Citation Nr: 21076253 Decision Date: 12/23/21 Archive Date: 12/22/21 DOCKET NO. 16-27 609A DATE: December 23, 2021 ORDER Service connection for tinnitus is granted. Service connection for left ear hearing loss is granted. REMANDED Entitlement to service connection for right ear hearing loss is remanded. Entitlement to service connection for a disability manifested by chronic joint pain is remanded. Entitlement to service connection for a disability manifested by chronic muscle pain is remanded. Entitlement to service connection for a left hallux valgus is remanded. Entitlement to service connection for a right hallux valgus is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise with regard to showing that the Veteran has tinnitus associated with his service. 2. The evidence is at least in equipoise with regard to showing that the Veteran has left ear hearing loss associated with his service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1979 to June 1992. He served honorably in the United States Army, including in Southwest Asia (SWA). He served in the infantry and he is a combat veteran. The Board thanks the Veteran for his service to our country. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board notes that testimony at the Veteran's July 2021 Board hearing included some suggestion that he contends he has a headache disorder secondary to his tinnitus. However, as discussed at that time with the Veteran and his representative, the issue of entitlement to service connection for headaches has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b). If the Veteran wishes to establish service connection for headaches, he may wish to file a claim for those benefits as currently there is no such claim in appellate status before the Board. Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be awarded on a presumptive basis for certain chronic diseases, to include tinnitus and sensorineural hearing loss (as organic diseases of the nervous system), listed in 38 C.F.R. § 3.309 (a), that manifest in service or to a degree of 10 percent within one year of service separation. 38 C.F.R. §§ 3.303 (b), 3.307. If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.38 C.F.R. § 3.303(b). 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 reports a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Entitlement to service connection for tinnitus The Veteran is competent to report his tinnitus and when it had its onset. Notwithstanding the September 2013 VA examination report indicating that he did not have tinnitus, VA treatment records from April and August 2021 document ongoing tinnitus consistent with the Veteran's testimony at the July 2021 Board hearing. Charles v. Principi, 16 Vet. App. at 374 (a veteran is competent to testify that he experienced ringing in his ears in service and had experienced ringing in his ears ever since service). He also testified that it started in-service. VA has already conceded in-service noise exposure, to include in the May 2016 statement of the case (SOC). The Board finds that the Veteran has credibly established that his tinnitus began in-service. VA has acknowledged noise exposure that is in keeping with the circumstances of his service as a combat veteran in the infantry. Further, there have been subsequent manifestations of the same chronic disease during the appeal period. Therefore, the criteria for entitlement to service connection for tinnitus have been met and the Veteran's claim is therefore granted. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303. Entitlement to service connection for left ear hearing loss Pursuant to the September 2013 VA examination report and 2021 VA treatment records, the Veteran has left ear (but not right ear) hearing loss for VA purposes. As previously discussed, VA has already conceded in-service noise exposure. Turning to whether there is a nexus, or link, between the Veteran's left ear hearing loss and his service, the Board concludes that the evidence is at least in equipoise. The Veteran is now service-connected for tinnitus on the basis of conceded in-service noise exposure in the infantry and combat. Of the interconnectedness between hearing loss and tinnitus, the Board observes that "an associated hearing loss is usually present" with tinnitus. The MERCK Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems. Tinnitus may occur as a symptom of nearly all ear disorders including sensorineural or noise-induced hearing loss. Id. In this regard, the Board notes that "high frequency tinnitus usually accompanies [noise-induced] hearing loss." The MERCK Manual, Section 7, Ch. 85, Inner Ear. Consistently, VA treatment records from August 2021 address the Veteran's tinnitus and hearing loss together. The September 2013 VA examiner indicated that because the Veteran's hearing was judged to be normal upon enlistment and separation, hearing loss was less likely than not associated with service. In this regard, the Board notes that the absence of in-service evidence of hearing loss is not fatal to the claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, evidence of a current hearing loss disability and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The examiner provided no other rationale for the opinion, nor was there any mention of the Veteran's noise exposure in the infantry in-service. The examination report did not suggest that the Veteran's hearing loss was most likely attributable only to a non-service etiology, nor did the examiner's opinion suggest that the hearing loss is otherwise inconsistent in nature with the Veteran's established infantry service. The Board notes that the nexus element of service connection requires only a causal relationship, not a sole causal relationship (in isolation). Resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise with regard to the question of whether left ear hearing loss is related to military service; therefore, service connection for left ear hearing loss is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1 Entitlement to service connection for right ear hearing loss is remanded. 2. Entitlement to service connection for chronic joint pain is remanded. 3. Entitlement to service connection for chronic muscle pain is remanded. 4. Entitlement to service connection for a left foot condition is remanded. 5. Entitlement to service connection for a right foot condition is remanded. The record shows that there are approximately five years of outstanding VA treatment records, spanning 2016 to the present, that have not yet been associated with the claims file. During the July 2021 Board hearing, the Veteran testified that he has received VA treatment pertaining to all of his claims during that timeframe and accordingly a remand to obtain the records is necessary. Regarding right ear hearing loss, the full extent of the Veteran's VA treatment records must be available for review so that it may be determined if he has had qualifying right ear hearing loss at any time during the pendency of this appeal. As to chronic joint and muscle pain, although the September 2013 VA examiner opined that no medically unexplained chronic multi-symptom illness (MUCMI) was present, no rationale was provided; thus, a remand is also warranted so that an adequate MUCMI medical opinion may be obtained. Finally, regarding the Veteran's claims for bilateral foot conditions, remand is also warranted for a supplemental medical opinion as an August 2021 private disability benefits questionnaire provided evidence of additional current feet diagnoses that were not addressed in the 2013 VA foot examination. For all of the foregoing reasons, further development of the above claims is warranted. The matters are REMANDED for the following action: 1. Please associate with the claims-file any outstanding pertinent treatment records, including additional VA treatment records (such as those that may have been created since the last such update of the claims file). Specifically, VA treatment records from 2016 to the present should be associated with the claims file. Additionally, ask the Veteran to complete a VA Form 21-4142 for any new outstanding records from private providers of pertinent medical treatment of his disabilities on appeal that the Veteran may wish VA to assist him in obtaining for the record. 2. After record has been determined to be complete, please obtain a supplemental medical opinion with respect to chronic joint pain and also chronic muscle pain. [If another Gulf War Medical Examination is needed for the opinion sought, it should be arranged.] The claims file should be made available to and reviewed by the opinion provider. The opinion provider should address the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran has a medically unexplained chronic multi-symptom illness? Please explain. The clinician should take into consideration that the Veteran is competent to report in service and post-service symptom experiences; other witnesses are competent to report observable symptoms. If the clinician cannot provide an opinion without resorting to speculation, the clinician should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After record has been determined to be complete, please obtain a supplemental medical opinion with respect to left and right foot conditions. [If another examination is needed for the opinion sought, it should be arranged.] The claims file should be made available to and reviewed by the opinion provider. The opinion provider should address the following: (a.) Is it at least as likely as not (a 50 percent or greater probability), as to each diagnosis, that the Veteran's left and/or right foot diagnosis of (i) metatarsalgia (ii) osteoarthritis (iii) flat feet (iv) hammertoes identified in the 2021 private DBQ is related to service? The clinician must address the Veteran's years of infantry service, including time in combat. Service treatment records, including an X-ray report and note of small bony prominence dated September 4, 1986, must also be considered and discussed as necessary. The clinician must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The clinician should take into consideration that the Veteran is competent to report in service and post-service symptom experiences; other witnesses are competent to report observable symptoms. If the clinician cannot provide an opinion without resorting to speculation, the clinician should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fales, 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.