Citation Nr: 21076508 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 18-51 761 DATE: December 27, 2021 ORDER Entitlement to service connection for hearing loss is denied. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for depression as secondary to service-connected lumbosacral strain is granted. REMANDED Entitlement to an initial disability rating in excess of 10 percent for service-connected lumbosacral strain is remanded. Entitlement to an initial disability rating in excess of 10 percent for left sciatic radiculopathy is remanded. Entitlement to service connection for right knee arthritis is remanded. Entitlement to service connection for left knee arthritis is remanded. Entitlement to service connection for bilateral flat feet is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran does not have hearing loss for VA purposes in either ear. 2. Affording the Veteran the benefit of the doubt, his tinnitus is the result of exposure to acoustic trauma during his period of ACDUTRA service. 3. The Veteran's diagnosed unspecified depression disorder was proximately caused by his service-connected lumbosacral strain. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.385. 2. 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. 3. The criteria for entitlement to service connection for depression are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served a period of active duty for training (ACDUTRA) with the United States Army Reserve from February 1992 to June 1992. In August 2021, he testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is in the record. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists, and (2) that the current disability was either (a) proximately caused or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). 1. Entitlement to service connection for hearing loss The Veteran is seeking entitlement to service connection for hearing loss. The Board finds the Veteran does not currently have hearing loss for VA purposes. Therefore, his claim is denied. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when 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. A review of post-service medical records showed no complaints, treatment or diagnosis related to hearing loss. The Veteran underwent a December 2016 VA examination in connection with his claim. Audiometric findings did not show hearing loss for VA compensation purposes pursuant to 38 C.F.R. § 3.385. Puretone thresholds showed his hearing at its worst was 25 decibels at 8000 Hertz in the right ear and 25 decibels at both 1000 Hertz and 8000 Hertz in the left ear. Speech discrimination testing using the Maryland CNC Test revealed speech recognition ability of 100 percent in both ears. The examiner found the Veteran had normal hearing in both ears. Therefore, as the competent evidence of record indicates the Veteran does not have a current hearing loss disability, service connection for a hearing loss disability is not warranted and the claim is denied. 2. Entitlement to service connection for tinnitus The Veteran contends that he began experiencing symptoms of tinnitus as a result of noise exposure from firearms training during his military service. The Board concludes that the Veteran has tinnitus that is related to conceded noise exposure in service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303 (a). For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). For purposes of the incurrence of tinnitus during a period of ACDUTRA and INACDUTRA service, the term "injury" has been interpreted to include acoustic trauma. See VAOPGCPREC 4-2002 (May 14, 2002); VAOPGCPREC 8-2001 (Feb. 26, 2001). The Veteran's DD-214 shows that he served as a record telecommunication center operator. He received the marksman badge with the M16 rifle. Military noise exposure is therefore conceded. At his December 2016 VA examination, the Veteran reported ringing in both ears after beginning rifle training in basic training. While the examination report noted the date of onset as October 1992, the Veteran's military personnel records show that he completed basic training in April 1992, which would have been during his period of ACDUTRA service. The examiner offered a negative opinion; however, the Board finds the opinion inadequate. The examiner based the opinion, in part, on an absence of service treatment records documenting complaints of tinnitus in service while failing to evaluate the relevance of military personnel records showing the Veteran was trained to use a rifle and the Veteran's reports of experiencing continuous symptoms since service. The Board finds the Veteran credible regarding his claim that he experiences symptoms of tinnitus. See Charles, 16 Vet. App. at 370. He has attributed the tinnitus to noise exposure in service, which is conceded. He has reported the onset of his symptoms as during rifle training during his basic training, which would have placed the onset during his period of ACDUTRA service. Notwithstanding the existence of evidence that does not support entitlement to the benefit sought, the Board finds that the record reasonably supports entitlement of the Veteran to service connection for tinnitus based on the Veteran's own testimony. His assertion that it began during service is consistent with the circumstances of his service. The evidence regarding the onset of tinnitus is in equipoise. Thus, affording the Veteran the benefit of the doubt, entitlement to service connection for tinnitus is granted. 38 U.S.C. § 5107 (b). 3. Entitlement to service connection for depression The Veteran asserts that he suffers from depression that is caused by his service-connected lumbosacral strain. The Board finds that the Veteran's claim is warranted. Service connection is granted. VA treatment records show that the Veteran has a past medical history of depression. In May 2018, the Veteran submitted a June 2017 examination report and associated opinion from a private psychologist who, after a review of the record and interview of the Veteran, offered a positive opinion. The opinion provider said it was more likely than not that the Veteran's diagnosed unspecified depression disorder was secondary to his service-connected lumbosacral strain. In support of this conclusion, the examiner stated that the Veteran's back disability impedes his work and ability to engage in enjoyable activities, which has resulted in a persistent depressive disorder that was secondary to his physical disability. The record also includes a negative September 2018 opinion from a VA examiner. The Board affords that opinion no probative value because the rationale is exclusively based on the absence of medical records documenting a relationship between the Veteran's depression and his back disability. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's diagnosed unspecified depression disorder is proximately caused by his service-connected lumbosacral strain. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 10 percent for service-connected lumbosacral strain is remanded. 2. Entitlement to an initial disability rating in excess of 10 percent for left sciatic radiculopathy is remanded. The claim must be remanded to obtain an adequate examination. The December 2016 VA examination is inadequate because it does not comply with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016) (for range of motion findings) or Sharp v. Shulkin, 29 Vet. App. 26 (2017) (for any functional loss due to flare-ups). A new VA examination with complete findings for the low back and associated radiculopathy is therefore needed on remand. 3. Entitlement to service connection for right knee arthritis is remanded. 4. Entitlement to service connection for left knee arthritis is remanded. The Veteran maintains that he developed bilateral knee disabilities as a result of his military service. He alternatively contends that his knee disabilities are secondary to his service-connected back disability. The claims are remanded to obtain a medical opinion. In March 2018, he underwent a VA examination where he was diagnosed with bilateral knee degenerative arthritis. In an associated opinion, the examiner concluded it was less likely than not that the Veteran's bilateral knee disabilities were incurred or caused by the Veteran's claimed in-service injury. In support of this conclusion, the examiner noted that service treatment records dated in June 1992 showed the Veteran complained of bilateral knee pain and was diagnosed with tendonitis. Thereafter, the available medical records failed to show any documented treatment for knee problems for about 25 years. An opinion based on the absence of treatment records without consideration of a Veteran's competent reports is inadequate. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Remand is needed for a supplemental VA opinion that evaluates not only the medical evidence, but also the Veteran's statements concerning the onset and progression of his diagnosed bilateral knee arthritis. An opinion is also needed addressing the Veteran's contention that his knee disabilities are secondary to his lumbosacral strain. 5. Entitlement to service connection for bilateral flat feet is remanded. The Veteran contends that he developed flat feet during his military service. He alternatively maintains that his flat feet were caused or aggravated by his service-connected lumbosacral strain. In support of his claim, the Veteran submitted a November 2021 statement from a private chiropractor who diagnosed him with marked bilateral pes planus with marked pronation of the bilateral feet. The chiropractor then related the Veteran's pes planus to his military service. Considering the Veteran's credible testimony reporting problems with his feet since military service and currently diagnosed bilateral pes planus, he should be afforded a VA examination with opinion on this issue. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 6. Entitlement to a TDIU is remanded. The Veteran's claim for TDIU is intertwined with the issues currently on appeal. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, further consideration of the claim for TDIU must be deferred. The matters are REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his back, knees and feet since September 2017. After securing any necessary releases, request any relevant records identified, and any VA treatment records If any requested records are unavailable, the Veteran should be notified of such. 2. After completion of the above, schedule the Veteran for an examination of the current severity of his service-connected back and associated left lower extremity radiculopathy disabilities. The examiner must complete the corresponding VA disability benefits questionnaire (DBQ), provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must test and provide range-of-motion findings of the Veteran's back disability on active motion, passive motion, and in weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the low back disability alone and discuss the effect of the Veteran's low back disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. The examiner should specifically identify all neurological manifestations related to the low back, noting any nerve involved and the extent of that involvement. 3. Obtain an addendum opinion from an appropriate clinician regarding the nature and likely etiology of the any diagnosed knee disability. Copies of all pertinent records must be made available to the examiner for review. The examiner must answer the following: Is it at least as likely as not that any diagnosed disability affecting either knee disability (i) had its onset in or is otherwise related to the Veteran's period of service, or; (ii) caused by the service-connected back disability, or; (iii) aggravated by (defined as any increase in disability) by the service-connected back disability? A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge; the examiner's own expertise, or; whether additional facts are required and note what, if any, additional evidence would permit such an opinion to be made. 4. After completion of the above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his diagnosed bilateral pes planus. Copies of all pertinent records must be made available to the examiner for review. The examiner must answer the following: Is it at least as likely as not that the pes planus (i) had its onset in or is otherwise related to the Veteran's period of service, or; (ii) caused by the service-connected back disability, or; (iii) aggravated by (defined as any increase in disability) by the service-connected back disability? A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge; the examiner's own expertise, or; whether additional facts are required and note what, if any, additional evidence would permit such an opinion to be made. 5. Confirm that the VA medical opinion provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. 6. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the TDIU claim. M. E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Komperda, 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.