Citation Nr: 21075106 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 19-31 770 DATE: December 17, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for a bilateral foot condition is remanded. Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for a left knee condition is remanded. FINDINGS OF FACT 1. The Veteran has experienced symptoms of tinnitus since service. 2. The Veteran has experienced symptoms of hearing loss since service. CONCLUSIONS OF LAW 1. 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(a), 3.304, 3.309. 2. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107, 7104; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 1962 to December 1964. The Veteran is a is a Vietnam era Veteran who served in Thailand, and herbicide agent exposure was previously conceded. This matter comes before the Board of Veterans Appeals (Board) on appeal from an October 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a hearing before the undersigned. A transcript of the hearing has been associated with the claims file. Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be awarded on a presumptive basis for certain chronic diseases, to include hearing loss and tinnitus (as organic diseases of the nervous system), listed in 38 C.F.R. § 3.309(a), that manifest to a degree of 10 percent within one year of service separation. Id. §§ 3.303(b), 3.307. Service connection may be awarded on the basis of continuity of symptomatology for those conditions listed in 38 C.F.R. § 3.309(a) if a claimant demonstrates (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.303(b). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for tinnitus The Veteran contends that he began to experience ringing in his ears due to his military occupational specialty (MOS) as heavy equipment operator. At his Board hearing, he attested to running heavy equipment such as large scrapers and 15-ton dump trucks without hearing protection. 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). The Board finds that the evidence of record supports a grant of service connection for tinnitus. First, there is evidence of a current disability. The July 2017 VA examiner noted that the Veteran endorsed that he experienced tinnitus and had since service. See 38 C.F.R. §§ 3.303(a), 3.307(a), 3.309(a); see also Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation). Second, there is evidence of an in-service event, disease, or injury, as the Veteran provided competent and credible lay statements regarding noise exposure in service. See 38 C.F.R. § 3.303(a); see also Shedden, 381 F.3d at 1167. Specifically, the Veteran submitted lay statements that his military duties exposed him to hazardous noise due to heavy machinery use. See Buddy/Lay Statement, received January 2020. The Veteran testified at his August 2021 hearing that he experienced noise exposure in service and that his tinnitus symptoms began in service and have continued since service. The Veteran contends he served as a heavy equipment operator; therefore, hazardous noise exposure in service is conceded. Third, the Board finds that the evidence is at least in equipoise as to whether the Veteran's current tinnitus is causally related to service. In that regard, the law is clear. Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 U.S.C. § 5107. The Board notes the Veteran has repeatedly stated that the onset of his tinnitus occurred in service and that his symptoms have continued since that time. 38 C.F.R. §§ 3.303(b), 3.309(a); Walker, 708 F.3d at 1331. Insofar as there is evidence against the claim, specifically, the July 2017 VA examiner's opinion that it was less likely as not that the Veteran's tinnitus was caused by in-service acoustic trauma, the examiner supported the opinion by noting normal hearing findings during service but did not address the Veteran's assertion of onset and continuity of tinnitus symptomatology. As such, the Board affords this opinion limited probative weight. The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran's favor, a grant of service connection for tinnitus is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner'.... [I]f... the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute]."). 2. Entitlement to service connection for bilateral hearing loss The Veteran also contends his bilateral hearing loss is due to noise exposure suffered in active-duty service as a heavy equipment operator. Service connection may be established for disability due to impaired hearing when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz is 40 decibels or greater; or 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 Veteran's service treatment records (STRs) show two audiological examinations on record: one in December 1961 that was performed as part of the Veteran's entrance examination, one in October 1964 as part of his separation examination. The tests show the Veteran did not experience significant threshold shifts within service. The Veteran was afforded a VA examination in July 2017. Puretone threshold testing was done, and a speech recognition score was issued using the Maryland CNC word list. These findings show that the Veteran met the auditory threshold for service connection of hearing impairment in both ears. The examiner diagnosed the Veteran with sensorineural hearing loss bilaterally. However, the examiner opined that the hearing loss was less likely than not caused by or a result of an in-service event. The examiner stated that although the Veteran's MOS had a high probability of hazardous noise exposure, the Veteran did not have a permanent threshold shift between the entrance and exit audiograms in his STRs. The Veteran filed a timely notice of disagreement (NOD) with the October 2017 rating decision and later submitted additional evidence to the record. This included an October 2019 medical report by Dr. S.O., who reviewed the Veteran's medical history and concluded that the Veteran's hearing loss was related to his military service. See Medical Treatment Record Government Facility, received January 2020. In August 2021, the Veteran testified at his Board hearing. He stated that his hearing loss had its onset while he was in service. He also reported that during service he experienced hazardous noise exposure as a heavy equipment operator and was not afforded any hearing protection. Additionally, the Veteran testified that his hearing loss has persisted since he left service. The Veteran's lay statements cannot be disregarded solely due to lack of contemporaneous medical evidence. A negative opinion based solely on the absence of hearing loss in-service or normal hearing on separation is not sufficient. The mere absence of treatment records should not be the primary basis for a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007) (noting that an examiner cannot rely on the absence of medical records corroborating an injury to conclude that there is no relationship between the veteran's current disability and his military service (citing Smith v. Derwinski, 2 Vet. App. 137, 140 (1992)). Service connection for a current hearing loss disability under 38 C.F.R. § 3.385 is not precluded where the Veteran's hearing was found to be within normal limits on audiometric testing at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability under 38 C.F.R. § 3.385 and medical evidence sufficient to attribute that disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Moreover, in the case of the disability of hearing loss, continuity of symptoms can act as a substitute for specific medical nexus evidence when as here, the Veteran has credibly noted a long-standing history of problems with his hearing. Although hearing loss was not shown in service, acoustic trauma or military noise exposure may constitute injury of the ear. Here, the evidence of record shows the Veteran's MOS has a high probability of hazardous noise exposure. Further, no evidence indicated that hearing protection was provided. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds the Veteran to be credible in his testimony. Weighing the probative lay evidence offered by the Veteran, along with the probative private opinion, against the VA examination, the Board finds that the evidence supports the service connection claim. Considering all of the evidence of record, the Board finds that the evidence supports the claim on appeal, and it is at least as likely as not that the Veteran's bilateral hearing loss is caused by in-service noise exposure. Applying the benefit of the doubt doctrine, service connection for bilateral hearing loss is therefore warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral foot condition is remanded. The Board finds that additional development is needed prior to adjudication to the issues remaining on appeal. The record shows the Veteran has been diagnosed with peripheral neuropathy for which he seeks service connection. The Veteran asserts that his claimed disabilities were caused by his active-duty service. He states he noticed foot issues while stationed in Germany in 1963. There is insufficient evidence, however, for the Board to render a determination on his claims, as the Veteran has not been afforded a VA examination. VA has a duty to provide an examination or obtain a medical opinion on an issue of service connection when the record, 1) contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, 2) indicates that the disability or signs and symptoms of a disability may be associated with active service, and 3) the record does not contain sufficient information to make a decision on the issue. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event is a low one. McLendon, 20 Vet. App. at 83. As such, based on the record before the Board, a remand for VA examination is necessary to determine the nature and etiology of the Veteran's foot conditions. 2. Entitlement to service connection for a right knee condition is remanded. 3. Entitlement to service connection for a left knee condition is remanded. The Veteran contends his knee issues are due to his active-duty service. In the alternative, he reports his right knee injury in service led to his left knee issues. See Correspondence, received October 2017. The Board finds that additional development is needed prior to adjudication to the issues on appeal. The Veteran reports injuring his knees during his active-duty service and his service treatment records show multiple instances of knee pain. The Veteran received a VA examination in July 2017. The examiner provided negative opinions as to direct service connection for both knees relying on the absence of treatment after service. At his Board hearing, the Veteran reported that the examiner mistakenly noted left knee symptoms for the right knee instead. The examination report is incomplete and does not describe the disability in sufficient detail so that the Board may make a fully informed decision. The examiner did not address the Veteran's contention of in-service onset due to injury or his reports of continuity of that symptomology. The Board notes that the Veteran is competent to report his experienced symptoms as he observes them. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). Additionally, the report's vague and conclusory rationale regarding a lack of documentation is insufficient to properly adjudicate the claim. The Board notes that the absence of contemporaneous records showing complaints of or treatment for the conditions, alone, is an insufficient rationale for a nexus opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007). The VA examination also did not address secondary service connection. Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Although the Board regrets additional delay, remand is necessary to ensure due process and a complete record exists upon which to adjudicate the Veteran's claim. Accordingly, remand for an examination is required. The matters are REMANDED for the following action: 1. Obtain an examination to determine the nature and etiology of the Veteran's bilateral foot condition. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must review all pertinent records associated with the claims file, including a copy of this remand, the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. After examining the Veteran and considering his pertinent medical history and lay statements regarding his reported symptoms, the examiner should opine as to whether it is at least as likely as not (a 50 percent probability or greater) that his bilateral foot condition was incurred in, aggravated by, or etiologically related to his military service, to include herbicide agent exposure. In rendering this opinion, the examiner must specifically consider the Veteran's report of having first developed foot problems while stationed in Germany in 1963. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. Obtain an addendum opinion to determine the nature and etiology of the Veteran's right and left knee condition. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand, the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. After examining the Veteranif deemed necessary by the examinerand considering his pertinent medical history and lay statements regarding his reported symptoms, the examiner should opine as to: Whether it is at least as likely as not (a 50 percent probability or greater) that his right and left knee conditions were incurred in, aggravated by, or etiologically related to his military service. In rendering this opinion, the examiner should consider the Veteran's multiple instances of knee treatment in service and his reports of continuous knee problems since service. (a) Whether it is at least as likely as not (a 50 percent probability or greater) that his left knee condition was caused by his right knee condition. (b) Whether it is at least as likely as not (a 50 percent probability or greater) that his left knee condition was aggravated by his right knee condition. Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that a disability was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Javed, 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.