Citation Nr: 21073723 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 17-51 059 DATE: December 10, 2021 ORDER Service connection for bilateral flat feel (pes planus) is denied. REMANDED Service connection for bilateral sensorineural hearing loss (BHL) is remanded. Service connection for tinnitus hearing is remanded. FINDING OF FACT Bilateral flat feet were not caused by, aggravated by, or attributable to, any aspect of service. The Veteran's bilateral flat feet, which clearly and unmistakably preexisted active-duty service did not clearly and unmistakably undergo an increase in severity beyond their natural progression attributable to active-duty service. CONCLUSION OF LAW The criteria for service connection for bilateral flat feet have not been met. 38 U.S.C. § 1101, 1110, 1131, 1137, 1153, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 3.306(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Air Force from October 1979 to December 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2017 and January 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing. The Veteran's claims file contains a copy of the hearing transcript. SERVICE CONNECTION The Veteran asserts that bilateral flat feet were incurred in, aggravated by, or otherwise attributable to, active-duty service. In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). In the absence of proof of a present disability there can be no valid claim. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Competent lay evidence may also include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. A preexisting disease will be presumed to have been aggravated by military service when there is an increase in disability during such service, unless there is a specific finding that the increase is due to the natural progress of the disease. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); see also Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Evidence and Analysis In a November 1978 report of medical examination (prior to entry on active duty), a clinician noted that that the Veteran had moderate pes planus (flat feet). In a concurrent medical history questionnaire, the Veteran denied any foot trouble. He entered active duty on October 29, 1979. A review of the Veteran service treatment records (STRs) shows that the Veteran presented on December 4, 1979 for orthopedic and podiatric problems on the nineteenth day of basic training. A podiatrist noted severe foot strain secondary to severe planus deformity that included medial talar bulge, forefoot varus and severely pronated stance. The podiatrist diagnosed severe pes valgo planus that existed prior to service and recommended separation because of the severity of the deformity. In an elaboration, the evaluator opined that symptomatic pes planus deformity was incapacitating for basic training. This evaluator added that this respective deformity of the feet had not been aggravated by the Veteran's service beyond the natural progression of pes planus deformity. Also, of note are records for treatment of back pain and a mention of a rheumatoid process but only in association with the lumbar spine and not the feet. Later in December 1979, a medical board of three physicians concurred that the foot deformities existed prior to service and were not permanently aggravated by service. In a private lumbar spine treatment record of January 2002, a clinician reported that the Veteran endorsed numbness in both feet. In another record of September 2002, a clinician indicated that the Veteran reported significant right lateralized pain and some numbness that extends to the feet. In a December 2013 VA progress note, a clinician indicated that the Veteran did not have neuropathic changes in his feet. In November 2015, VA received records from the Social Security Administration (SSA). These records show that the Veteran had a history of motor vehicle accidents (MVAs); however, they do not provide guidance as to aggravated bilateral flat feet. This same month, VA received lay statements from the Veteran's spouse and brother-in-law. While these lay parties commented extensively on the severity of the Veteran's mental health and lumbar spine disabilities, they did not mention complaints or observations related to the Veteran's aggravated bilateral flat feet. The Veteran's VA active problems list from January 2016 does not include aggravated bilateral flat feet. In December 2017, the Veteran reported for a VA foot conditions examination. A clinician reviewed the claims file; considered the Veteran's lay accounts of his medical history; and conducted an appropriate evaluation. The clinician indicated a current diagnosis of bilateral flat feet. The Veteran reported that his disability has worsened (aching pain, tingling, numbness, and occasional swelling). X-ray imaging of the feet failed to show evidence for any fractures or acute abnormalities. The clinician opined that bilateral flat feet (which were noted at entry on active duty clearly and unmistakably prior to active-duty service) were not aggravated beyond their natural progression by any in-service injury, event, or illness. As a rationale for this negative nexus opinion, the clinician indicated that temporary aggravation is plausible; however, there is no evidence of any permanent aggravation of the Veteran's pre-existent bilateral flat feet. Moreover, current medical literature does not support a permanent worsening beyond natural progression. The Veteran believes that his bilateral flat feet