Citation Nr: 21067406 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 19-24 178 DATE: November 4, 2021 REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for vertigo, to include as secondary to bilateral hearing loss disability is remanded. Entitlement to service connection for a right foot disability, characterized by residuals of laceration and callouses is remanded. Entitlement to a higher initial rating for bilateral hearing loss disability is remanded. REASONS FOR REMAND The Veteran served in the United States Navy from October 1952 to May 1956. See DD Form 214. The Veteran was afforded a Board hearing before the undersigned in November 2020. See November 2020 Hearing Transcript. Regarding the claim for service connection for the right foot, the Board observes that new and material is not required to reopen a claim when after a final decision VA receives relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. 38 C.F.R. § 3.156(c). In this case, service department records, specifically the Veteran's service personnel records (SPRs), were obtained and associated with the claims file in November 2017, which is after the June 1997 rating decision denying to reopen the claim for service connection for the right foot. These records reflect the Veteran's Navy occupation and training history, and records of ship or station assignments. The records were not associated with the claims file at the time of the prior denial of service connection for the claimed right foot disability, and are relevant to the claim as they relate to the likelihood of the in-service incident of injury as reported by the Veteran. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Thus, new and material evidence is not required and the claim must be reconsidered de novo. 38 C.F.R. § 3.156(c). The Board finds that it has jurisdiction over the issue of service connection for vertigo, as part of the claim for an initial compensable rating for bilateral hearing loss, and notes that this is discussed in detail below. See Grimes v. McDonough, 34 Vet. App. 84 (2021). This appeal was advanced on the docket (AOD) based on age, as requested at the hearing. 38 U.S.C. § 7107(b)(1)(a); see November 2020 Hearing Transcript. 1. Entitlement to service connection for tinnitus In August 2017 the Veteran filed a claim of entitlement to service connection for tinnitus. See August 2017 VA 21-526EZ, Fully Developed Claim. Specifically, the Board notes that the Veteran has suggested his acoustic trauma was from assigned duties that included exposure to early turbine jet engine aircraft, and post-World War II reciprocating engine aircraft that launched from decks of steam driven Essex system common to the aircraft carrier that the Veteran was stationed on. See August 2018 VA 21-4138 Statement in Support of Claim. The Veteran reported recurrent tinnitus, and was unsure of when it began, such that in September 2018 a VA examiner opined that it was less likely than not related to service where tinnitus had begun five years prior according to the medical records. See September 2018 VA Examination Hearing Loss and Tinnitus Disability Benefits Questionnaire. Although the examiner provided an opinion, the rationale is inadequate where the examiner was merely restating what was evidenced by the medical record without discussing or explaining its import. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning In November 2018 a VA examiner, following record review, provided a positive nexus opinion for the Veteran's bilateral hearing loss, and opined that noise exposure was conceded as reported on the flight deck. See November 2018 VA Medical Opinion - Disability Benefits Questionnaire. Further, the examiner noted acoustic trauma was characterized by sudden onset tinnitus, pain and or temporary hearing threshold shift. Id. There was not, however an opinion as to whether the Veteran's tinnitus was at least as likely as not related to his service, to include being caused by acoustic trauma from the flight deck in-service. The Board finds that another VA examination and opinion as to the etiology of the Veteran's tinnitus is necessary where the September 2018 VA examiner's opinion is inadequate, and the November 2018 VA examiner did not opine as to the etiology of tinnitus. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, the examination must be an adequate one). Specifically, on remand, a VA examination should be provided, and the VA examiner should accept that the Veteran experienced acoustic trauma in service, as this has been conceded in relation to his bilateral hearing loss. The examiner's reasoning should discuss the Veteran's in-service noise exposure and acoustic trauma in providing an opinion. 2. Entitlement to vertigo, to include as secondary to bilateral hearing loss In a case somewhat factually similar to the present case, the Court held that a claim for service connection may encompass a second related condition that is initially referenced by the claimant but not diagnosed until later in the appeal stream, regardless of whether the original claim is initially granted (becomes an initial IR) or denied by the AOJ in a rating decision during the appeal. Grimes v. McDonough, 34 Vet. App. 84 (2021). In Grimes, the Board referred a claim for service connection for hyperacusis (painful, hypersensitive hearing) to the AOJ for initial development and adjudication. The Court held that that Board clearly erred in referring the claim, rather than deciding it as part of either the claim for an initial compensable rating for hearing loss, or the claim for service connection for a sinus disability. Grimes, at *2. The Court reasoned that, under the rule of Clemons v. Shinseki, 23 Vet. App. 1 (2009), "a claim for service connection may encompass a related condition that is initially referenced by the claimant but not diagnosed until later in the appeal stream, regardless of whether the claim is initially granted or denied by the [AOJ]." Id. The facts here are similar to Grimes. The Veteran filed an original compensation claim for "hearing loss bilateral/acoustic trauma suffered" in August 2017. See August 2017 VA 21-526EZ, Fully Developed Claim (Compensation). VA treatment records from August 