Citation Nr: 1806672 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-17 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral ankle, calf, and knee pain. 2. Entitlement to service connection for left ear hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for bilateral foot arthritis. REPRESENTATION Appellant represented by: Curtis Fetty, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1970 to February 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from July 2011 and January 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In August 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript is associated with the claims file and has been reviewed accordingly. In January 2017 the Board granted service connection for pes planus, denied the Veteran's claim for bilateral ankle, calf, and knee pain and remanded the claims for left ear hearing loss, tinnitus and arthritis of the bilateral feet. As to the claims for hearing loss, tinnitus, and arthritis of the bilateral feet, the Board finds that the RO substantially complied with the remand instructions. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Veteran appealed the Board's denial of service connection for bilateral ankle, calf and knee pain to the Court of Appeals for Veterans Claims (Court). In September 2017 the Court granted a joint motion for partial remand. Thus the claim is before the Board for adjudication consistent with the joint motion. The Board notes that the Veteran has filed a substantive appeal regarding the evaluation for service connected pes planus. As the case has not been certified to the Board it is not yet ripe for adjudication. The issue of service connection for bilateral ankle, calf, and knee pain is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's left ear hearing loss did not have its onset in service, did not manifest to a compensable degree within one year of separation, and is not otherwise related to service. 2. The Veteran's tinnitus did not have its onset in service, did not manifest to a compensable degree within one year of separation, and is not otherwise related to service. 3. The evidence is sufficient to show that the Veteran's arthritis of the bilateral feet was caused by his service-connected pes planus. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 3. The criteria for service connection for arthritis of the bilateral feet have been met. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Hearing Loss & Tinnitus The Veteran contends that his current hearing loss is due to acoustic trauma in service. See August 2016 Hearing Transcript. The Board notes that noise exposure is consistent with the duties and circumstances described in the Veteran's personnel records. As such, the Board presumes the occurrence of the in-service acoustic trauma. The Veteran has current diagnoses of left ear hearing loss and tinnitus. See December 2010 VA Examination Report. As such, the issue that remains disputed is whether these disabilities are related to service, manifested to a compensable degree within one year of separation, or are otherwise related to service.. The Veteran's service treatment records are silent for complaints or treatment for hearing loss in service. At separation, a clinical evaluation showed normal ears. The Veteran also denied ear trouble and hearing loss. At separation the Veteran's puretone thresholds were as follows: 500 1000 2000 3000 4000 Left 10 5 5 10 10 Notably, the Veteran's audiological examination showed similar results to his induction examination, which was as follows: 500 1000 2000 3000 4000 Left 10 10 5 10 5 During a December 2010 VA examination, the VA examiner provided a negative etiology opinion finding that there was not a threshold shift in the Veteran's hearing during service. The examiner further stated that the Veteran's hearing was within normal limits in 1992. The examiner further reasoned that the Institute of Medicine study indicates that latent onset of noise related hearing loss does not exist. With respect to tinnitus the examiner reported that it is reasonable to presume that the Veteran's tinnitus is a symptom of his current hearing loss but that she would have to resort to mere speculation to resolve the matter of etiology. Also, of record is a positive nexus opinion signed by private physician, Dr. B.R. In the October 2011 letter, Dr. B.R. indicates that it is as likely as not that the Veteran's hearing loss is related to noise exposure in service but does not provide a rationale for his opinion. In a July 2011 letter, J.D.S., a retired pilot and licensed Environmental Safety Engineer who performed acoustic readings during the Veteran's service and possesses expertise regarding the levels of acoustic trauma experience in flying military jets, provided a statement and accompanying data detailing the exact acoustic trauma that the Veteran would have been exposed to on a constant basis during a 15 year period in the military. The Board requested an additional VA audiological evaluation in consideration of the additional information from J.D.S. The Veteran was afforded an additional VA audiological evaluation in February 2017. The examiner opined that the Veteran's left ear hearing loss was less likely as not related to service. The examiner reasoned that a review of the claims file and service medical records revealed the Veteran to have normal hearing sensitivity at enlistment and normal to moderate hearing loss at separation. This hearing loss appears to have resolved as the Veteran documented normal hearing with no significant threshold shifts as compared to enlistment in the next audiogram in May 1974. The Veteran had a normal hearing audiogram as late as April 1985. The examiner further explained that the audiogram is the objective standard for noise injury and because the Veteran's hearing was normal years after separation, there is no evidence the Veteran's military noise exposure caused injury affecting hearing sensitivity. Regarding tinnitus, the Veteran reported that his tinnitus began about 30 years earlier in the mid-1980s. The examiner concluded that his tinnitus was less likely as not related to service. The examiner reasoned that the Veteran's post service and service treatment records show no complaints or treatment for tinnitus. The Veteran also reported that tinnitus began 30 years prior, which was years after separation. It is widely accepted that noise-induced tinnitus occurs at the time of noise exposure and does not develop years later. In addition, per the Institute of Medicine 2006 study, "as the interval between a noise exposure and the onset of tinnitus lengthens, the possibility that tinnitus will be triggered by other factors increased." The examiner also issued an addendum opinion May 2017 specifically addressing the July 2011 letter from J.D.S. In the opinion the examiner reported that the July 2011 letter was reviewed and concluded as follows: The letter from J.D.S. details the noise that the Veteran was exposed to during his military service. Even though the Veteran was exposed to loud sounds as evidence in the 2011 letter, the audiogram remains the objective standard for noise injury. The Veteran documented normal hearing years after his 1973 separation (see audiogram from 1985) with no significant thresholds shifts as compared to enlistment. Therefore, there is no evidence that the Veteran's noise exposure caused permanent noise injury. The Veteran also reported a positive history of occupational noise exposure (working as a pilot). Therefore, the Veteran's current hearing loss is deemed less likely as not caused by or a result of military exposure. The Board finds that the VA examiners' opinions adequate and highly probative to the question at hand. The examiners possessed the necessary education, training, and expertise to provide the requested opinions. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In addition, the VA examiners provided detailed rationales for their opinions, and their opinions were based on examinations and interviews of the Veteran, as well as on a review of the service treatment records, the post-service treatment records, and the lay statements of the Veteran. The opinions considered an accurate history, were definitive and supported by a detailed rationale that considered the lay and medical evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). When reviewing conflicting medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). The Board has carefully considered this information, and ultimately finds that the VA examiners opinions are afforded more probative weight compared to the private opinion by Dr. B.R. and the July 2011 letter from J.D.S. The October 2011 letter by Dr. B.R. does not provide a rationale for his positive nexus opinion and the letter from J.D.S. does not support a finding that the Veteran's current hearing loss is related to noise exposure in service. The Board has also considered the Veteran's assertions that his hearing loss and tinnitus are related to noise exposure in service. The Veteran is competent to testify to facts or circumstances that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). It is also well established that lay persons without medical training, such as the Veteran, are not competent to provide medical opinions on matters requiring medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Whether the Veteran's hearing loss and tinnitus are related to noise exposure in service requires medical expertise to determine. Thus, the Board finds the VA medical opinion more probative than the Veteran's statements. As previously noted, sensorineural hearing loss and tinnitus may be presumed to have been incurred in service if manifested to a compensable degree within one year after discharge from service. 38 U.S.C.A. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.307, 3.309; Fountain v. McDonald, 27 Vet. App. 258 (2015). In addition, a disorder may be service-connected if the evidence of record shows that the Veteran currently has a disorder that was chronic in service, or if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b). Here, however, the evidence does not show, and the Veteran does not assert, that his tinnitus or left ear hearing loss manifested to a compensable degree within one year of separation from service. Therefore, presumptive service connection is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Arthritis of the Bilateral Feet The Veteran has a current diagnosis of arthritis of the bilateral feet. See February 2017 VA Examination Report. The issue that remains disputed is whether the Veteran's bilateral feet arthritis is related to service, manifested to compensable degree within one year of separation, or is related to a service-connected disability. See 38 C.F.R. §§ 3.307, 3.309, 3.310(a) (2017); Allen v. Brown, 7 Vet. App. 439 (1995) (service connection may also be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury). In a February 2017 VA examination, the examiner opined that it was less likely as not that the Veteran's bilateral foot arthritis is related to service. The examiner reasoned that there is no objective medical or scientific evidence to support that activities such as constant running, load bearing or other lower extremity activities, in the absence of specific injury, would cause arthritis to the feet over 40 years later. There was no objective medical evidence found in the Veteran's medical records showing injuries to either foot. Notably, the examiner did not address the Veteran's service-connected pes planus. See January 2017 Board Decision; May 2017 Rating Decision. A November 2016 private treatment note from Dr. J.D.W. shows an assessment of "bilateral pes planovalgus deformity with collapse of the midfoot resulting in severe midfoot arthritis most pronounced at the 1st and 3rd TMT joints." (emphasis added). As the evidence indicates that the Veteran's service-connected pes planus caused bilateral foot arthritis, service-connection on a secondary basis is warranted. 38 C.F.R. 3.310. ORDER Entitlement to service connection for left ear hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for bilateral foot arthritis is granted. REMAND In the September 2017 joint motion for remand, the parties agreed that the Board erred in concluding that a VA examination for the Veteran's bilateral ankle, calf, and knee pain was not warranted under McClendon. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d)(2) (West 2014), 38 C.F.R. § 3.159(c)(4)(i) (2017). In addition, the Veteran, through his attorney, asserts that his bilateral ankle, calf, and knee pain may be due to his service-connected pes planus. Thus, the claim is remanded for a VA examination. See June 2017 Correspondence. In addition, the most recent VA treatment notes associated with the claims file are from August 2017. On remand, all outstanding VA and private treatment records should be associated with the Veteran's claims file. Accordingly, the case is REMANDED for the following actions: 1. Obtain copies of records pertaining to any relevant treatment the Veteran has received at the VA medical center following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the claims file. 2. Provide releases to the Veteran for any outstanding private treatment records. 3. Arrange for the Veteran to be afforded a VA examination regarding his bilateral ankle, calf, and knee pain. For each current bilateral ankle, calf, and knee disorder, the examiner should opine as to: (1) Whether it is at least as likely as not (50 percent or better probability) that the disability had its onset in service or is otherwise related to service, and (2) Whether it is at least as likely as not (50 percent or better probability) that the disability was caused or aggravated by (i.e., permanently worsened beyond the natural progress of the disorder). 4. Readjudicate the appeal. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014). ______________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs