Citation Nr: 21076693 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 16-45 629 DATE: December 27, 2021 ORDER Entitlement to service connection for a bilateral foot condition, to include hallux valgus, is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's current bilateral foot condition, to include hallux valgus, was incurred in active service or is otherwise related to active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral foot condition, to include hallux valgus, have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from February 1960 to April 1962. He received the Good Conduct Medal for his service. In September 2021, the Veteran testified before the undersigned at a Board of Veterans' Appeals (Board) hearing held at the Detroit, Michigan Regional Office (RO). A transcript of the hearing is of record. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. § 3.159. In this regard, the Board notes that the Veteran identified potentially relevant outstanding records pertaining to his bilateral foot condition in March 2015 by submitting a VA Form 21-4142 Authorization form. However, the Veteran did not include a date range as is necessary for VA to take further actions to attempt to obtain these records. 38 C.F.R. § 3.159(c)(1)(i). When VA informed the Veteran that he needed to provide specific dates of treatment in order to obtain the records, he did not respond. The Veteran has not raised any other issues pertaining to VA's duties to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty-to-assist argument). 1. Entitlement to service connection for a bilateral foot condition The Veteran seeks service connection for a bilateral foot condition. At his September 2021 Board hearing, he asserted that his feet have bothered him ever since returning from active duty. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may also 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). The Veteran was diagnosed with bilateral hallux valgus during a March 2015 VA Compensation and Pension (C&P) examination. The "current disability" element has therefore been met. See 38 C.F.R. § 3.303(a). As for the "in-service incurrence" and "nexus" elements, the Veteran's enlistment examination report, dated in January 1960, reflects that he was diagnosed with first degree pes planus prior to entering active duty. Thereafter, service treatment records do not show any subsequent complaints or treatment for foot-related problems. There is no record of a separation examination report in the claims file. Post-service medical records show that the Veteran was treated for bunions on his right foot beginning in the mid- to late-1990s, and for bunions on his left foot a few years later. Notably, a private clinical note from February 1996 indicates that the Veteran reported a history of bunions on his right foot since the 1960s. The Veteran has since asserted that his foot problems began in service; at his Board hearing, he testified that his feet have constantly hurt ever since his separation from service. He has also reported being treated by a private podiatrist prior to his treatment in the mid-1990s; as noted above, these records appear to be unavailable. Nonetheless, the Board acknowledges that the Veteran is competent to report being treated for foot problems, just as he is competent to report symptoms within the realm of his personal knowledge, such as foot pain. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has never alleged being diagnosed with hallux valgus (his current diagnosis) in service, nor has he described any specific in-service foot injuries. He has not asserted any aggravation of pes planus, in service or thereafter. Likewise, there are no medical opinions of record demonstrating a nexus between the Veteran's current bilateral foot condition and his service. In March 2015, the Veteran underwent a VA C&P examination. The report noted a diagnosis of bilateral hallux valgus, with onset in the right foot in 1997 and in the left foot in 2003. The examiner opined that the Veteran's current hallux valgus was less likely than not incurred in or caused by his preexisting pes planus. The examiner noted that there was no confirmed evidence that pes planus is a risk factor for developing bunions, particularly the very mild pes planus that was noted on the entrance examination. The examiner noted that the Veteran's pes planus had not worsened over the years, and in fact was not thought to be present as per a physical examination and imaging studies. The examiner further explained that the Veteran was a poor historian, but that through reviewing the claims file it was clear that pes planus was noted at entrance but that there was no documentation of the Veteran seeking treatment for his feet in service. The examiner acknowledged the Veteran's reports of being seen by a private podiatrist prior to the 1990s but noted that the Veteran himself did not remember when this occurred. In the late 1990s, the Veteran began seeing another podiatrist and subsequently undergoing bunionectomy and arthroplasty in both feet. The C&P examiner noted that the Veteran currently had pain in both feet with calluses. The Veteran has not put forth any additional medical documentation in support of his claim. As noted above, he generally asserted at his Board hearing that he experienced foot pain since service. However, he has not described suffering from hallux valgus since service, nor has he alleged aggravation or indeed worsening of symptoms associated with pes planus. At his Board hearing, even at the behest of questioninga witness at the hearing specifically suggested potential causes, including marching, ill-fitting boots, or prolonged standing while on active dutythe Veteran admitted that he could not remember exactly what caused his foot problems. After carefully reviewing the record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection. As noted above, although the record establishes that pes planus was noted prior to entrance into service, there is no probative evidence suggesting that this condition worsened in service, or that the Veteran developed any other foot problems in active service, including hallux valgus. See 38 U.S.C. § 1153; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (concluding that "if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder"). The Board reiterates that the Veteran is competent to relate symptoms within the realm of his personal knowledge, just as he is competent to relate what he has been told by a medical professional. Layno, 6 Vet. App. at 469-70; Jandreau, 492 F.3d at 1377. To that end, he has competently and credibly described experiencing foot pain since service. However, the Veteran has never alleged being diagnosed with hallux valgus in service, nor has he provided a persuasive account of how his current condition is related to service. On the other hand, the Board finds the detailed, logical opinion of the C&P examiner in this case to be highly probative. The March 2015 C&P report and opinion is based on a review of the evidence, including the Veteran's own reports of his medical history, and applies logic and scientific principles to reach the conclusion that the Veteran's current bilateral foot condition is not at least as likely as not related to his active service. The medical opinion noted that there is no convincing evidence that the Veteran's pes planus had worsened since his entrance into service, and specifically addressed the Veteran's descriptions of his medical history, including his reports of receiving treatment for foot problems prior to the mid-1990s. The examiner nonetheless found that it was unlikely that the Veteran's current condition was related to either his preexisting pes planus or any in-service event or injury. The Board thus finds that the Veteran's lay reports were adequately addressed by the examiner in question. In sum, the Board finds that the March 2015 C&P report and opinion is the most probative evidence as to the etiology of the Veteran's current bilateral foot condition. The opinion was based on a thorough review of the Veteran's medical records and consideration of his lay statements, and is supported by a fully articulated rationale. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Veteran has not rebutted, or even questioned, this opinion. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). Unfortunately, the Veteran has not put forth sufficient competent evidence to warrant a grant of service connection for his current bilateral foot condition, to include hallux valgus. In sum, although there is evidence of pes planus preexisting service and post-service evidence of treatment for bunions, there is insufficient evidence that these post-service conditions developed in service or are otherwise related to service. A medical professional has determined that the Veteran's current foot condition did not begin in service or indeed for many years thereafter. The Board acknowledges the Veteran's reports of continuous foot pain since service; however, he is not competent to substantiate the specific contention that his current disability is related to service. On the other hand, the record includes a detailed and logical VA medical opinion concluding that the Veteran's current disability is most likely not service-related. As such, the preponderance of the evidence weighs against finding in favor of service connection. For the reasons stated above, service connection for a bilateral foot condition, to include hallux valgus, must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, the doctrine is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 2. Entitlement to service connection for bilateral hearing loss The Veteran seeks service connection for a bilateral hearing loss disability. As an initial matter, the Veteran's personnel records reflect that his occupational specialty was Communication Center Specialist, and his testimony and lay statements of record demonstrate that he was exposed to loud noises on a consistent basis during service, often without ear protection. In particular, a November 2021 statement (submitted by the Veteran's son) reflects the Veteran's reports of exposure to "excessive loud speaker noise" and "high pitch sounds" lasting for several minutes that would result in tinnitus-like symptoms and hearing loss. The Veteran's son also testified that the Veteran had been hard of hearing for as long as he could remember. The Veteran was afforded a VA audiological examination in February 2015. The examiner confirmed that the Veteran suffered from a current hearing loss disability in both ears. Notwithstanding, the examiner found that it was less likely than not that the Veteran's hearing loss was linked to his service on grounds that there was insufficient evidence of in-service acoustic trauma. No other rationale was given for this negative opinion. In light of the Veteran's occupational specialty and the competent and credible lay statements discussed above, the Board will resolve reasonable doubt in his favor as to the matter of in-service harmful noise exposure. See 38 U.S.C. § 1154(a). As such, the logical basis for the VA audiologist's negative opinion renders the opinion inadequate. The Board, furthermore, recognizes that the absence of evidence of an in-service hearing loss disability is not fatal to the Veteran's claim. See Hensley v. Brown, 5 Vet. App. 155, 158 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Consequently, an additional examination and opinion is needed. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). The examiner should proceed under the assumption that the Veteran did in fact experience harmful noise exposure as part and parcel of his service duties. Moreover, the examiner should thoroughly address the Veteran's and the Veteran's son's competent and credible reports of in-service hearing loss and continuous hearing loss since separation. See Layno, 6 Vet. App. 469-70; Jandreau, 492 F.3d at 1377. 3. Entitlement to service connection for tinnitus The Veteran seeks service connection for tinnitus. At his February 2015 VA audiological examination, he denied any symptoms of tinnitus. He likewise did not identify current symptoms of tinnitus at his September 2021 Board hearing. The Board will nevertheless remand the claim to the RO for further development. In November 2021, the Veteran's son submitted a statement in which he reported the Veteran's assertions that he experienced ringing in his ears after being exposed to loud noises while on active duty. This statement constitutes positive evidence that the Veteran first developed tinnitus in service. The Board is not inclined at this juncture to hold the Veteran's seemingly contradictory statements against him, particularly given his diagnosis of dementia referenced at his hearing. The Board finds that the Veteran may benefit from an additional audiological examination regarding his tinnitus claim, in conjunction with his claim for hearing loss. The matters are REMANDED for the following action: (Continued on the next page) 1. Obtain and associate with the record any outstanding VA medical records pertaining to the Veteran, to include records from August 2016 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his current bilateral hearing loss disability and tinnitus. After reviewing the pertinent evidence of record, the examiner must opine as to whether it is at least as likely as not that the Veteran's hearing loss and/or tinnitus originated in active service, or within one year of the Veteran's separation from service, to include as due to in-service harmful noise exposure (the examiner should accept that such harmful noise exposure occurred in service, as per the discussion above). The examiner should specifically discuss the pertinent lay statements of record provided by the Veteran and by the Veteran's son. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Minot, 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.