Citation Nr: 18153926 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-00 158 DATE: November 28, 2018 ORDER Entitlement to service connection for bilateral recurrent tinnitus is granted. Entitlement to service connection for coronary artery disease (CAD) is dismissed. Entitlement to service connection for hypertensive vascular disease is dismissed. Entitlement to service connection for diabetes mellitus type II (diabetes) is dismissed. Prior to July 7, 2015, entitlement to an initial 30 percent rating, and no higher, for service-connected bilateral pes planus (flatfoot) is granted. REMANDED Entitlement to service connection for bilateral sensorineural hearing loss is remanded. Entitlement to an initial rating in excess of 10 percent for service-connected left ankle arthritis is remanded. FINDINGS OF FACT 1. Resolving the benefit of the doubt in the Veteran’s favor, his bilateral recurrent tinnitus had its onset during active duty service. 2. In the August 2018, prior to the promulgation of a decision in this appeal, the Veteran withdrew his appeal of the denial of service connection for CAD. 3. In the August 2018, prior to the promulgation of a decision in this appeal, the Veteran withdrew his appeal of the denial of service connection for hypertensive vascular disease. 4. In the August 2018, prior to the promulgation of a decision in this appeal, the Veteran withdrew his appeal of the denial of service connection for diabetes. 5. Prior to July 7, 2015, the Veteran’s bilateral pes planus manifested as severe, with objective marked pronation and abduction left more than right, with pain on manipulation and use. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral recurrent tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for withdrawal of the appeal denying service connection for CAD have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 3. The criteria for withdrawal of the appeal denying service connection for hypertensive vascular disease have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 4. The criteria for withdrawal of the appeal denying service connection for diabetes have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 5. Prior to July 1, 2015, the criteria for entitlement to an initial evaluation in excess of 30 percent, and no higher, for service-connected bilateral pes planus (flatfoot) have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5276 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the U.S. Army from March 1962 to August 1965. This case comes before the Board on appeal from a September 2009 rating decision. The Board notes that in a November 2015 rating decision, the RO increased the evaluation of the Veteran’s service-connected bilateral pes planus to 50 percent disabling, the highest schedular rating allowed for the disability, effective July 1, 2015. In August 2018, the Veteran testified in a live videoconference before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the claims file. Withdrawn Claims During the Veteran’s hearing testimony, in August 2018, the Veteran indicated his intention to withdraw his appeals for CAD, hypertensive vascular disease, and diabetes only. The Veteran was with his representative at the time he confirmed his intention to do this on the record. Thus, with respect to the claims of service connection for CAD, hypertensive vascular disease, and diabetes, there are no longer any alleged errors of fact or law for appellate consideration. See 38 C.F.R. § 20.204(b). The Board no longer has jurisdiction to review the appeal of those issues and they are therefore dismissed. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 38 C.F.R. § 3.303(a). Service connection can be demonstrated for a disease diagnosed after service when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection, the evidence 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). In addition to direct service connection, service connection may also be established under 38 C.F.R. § 3.303(b) if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Sensorineural hearing loss and tinnitus (organic disease of the nervous system) is a chronic condition listed under 38 C.F.R. § 3.309(a); and thus, 38 C.F.R. § 3.303(b) is applicable. See id.; see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established for tinnitus and sensorineural hearing loss based upon a legal presumption by showing that a disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. 1110; 38 C.F.R. 3.307, 3.309(a). The determination as to whether the requirements for service connection are met is based on analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 C.F.R. § 3.102. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Gilbert, 1 Vet. App. at 55. 1. Entitlement to service connection for bilateral recurrent tinnitus is granted. Here, the Veteran asserts that his bilateral recurrent tinnitus had its onset during service. Based on the evidence of record, the Board agrees. At the outset, the Veteran is presumed to have been exposed to excessive noise during military service. Specifically, the Veteran testified that he was a Browning automatic rifleman, where he trained and used large automatic machine guns. His DD Form 214 shows that he was decorated as a sharpshooter (rifle) and was a communications specialist. Additionally, during the August 2009 VA examination, the Veteran reported military noise in the form of steel drums, gunfire, and full infantry artillery. The Veteran reported five to six instances when he was placed in a steel drum as part of training exercises while in Vietnam, where the sides of drum were beaten causing ringing in his ear following the exercises. Currently, the Veteran reported high-pitched ringing that occurs 4-5 times per day. He added that he had some post-military related noise exposure as he was employed as a truck driver. As part of the August 2009 VA examination, the VA audiologist opined that the Veteran’s bilateral tinnitus was less likely as not caused by or a result of acoustic trauma the Veteran was exposed to while in service. The audiologist reasoned that given the Veteran’s service medical records revealed hearing sensitivity within normal limits at the time of separation from service, his bilateral recurrent tinnitus is not related to active service. The Board finds the VA audiologist’s opinion inadequate as she failed to account for the Veteran’s reported onset of tinnitus. Although the Veteran reported his tinnitus began during service and provided an explanation for its causation, the VA audiologist reasoned that his tinnitus was not service related because of normal hearing at discharge. The audiologist failed to provide a reason to account for the Veteran’s tinnitus, as the Veteran experienced only mild post-military noise as a truck driver. More importantly, The Veteran is competent to report that his tinnitus began during service or upon returning from service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). In view of the circumstances surrounding the Veteran’s in-service noise exposure and the subjective nature of this disability, the Board will give the Veteran the benefit of the doubt, and conclude that service connection for bilateral recurrent tinnitus is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Claim for Bilateral Pes Planus Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran’s condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59 (2017). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Prior to July 1, 2015, entitlement to an initial evaluation in excess of 10 percent for service-connected pes planus (flatfoot) bilaterally, is granted. Here, prior to July 1, 2015, the Veteran’s pes planus was evaluated at 10 percent disabling under Diagnostic Code (DC) 5276. Under DC 5276, a 10 percent evaluation is warranted for moderate bilateral flatfoot (pes planus) where the weight-bearing lines are over or medial to the great toes and there is inward bowing of the Tendo-Achillis and pain on manipulation and use of the feet. A 20 percent evaluation is warranted for severe unilateral acquired flatfoot manifested by marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use of the feet, indications of swelling on use of the feet, and characteristic callosities. The criteria for the 30 percent rating require “severe” bilateral flatfoot, objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent disability evaluation may also be signed for unilateral (50 percent rating bilaterally) pronounced acquired pes planus with marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the Tendo-Achillis on manipulation, not improved by orthopedic shoes or appliances. A 50 percent evaluation is assigned for pronounced bilateral pes planus, with marked pronation, extreme tenderness of the plantar surface of the feet, marked inward displacement and severe spasm of the Tendo-Achilles on manipulation, and not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a. The Board notes that words such as mild, moderate, and severe are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.71a, DC 5276. The Veteran contends that he was entitled to a higher rating for his pes planus disability prior to July 1, 2015. For the Veteran’s left foot pes planus, the Board agrees. Specifically, in the August 2009 VA examination, the Veteran complained of and medical history supported progressive pain and deformity bilaterally, but at the left rearfoot more so than the level of the left ankle, with valgus deviation in and about the left subtalar joint, where surgical fusion was recommended. The Veteran reported using various over-the-counter devices but without symptomatic improvement. On physical examination, the VA physician stated that the Veteran had a severe pes planovalgus left foot more than right foot with absence of the longitudinal arch for either foot. Tendo achilles was valgus nonweight-bearing left and more pronounced valgus weight-bearing left. Tendo achilles was rectus non- weight-bearing right and mildly valgus weight-bearing right. There was pain upon manipulation of the left but not especially the right rearfoot region. There was painful motion varus/valgus at the level of the left talocalcaneal articulation. However, there was no edema with attention to either foot. There was weakness for inversion, plantar flexion for the left more than right tibialis posterior tendon (abnormal function, tibialis posterior tendon, left foot more than right foot). There was normal form and function, except for the valgus alignment, for both Tendo achilles. Likewise, there was no instability regarding either foot. There was tenderness to palpation more significantly about the medial and lateral margins of the left subtalar joint/talocalcaneal articulation than the medial margin of the left ankle. The VA physician continued that the Veteran’s gait was abnormal and antalgic with planovalgus, left foot and ankle. Weight-bearing was abnormal with valgus wear of the left more than right shoe. Walking ability, standing ability, and distance tolerance would be considered at least moderately impaired, especially with attention to the condition of the left rearfoot region. The physician assessed the Veteran with severe pes planovalgus, left foot more than right foot, now with moderate osteoarthritis at the level of the left subtalar joint, and valgus malalignment and impaired function of the left more than the right rearfoot, including diminished balance and propulsion with diminished effectiveness of the left tibialis posterior tendon, and valgus strain and medial capsulitis of the left ankle joint, along with mild chronic tibialis posterior tendonitis, left foot more than right. Lastly, the physician indicated that ranges of motion are not additionally limited by pain, fatigue, weakness or lack of endurance following repetitive use. Additionally, in a September 2010 treatment note, a VA podiatrist indicated that the Veteran had pes valgum planus flatfoot deformities with ankle valgum with pronation bilaterally and noted weakness with muscle testing 4/5 with abduction. There were no plantar lesions. In a September 2011 treatment note, the VA podiatrist indicated that the Veteran’s left foot was abducted and severely pronated, with noted weakness with muscle testing: 4/5 with abduction, but no plantar lesions. In the assessment section, the Veteran was shown to have severe flatfoot deformity bilaterally, with severe ankle valgus deformity left. The Board notes that there are treatment records post-September 2011 and prior to the July 2015 VA examination, but those records do not provide any more evidence of an increase in the Veteran’s pes planus disability than the examinations discussed. Based on the evidence of record prior to July 1, 2015, the Veteran’s bilateral pes planus most closely approximated to a 30 percent disability rating. As shown in the August 2009 VA examination and subsequent treatment notes, the Veteran had severe bilateral pes planus with objective evidence marked deformity (pronation and abduction) left more than right, with pain on manipulation and use and noted weakness on the left foot. Although the Veteran’s left foot pes planus was indicated to be worse than his right foot, with left ankle deformities, both were assessed