Citation Nr: 21077086 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-15 345 DATE: December 28, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a left and/or right Achilles tendon disorder, to include Achilles tendonitis, is remanded. Entitlement to service connection for a left foot disorder, to include left foot (second toe) Morton's neuroma, is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. FINDING OF FACT The Veteran does not have a current hearing loss disability for VA compensation purposes. CONCLUSION OF LAW The criteria for service connection for a bilateral hearing loss disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from January 1978 to January 1982 and in the Air National Guard in September 2000, from March 2001 to April 2001, from July 2002 to August 2002, and from June 2013 to September 2013. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision. In September 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Service Connection In general, service connection will be granted for a current disability that results from an injury or disease incurred in, or aggravated by, active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires a current disability, an in-service incurrence or aggravation of a disease or injury, and a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). For certain chronic diseases, including organic diseases of the nervous system, shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307) so as to permit a finding that the disorder was incurred during service or the presumptive period, subsequent manifestations of the same chronic disease at a later date, however remote, will be service-connected. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. For the listed chronic diseases, service connection may also be presumed based on a continuity of symptomatology from service or the presumptive period following service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for bilateral hearing loss. In October 2015, the Veteran filed a claim of entitlement to service connection for bilateral hearing loss, which was denied by a rating decision of May 2016. The Veteran filed a notice of disagreement (NOD) in September 2016 and VA Form 9 in March 2018. Service connection for impaired hearing requires a hearing status, as determined by audiometric testing, that meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels in decibels over a range of frequencies in Hertz. See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). Impaired hearing will be considered 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 February 2015 record of Dr. I. P. indicates "no hearing loss" and "hearing grossly normal" as part of a complete physical examination. Upon VA examination in May 2016, the Veteran's hearing thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 15 25 LEFT 15 10 15 10 20 The speech discrimination scores using the Maryland CNC word list were 96 percent for the right ear and 100 percent for the left ear. The diagnosis was normal hearing in both ears. The examiner answered "no" on the form when asked whether the Veteran's left ear or right ear hearing loss is at least as likely as not the result of an event in military service. The rationale was that the Veteran's hearing is normal for rating purposes. The Veteran told the VA examiner that, in his capacity as an auxiliary systems mechanic in the Navy, he was exposed to the noise of diesel engines, steam turbines, impact guns, paint chipping, and sand blasting. He also reported exposure to the noise of diesel engines, impact tools, and some flight-line work around jets while doing vehicle maintenance during his Air Force service. The Veteran testified before the Board in September 2021 that, during his Navy service, he was exposed without hearing protection to the noise of 5-inch guns and to the nearly daily noise of his ship's boiler room. During this Air National Guard service, he was allegedly exposed to the general shop noise of vehicles being worked on by himself or by others nearby. The Veteran stated that he did not perceive his hearing ability as having worsened since the VA examination of March 2016. As a layperson, the Veteran is competent to report his symptoms of hearing loss. See Layno v. Brown, 6 Vet. App. 465 (1994). The standard audiological testing is more probative in this case than the Veteran's report of hearing loss symptoms. No audiological finding meets VA's definition of a hearing loss disability, as set out above. The Board concludes that the Veteran does not have a current diagnosis of a hearing loss disability for VA purposes. 38 C.F.R. § 3.385. In the absence of a current hearing loss disability as defined by VA regulation, there is no basis to find a connection between a current disorder and a disease or injury of service, or to presume service connection based on hearing loss as a listed chronic disease (an organic disease of the nervous system). 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection presupposes a current disability. 38 C.F.R. §§ 3.102, 3.303; Brammer v. Derwinski, 3 Vet. App. 223 (1995). The claimant will be given the benefit of the doubt as to any issue material to the determination of a matter when there is an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In this case, a hearing loss disability, as defined by 38 C.F.R. § 3.385, was not found upon examination. Because the preponderance of the evidence is against the claim, and not in approximate balance, it must be denied. REASONS FOR REMAND Generally, service connection may be granted for disability resulting from personal injury or disease suffered during active service. 38 U.S.C. §§ 1110, 1131. The scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in, or aggravated in, line of duty, or any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in, or aggravated in, line of duty. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6. The Veteran's service records show multiple periods of active duty service, including Navy service from 1978 to 1982, and several in the Air National Guard in September 2000, from March 2001 to April 2001, from July 2002 to August 2002, and from June 2013 to September 2013. "Point Credit Summaries," prepared in June 1990 and June 1992, also indicate ACDUTRA and INACDUTRA service in 1989 and in the 1990s in the Air National Guard. A February 2016 response of the National Personnel Records Center (NPRC) to a VA request for information, dated October 2015, was that the NPRC conducted an extensive and thorough search of the records among its holdings, was unable to locate the Veteran's complete medical/dental records and entire personnel file at the NPRC, and concluded that the records either do not exist or are not located at the NPRC. VA has a duty to assist in retrieving relevant records from a Federal department or agency unless further attempts would be futile. 38 C.F.R. § 3.159(c). VA's duty to assist includes obtaining a medical opinion when there is competent evidence of a current disorder, injury or recurrent symptoms during service, and an indication that the claimed disorder may be associated with the disease or injury in service. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (noting that the threshold of the third factor is low). 2. Entitlement to service connection for a left and/or right Achilles tendon disorder, to include Achilles tendonitis. In October 2015, the Veteran filed a service-connection claim for Achilles tendonitis, which was denied by a rating decision of May 2016. Left or right was not specified. The Veteran filed a NOD in September 2016 and VA Form 9 in March 2018. In September 2021, the Veteran testified before the Board that he injured his Achilles tendons as a mechanic during his Air National Guard service, specifically when climbing up and down equipment. He also cited running at that time as a cause of the injury. He did not report, or seek treatment for, his Achilles tendon problem while in service. An October 2010 record of Dr. G. G. notes Achilles tendonitis, right side, as an ongoing problem. The impression of a January 2012 record of Dr. G. G. is "previous right Achilles tendinitis, resolved." The Board takes notice that Achilles tendonitis is also called Achilles tendinitis. See Dorland's Illustrated Medical Dictionary 1881 (32nd ed. 2012). As a layperson, the Veteran is competent to report his experienced Achilles tendon symptoms during and following service. See Layno v. Brown, 6 Vet. App. 465 (1994). To date, no VA medical opinion has been obtained as to the likelihood that the Veteran's bilateral Achilles tendon symptoms, which he competently reports as having recurred to the present from an in-service onset, are caused by a disease or injury of service. Accordingly, the Board will remand for a VA examination and nexus opinion. 3. Entitlement to service connection for a left foot disorder, to include left foot (second toe) Morton's neuroma. In October 2015, the Veteran filed a service-connection claim for "left foot (Second Toe) Morton's Neuroma," which was denied by a rating decision of May 2016. The Veteran filed a NOD in September 2016 and VA Form 9 in March 2018. The Veteran testified before the Board that his claim relates generally to the pain he experiences on the ball of his left foot and is not limited to diagnosed Morton's neuroma. He alleges that his experienced symptoms of the left foot began during active duty service in the Navy when marching in work boots and was subsequently aggravated by physical fitness activities performed as part of his Air National Guard service. The Veteran is competent to report his experienced left- foot symptoms during and following service. See Layno v. Brown, 6 Vet. App. 465 (1994). To date, no VA medical opinion has been obtained as to the likelihood that the Veteran's left foot symptoms, which he competently reports as having recurred to the present from an in-service onset, are caused by a disease or injury of service. Accordingly, the Board will remand for a VA examination and nexus opinion. 4. Entitlement to service connection for a left knee disorder. 5. Entitlement to service connection for a right knee disorder. In October 2015, the Veteran filed service-connection claims for "Left Knee Condition" and for "Right Knee Condition (Arthritis)," both of which were denied by a rating decision of May 2016. The Veteran filed a NOD in September 2016 and VA Form 9 in March 2018. The Veteran testified before the Board in September 2021 that he injured his right knee while running during active duty for training for the Air National Guard at some point in the timeframe of 1989 to 1995. He states that he was told by an orthopedic doctor that he was "getting some arthritis in [his] knee." As a layperson, the Veteran is competent to report his experienced bilateral knee symptoms from an onset during ACDUTRA service and with recurrence to the present. See Layno v. Brown, 6 Vet. App. 465 (1994). He is also competent to report that he has been medically diagnosed with arthritis of the right knee. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). To date, no VA medical opinion has been obtained as to the likelihood that the Veteran's bilateral left knee and right knee symptoms, which he competently reports as having recurred to the present from an in-service onset, are caused by a disease or injury of service. Accordingly, the Board will remand for a VA examination and nexus opinion. The matters are REMANDED for the following action: 1. In remanding these issues, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Undertake appropriate development to associate with the claims file any outstanding VA treatment records and any outstanding and identified private medical records that are pertinent to the remanded issues. All efforts to obtain such records should be documented in the claims file. 3. Undertake appropriate development to verify all periods of the Veteran's service, to include active duty for training, inactive duty for training, or active duty for special work in the U. S. Air Force Reserve or in the Air National Guard of any state. All available reports/records corresponding to such periods of ACDUTRA or INACDUTRA service should be associated with the claims folder. Efforts to locate the reports/records should continue until it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 4. Undertake appropriate development to obtain the complete service treatment records and service personnel records of the Veteran, to include for any service in the U.S. Air Force Reserve and for any National Guard or Air National Guard service in any state. Efforts to locate the reports/records should continue until it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 5. Schedule the Veteran for a medical examination with an appropriate clinician to determine the nature and etiology of any disorder of the left or right Achilles tendon at any time since the Veteran's claim was filed in October 2015, even if now resolved. The examiner must opine as to whether any such disorder at least as likely as not: a. Is caused, aggravated, or otherwise related to an in-service injury, disease, or event, to include the Veteran's account of an in- service injury to the Achilles tendon(s); b. Had its inception during service, to include active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA); c. Manifested during active service or within one year after discharge from service; or d. Was noted during service or within one year after discharge from service such that the condition was not shown to be chronic at that time or a diagnosis of chronicity could be legitimately questioned, and there was a continuity of the same symptomatology since service Notify the examiner that the Veteran, as a layperson, is competent attest to matters based on personal knowledge, not medical expertise, as they come to a person through his or her senses, including observable or experienced symptoms. Notify the examiner that the scope of the Veteran's Achilles tendon claim includes any disability that may reasonably be encompassed by the description of the claims, reported symptoms, and the other information of record. Notify the examiner that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A rationale is required for all opinions in the report. 6. Schedule the Veteran for a medical examination with an appropriate clinician to determine the nature and etiology of any left foot disorder, to include left foot (second toe) Morton's neuroma, at any time since the Veteran's claim was filed in October 2015, even if now resolved. The examiner must opine as to whether any such disorder at least as likely as not: a. Is caused, aggravated, or otherwise related to an in-service injury, disease, or event, to include the Veteran's account of an in- service injury to the left foot; b. Had its inception during service, to include active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA); c. Manifested during active service or within one year after discharge from service; or d. Was noted during service or within one year after discharge from service such that the condition was not shown to be chronic at that time or a diagnosis of chronicity could be legitimately questioned, and there was a continuity of the same symptomatology since service. Notify the examiner that the Veteran, as a layperson, is competent attest to matters based on personal knowledge, not medical expertise, as they come to a person through his or her senses, including observable or experienced symptoms. Notify the examiner that the scope of the Veteran's left foot claim includes any disability that may reasonably be encompassed by the description of the claim, reported symptoms, and the other information of record. Notify the examiner that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A rationale is required for all opinions in the report. 7. Schedule the Veteran for a medical examination with an appropriate clinician to determine the nature and etiology of any disorder of the left knee and/or right knee at any time since the Veteran's claim was filed in October 2015, even if now resolved. The examiner must opine as to whether any such disorder(s) at least as likely as not: a. Is caused, aggravated, or otherwise related to an in-service injury, disease, or event, to include the Veteran's account of an in- service injury to the knee(s); b. Had its inception during service, to include active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA); c. Manifested during active service or within one year after discharge from service; or d. Was noted during service or within one year after discharge from service such that the condition was not shown to be chronic at that time or a diagnosis of chronicity could be legitimately questioned, and there was a continuity of the same symptomatology since service. Notify the examiner that the Veteran, as a layperson, is competent attest to matters based on personal knowledge, not medical expertise, as they come to a person through his or her senses, including observable or experienced symptoms. Notify the examiner that the scope of the Veteran's knee claims includes any disability that may reasonably be encompassed by the description of the claims, reported symptoms, and the other information of record. Notify the examiner that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A rationale is required for all opinions in the report. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Steven D. Najarian, 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.