Citation Nr: 21002215 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-10 903 DATE: January 13, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for toe fungus is remanded. FINDINGS OF FACT 1. The Veteran has a current diagnosis of bilateral hearing loss which has been continually present since his military service. 2. The Veteran has a current diagnosis of tinnitus which has been continually present since his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385, 4.85. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385, 4.85. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the Army from April 1962 to April 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a virtual hearing in December 2020. A transcript of the proceeding has been associated with the claims file. Service Connection 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for tinnitus The Veteran contends that he was exposed to artillery fire and missiles in the Army and he believes that his hearing loss and tinnitus were caused by this noise exposure during service. Generally, service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active duty service. 38 C.F.R. § 3.303. To that end, service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to the period of service, establishes the disease was incurred during active duty service. 38 C.F.R. § 3.303 (d). In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as sensorineural hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley, 5 Vet. App. at 159. As an initial matter, the Board finds that the Veteran’s contentions regarding his in-service noise exposure to be competent and credible. Specifically, in the March 2016 VA Form 9, the Veteran stated that he was never issued ear protection when firing honest john missiles at Fort Sill, Fort Hood, or Camp Casey. He stated that he was within 100 yards of the missiles during each firing. During the December 2020 Board hearing, the Veteran testified that while stationed at Camp Casey in Korea he was present for about two to three live fire exercises per month and was not given hearing protection. The Veteran’s DD-214 confirms his military occupational specialty (MOS) as a rocket crewman. His MOS is consistent with his claim of noise exposure. Therefore, the Board concedes that the Veteran was exposed to excessive noise in service. The Board finds that the evidence of record shows that the Veteran was exposed to acoustic trauma in-service and his symptoms of hearing loss and tinnitus continued after separating from service. His service treatment records are silent as to any complaints of hearing loss or tinnitus. However, the Veteran reported that he started experiencing ringing in his ears and hearing problems in service. In the March 2016 VA Form 9, the Veteran stated that he suffered ringing in his ears for days after firing missiles in service. In December 2020, the Veteran testified that he first noticed the ringing at the end of his training in Fort Sill after firing his first missile. He stated that he reported the ringing to his platoon sergeants. He further testified that he has had continuous problems with his hearing since his training at Fort Sill. The Board finds that the Veteran is competent to report such symptoms as decreased hearing acuity that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board also finds that his statements are credible and probative. The first post-service medical documentation of hearing loss noted in the claims file is in November 2011 when the Veteran reported difficulty hearing. An audiological evaluation was completed, and the physician diagnosed the Veteran with mild-moderate high frequency sensorineural hearing loss in both ears. The physician also opined that the Veteran’s hearing loss is more than likely due to his exposure to missile fire in Korea. As to current findings of hearing loss and tinnitus, the Board finds that the Veteran has hearing loss for VA purposes. 38 C.F.R. § 3.385. The Veteran was afforded a VA audiological examination in July 2012. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 35 50 60 LEFT 10 35 60 60 60 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 84 percent in the left ear. While the audiometric testing conducted in July 2012 shows diagnoses of bilateral hearing loss and tinnitus, the examiner opined that the Veteran’s hearing loss and tinnitus were less likely than not related to his exposure to noise during service. The rationale provided for the opinion was that the Veteran’s induction physical examination dated April 1962 and separation examination dated March 1964 revealed normal pure tone thresholds with no shift in hearing. The examiner also opined that there is no evidence of complaint or treatment of hearing loss or tinnitus during military service and that scientific evidence does not support delayed onset of noise induced hearing loss. The Board gives minimal probative value to the VA examiner’s opinion as to bilateral hearing loss and tinnitus. The Court has held that the Board is free to assess medical evidence and is not compelled to accept a physician’s opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). The Court also has held that the absence of contemporaneous records is insufficient rationale for a medical nexus opinion. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The VA examiner rested the opinion on the lack of evidence of hearing loss in the Veteran’s service treatment records and the normal separation audiogram. More importantly, the examiner did not thoroughly consider the Veteran’s contentions, which are included in the claims file, that he began to experience hearing loss in service and continued experiencing hearing problems after separation. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Furthermore, delayed onset of hearing loss for VA purposes is not a bar to granting service connection. Hensley, 5 Vet. App. at 159. In sum, the Veteran credibly contends that he incurred bilateral hearing loss and tinnitus during active service due to noise exposure as a rocket crewman. The Board has conceded that the Veteran was likely exposed to acoustic trauma in-service. The July 2012 VA examination also shows that the Veteran has a current condition of bilateral hearing loss and tinnitus sufficient for VA purposes. Additionally, the Board has found that the only negative medical opinion of record dated in July 2012 addressing the contended etiological relationship between bilateral hearing loss and active service to be not probative. Therefore, the Board presumes that the Veteran’s hearing loss and tinnitus were incurred in-service based on the continuity of reported symptoms of hearing loss. Accordingly, entitlement to service connection for bilateral hearing loss and tinnitus is warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385, 4.85. REASONS FOR REMAND Entitlement to service connection for toe fungus is remanded. The Veteran contends that his toenail fungus was caused as a result of the cold and wet conditions he was exposed to while stationed in Korea. 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; 38 C.F.R. § 3.159. VA’s duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to decide on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For the below noted reasons, the Board finds that, while the Veteran underwent a VA examination in July 2012 regarding his claim for service connection for toenail fungus, an additional VA examination is necessary. The Veteran was afforded a VA examination for his toenail fungus in December 2015. The examiner diagnosed the Veteran with onychomycosis but offered a negative nexus opinion. The examiner opined that the Veteran’s onychomycosis is less likely related to his military service. The rationale provided was that there is no evidence of cold injury that occurred in service, and the current examination does not indicate a residual cold injury. The examiner also stated that walking through rice paddies is not considered to be a risk factor for development of onychomycosis. The Board finds that the December 2015 VA examiner’s opinion is inadequate. As previously noted, the absence of contemporaneous records is insufficient rationale for a medical nexus opinion. See Buchanan, 451 F.3d at 1337. Additionally, relevant evidence has been added by the Veteran that has not been considered by the VA examiner. A medical opinion is inadequate if it does not consider all the evidence of record, including lay statements. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In the March 2016 VA Form 9, the Veteran stated that he believed his toenail fungus was caused as a result of the cold and wet conditions he was exposed to in Korea. He further stated that while on field maneuvers, he walked through ankle-deep, muddy rice paddies, and that even after changing socks, his boots remained damp inside. He contends that at discharge from service, his feet were not checked, so he did not seek treatment until years later when he noticed the discoloration and deformity of his toes. During the December 2020 Board hearing, the Veteran testified that he went on sick call at Camp Casey for his feet after noticing foot fungus after walking through a rice paddy. He stated that he was given foot powder. The Veteran also testified that he has been having problems with his feet since discharge and that he has been seeing a podiatrist for over 20 years, every 6 weeks. Based on the Veteran’s March 2016 statements and his December 2020 Board testimony, the Board finds that a new VA examination is necessary that includes consideration of his lay statements regarding the nature and etiology of his diagnosed onychomycosis. The Board also notes that the during the December 2020 testimony, the Veteran testified that he only seeks private treatment for his feet from Dr. DePalma. The Board finds that a remand is necessary to obtain those records and associate them with the claims file. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran “sufficiently identifies” other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. During a December 2020 hearing, the Veteran identified relevant outstanding private treatment records from Dr. DePalma. A remand is required to allow VA to obtain authorization and request these records. 2. After the above-referenced development is completed, schedule the Veteran for a VA examination for his toenail fungus, diagnosed as onychomycosis. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran’s toenail fungus at least as likely as not related to service, including his contentions that he first noticed his toenail fungus after walking through cold, muddy, rice paddies while stationed in Korea? The examiner is asked to specifically consider the statements offered by the Veteran in his March 2016 VA Form 9 and during his December 2020 Board testimony. Additionally, the VA examiner is asked to consider the November 2011 opinion offered by Dr. DePalma. Any opinion expressed should be accompanied by a complete rationale and must not be solely based on the   lack of evidence including in the service treatment records. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Hartford, Associate Counsel 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.