were incurred in or aggravated by service. More particularly, the Veteran believes that his bilateral flat feet, which were noted at entry and preexisted service (as noted in the November 1978 report of medical examination (prior to active-duty service), were aggravated beyond the natural progression by service. The Board has considered the Veteran's sincere belief; however, upon review of the evidence of record, the Veteran does not have the specialized medical knowledge to render opinions as to etiology or aggravation. Jandreau, 492 F. 3d 1372; Kahana, 24 Vet. App. 428. Therefore, the Veteran's lay contentions do not constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). The military physicians had real time views of the nature of the foot deformities and an understanding of the recruit training conditions and provided clear and unmistakable opinions that the deformities on entry were not aggravated by the training. The Board places little weight on the pre-service examiner's assessment as "moderate" and the in-service assessment as "severe" as an indicator of worsening of the deformities as these were subjective opinions and places much greater weight on the assessment by the four military physicians with knowledge of the nature of the deformities and the activities in boot camp. None mentioned footwear as a cause or aggravation of the deformities over the very short period of training. The December 2017 VA examiner reviewed the claims file; considered the Veteran's lay accounts of his medical history; and conducted an appropriate evaluation. Upon physical examination and history, this clinician opined that bilateral flat feet (which were noted at entry and existed clearly and unmistakably prior to active-duty service) were not aggravated beyond their natural progression by any in-service injury, event, or illness. As a rationale for this negative nexus opinion, the clinician indicated that temporary aggravation is plausible; however, there is no evidence of any more than temporary aggravation of the Veteran's pre-existent bilateral flat feet. Moreover, current medical literature does not support a permanent worsening beyond natural progression. The Board assigns significant probative weight to this collective body of medical evidence. Consequently, the preponderance of evidence is against the Veteran's bilateral flat feet service connection claim. As such, there is no doubt to be resolved. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. REASONS FOR REMAND Regrettably, a remand is necessary in this case 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. § 5103; 38 C.F.R. § 3.159 The Veteran asserts that BHL and tinnitus were incurred in, aggravated by, or otherwise attributable to, active-duty service. Hearing loss for the purposes of VA disability compensation is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Tinnitus is a condition capable of lay observation and diagnosis. See Charles v. Principi, 16 Vet. App. 370, 374 (observing that "ringing in the ears is capable of lay observation.") To the extent that tinnitus is capable of lay observation, the Veteran is competent to report his symptoms. In a November 1978 report of medical examination (prior to active-duty service), a clinician provided an audiogram which disclosed pure tone thresholds (in decibels) as: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 15 35 LEFT 10 0 0 5 25 In a VA mental health consultation of October 2013, a clinician noted the Veteran's reports that he had hearing difficulty and experienced visual and auditory hallucinations. At this time, the Veteran did not report tinnitus. A review of 2014-2015 VA progress notes and treatment record disclose that the Veteran had educational needs associated with hearing and mental health. These records fail to show either complaints or assessments of tinnitus. In a December 2014 private outpatient rehabilitation questionnaire, the Veteran reported that he had hearing problems. In November 2015, VA received records from the Social Security Administration (SSA). These records show that the Veteran had a history of motor vehicle accidents (MVAs); however, they do not provide guidance as to BHL or tinnitus. This same month, VA received lay statements from the Veteran's spouse and brother-in-law. While these lay parties commented extensively on the severity of the Veteran's mental health and lumbar spine disabilities, they did not mention complaints or observations related to the Veteran's BHL and tinnitus. The Veteran's VA active problems list from January 2016 does not include BHL or tinnitus. In a February 2017 private hospital record, a clinician noted that the Veteran's hearing acuity was intact. The Veteran's VA active problems list from March 2017 does not include BHL or tinnitus. In an August 2017 private treatment record, the Veteran reported ringing and hearing loss in his right ear. The Veteran indicated that he experienced difficulty with right-ear hearing since he was involved in an MVA in June 2017. A clinician reported that the Veteran moderate nonfluctuating loss of hearing in the right ear was related to a head injury and trauma. There was no report by the Veteran of noise in service. This clinician provided assessments of sensorineural hearing loss, asymmetrical and tinnitus subjective. The clinician provided an audiometric data chart to support this assessment; however, these data so not conform to VA standards. In an October 2017 VA audiology consultation, a clinician indicated that the