Citation Nr: 21074688 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 18-44 899 DATE: December 16, 2021 ORDER The issue of entitlement to service connection for a bilateral hearing loss (BHL) disability is granted. The issue of entitlement to service connection for a bilateral hip disability is granted. The issue of entitlement to service connection for degenerative changes in right distal interphalangeal joint of the great toe and the proximal interphalangeal joint of the second toe is granted. REMANDED The issue of entitlement to service connection for a left foot disability is remanded. The issue of entitlement to service connection for a back disability is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his BHL disability is at least as likely as not related to noise exposure in service. 2. Resolving reasonable doubt in the Veteran's favor, his bilateral hip disability is at least as likely as not related to injury in service. 3. Resolving reasonable doubt in the Veteran's favor, the Veteran has experienced symptoms related to his diagnosed degenerative changes in right distal interphalangeal joint of the great toe and the proximal interphalangeal joint of the second toe since his injury in and since service. CONCLUSIONS OF LAW 1. The criteria for service connection for a BHL disability are met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2021). 2. The criteria for entitlement to service connection for a bilateral hip disability are met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2021); and Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). 3. The criteria for entitlement to service connection for degenerative changes in right distal interphalangeal joint of the great toe and the proximal interphalangeal joint of the second toe are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1972 to June 1974. In November 2021, the Veteran testified under oath before the undersigned Veterans Law Judge. The Board notes that the Veteran was previously denied service connection for a back condition in October 1987 and August 2004 rating decisions. However, the January 2020 Statement of the Case (SOC) states that service treatment records were received in July 2014 and August 2014. The Board has reviewed the service treatment records located on the electronic docket at these dates, and they are relevant to the issue. Accordingly, the Board does not address the issue of reopening, but proceeds to the merits of the issue of entitlement to service connection for a back disability. See 38 C.F.R. § 3.156 (c). Service Connection Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In addition, certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 1. BHL disability The Board finds that the Veteran meets the criteria for service connection for a BHL disability. The Veteran meets the first criterion as he has a diagnosed disability. See VA examination, January 2017. The second criterion is met as the Veteran experienced in-service noise exposure. For example, the January 2017 VA examination report states that "Military noise exposure was reported from a grenade blast; hearing protection was not worn." In addition, the Board notes that the Veteran is service connected for tinnitus. See Rating decision, March 2017. Accordingly, noise exposure in service is conceded. Regarding the third criterion, the Board acknowledges the January 2017 VA negative nexus opinions for both ears. However, the Board finds that the rationales provided for these opinions are inadequate and affords them little probative weight. For example, these opinions appear to rely, at least in part, on a lack of hearing loss in service and at separation. However, the fact that there was no hearing loss at separation is not dispositive of the issue, and an opinion based on this fact is inadequate. See Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). Further, the Board notes that "[c]ivilian occupational/recreational noise exposure was denied." See VA examination, January 2017. Given the above, the Board is left with a record that shows a diagnosed disability that cannot be conclusively disassociated from the in-service noise exposure. Therefore, the Board resolves reasonable doubt in the Veteran's favor and finds that the third criterion of service connection has been met. As the Veteran has met all three criteria, a grant for service connection is warranted. The issue of entitlement to service connection for a BHL disability is granted. 2. Bilateral hip disability The Board finds that the Veteran meets the criteria for a bilateral hip disability. Regarding the first criterion, the Board acknowledges that the April 2016 VA examination report indicates that the Veteran does not have a current diagnosis. However, pain with functional impairment can be considered a disability for VA purposes. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Board finds that the Veteran has such a disability. For example, a September 2018 VA treatment record notes treatment for right hip pain. The Veteran "states his 'hip' will burn when sitting still and will feel better once he moves around." The treatment assessment notes "pain in the right lateral thigh/hip due to tight musculature." Regarding the left hip, at the November 2021 hearing, the Veteran indicated that the left hip causes constant pain and discomfort, and that he experiences difficulty doing chores and exercise. In the April 2016 VA examination report, it states that the Veteran "describes the hip and SI joint pain as 'excruciating' when he raises the leg off the ground." The Veteran is competent to report on symptoms which are capable of lay observation. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Accordingly, the Board finds that he has a bilateral hip disability for VA purposes. Further, it is conceded that the Veteran suffered an in-service injury. See BVA decision, September 2015. In a March 2009 statement, fellow serviceman, R.T., describes witnessing the Veteran's legs getting pinned between a truck and a loading dock, which resulted in significant injury to the Veteran's legs. The September 2018 VA treatment record for right hip pain notes that the Veteran "[s]tates he has had this pain since 1973 when he was pinned by a vehicle." Similarly, the April 2016 VA examination report notes that the Veteran "reports that when he was trapped between the truck and a loading dock, he thinks that he injured his hips and back attempting to free himself." The Board acknowledges the April 2016 VA opinion addressing the Veteran's claimed bilateral hip disability but affords it little probative weight for the following reasons. First, the opinion is based, in part, on a finding of no diagnosis. However, the Board has found that the Veteran has a disability for VA purposes. In addition, the nexus statement (i.e., "at least as likely as not") only addresses entitlement on a secondary basis. As noted above, the Veteran's in-service injury is conceded. Further, there is evidence to support a finding that the Veteran's pain originated as a result of this injury. Given the above, the Board cannot conclusively disassociate the current disability from the Veteran's service. Therefore, the Board resolves reasonable doubt in the Veteran's favor and finds that criteria for service connection have been met. Accordingly, service connection for a bilateral hip disability is warranted, and the issue is granted. 3. Right foot disability In addition, the Board finds that the Veteran meets the criteria for service connection for degenerative changes in right distal interphalangeal joint of the great toe and the proximal interphalangeal joint of the second toe. First, the Veteran has a diagnosed disability. See VA examination, April 2016 (noting degenerative or traumatic arthritis in the right foot). Arthritis is an enumerated condition under 38 C.F.R. § 3.309 (a). At the outset, the Board acknowledges that upon entry to service, the Veteran's November 1971 Report of Medical History indicates "foot trouble." However, the physician's summary states "feet (ankles) weak." This suggests to the Board that the "foot trouble" referenced pertained to the ankles. Further, the November 1971 Report of Medical Examination indicates normal feet. "History of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception." 38 C.F.R. § 3.304 (b)(1). By contrast: "Only such conditions as are recorded in examination reports are to be considered as noted." 38 C.F.R. § 3.304 (b). Given the above, the Board finds that the evidence of record does not support a finding that the Veteran's foot disability existed prior to service. Having found that the disability did not pre-exist service, the Board moves to the second criterion. The Board notes that the Veteran's in-service injury is conceded. The Veteran contends that he injured his "feet in this accident." See VA examination, April 2016. Since service, he indicates that "his feet have gradually gotten worse." Id. The Veteran is competent to report on symptoms which are capable of lay observation. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Board acknowledges the April 2016 VA opinion, but affords it little probative weight. For example, the nexus statement (i.e., "at least as likely as not") only addresses entitlement on a secondary basis. In addition, in the rationale for the opinion, it states that "[t]here is no evidence in the service treatment records of . . . the reported 'crush injury' that was reported by the Veteran in today's history." However, the Veteran's in-service injury is conceded. See BVA decision, September 2015. The Board acknowledges that the April 2016 VA opinion specifically addresses the degenerative changes: The right great toe and second toe degenerative changes are most likely also related to aging and small insults over time or wear and tear because of the lapse of time between right foot complaints in 2008, thirty-four years after the reported bilateral leg crush injuries and the lack of evidence of a chronic abnormal gait. However, as described above, the Veteran has reported an injury in service, and worsening of his symptoms since service. See VA examination report, April 2016. Given the other weaknesses identified in the VA opinion, and cognizant of the fact that the Veteran is competent to describe symptoms capable of lay observation, the Board resolves reasonable doubt in his favor and finds that the Veteran suffered an injury in service and that he has experienced symptoms since that time. Having