Citation Nr: 18149029 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 14-99 784A DATE: November 8, 2018 ORDER The claim for entitlement to service connection for bilateral hearing loss is granted. The claim for entitlement to service connection for tinnitus is granted. The claim for entitlement to service connection for a bilateral hip disability is denied. REMANDED The claim for entitlement to service connection for a bilateral shoulder disability is remanded. The claim for entitlement to service connection for a low back disability is remanded. The claim for entitlement to service connection for a bilateral leg disability, to include polyneuropathy with varicose veins and restless leg syndrome is remanded. The claim for entitlement to service connection for a bilateral foot disability, to include pes planus and plantar fasciitis is remanded. FINDINGS OF FACT 1. Resolving all doubt in the Veteran’s favor, the Board finds that the Veteran’s bilateral hearing loss disability is etiologically related to active duty service. 2. Resolving all doubt in the Veteran’s favor, the Board finds that the Veteran’s tinnitus is etiologically related to active duty service. 3. A chronic bilateral hip disability was not present in service or until years thereafter and is not etiologically related to any incident of active duty service. CONCLUSIONS OF LAW 1. Service connection for bilateral hearing loss is warranted. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.385. 2. Service connection for tinnitus is warranted. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. 3. A chronic bilateral hip disability was not incurred in or aggravated by active service, nor may its incurrence or aggravation be presumed. 38 U.S.C. §§ 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1958 to October 1960. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2014, the Veteran requested a videoconference hearing before a Veterans Law Judge (VLJ). The hearing was scheduled for October 12, 2018 and the Veteran received notice of the time and place of the hearing in September 2018. The day of the hearing, the Veteran contacted VA and withdrew his request for a hearing. The Board will therefore proceed with a decision in this case. In addition to the issues listed on the first page of this decision, the October 2014 statement of the case (SOC) addressed the issues of entitlement to service connection for a prostate disability and neurological impairment of the upper extremities. These issues were specifically excluded from the Veteran’s December 2014 substantive appeal and the appeals were not perfected. The Veteran has not indicated that he wishes to pursue the claims and VA has not explicitly or implicitly waived the requirement for a substantive appeal with respect to the claims for entitlement to service connection for a prostate disability and neurological impairment of the upper extremities. See Percy v. Shinseki, 23 Vet. App. 37 (2009). Therefore, the only issues currently before the Board are those listed on the first page of this decision. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). When a chronic disease is shown in service sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term “chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). Service connection may 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). 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. The Veteran contends that service connection is warranted for hearing loss and tinnitus as the conditions are related to noise exposure during active duty service. The Veteran specifically contends that he was exposed to loud noises during service related to his duties as an artillery surveyor with an artillery unit. The Board will resolve any doubt in favor of the Veteran and finds that service connection for bilateral hearing loss and tinnitus is warranted. The first two elements of service connection are present in this case. Tinnitus and a hearing loss disability for VA purposes were both identified upon VA contract examination in December 2011. The Veteran has also provided competent statements that he experiences hearing loss and intermittent ringing in his ears. An in-service injury is also present; service records and lay statements establish the Veteran’s exposure to acoustic trauma during active service through his duties with an artillery unit as an artillery surveyor. Regarding the presence of a nexus linking the hearing loss and tinnitus to active military service, there is evidence both for and against the claim. In favor of the claim are the Veteran’s credible statements that he experienced the onset of hearing loss and tinnitus during active duty. The VA contract examiner also provided a medical opinion in support of the claims in December 2011 and in a February 2012 addendum report. Additionally, the Veteran provided a private medical opinion in support of the claims in October 2018. There is some evidence weighing against the claims; service records are negative for any complaints or treatment for hearing loss or tinnitus, though the Veteran was not provided audiograms at the time of his enlistment or separation. In addition, the Veteran did not seek any post-service treatment for hearing problems until December 2010, more than 50 years after his discharge from active duty. At that time, he reported the onset of hearing loss within the last five years and a history of severe post-service noise exposure through his employment as a cabinet maker. However, the Veteran also stated that he had a “longstanding” history of intermittent tinnitus. The Board finds that the evidence is at least in equipoise regarding service connection for bilateral hearing loss and tinnitus and will resolve reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). All the elements necessary for establishing service connection are met and the Veteran’s claims for service connection for bilateral hearing loss and tinnitus are granted. 3. Entitlement to service connection for a bilateral hip disability. The Veteran contends that service connection is warranted for a chronic bilateral hip disability as it was incurred due to various injuries during active service. Initially, the Board finds that the record establishes a current disability. Post-service private and VA Medical Center (VAMC) treatment records document treatment for left hip osteoarthritis with a left hip replacement in April 2008. Although the record does not contain any formal medical evidence of a right hip disability, the Board finds that the Veteran’s reports of hip pain affecting the bilateral joints is sufficient to establish the first element of service connection. With respect to whether an in-service injury is present, the Veteran reported in a November 2014 statement that his bilateral hip pain began in service. He does not point to any specific injuries, but rather contends that his active duty service required strenuous physical training and heavy lifting. Service treatment records are negative for evidence of complaints or treatment related to the hips, but the injuries described by the Veteran are consistent with his duties as an artillery surveyor. Thus, the Board finds that an in-service injury is demonstrated. The Board will now turn to the third element of service connection, a nexus between the Veteran’s current disability and the reported in-service injury. In this case, service records do not indicate any such link. As noted above, service records are entirely negative for any complaints or treatment for a hip problem. The hips were also normal upon examination for separation in July 1960 and the Veteran did not report a history of hip pain on the accompanying report of medical history (despite specifically noting a history of back and other orthopedic problems). Therefore, the contents of the Veteran’s service records do not support his contentions regarding the incurrence of a chronic bilateral hip disability during active service. Post-service treatment records also weigh against the claim for service connection. VA and private medical records are negative for evidence of hip pain or other symptoms until February 2007, almost 50 years after discharge, when the Veteran sought treatment for left hip pain with a private physician. He was diagnosed with trochanteric bursitis and sciatica. Left hip replacement surgery was performed by a private provider in April 2008 and the Veteran has received treatment for hip pain and sciatica throughout the claims period. Post-service treatment records therefore do not indicate the presence of a hip disability until many decades after military service. The Board considers the absence of treatment for decades following service as one factor in finding that there is not a link between the currently diagnosed disability and service. The Board also notes that there are no competent medical opinions in support of the claim. None of the Veteran’s VAMC or private doctors have provided a medical opinion linking a bilateral hip disability to any event of active duty service. The record also does not establish the presence of hip arthritis until April 2008 when the Veteran was diagnosed with osteoarthritis by his private physician. Service connection is possible on a presumptive basis for certain chronic diseases, such as arthritis, but only when the disease becomes manifest to a degree of 10 percent or more within one year from the date of the Veteran’s separation from service. 38 C.F.R. §§ 3.307, 3.309. Although the Veteran reports that he experienced the onset of hip pain during service that has continued to the present day, given the more than 50 years that passed since his discharge and the diagnosis of hip arthritis, the Board cannot conclude that the disease was present to a compensable degree within a year from October 1960. Service connection is also possible for certain chronic disabilities under 38 C.F.R. § 3.303(b) based on a continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran’s hip arthritis is a chronic disease listed in 38 C.F.R. § 3.309(a) and the Board must therefore address whether his reports of continuous hip pain since service are a sufficient basis for an award of service connection. In a statement accompanying his November 2014 substantive appeal, the Veteran reported that he experienced the onset of hip pain during active duty that has progressively worsened over the years. Lay statements, such as those made by the Veteran, are considered competent evidence when describing the features or symptoms of an injury or illness. Falzone v. Brown, Vet. App. 398 (1995). Once evidence is determined competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”)). In this case, the Board finds that the Veteran’s reports of continuous symptoms of hip pain since service are not credible in light of the contents of the service and post-service treatment record. As noted above, service records are completely negative for complaints or treatment related to the hips and the Veteran’s hips were normal upon examination for separation. The Veteran also did not report any problems with his hips on the separation report of medical history, despite complaining of other conditions such as back pain. There is also no medical evidence of treatment or complaints of hip pain after service for almost 50 years, until February 2007. The Veteran never reported having continuous hip pain since service or incurring in-service hip injuries to any treating physician, though he did tell his private doctor in February 2007 that he did a lot of heavy lifting and tugging for his post-service employment in the cabinet business. Due to the inconsistency of the Veteran’s reported history with the other lay and medical evidence of record, the Board finds his statements regarding continuous hip pain symptoms since service are not credible. The Board has also considered the Veteran’s statements connecting his current chronic bilateral hip disability to service, but as a lay person, he is not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). The Board acknowledges that the Veteran is competent to testify as to observable symptoms, but finds that his opinion as to the cause of the symptoms simply cannot be accepted as competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). In sum, while the Board finds a current disability and in-service injury are demonstrated, the evidence weighs against a finding of an in-service chronic disability related to the injury. The post-service medical evidence of record also shows that the first evidence of a chronic hip disability was many years after the Veteran’s separation from active duty service. In addition, the weight of the competent evidence is against a nexus between a current bilateral hip disability and the Veteran’s in-service injury. The Board has considered the Veteran’s reported continuity of symptomatology, but concludes that his statements are not credible. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim and it is denied. 38 U.S.C.§ 5107(b). REASONS FOR REMAND The Board regrets delay in this case, but finds that a remand is necessary to further develop the record. Specifically, the Veteran should be provided VA examinations to determine the nature and etiology of the claimed shoulder, back, leg, and foot disabilities. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from January 2012 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral shoulder disabilities. The examiner must opine whether they are at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s reports of a painful or “trick” shoulder on the July 1960 separation report of medical history. The Veteran contends that he incurred multiple injuries to the shoulders during service associated with his duties as an artillery surveyor and due to strenuous physical training. For the purposes of this opinion, the examiner should accept these reports of shoulder injuries during service as true. Service records document a complaint of shoulder problems in the July 1960 separation report of medical history, though examination of the upper extremities was normal upon physical examination. The Veteran first complained of shoulder pain after service in October 1993 when he was diagnosed with bursitis of the left shoulder. He has continued to seek treatment for bilateral shoulder pain and was diagnosed with arthritis in March 2001. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any low back disabilities. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s reports of back pain with a “catching grabbing” sensation after sitting in a poor postural position on the July 1960 separation report of medical history. The Veteran contends that he incurred multiple injuries to the low back during service associated with his duties as an artillery surveyor and due to strenuous physical training. For the purposes of this opinion, the examiner should accept these reports of back injuries during service as true. Service records document the Veteran’s complaints of back problems on the separation report of medical history. The Veteran first complained of back pain after service in June 2001 when an MRI confirmed the presence of lumbar stenosis and degenerative joint disease. In January 2010, the Veteran also reported a history of standing on concrete for 47 years and chronic back pain to his private healthcare provider. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any leg disabilities, including polyneuropathy and/or varicose veins and restless leg syndrome. The Veteran’s March 1958 enlistment examination notes a vascular abnormality with a finding of mild varicosities of the leg. The Veteran also complained of cramps in his legs with prolonged walking and standing, worse in the summer, on the July 1960 separation report of medical history. The examiner must therefore determine whether the Veteran’s varicose veins were at least as likely as not aggravated (non-temporary increase in severity) by service and, if so, whether any increase in severity was clearly and unmistakably (undebatable) due to the natural progress of the disease. With respect to any other disability of the lower extremities (to include polyneuropathy and restless leg syndrome, if present), the examiner must also determine whether it is at least as likely as not related to an in-service injury, event, or disease. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any foot disabilities, including pes planus and plantar fasciitis. The record contains some evidence the Veteran’s bilateral foot conditions may have preexisted service, as he complained of foot trouble on the March 1958 enlistment report of medical history. The examiner must determine: (a) Whether any chronic foot condition clearly and unmistakably (undebatable) preexisted the Veteran’s service. (b) If the examiner finds a foot disability clearly and unmistakably preexisted service, the examiner must opine whether it was clearly and unmistakably not aggravated by service. (c) If the answer to either question above is no, then the examiner must opine whether the Veteran’s current chronic bilateral foot disabilities are at least as likely as not related to an in-service injury, event, or disease, to include the strenuous physical activities reported by the Veteran. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Riley, Counsel