Veteran complained of hearing loss and tinnitus. The Veteran reported that he was exposed to miliary noise from rifles and handguns. The Veteran also stated that he wore hearing protection when he worked at a manufacturing plant and during noisy recreational activities. The Veteran reported bilateral tinnitus frequently (51 percent to 70 percent of the time.) The Veteran further reported that he had problems sleeping due to tinnitus. Upon review of the audiometric data below, the clinician reported mild sloping to severe sloping rising to sensorineural hearing loss (right ear) from 4000 to 6000 Hz. Pure-tone Stenger test was negative. Right ear was 92 percent at 65 dB HL and left ear was 100 percent at 65 dB HL. The Veteran also underwent evaluation for hearing aids. The associated audiogram disclosed pure tone thresholds, in decibels, as: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 70 65 60 LEFT 5 10 30 20 30 Right ear speech recognition was 92 percent and left ear speech recognition was 100 percent. In a June 2020 VA audiology assessment progress note, a clinician reported that the Veteran complained of hearing loss, tinnitus, and a balance problem. The Veteran reported that he believed that his hearing acuity had deteriorated; and he was interested in hearing aids. This clinician indicated that the Veteran met VA hearing aid candidacy criteria. The primary assessment was BHL, and the secondary assessment was subjective tinnitus. A January 2021 audiogram in the Veteran's VA treatment records disclosed charted hearing loss. This chart did not provide etiological guidance as to BHL. At the July 2021 Board hearing the Veteran testified that he first discerned BHL when he began college after service and had to sit in the front during lectures. The Veteran also testified that he first experienced tinnitus ("ringing in his ears") during basic training, however "being young and naïve" he did not realize that tinnitus would have an impact as he aged In a collection of 2021 VA progress notes, audiology health technicians provided guidance as to hearing aid fittings; subjective complaints of tinnitus. In July 2021, a clinician reported that the Veteran dropped off a "hearing impairment service-connected questionnaire (DBQ)" to complete for his attorney. The clinician indicated that he was unable to complete the form. These notes reflect a primary diagnosis of sensorineural hearing loss, bilateral and a secondary diagnosis of subjective tinnitus. The Veteran reported that the severity of his current tinnitus as 7 on a scale of 7-to-10. The Veteran again reported that tinnitus interfered with sleep. As articulated above, the Veteran testified that he first discerned BHL when he began college after service and had to sit in the front during lectures. The Veteran also testified that he first experienced tinnitus ("ringing in his ears") during basic training. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (1) contains competent evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that an event, injury, or disease occurred in service or certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) indicates that the disability or symptoms may be associated with the established event, injury or disease in service or with another service-connected disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. Id. The Veteran's testimony indicates that his BHL and tinnitus may be associated with established disabilities and diseases. As such, the need for a VA examination has been triggered. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file all outstanding VA treatment records. 2. After obtaining the necessary authorization from the Veteran and his representative, obtain and associate with the claims file any additional identified and relevant records addressing the issues on appeal. All attempts to secure these records must be documented in the record. If any requested records are unavailable, the Veteran should be notified of such in accordance with 38 C.F.R. § 3.159(e). 3. Arrange for a VA examination with an appropriate audiologist. The audiologist must review the claims file in its entirety and indicate such review in the body of the VA audiology report. Additionally, the audiologist should perform all necessary in-person clinical interviewing, diagnostic testing, and evaluation. The VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) The Board notes that tinnitus is a condition capable of lay observation and diagnosis. See Charles v. Principi, 16 Vet. App. 370, 374 (observing that "ringing in the ears is capable of lay observation.") To the extent that tinnitus is capable of lay observation, the Veteran is competent to report his symptoms. Upon completion of the above, the audiologist should respond to the following inquiry: Whether it is as at least as likely as not (50 percent probability or more) that the Veteran's current BHL and tinnitus had onset during active service or is otherwise etiologically caused by any aspect of active-duty service. The Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology and functional limitations, must be acknowledged and considered in formulating any opinion. If the audiologist rejects the Veteran's or other subjective accounts, the audiologist must provide an explanation for such rejection. Rationales must be provided for any opinion expressed, to include consideration of all applicable evidence associated with the Veteran's electronic claims file. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.