considered the evidence of record, the Board cannot conclusively disassociate the current disability from the Veteran's service. Therefore, the Board resolves reasonable doubt in the Veteran's favor and finds that criteria for service connection have been met. Accordingly, service connection for degenerative changes in right distal interphalangeal joint of the great toe and the proximal interphalangeal joint of the second toe is warranted, and the issue is granted. REASONS FOR REMAND 1. Left foot disability. The Board finds that a new VA examination and opinion are needed regarding the Veteran's claimed left foot disability. The Board acknowledges the April 2016 VA examination and opinion, but finds them to be inadequate for the following reasons. First, the April 2016 VA examination report appears to contain conflicting information regarding the Veteran's diagnosis. For example, pertinent to the left foot, under the diagnosis section, the following are selected: (1) the Veteran does not have a current diagnosis; and (2) bilateral flat foot (pes planus). Further, the VA examination report indicates arthritis only in the right foot, but a March 2011 VA treatment record notes "arthritis hand and feet." The Board asks that this be clarified upon remand. In addition, for the reasons outlined above, the Board finds that the April 2016 VA opinion is inadequate. Specifically, the nexus statement (i.e., "at least as likely as not") only addresses entitlement on a secondary basis. In addition, in the rationale for the opinion, it states that "[t]here is no evidence in the service treatment records of . . . the reported 'crush injury' that was reported by the Veteran in today's history." However, the Veteran's in-service injury is conceded. See BVA decision, September 2015. The Board asks that a new VA opinion be obtained upon remand. The Board acknowledges April 2006 the opinion from Dr. N. However, the diagnosis for the foot disability is identified as intractable plantar keratosis, which is not a disability listed in the diagnosis section of the April 2016 VA examination. Accordingly, clarification of the diagnosis is still needed. Finally, per this decision, the Board has granted service connection for a bilateral hip disability and right foot disability. Upon remand, the Board asks that an opinion be obtained that addresses whether a left foot disability may be due to or aggravated by these newly service-connected disabilities. 2. Back disability Finally, the Board finds that a new VA examination and opinion are needed regarding the Veteran's claimed back disability. The Board acknowledges the September 2018 negative nexus opinion but finds that it does not adequately address the Veteran's conceded in-service injury. For example, the VA opinion states: "In the buddy statement there is no mention of back injury at time of truck/loading dock injury, only legs." However, the Board notes that the April 2016 VA examination report states that the Veteran "reports that when he was trapped between the truck and a loading dock, he thinks that he injured his hips and back attempting to free himself." (Emphasis added). The opinion does not address this contention or the Veteran's lay statements regarding his symptoms since service. In addition, the Board asks that an examiner clarify whether the Veteran's back disability pre-existed service and, if so, whether it was aggravated therein. The Board acknowledges that the September 2018 VA opinion raised the following: "There is evidence of recurrent back pain upon enlistment, as it was listed on his enlistment physical history in Nov 1971, as back aches with sitting, although no diagnosis was rendered." The opinion also notes the following evidence: a December 1971 letter that states that the Veteran was "examined by the Army and rejected. He complained of having a painful back and being nervous." It is unclear to the Board whether the examiner is identifying the Veteran's back disability as pre-existing service. Further, if the Veteran's disability pre-existed service, the Board asks that an opinion be obtained that addresses whether the disability was aggravated in service. The Board has reviewed the service treatment records, and in addition to the evidence noted by the examiner, there is also a November 1971 induction Report of Medical Examination that indicates normal "spine, other musculoskeletal"; however, there is a handwritten notation regarding "spine + ankle." The Board acknowledges that this notation is difficult to read. In addition to the service treatment records, the Board notes the following evidence. In a September 2002 statement, the Veteran writes: "I had a back injury and it was agitated in Basic Training." (Emphasis added). However, a May 2004 VA examination report for the spine indicates that the Veteran "states that he hurt his back in basic training . . . in 1972. He was doing physical training." It states further that the Veteran has "only had one trauma to the back that was in 1972. He has had no additional injuries per his statement." Further, the Board notes that in a September 1987 VA examination report, the Veteran reported the following, which he indicates occurred in the fall of 1973: . . . I slipped and hit head and back (injury) and when my head cleard [sic] my feet and legs were between dock and 2 12 ton truck. My back and legs were in terrible shape and I got very little medical atteion [sic]. The back injury has never stopped hurting . . . . Before the injurys [sic] I was in great shape as my Army records should show. Given the above, the Board finds that a new VA examination and opinion are needed. The matters are REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issues on appeal. All efforts should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, schedule the Veteran for the following VA examinations: Left foot disability A VA examination to clarify the diagnosis of his left foot disability and to address the etiology of any diagnosed disability(ies). For each disability diagnosed, the examiner is asked to address whether it is at least as likely as not (i.e., a 50 percent or greater probability) that it is related to the Veteran's active duty service. The examiner is asked to address specifically: (a) A March 2011 VA treatment record that notes "arthritis hand and feet." (b) The April 2006 the opinion from Dr. N., which identifies a diagnosis of intractable plantar keratosis. (c) The Veteran's conceded in-service injury. See BVA decision, September 2015. In addition, the examiner should provide an opinion as to whether it is at least as likely as not that claimed left foot disability is proximately due to, or the result of, or aggravated (permanently worsened) beyond normal progression by the Veteran's service-connected bilateral knee disabilities, bilateral ankle disabilities, bilateral hip disabilities, and/or right foot disability. Back disability A VA examination to address the following regarding the Veteran's back disability: (a) Whether it is at least as likely as not that the back disability clearly and unmistakably pre-existed service. The Board notes that VA regulations are clear that "[o]nly such conditions as are recorded in examination reports are to be considered as noted." 38 C.F.R. § 3.304 (b). By contrast, "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception." 38 C.F.R. § 3.304 (b)(1). (b) If there is clear and unmistakable evidence that the back disability preexisted service, then the examiner should address whether there is clear and unmistakable evidence that the claimed disability was not permanently aggravated by service. If not, the examiner should then address whether it is at least as likely as not that it was caused by the Veteran's active duty service. The Board notes that a preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. See 38 C.F.R. § 3.306 (a). (c) If it is determined that the back disability did not clearly and unmistakably preexist service, then the examiner should address whether it is at least as likely as not that it was caused by the Veteran's active duty service. The examiner should also provide an opinion as to whether it is at least as likely as not that the back disability is proximately due to, or the result of, or aggravated (permanently worsened) beyond normal progression by the Veteran's service-connected bilateral knee disabilities, bilateral ankle disabilities, bilateral hip disabilities, and/or right foot disability. The examiner is asked to address specifically: (a) The Veteran's conceded in-service injury. See BVA decision, September 2015. (b) The Veteran's statements, reported in the April 2016 VA examination, "that when he was trapped between the truck and a loading dock, he thinks that he injured his hips and back attempting to free himself." (Emphasis added). (c) The service treatment records, particularly notations made in the induction records regarding the spine, as well as a December 1971 letter in the service treatment records that states that the Veteran was "examined by the Army and rejected. He complained of having a painful back and being nervous." (d) A September 2002 statement, in which the Veteran writes: "I had a back injury and it was agitated in Basic Training." (Emphasis added). (e) A May 2004 VA examination report for the spine that indicates that the Veteran "states that he hurt his back in basic training . . . in 1972. He was doing physical training." It states further that the Veteran has "only had one trauma to the back that was in 1972. He has had no additional injuries per his statement." (f) A September 1987 VA examination report, in which the Veteran reported the following, which he indicates occurred in the fall of 1973: . . . I slipped and hit head and back (injury) and when my head cleard [sic] my feet and legs were between dock and 2 12 ton truck. My back and legs were in terrible shape and I got very little medical atteion [sic]. The back injury has never stopped hurting . . . . Before the injurys [sic] I was in great shape as my Army records should show. The VA examiner should be given access to the claim file. The examiner should state that a review of the claim file was completed. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A detailed rationale is requested for all opinions provided. (Continued on next page) 3. If upon completion of the above action the issues are denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals 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.