as severe, with pain on manipulation and use and weakness noted. Likewise, it was shown that the Veteran’s ability to walk and stand especially for a period was at least moderately impaired. However, an evaluation higher than 30 percent prior to July 1, 2015, was not warranted as there was no indication of extreme tenderness of the plantar surfaces of the feet or marked inward displacement and severe spasm of the Tendo achilles on manipulation bilaterally. The Board also recognizes its obligation to consider other applicable diagnostic codes. However, the only other diagnostic codes pertaining to the foot which could warrant a higher rating pertains would fall under DC 5278 (claw foot) or loss of use of foot under DC 5167. There is, however, no lay or medical evidence suggesting claw foot or pes cavus, or the loss of use, or functional loss of use, of either foot. Although the Veteran has functional loss related to his foot disability, there is no indication that his symptoms approach a level where there is no effective function of either foot remaining. Thus, this diagnostic code is inapplicable. The Board further recognizes that separate ratings for each foot are available under Diagnostic Code 5284 and, as such, the Board has considered whether separate ratings for the Veteran’s bilateral pes planus under Diagnostic Code 5284 are warranted. However, there was no indication of a foot injury outside flatfoot. Thus, DC 5284 is not applicable and the Veteran’s service-connected bilateral foot disability is appropriately rated under DC 5276. Moreover, separate ratings under DC 5284 are not warranted as the purpose of DC 5284 is to encompass disabilities not contemplated by the other diagnostic codes concerning the feet, as evidenced by its title (“Foot injuries, other”). In this case, the Veteran is service-connected for bilateral pes planus, a condition that was aggravated by service but not by an actual foot injury. For these reasons, the Board finds that the use of Diagnostic Code 5284 would not be appropriate in this case. Additionally, DC 5284, which provides for evaluation of foot injury, is not a “catch-all provision” for rating foot disorders, particularly where, as here, there are specifically designated rating criteria for the particular foot disorder. See Delisle v. McDonald, 789 F.3d 1372 (Fed. Cir. 2015); see also 38 C.F.R. § 4.14. As DC 5276 specifically applies to pes planus, evaluation under DC 5284 is inappropriate. Accordingly, resolving all reasonable doubt in the Veteran’s favor, the Board awards a 30 percent schedular evaluation for his service-connected bilateral pes planus prior to July 1, 2015. See 38 C.F.R. § 4.3; DeLuca, 8 Vet. App. 206. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). 1. Entitlement to service connection for bilateral sensorineural hearing loss is remanded. Here, as discussed above, the Veteran’s exposure to acoustic trauma during military service has been conceded. However, in the August 2009 VA examination, the VA audiologist provided a negative medical opinion. The Board found the VA audiologist’s opinion to be inadequate because although the Veteran’s hearing was within normal limits at separation from service, the audiologist failed to account for the Veteran’s lay statements concerning the acoustic trauma he suffered during service. In fact, the Veteran’s service treatment records (STRs) reflect higher auditory thresholds at separation than his prior audiometric tests during service. See STRs. The Board, however, is precluded from making medical determinations; therefore, a remand is warranted to obtain an addendum opinion on whether the Veteran’s current bilateral hearing loss is related to his active duty service. See McLendon v. Nicholson, 20 Vet. App. 79 (2000); see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (finding that the Board cannot inject its own medical opinion). 2. Entitlement to an initial evaluation more than 10 percent for service-connected left ankle arthritis is remanded. Here, the Veteran was afforded a VA examination in December 2015 to determine the severity of this left ankle disability. The Board recognizes that, generally the mere passage of time is not a sufficient basis for a new examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007) (holding that the mere passage of time, without evidence of worsening, does not require a new examination); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). In this instance, however, the Veteran has described worsening symptoms of his left ankle. See August 2018 Hearing Transcript. Specifically, the Veteran testified that a fusion surgery may be his best option and added that he is unable to walk for very long and his ankle range of motion is very limited. Consequently, a more contemporaneous examination is needed to fully and fairly evaluate the Veteran’s claim of an increased rating for his service-connected left ankle arthritis. See Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of disability, fulfillment of duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Obtain all relevant outstanding VA treatment records, and any private treatment records identified by the Veteran. All records and/or responses received should be associated with the claims file. 2. Obtain a VA addendum medical opinion to determine the nature and etiology of the Veteran’s bilateral hearing loss. If an opinion cannot be obtained without an examination, then a VA examination should be afforded to the Veteran. The record, including a copy of this remand, must be made available to and reviewed by the examiner. The VA examiner should address the following: (a.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s bilateral hearing loss was caused by acoustic trauma during his military service. 3. The examiner should cite to the medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. 4. Additionally, after all outstanding treatment records have been associated with the claims file, schedule the Veteran for a VA examination to determine the current severity of his left ankle disability. The VA examiner must review the complete claims file and must note that review in the report. A copy of this REMAND must also be provided to the VA examiner. All necessary tests and studies should be accomplished and all clinical findings reported in detail. 5. After undertaking any additional development deemed necessary, the AOJ must readjudicate the claims on appeal. If any claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the requisite opportunity to respond before the case is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Umo, Associate Counsel