Citation Nr: 21065273 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 17-09 779 DATE: October 25, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for a right foot disability is denied. Entitlement to service connection for a right ankle disability is denied. FINDINGS OF FACT 1. The Veteran currently has right ear hearing loss disability as defined by VA regulation that is related to in-service noise exposure. 2. Right foot or ankle arthritis did not manifest during service or in the first post-service year, and a preponderance of the evidence is against finding that a current right ankle or foot disorder is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss disability have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385. 2. The criteria for entitlement to service connection for a right foot disorder have not been met. 38 U.S.C. §§ 101, 1110, 1112, 1113, 5017; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for a right ankle disorder have not been met. 38 U.S.C. §§ 101, 1110, 1112, 1113, 5017; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to September 1973. This appeal to the Board of Veterans' Appeals (Board) is from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran and his wife testified during a video conference hearing before the undersigned; a transcript of this hearing is of record. In March 2020, the Board denied the claims of service connection for a right ankle disability and a right foot disability, and remanding the claim for service connection for bilateral hearing loss. In July 2020, the RO granted service connection for left ear hearing loss and in the same month, issued a supplemental statement of the case (SSOC) denying service connection for right ear hearing loss. In February 2021, the Board remanded the claim for right ear hearing loss for further development. In May 2021, the Veteran's attorney and VA's General Counsel filed a Joint Motion for Partial Remand (Joint Motion) with the Court to vacate the Board's decision insofar as it had (1) denied service connection for a right ankle disability, and (2) denied service connection for a right foot disability; the Court granted the motion that same month and remanded to the Board for further proceedings consistent with the Joint Motion. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be presumed for certain chronic diseases, such as arthritis and hearing loss, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Daye v. Nicholson, 20 Vet. App. 512 (2006). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for right ear hearing loss. The Veteran is already service connected for left ear hearing loss. He asserts that he is entitled to service connection for the right ear as well. The Veteran has met the criteria for current hearing loss disability in the right ear per 38 C.F.R. § 3.385 given that the auditory threshold in at least one of the relevant frequencies in the right ear is 40 decibels or greater. See January 2015 VA audiological examination. The dispositive question in this case is, therefore, whether there is a relationship between the Veteran's current right ear hearing loss and his in-service noise exposure. The Board will resolve reasonable doubt and grant entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for a right foot disability is denied. The Veteran contends his current right foot disorder is related to the right ankle/foot injury in service and being given boots that were too small in service. See August 2019 Hearing Transcript. May 1971 service treatment records note complaints of right foot pain and tenderness over the dorsum. X-rays of the foot revealed no abnormality. The April 1973 separation examination was silent for complaints, findings, or diagnosis of a right foot disorder and the separation history report also did not identify any right foot problems. See August 2014 STR Medical. VA treatment records show the Veteran complained of right foot pain in May 2012 and there was an assessment of a bunion with a callus. X-rays of the right foot revealed hallux valgus with extensive degenerative changes and deformity of the first metatarsal phalangeal joint. See December 2014 CAPRI records. On January 2015 VA examination, the Veteran reported having foot pain in Vietnam due to having to wear tight shoes. The examiner noted foot treatment in service and stated there was no diagnosis of hallux valgus or a symptomatic bunion in service treatment records. There was also no treatment for right foot pain for 38 years after service. The examiner opined that the Veteran's current right foot disorder is less likely than not related to service. He stated that the Veteran had a laceration of the dorsum of the right foot in March 1971 and that he was treated for cellulitis or tendonitis the following month. X-rays in May 1971 were normal and there was no mention of hallux valgus or bunion in service treatment records. The Veteran's current foot pain is related to hallux valgus and degenerative joint disease of the MTP joint and not related to an ankle injury in service. In order to find that silence in the record contradicts lay testimony, the Board "must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation." See Fountain v. McDonald, 27 Vet. App. 258, 272 (2015) ("[T]he Board must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation."). During the August 2019 Board hearing, the Veteran testified that he had suffered in silence since service and that he had continued problems with his right foot since. He also testified that he did not seek treatment for it because he figured that he had to just live with it. The Board finds that while there is evidence of right foot pain in service and current right foot diagnoses, there is no probative evidence that links the current disorder to service. As noted by the physician, there is no evidence of right foot hallux valgus, arthritis, or bunion in service and post-service complaints were not reported until 38 years after service. The Veteran is competent to report his symptoms even if he did not seek treatment, and while he reported having ongoing problems since service the Board finds the absence of documented complaints or treatment is more probative than his reported history. VA treatment records date back to October 2008 and records as early as November 2008 note the Veteran's complaints or conditions, but do not contain anything related to his feet. The Board finds it unlikely that if he had ongoing right foot pain since 1973, he would not have waited decades before reporting his symptoms. Had the Veteran also been experiencing chronic and continuous right foot pain, as he now alleges, it is not unreasonable to conclude that he would have reported such symptoms during VA treatments dating back to 2008. Specifically, the Veteran testified that he suffered in silence since service and that he assumed that he would just have to live with the symptoms, however, a November 2008 VA treatment record documents a physical examination during which the Veteran reported pain level of a 0 on a scale of 0 out of 10. Additionally, during the same physical examination in November 2008, the Veteran reported that he had hearing loss attributed to military service but he did not complain of any right foot problems dating back to service as he did for hearing loss. Thus, he is competent to report his symptoms but his statement regarding continuing symptoms is not credible or probative. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006); see also Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005). The VA opinion is also probative evidence against service connection for a right foot disorder, to include hallux valgus, bunion, and arthritis as the examiner adequately explained the basis of his opinion. The Board acknowledges the Veteran's strongly held belief that his current right foot problems are related to the cut and tight shoes in service, but no medical evidence has been provided or obtained that supports his contention. The Board understands that he had difficulty obtaining an opinion on his own, as noted in his November 2019 correspondence, but a decision must be made based on available evidence. Having reached the above conclusion, the Board finds no error in the January 2015 VA examiner's failure to address the Veteran's lay reports of continuity. The January 2015 VA examiner reviewed the record, assessed the Veteran, and issued medical nexus opinion in January 2015 that explained that the Veteran's right foot disability was not etiologically related to the Veteran's active duty service, and he provided a plausible rationale based on accurate available facts of record to support his opinion. Since VA obtained an adequate opinion, there is no reasonable basis to offer further assistance by obtaining another. In the absence of medical evidence that links the Veteran's current right foot disorders to service, a preponderance of the evidence is against the claim. There is no reasonable doubt to resolve in his favor. 3. Entitlement to service connection for a right ankle disability is denied. The Veteran contends that his current right ankle disorder is related to an in-service injury. In August 2019, he testified that while in service he tried to step over a 55-gallon drum, but he fell and landed with his ankle and foot across the drum, which cut his foot. He went to a medic and his ankle wound was sewn up. The pain continued and he had a loss of mobility with his ankle. The mobility problem occurred after the healing, but he chose not to complain about his symptoms. See August 2019 Hearing Transcript. Service treatment records show the Veteran injured his right ankle in March 1971 and that the cut required 13 sutures. In May 1971, he complained of right ankle pain and the record notes an ankle injury. He had swelling and tenderness over the dorsum of the ankle. X-rays of the right ankle were normal. The impression was tendonitis. The April 1973 separation examination was silent for complaints, findings, or diagnosis of a right ankle disorder and the separation history report also did not identify any right ankle problems. The April 1973 separation medical history report was negative for arthritis and the examination was silent for any musculoskeletal problems. See August 2014 STR Medical. On January 2015 VA examination, the Veteran gave a history of a laceration of the dorsum of his right foot in a fall in 1971. He reported that whenever he stands on the edge of a curbing on his heels his foot falls forward. The examiner noted that there is a linear scar at the dorsal fold of the right ankle. Current X-rays show mild degenerative changes at the anterior tibiotalar joint. The physician indicated the scar is related to the in-service injury, but he offered an unfavorable opinion for any other right ankle disorder. The Veteran had a history of an ankle laceration in March 1971 and there was treatment of a cellulitis or tendonitis with treatment of antibiotics and warm soaks in April 1971. The clinician stated that it is unlikely that the giving way of the ankle the Veteran reports is caused by the healed laceration that occurred 38 years ago. The arthritis is unrelated to the laceration and is most likely age related since there was no bony trauma in 1971. See January 2015 C&P Exam. In order to find that silence in the record contradicts lay testimony, the Board "must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation." See Fountain v. McDonald, 27 Vet. App. 258, 272 (2015) ("[T]he Board must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation."). During the August 2019 Board hearing, the Veteran testified that he had continued problems with his right ankle and that he had suffered in silence since service. He also testified that he did not seek treatment for it because he figured that he had to just live with it. The Veteran is competent to report his symptoms even if he did not seek treatment, and while he reported having ongoing problems since service the Board finds the absence of documented complaints or treatment is more probative than his reported history. VA treatment records date back to October 2008 and records as early as November 2008 note the Veteran's complaints or conditions, but do not contain anything related to his ankle. The Board finds it unlikely that if he had ongoing right ankle pain since 1973, he would not have waited decades before reporting his symptoms. Had the Veteran also been experiencing chronic and continuous right ankle pain, as he now alleges, it is not unreasonable to conclude that he would have reported such symptoms during VA treatments dating back to 2008. Specifically, the Veteran testified that he suffered in silence since service and that he assumed that he would just have to live with the symptoms, however, a November 2008 VA treatment record documents a physical examination during which the Veteran reported pain level of a 0 on a scale of 0 out of 10. Additionally, during the same physical examination in November 2008, the Veteran reported that he had hearing loss attributed to military service but he did not complain of any right ankle problems dating back to service as he did for hearing loss. Thus, he is competent to report his symptoms but his statement regarding continuing symptoms is not credible or probative. Service connection for right ankle arthritis on a presumptive basis is not available since it was first diagnosed several decades after service and there is no credible or probative evidence of continuity of symptomatology. The VA examiner provided a probative unfavorable opinion concerning the etiology of the Veteran's right ankle disability and the opinion was adequately supported by a rationale that is consistent with the evidence; there is no probative evidence to the contrary. The Board finds no error in the January 2015 VA examiner's failure to address the Veteran's lay reports of continuity. The January 2015 VA examiner reviewed the record, assessed the Veteran, and issued medical nexus opinion in January 2015 that explained that the Veteran's right ankle disability was not etiologically related to the Veteran's active duty service, and he provided a plausible rationale based on accurate available facts of record to support his opinion. Since VA obtained an adequate opinion, there is no reasonable basis to offer further assistance by obtaining another. In the absence of medical evidence that links the Veteran's current right ankle disability to service, a preponderance of the evidence is against the claim. There is no reasonable doubt to resolve in his favor. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hammad Rasul, 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.