Citation Nr: 18156787 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 17-00 400 DATE: December 11, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a right ankle disorder, diagnosed as mild hallux valgus, degenerative joint disease, and a moderately prominent plantar calcaneal spur, is granted. FINDINGS OF FACT Bilateral hearing loss is etiologically related to acoustic trauma sustained in active service. Tinnitus is etiologically related to acoustic trauma sustained in active service. Resolving reasonable doubt in favor of the Veteran, his right ankle disorder had its onset in active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. § 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for entitlement to service connection for a right foot disorder, diagnosed as mild hallux valgus, degenerative joint disease, and a moderately prominent plantar calcaneal spur, have been met. 38 U.S.C. § 1110, 1131, 5107 (2012); 38 C.F.R. § 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served the United States Navy from January 1963 to January 1967. This matter comes to the Board of Veterans' Appeals (Board) from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (2017), Walker v. Shinseki, 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d) (2017). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013); Allen v. Brown, 7 Vet. App. 439, 448 (1995). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent medical evidence is the type of evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) (2017). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) (2017). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that his service as an aircraft mechanic on a flight-line of an aircraft carrier and the resulting exposure to acoustic trauma caused his current bilateral hearing loss. Service connection may be granted for an organic disease of the nervous system, such as a sensorineural hearing loss, when it is manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 C.F.R. 3.309 (a). The requirement for a current disability requirement to establish service connection is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowski v. Shinseki, 26 Vet. App. 289, 294 (2013). Applicable regulations provide that impaired hearing shall be considered a disability when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hz are 40 decibels or greater; the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores are 94 percent or less. 38 C.F.R. § 3.385 (2017). 38 C.F.R § 3.385 does not preclude service connection for a current hearing loss disability where the Veteran’s hearing was within normal limits on audiometric testing at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a veteran's separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Where the requirements for hearing loss disability pursuant to 38 C.F.R. § 3.385 are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385. Hensley, 5 Vet. App at 155. If the record shows (a) acoustic trauma due to significant noise exposure in active service and audiometric test results reflect an upward shift in tested thresholds while in such service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385 , and (b) post service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385; then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. Id. at 159. After considering all information and lay and medical evidence of record in a case 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 benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Because there is no indication that the Veteran's hearing loss was manifested within one year of service, service connection is not available on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309. The first element is satisfied, in that the for both ears the May 2015 VA examinations indicate auditory thresholds of 40 decibels or greater at frequencies of 3000 and 4000 Hz, and in the left ear at a frequency of 2000 Hz. The second element is satisfied, the in-service injury or disease, the Board notes that the record contains sufficient evidence that the Veteran's active service exposed him to acoustic trauma. Moreover, the Veteran's DD-214 confirms his service as an aircraft mechanic. As to the final element of a service connection claim, the nexus between the Veteran's hearing loss disability and the in-service noise exposure, the evidence is mixed, and the Veteran admits that he did not seek medical treatment while in the military or immediately after service. The Veteran is competent to provide statements to establish the occurrence of medical symptoms. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). However, the Veteran is not medically qualified to prove a matter requiring medical expertise. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Thus, while the Veteran's statements that he had trouble hearing for years after he was in active service are both competent and credible, his statements alone are not sufficient to medically attribute his current hearing loss to the acoustic trauma he experienced in service. A May 2015 VA examination has been conducted, in which the VA examiner provided a negative nexus opinion. The examiner concluded that the Veteran's bilateral hearing loss was less likely than not caused by or the result of military acoustic trauma, mainly since the Veteran’s separation exam did not show a hearing disability, further persuaded by the fact that the Veteran had entered and exited service with normal bilateral hearing, and that the Veteran had potential post-service occupational noise exposure while working for 40 years as a paint and autobody specialist. The May 2015 VA examiner concluded the Veteran’s occupational history of noise exposure after service was the more likely cause of the Veteran’s current bilateral hearing loss disability. However, the examiner did acknowledge the Veteran’s exposure to military acoustic trauma through the noise produced by jet aircraft. The examiner also noted that it is as likely as not that the Veteran’s bilateral hearing loss also caused the Veteran’s tinnitus. Notwithstanding the May 2015 VA examiner’s ultimate conclusion, it is apparent to the Board that the examiner did not appreciate the fact that she did not have to choose either a post-service cause or an in-service cause, and could have instead determined that each contributed to the Veteran’s current bilateral hearing loss. In fact, based on the rationale provided, this opinion would have been more consistent with that rationale. Thus, the examiner did not adequately consider the Veteran's lay statements of the in-service noise exposure and the continuity of symptoms. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding a medical examination inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms or injury during service). Moreover, even if disabling loss is not demonstrated at separation, a veteran may establish service connection for a current hearing disability by submitting evidence that a current disability is causally related to service, and the opinion is found to support the proposition that the Veteran’s current hearing disability is at least in part related to service. Hensley, 5 Vet. App at 160. Furthermore, lay evidence concerning continuity of symptoms after service, if credible, can ultimately be considered competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Where, as here, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Consequently, the Board finds that service connection of the Veteran’s bilateral hearing loss is warranted. 