vertigo to include as secondary to a traumatic brain injury (TBI) is remanded. Entitlement to service connection for trouble speaking to include as secondary to a TBI is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. It is at least as likely as not that the Veteran’s lower back disability was caused by his service connected pes planus. 2. It is at least as likely as not that the Veteran’s bilateral hip disability was caused by his service connected pes planus. 3. It is at least as likely as not that the Veteran’s left knee disability was caused by his service connected pes planus. 4. It is at least as likely as not that the Veteran’s bilateral eye disability is related to his active service. 5. Bilateral hearing loss is etiologically related to acoustic trauma sustained in active service. 6. Tinnitus is etiologically related to acoustic trauma sustained in active service. 7. It is at least as likely as not that the Veteran’s traumatic brain injury (TBI) is related to his active service. 8. The Veteran’s migraine headaches were incurred in his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lower back disability to include as secondary to pes planus have been met. 38 U.S.C. §§ 1110, 5107, 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 2. The criteria for entitlement to service connection for a bilateral hip condition to include as secondary to pes planus have been met. 38 U.S.C. §§ 1110, 5107, 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 3. The criteria for entitlement to service connection for a left knee disability to include as secondary to pes planus have been met. 38 U.S.C. §§ 1110, 5107, 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 4. The criteria for entitlement to service connection for a bilateral eye disability have been met. 38 U.S.C. §§ 1110, 5107, 38 C.F.R. §§ 3.102, 3.159, 3.303. 5. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107, 38 C.F.R. §§ 3.102, 3.159, 3.303. 6. The criteria for entitlement to service connection for tinnitus have been met. 38U.S.C. §§ 1110, 5107, 38 C.F.R. §§ 3.102, 3.159, 3.303. 7. The criteria for entitlement to service connection for a traumatic brain injury (TBI) have been met. 38 U.S.C. §§ 1110, 5107, 38 C.F.R. §§ 3.102, 3.159, 3.303. 8. The criteria for entitlement to service connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 5107, 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from September 1990 to March 1991. Service Connection 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. §§ 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-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Entitlement to service connection for a lower back disability to include as secondary to pes planus There is no dispute that the Veteran has a current diagnosis of lumbosacral strain as noted in an April 2016 VA examination. Additionally, the Veteran has been service connected for pes planus in a June 2016 Rating Decision. Thus, the only remaining issue is the relationship (i.e. nexus) between lumbosacral strain and the Veteran’s pes planus. Turning to the remaining issue, nexus, the Board finds that the September 2016 private medical opinion to be probative on this issue. This private examiner reviewed the Veteran’s medical history, addressed the unique situation of the Veteran’s disabilities, and provided a well-reasoned medical opinion supported by medical treatises. The Board recognizes that the Court of Appeals for Veterans Claims (Court) has held that most of the probative value of a medical opinion comes from its reasoning and the Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Considering the foregoing, the Board finds that all elements of service connection on a secondary basis have been met, and service connection for his low back disability is warranted. 2. Entitlement to service connection for a bilateral hip condition to include as secondary to pes planus There is no dispute that the Veteran has a current diagnosis of bilateral hip strain as noted in an April 2016 VA examination. Additionally, the Veteran has been service connected for pes planus in a June 2016 Rating Decision. Thus, the only remaining issue is the relationship (i.e. nexus) between the Veteran’s bilateral hip strain and the Veteran’s pes planus. Turning to the remaining issue, nexus, the Board finds that the September 2016 private medical opinion to be probative on this issue. This private examiner reviewed the Veteran’s medical history, addressed the unique situation of the Veteran’s disabilities, and provided a well-reasoned medical opinion supported by medical treatises. The Board recognizes that the Court has held that most of the probative value of a medical opinion comes from its reasoning and the Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion. See Nieves-Rodriguez v. Peake, supra. Considering the foregoing, the Board finds that all elements of service connection on a secondary basis are present, and service connection for his bilateral hip disability is warranted. 3. Entitlement to service connection for a left knee disability to include as secondary to pes planus There is no dispute that the Veteran has a current diagnosis of left knee strain as noted in an September 2017 contract examination. Additionally, the Veteran has been service connected for pes planus in a June 2016 Rating Decision. Thus, the only remaining issue is the relationship (i.e. nexus) between the Veteran’s left lnee strain and the Veteran’s pes planus. Turning to the remaining issue, nexus, the Board finds that the September 2016 private medical opinion to be probative on this issue. This private examiner reviewed the Veteran’s medical history, addressed the unique situation of the Veteran’s disabilities, and provided a well-reasoned medical opinion supported by medical treatises. The Board recognizes that the Court has held that most of the probative value of a medical opinion comes from its reasoning and the Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion. See Nieves-Rodriguez v. Peake, supra. Considering the foregoing, the Board finds that all elements of service connection on a secondary basis have been met and service connection for his left knee strain is warranted. 