Citation Nr: 20004292 Decision Date: 01/17/20 Archive Date: 01/17/20 DOCKET NO. 16-35 444 DATE: January 17, 2020 ORDER Service connection for tinnitus is granted. Service connection for total left hip arthroplasty is granted as secondary to service-connected right knee arthritis. REMAND Service connection for cellulitis of the feet is remanded. FINDINGS OF FACT 1. Tinnitus is related to noise exposure in wartime service. 2. Total left hip arthroplasty is causally related to his service-connected right knee arthritis. CONCLUSIONS OF LAW 1. Tinnitus was incurred in wartime service. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. Total left hip arthroplasty is proximately due to or the result of service-connected right knee arthritis. 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active naval service from September 1966 to May 1971. He appeals an Agency of Original Jurisdiction (AOJ) decision dated in May 2013 that, among other things, denied these claims. His awards and decorations include the Combat Action Ribbon, Vietnam Service Medal and Vietnam Campaign Medal. In September 2019, he testified at a hearing before the undersigned Veterans Law Judge (VLJ). The VLJ identified the issues on appeal; clarified the concept of service connection claims; identified potential evidentiary defects; clarified the type of evidence that would support the Veteran’s claims and inquired as to the existence of potential outstanding records. The undersigned also granted a request to hold the record open for 60 days to allow the Veteran to submit additional evidence. Thus, the actions of the VLJ comply with 38 C.F.R. § 3.103. After the hearing, additional evidence, a new favorable medical opinion from a chiropractor, was added to the record with a waiver of consideration by the AOJ. The Board has reviewed the procedural posture of this case and will address these issues on the merits and not as claims to reopen. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. § 1110, 1131. In general, 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. 2009). Service connection is also warranted for a disability which is proximately due to, aggravated by or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (b). 1. Bilateral tinnitus The Veteran testified before the undersigned that he has had ringing in his ears since service. He explained that he was around big noisy guns all the time during the performance of his duties as an electronics technician onboard a cruiser and a destroyer. While he for some reason reported tinnitus for only the past 4.5 years during his July 2014 VA examination, he later clarified at the hearing that it had been present since service. Further, chiropractor Dr. C. H. R., opined in November 2019 that the tinnitus currently present is likely due in part to acoustic trauma and a reported head injury in service. He cited to medical literature for support of the conclusion. The Board concludes that while the Veteran’s tinnitus was not diagnosed during service, it was manifest in service, and there has been continuity of the same symptomatology since service. The Veteran has a current diagnosis of tinnitus, and in any event, is competent to identify the existence of this disorder because it is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). While the Veteran did not complain of tinnitus or ringing in the ears during active service, it is accepted that he had exposure to noise as described. While he did not claim tinnitus until he filed his 2011 claim, he has reported in connection with this claim that he first noted it in service after exposure to gun noise onboard ship and ringing has continued since that time. Of note, he credibly testified to this fact before the undersigned in September 2019. As ringing in the ears is capable of lay observation, and his statements are credible and entitled to probative weight because they are internally consistent and consistent with other evidence of record, continuity of symptomatology is established. The Board acknowledges that the 2014 opinion of the VA examiner that tinnitus was related to nonservice-connected hearing loss. However, the Board finds the Veteran’s testimonial assertions as to continuity of tinnitus since service to be more probative because they were made in direct response to specific questions asked at the hearing. Again, tinnitus is subjective. Also, his assertions are consistent with and partially formed the basis for Dr. R.’s favorable opinion. We conclude that tinnitus was present since service. Service connection is thus warranted. 2. Total left hip arthroplasty The Veteran advances multiple theories, to include that his current left hip disability is related to his right knee disorder. See November 2019 opinion of Dr. R., Veteran’s testimony. Service treatment records (STRS) are negative for left hip abnormality and indeed reflect normal musculoskeletal system at examination for separation from service. The record since 2012 is replete with reference to findings of hip arthralgia and arthritis. In December 2015, the Veteran underwent total left hip arthroplasty. Dr. R.’s November 2019 opinion is that the Veteran’s left hip disorder, which ultimately resulted in the 2015 arthroplasty, is secondary to the service-connected right knee arthritis. Dr. R. provided a detailed rationale and supplied medical literature in support of his conclusion. Thus, the competent and essentially uncontroverted medical opinion is favorable as to secondary service connection. At the hearing, the Veteran testified that he feels his right knee caused the left hip problems due to long term altered gait. This is consistent with Dr. R.’s opinion. In light of the medical opinion evidence, the Board is unable to rationally disassociate the Veteran’s left hip disorder, identified in the treatment records as arthralgia and arthritis of the hip and eventually as total left hip arthroplasty, with his service-connected right knee disorder. As such, the Board concludes that the left hip disorder is proximately due to service-connected right knee disorder. 38 C.F.R. § 3.310. Entitlement to service connection is therefore warranted for as secondary to the right knee disorder, and the claim is granted. REASONS FOR REMAND Cellulitis of the feet is remanded. Dr. R.’s 2019 opinion is that the cellulitis of the feet, for which the Veteran was treated in service, led to amputation of the big toe. This opinion is largely unsupported and does not address the report that the right toe amputation was due to a motorcycle accident that occurred in 1974 as noted in 2011 and 2015 VA treatment records. Current VA treatment records dated in 2018 reflect a right toe was amputated in 1973. While there was recurrent cellulitis treatment in service, feet were noted as normal at separation examination. As to the reported motorcycle accident, the Veteran testified that he burned the toe in motorcycle accident. Then, for months, he saw a doctor who told him to bandage it, elevate it and take antibiotics. He reported that the wound contained cellulitis and would not heal. And so, ultimately, they took off his big toe. While he reported this occurred at the Long Beach VA treatment facility, no records have been located despite a search for the records in the archives for that facility. No examiner has reviewed the entire record and offered an opinion as to whether there are current residuals of the in-service cellulitis of the feet, to include whether any toe amputation was as likely as not related to the cellulitis. Under the circumstances, the Board finds that remand for examination is warranted. The matters are REMANDED for the following action: Obtain a VA examination with medical opinion addressing whether the Veteran has residuals of cellulitis of the feet that are at least as likely as not related to service. The examiner should address whether a toe amputation is related to the cellulitis, as asserted by the Veteran and as referenced by the private chiropractor in December 2019. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. RIPPEL The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.