2. Entitle ment to service connection for tinnitus The Veteran has asserted that his service as an aircraft mechanic on a flight-line in an aircraft carrier and the resulting exposure to acoustic trauma caused his current tinnitus, and his current bilateral hearing loss. A review of the service medical records is silent for treatment for or a diagnosis of tinnitus while the Veteran was in active service. However, the Veteran has reported that he first experienced tinnitus while in active service. According to the Veteran, he has continued to experience tinnitus intermittently since his separation from active service, and notes that it was “not as noticeable as it has become now”. June 26, 2015 Notice of Disagreement. The Board also emphasizes that the Veteran is competent to report when he first experienced tinnitus 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. In addressing the Veteran's VA examination in May 2015, the Board also notes that the VA examiner linked the Veteran’s current tinnitus to his bilateral hearing loss, therefore the Board will also evaluate this issue as a secondary service connection claim. The first element for secondary service connection is satisfied, the present disability, in that the Veteran was diagnosed with tinnitus by the VA examiner in May 2015. The second and final element for secondary service connection, that the current disability was proximately caused by a service connected disability, has also been satisfied. In the May 2015 VA examination, concluded that the condition was at least as likely as not caused by the Veteran’s hearing loss. Since the Veteran’s bilateral hearing loss is now service connected, the Board will further give the Veteran the benefit of the doubt, and find that this medical opinion is probative as a positive nexus opinion, given the examiner’s view that the bilateral hearing loss was a contributing cause of the Veteran’s tinnitus. 3. Entitlement to service connection for a right ankle disorder The Veteran and his representative assert that the Veteran is entitled to service connection for a right ankle disorder because he injured his right ankle while on active duty which allegedly resulted in his current disabilities of mild hallux valgus, degenerative joint disease, and a moderately prominent plantar calcaneal spur in the right ankle. A condition precedent for establishing service connection is the presence of a current disability. In this regard, the Board notes that the Veteran has been diagnosed with mild hallux valgus, degenerative joint disease, and a moderately prominent plantar calcaneal spur in the right ankle, according to an August 2016 VA examination. Accordingly, the first element for establishing service connection has been met. With respect to the second element, the Board notes that the Veteran received treatment for a right ankle sprain after the Veteran’s ankle was caught between two moving vehicles while working on the flight-line, according to a service treatment record dated January 1966. Accordingly, the Board finds that the second element for establishing service connection has been met. As for the final element of nexus, the Board finds that this element for establishing service connection has also been met. In a lay statement provided by the Veteran in the June 2015 Notice of Disagreement, he claims his right ankle disorder began in January 1966, due to an injury to his ankle while he was in service. The Veteran explained that he has had swelling in his foot ever since the injury, has continued taking cortisone shots, was still required to wear a night splint in hopes to stretch the damaged ligament, and that he had been in pain since his time in service. The record also contains competent medical evidence of a nexus between the Veteran's January 1966 treatment to his right ankle and his current right ankle disorder, diagnosed as mild hallux valgus, degenerative joint disease, and a moderately prominent plantar calcaneal spur by a VA examiner in August 2016. The Veteran's lay testimony is competent, credible, and persuasive. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional). In this case, because the lay testimony supports an eventual diagnosis by a medical professional, it must be accorded some weight in the matter. While the August 2016 VA examiner confirmed the Veteran’s diagnosis, the examiner also provided a negative nexus opinion. In the examination’s rationale, the examiner explains that the January 1966 ankle injury was not related to the current condition since the separation examination from January 1967 indicated no abnormal right ankle or foot condition suggesting resolution of the prior injury. The examiner is also of the opinion that a subsequent toe injury in the right foot around April 2009, noted in a VA treatment note, may be a more likely cause, while also noting that some of the degenerative changes are bilateral, therefore consistent with an age-related condition. The VA examiner concluded that the Veteran’s right ankle disorder was less likely than not related to, associated with, caused by or proximately due to the January 1966 in-service injury. The Board finds that the medical information in the examination provides sufficient probative evidence of a nexus between the Veteran's documented January 1966 in-service treatment for an ankle injury and his current right ankle disorder, even though the examiner ultimately provides the opposite conclusion. Simply put, the August 2016 ultimate medical opinion is not probative because the VA examiner failed to acknowledge the Veteran’s lay statements. By concluding that the in-service injury had resolved in service, the VA examiner essentially ignores the Veteran’s lay statements. Moreover, the VA treatment note relied upon by the VA examiner from April 2009, where the Veteran sought assistance for pain in the right foot relating to a dislocated toe, subsequently in December 2014, the same facility noted the Veteran’s complaint of continuity of symptoms dating back to the January 1966 injury. These treatment notes were written by the same examiner in the VA facility that treated the Veteran in April 2009. While the examiner notes that the Veteran’s treatment for an ankle injury in service is not sufficient to establish chronicity, a showing of continuity of symptomatology after service can establish service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331. (Fed. Cir. 2013). The Veteran’s lay statements are sufficient to establish a continuity of symptomatology, especially here, where the complained of disabilities include degenerative joint disease. It is also apparent to the Board that the examiner did not appreciate the fact that he did not have to choose either a post-service cause or an in-service cause, and could have instead determined that each contributed to the Veteran’s current right ankle disorder. In fact, based on the rationale provided, this opinion would have been more consistent with that rationale. Thus, the examiner did not adequately consider the Veteran's lay statements of the in-service injury and the continuity of symptoms. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding a medical examination inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms or injury during service). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, can ultimately be considered competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In summary, the Board finds that the most competent evidence of record is at least in equipoise as to a relationship between the Veteran’s currently diagnosed right ankle disorders of mild hallux valgus, degenerative joint disease, and a moderately prominent plantar calcaneal spur, and the Veteran’s period of active service. Accordingly, under these circumstances and granting the Veteran the benefit of the doubt in this matter, the Board finds that service connection for a right ankle disorder, diagnosed as mild hallux valgus, degenerative joint disease, and a moderately prominent plantar calcaneal spur, is warranted. 38 U.S.C. § 1110; 38 C.F.R. § 3.102, 3.303. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. R. Montalvo, Associate Counsel