4. Entitlement to service connection for a bilateral eye disability There is no dispute that the Veteran has a bilateral eye disability as noted in the Veteran’s January 2015 private examination. The Board has granted service connection for the Veteran’s TBI as noted below. The only remaining issue is the relationship (i.e. nexus) between the Veteran’s TBI and his bilateral eye disability. Turning to the element of nexus, the Board finds that the November 2014 private examiner’s opinion and November 2017 addendum provided by the same examiner are probative. The examiner provides a detailed analysis of the Veteran’s current eye disability, a thorough account of the Veteran injury in service detailing the exact nature of the injury, and applied valid medical reasoning for his conclusion. The Board recognizes that the Court has held that most of the probative value of a medical opinion comes from its reasoning and the Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion. See Nieves-Rodriguez v. Peake, supra. Considering the foregoing, the Board finds that all elements of service connection on a secondary basis have been met, and service connection for his bilateral eye disability is warranted 5. Entitlement to service connection for bilateral hearing loss and tinnitus The Veteran has asserted that he has tinnitus and bilateral hearing loss as a result of acoustic trauma sustained while in active service. Specifically, the Veteran has reported acoustic trauma in the form of explosions and gunfire. The Board finds that the Veteran’s statements regarding his exposure to acoustic trauma are credible as they are consistent with the circumstances of his service. See 38 C.F.R. § 3.303(a). Therefore, the Board concedes the Veteran’s exposure to acoustic trauma while in active service. A review of the service medical records is silent for treatment for or a diagnosis of tinnitus or hearing loss while the Veteran was in active service. However, the Veteran has reported that he first experienced tinnitus and hearing loss while in active service and has continued to experience tinnitus and hearing loss since his separation from active service. The Veteran is competent to report when he first experienced tinnitus and bilateral hearing loss and that the symptoms have continued since service. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible. Regarding the Veteran’s claim for bilateral hearing loss, the Board notes there is no dispute that he meets the requirements of 38 C.F.R. § 3.385 wherein VA recognizes hearing loss as a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. The Board notes that 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. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran is competent to identify tinnitus and his statements have been found credible. In sum, the Board has conceded acoustic trauma during active service. The Veteran has competently reported that he first experienced tinnitus and bilateral hearing loss while in active service and that he has continued to experience it since that time and those statements have been found credible by the Board. Accordingly, the Board finds that entitlement to service connection for bilateral hearing loss and tinnitus is warranted. 38 U.S.C. § 5107 (b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 6. Entitlement to service connection for a traumatic brain injury (TBI) The Board notes that the Veteran was diagnosed with a TBI from a private clinician in May 2016. The examiner, a neurologist, reiterates the facts as supported in the Veteran’s claims file, surrounding his fall down a flight of stairs, and he then determined that the Veteran had suffered a traumatic brain injury at the time in service. Additionally, in January 2013 a private examiner provided a report on the etiology of the Veteran’s bilateral eye disability wherein he opined that the Veteran had experienced a traumatic brain injury in service and his bilateral eye disability was a result of this injury. Considering the foregoing, the Board finds that the Veteran has current residuals of traumatic brain injury. Turning to the in-service incident, the Board finds the Veteran’s military personnel file contains numerous notations of the incident that the Veteran has consistently and repeatedly stated occurred in service. In November 1990, a clinician noted that the Veteran fell down half-a-flight of stairs. In December 1990 a separate clinician noted that the Veteran’s suffered trauma to his eye when he fell and struck his face. Additionally, the Veteran has provided contemporaneous evidence in the form of correspondence he dispatched while he was on active duty that details the injuries he sustained after falling down the stairs. This correspondence corroborates the Veteran’s statements concerning the sequence of events that led to his traumatic brain injury. Considering the foregoing, the Board finds that evidence indicates that the Veteran incurred a traumatic brain injury in service. Turning to the last element of service connection, a nexus, the Board finds the above May 2016 private clinician and January 2013 private examiner’s opinions on the matter of etiology are probative. Both examiners provide an accurate account of the injury that occurred in the Veteran’s service, and both apply medical principals when they come to their conclusions. As such, the Board finds that all elements of service connection are met and service connection for a TBI is warranted. 7. Entitlement to service connection for migraine headaches The Veteran has stated that his headaches first began in service. The Veteran service treatment records (STRs) show a diagnosis of migraine headaches in service by a Department of Defense (DoD) clinician in January 1991. The Veteran has a current diagnosis of migraines as evidence from his VA treatment notes from March 2018 which provide that the Veteran is being treated for migraines with gabapentin. The Veteran states that these headaches began in service. The Board recognizes that the Veteran has stated that his headaches began in service and have continued to the present day. The Board must base its determination of service connection on consideration of all the pertinent medical and lay evidence of record. 38 C.F.R. § 3.303(a). Here the Veteran has provided credible statements that he suffered from headaches, beginning in service where he was diagnosed with migraine headaches, which continued up until the present, the medical evidence shows diagnoses of migraine headaches in service and currently. In light ot the evidence, the Board finds that all elements of service connection for migraine headaches have been met and service connection is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability to include as secondary to pes planus is remanded. The VA examinations provided in October 2017 and April 2018 are inadequate. The examiner fails to address the Veteran’s lay statement surrounding the injury to his knee in active service and any symptoms which continued since that time. The Court has made clear that “symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage v. Gober, 10 Vet. App. 488, 496 (1997). As the examinations did not adequately address the Veteran’s statements the Board finds that they are inadequate. As the Court has held, once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Considering the foregoing, the Board finds that a new examination is warranted. 2. Entitlement to service connection for vertigo and trouble speaking, to include as secondary to a traumatic brain injury (TBI) is remanded. The Board has now granted the Veteran claim for service connection for TBI, but is unable to determine from the record the relationship between the Veteran’s TBI and his vertigo and trouble speaking. As the Board is not competent to determine whether the vertigo and trouble speaking that the Veteran describes are distinct disabilities or attributable to the Veteran’s now service connected TBI, the Board finds that an examination of these conditions to determine their relationship, if any, to his TBI is necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. The development requested in connection with the foregoing claims, and the assigned ratings provided for the now service connected disabilities, could have bearing on whether an award of TDIU is proper. Hence, this final issue is not yet ripe for appellate review and must be deferred pending readjudication of those other remanded claims and effectuation of the grants addressed above. The Court has held that two or more issues are inextricably intertwined if the disposition of one claim could have a significant impact on the outcome of another See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc)). The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his disabilities. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. 2. After the above development is accomplished, schedule the Veteran for appropriate VA examination(s). The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner(s) as part of the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All tests, studies, and evaluations should be performed as deemed necessary by the examiner(s), and the results of any testing must be included in the examination report. The examiner(s) should review the service treatment records (STRs), any post-service records contained in the claims file, and take a detailed history from the Veteran regarding the onset of his respective disabilities. (A). After considering the pertinent information in the record in its entirety, the VA examiner should identify any right knee disability present. The examiner is asked to opine as to whether it is at least as likely as not i.e. 50 percent probability or greater, that any right knee disability identified was incurred or aggravated by the Veteran’s active duty. In providing an opinion, the examiner should comment on a November 20, 1990 service treatment note wherein a DoD clinican noted that the Veteran had a medial meniscal tear. (B). After considering the pertinent information in the record in its entirety and taking a detailed history from the Veteran regarding onset, the VA examiner should identify any disabilities associated with vertigo and trouble speaking. The examiner is asked to opine as to whether it is at least as likely as not i.e. 50 percent probability or greater, that any identified disability(ies), were incurred or aggravated by his active duty OR (i) Whether the vertigo is a symptom of the Veteran’s TBI or a distinct disability that is at least as likely as not caused by or aggravated by his TBI. (Continued on the next page)   (ii) Whether the Veteran trouble speaking condition is a symptom of his service-connected TBI or a distinct disability that is at least as likely as not caused by or aggravated by his TBI headaches. 3. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the issues on appeal, to include TDIU. If the benefits sought on appeal are not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Acosta