2016 show that the Veteran was prescribed medication for dizziness; the January 2017 active problem list included peripheral vertigo and sensorineural hearing loss; and treatment records in 2018 showed that the Veteran reported experiencing vertigo. See Tulsa Outpatient Clinic records received July 30, 2018 in CAPRI. In July 2018, a VA audiologist evaluated the Veteran for his hearing, and noted the Veteran's concerns of balance, described as being "off-balance" for over a year, not reported as true vertigo per the audiologist. Id. The audiologist noted that a consult for dizziness had been placed. Id. The November 2018 VA examiner reviewed the July 2018 report of vertigo, but provided no comment or opinion regarding its diagnosis or etiology. See December 2018 VA Examination Medical Opinion-Disability Benefits Questionnaire. The AOJ granted service connection for bilateral hearing loss, with an evaluation of 0 percent effective August 31, 2017. See December 2018 Rating Decision Narrative. The Veteran appealed for a higher initial rating for his bilateral hearing loss, and during his November 2020 Board hearing he reported imbalance, dizziness, and fainting, suggesting he had dizziness and imbalance, vertigo, as secondary to his bilateral hearing loss. See November 2020 Hearing Transcript. Based on the Veteran's initial claim including acoustic trauma suffered, reports of dizziness made in connection with his audiologic treatment, and his Board hearing comments connecting vertigo to hearing loss, as well as medical treatment notes suggesting a possible connection, the Board finds that the Veteran reasonably intended his original claim for bilateral hearing loss to include vertigo problems. Like in Grimes, the Veteran was diagnosed with the "related condition" before a final decision was rendered on the original claim. Id. at *10-11. Applying the Grimes holding here, the Board finds that the appeal includes service connection for vertigo. Here, the claim for service connection for vertigo, to include as secondary to service-connected bilateral hearing loss must be remanded for further development and initial AOJ adjudication to secure a nexus opinion. Specifically, a VA opinion should be obtained. See McClendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). 3. Entitlement to service connection for right foot disability, to include residuals of laceration and callouses to the right foot The Veteran claims entitlement to service connection for residuals of laceration and callouses to the right foot, claimed as right foot injury in February 1954. See August 2017 VA 21-526EZ, Fully Developed Claim. Here, there is a current disability where the Veteran has competently and credibly reported having right foot callouses, which are confirmed by VA treatment records and private medical treatment records. See November 2020 Hearing Transcript; see April 1997 Green County Podiatry Center, M. Crotty, D.P.M; see Muskogee VA Medical Center treatment records received December 2018 in CAPRI. Next, in considering whether there is an in-service injury, the Board is cognizant that service treatment records show a left foot injury, rather than right foot injury, and the Veteran's attempt to have the record altered was denied by the Department of the Navy. See May 1967 Notification letter. The Veteran contends, however, that the record mistakenly recorded the injury to his left foot when it was in fact to his right foot. See November 2020 Hearing Transcript. The United States Court of Appeals for Veterans Claims has considered 38 C.F.R. § 3.203 and held that a service department's determinations as to an individual's service are binding on VA. Duro v. Derwinski, 2 Vet. App. 530 (1992). Unlike in Duro, here, the question does not hinge on determinations of service. Rather, the Board is considering whether the Veteran's right foot injury could have been recorded incorrectly as a left foot injury while in service, regardless of the May 1967 denial of the Application for Correction of Naval Records. See May 1967 Notification Letter. The Board finds that it could. Further, the Board will consider the Veteran's lay statements regarding how his right foot injury occurred. VA treatment records from a mental health appointment in February 2015 show that the Veteran reported a plane crashed on the aircraft carrier and he got shrapnel in his foot, but that the medical record discusses the wrong foot. See Tulsa Mental Health Clinic records received December 2018 in CAPRI. In August 2017 the Veteran claimed that his right foot was injured on February 5, 1954 while serving on the USS Leyte as an Aviation Mate on the flight deck. See August 2017 VA 21-526EZ, Fully Developed Claim (Compensation). In a November 2020 statement in support of claim for service connection for posttraumatic stress disorder, the Veteran reported that on February 5, 1954, he injured his right foot on the flight deck when there was a crash sending debris and hitting his right foot. See November 2020 Statement In support of Claim for PTSD. DRPIS response indicates that the command history for the USS Leyte in 1954 was not maintained by the Custodian of Naval ship histories. See DPRIS Response Therefore, deck logs and ship's history were researched for the USS Leyte, which shows during the relevant period of February 1-28, 1954 the ship was underway to Guantanamo Bay launching several aircraft and helicopters and anchored at Port au Prince, Haiti. Id. The ship's history and deck logs do not document any aircraft crashing during this time period. Id. Further research into the command history and deck logs for the USS Siboney from February to March 1954 did not document any aircraft crashes during this period. See Correspondence. It was noted that the Casualty Assistance Division, Navy Personnel Command did not maintain records for injuries beyond six years regardless of circumstances. Id. Specifically, the Veteran has stated on multiple occasions, including in the course of seeking treatment that he injured his right foot while on the flight deck in service. The Board is cognizant that over the years and the many references to the injury, the details have not always been identical as to how the injury occurred. Nevertheless, the Board does not find that the details are contradictory. Rather, it appears that the Veteran at times overly simplified the explanation of the injury likely because the purpose of his retelling the incident was to seek treatment, and as such, it is likely his focus was on his symptoms more than the specifics of how the injury occurred. For instance, generally he appears to have shortened the explanation in the course of seeking treatment, and included more details in the course of providing hearing testimony. Again, this is not inconsistent, but rather shows that he altered his explanation based on his audience and the purpose of the retelling. Further, the DPRIS response indicates that no crashes were recorded; however, the Board questions whether the classification of crash for records-keeping purposes could be a term of art different from the Veteran's colloquial usage. For example, it is not unreasonable to think that the Veteran could describe a hard landing in which debris came off the plane as a crash, yet this may not qualify as a crash in the sense of a recordable collision. Accordingly, the Board finds that the Veteran's reports are not inconsistent with the record, and that the Veteran has competently and credibly reported an in-service injury to his right foot. Finally, there is the suggestion in the private medical record from April 1997 that the right foot disability was caused by his service. See April 1997 Green County Podiatry Center, M. Crotty, D.P.M. The private podiatrist did not, however, support the conclusory statement with adequate rationale, and an opinion that addresses the nature and etiology of the current right foot disability is necessary. Accordingly, the Board finds that remand for a VA examination to consider whether it is at least as likely as not that the Veteran's current right foot disability was incurred in or caused by service, to include the reported right foot injury is necessary. See McClendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The VA examiner is requested to discuss the April 1997 podiatrist's opinion. 4. Entitlement to a higher initial rating for bilateral hearing loss In a December 2018 rating decision, the Regional Office (RO) granted service connection for the Veteran's bilateral hearing loss disability, and rated it as noncompensably disabling effective August 31, 2017. See December 2018 Rating Decision Narrative. The Veteran appealed for a higher initial rating. See January 2019 Notice of Disagreement. The Veteran underwent a VA audiological examination in September 2018. See September 2018 VA Examination Hearing Loss and Tinnitus Disability Benefits Questionnaire. At his November 2020 Board hearing the Veteran reported that his symptomatology of hearing loss had worsened. See November 2020 Hearing Transcript. Specifically, he indicates that it was more difficult to hear, causing trouble listening and communicating. Id. The Veteran should be given an opportunity to report for a VA examination to ascertain the current severity and manifestations of his service-connected hearing loss disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (2007). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by a VA audiologist to discuss the nature and etiology of the Veteran's tinnitus and vertigo, and the current severity of his service-connected bilateral hearing loss. A. The examiner should opine as to whether it is at least as likely as not that the Veteran's tinnitus: (i) is caused by or incurred in service, to include as due to acoustic trauma in service. If not, the examiner should opine as to whether it is at least as likely as not that the Veteran's tinnitus: (ii) is proximately due to or caused by service-connected bilateral hearing loss disability; (iii) is a symptom of the Veteran's hearing loss; (iv) underwent any incremental increase (aggravation) in disability, regardless of its permanence, due to the progression of the bilateral hearing loss disability. B. The examiner should opine as to the nature and etiology of the Veteran's claimed vertigo, reported as dizziness and balance difficulties. The examiner should opine whether it is at least as likely as not that: (i) any vertigo is caused by or incurred in service (to include from the in-service acoustic trauma). If not, then the examiner should opine whether it is at least as likely as not that the vertigo: (ii) is proximately due to or caused by service-connected bilateral hearing loss disability (iii) underwent any incremental increase (aggravation) in disability, regardless of its permanence, due to the progression of the bilateral hearing loss disability. The examiner must provide a complete rationale for the opinions reached. C. The examiner should provide a full description of the Veteran's bilateral hearing loss disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. Specifically, the examiner should comment on the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). For A-C: The examiner must provide a complete rationale for opinions reached. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. Furthermore, if medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. 2. Schedule the Veteran for a VA examination for his right foot disability, to include residuals of laceration and callouses of the right foot. The examiner is requested to discuss all diagnoses for the Veteran's right foot, to include hammertoes, if applicable. For each diagnosed disability of the right foot, the examiner is requested to indicate whether it is at least as likely as not that the disorder is directly attributable to his military service, which includes his competent and credible reports of a right foot injury in service from a metal object lacerating his foot through his shoe. The examiner should provide a reasoned rationale for all opinions. The examiner should discuss the private podiatrist's April 1997 opinion. See April 1997 Green County Podiatry Center, M. Crotty, D.P.M. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. Furthermore, if medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. 3. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Barner, 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.