Citation Nr: A21020290 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 191030-45355 DATE: December 21, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a low back disability is granted. Entitlement to service connection for bilateral foot arthritis with hallux valgus is granted. Entitlement to service connection for bilateral trench foot is denied. REMANDED Entitlement to service connection for benign prostatic hypertrophy (BPH) (claimed as prostate condition) is remanded. FINDINGS OF FACT 1. Tinnitus is etiologically related to acoustic trauma sustained in active service. 2. The Veteran has a current back disability that is presumed to be etiologically related to his active service. 3. The Veteran has a current bilateral foot disability that is presumed to be etiologically related to his active service. 4. The Veteran did not have a diagnosis of trench foot during the appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1101, 1131, 1132, 1133 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 3. The criteria for service connection for bilateral foot arthritis with hallux valgus have been met. 38 U.S.C. §§ 1101, 1131, 1132, 1133 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 4. The criteria for entitlement to service connection for bilateral trench foot has not been met. 38 U.S.C. §§ 1131, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps (USMC) from October 1979 to August 1983. In November 2018, the Veteran opted into the Rapid Appeals Modernization Program (RAMP) and selected the Supplemental Claim lane. In January 2019, the Department of Veterans Affairs (VA) Regional Office (RO) issued a RAMP rating decision. Additionally, the RO issued an April 2019 rating decision denying entitlement to service connection for a bilateral foot condition to include trench foot. The Veteran timely appealed that RAMP rating decision and the April 2019 rating decision to the Board of Veterans' Appeals (Board) and requested a hearing with a Veterans Law Judge. In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2021. A transcript of that hearing has been associated with the claims file. 1. Tinnitus The Veteran has asserted that he has tinnitus that is etiologically related to noise exposure during active service. Specifically, the Veteran testified that he was exposed to gun fire, howitzers, and tanks while in service. He testified that he was attached to an artillery regiment called the 11th Marines. A review of the Veteran's DD Form 214 shows that the Veteran served with the 11th Marines, and that he received a rifle marksman badge. Therefore, the Board finds that the Veteran's reported noise exposure during active service is consistent with the facts and circumstances of his service. Accordingly, the Board concedes that the Veteran sustained acoustic trauma during active service. Service treatment records (STRs) do not show that the Veteran had tinnitus at any time during his active service. However, the Veteran is competent to report that he first experienced symptoms of tinnitus while he was in active service and that those symptoms have continued since that time. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible in that respect. The Veteran was afforded a May 2017 VA audiology evaluation. The Veteran reported recurrent tinnitus. The VA examiner opined that the Veteran's tinnitus was less likely than not caused by the military noise exposure. In this regard, the examiner noted that the Veteran stated that the onset of his tinnitus was approximately 20 years prior to the examination, that the Veteran did not link the onset of his tinnitus to service, and that in-service documentation of a complaint of tinnitus could not be located in the Veteran's file. The Board finds the May 2017 VA audiology opinion to be inadequate for adjudication purposes. The examiner did not give appropriate consideration to the Veteran's lay statements regarding in-service noise exposure, and the onset and continuity of his symptoms. As the opinion is not adequate, it cannot serve as the basis of a denial of entitlement to service connection. In that regard, a review of the record shows that the Veteran has consistently complained of tinnitus and stated that tinnitus onset in service. The Board notes that 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. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As noted, the Veteran is competent to identify tinnitus and his reports have been found credible. In sum, the Board has conceded acoustic trauma during active service. The Veteran has competently and credibly reported tinnitus during service, and since. The Veteran has a current diagnosis of tinnitus. The VA medical opinion of record is not probative. Accordingly, the Board finds that the evidence for and against the claim of entitlement to service connection for tinnitus is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Low back disability and bilateral foot arthritis The Veteran has asserted that he has a back disability, and foot arthritis with hallux valgus that originated in, and has continued since service. STRs show that the Veteran complained of back pain while in service. Specifically, the Veteran's STRs reflect that he had shooting pain in his thoracic latissimus while lifting weights. Ultimately, the Veteran was diagnosed with low back pain without neuropathy. The Veteran's STRs also reflect that the Veteran complained of foot pain in service. The STRs reflect that the Veteran had pain, and severe blisters with loose skin of his bilateral feet. Further that there was debridement of tissue which was cleansed, soaked, and bandaged. The Veteran was placed on no duty for 48 hours. The Veteran testified that he complained of back pain and foot pain while in active service. He testified that he injured himself while lifting weights, and that he was treated with medication the next day. He testified that the pain continued, but that he was told that he was told to stop malingering when he requested to return to sick bay. After that, he testified that he did not return to sick bay again for his back disability. Further, he testified that he was told that he had a herniated disc while in service. Moreover, the Veteran testified that his back pain has continued since that time. Similarly, the Veteran testified that he injured his feet while on a training mission in Thailand. Specifically, that he had to march through water and grass which caused trench feet. Further, that he has experienced pain in his feet since that time. The Veteran is competent to report that he first experienced back and bilateral foot pain while in active service and that the symptoms have continued since that time. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible in that respect. A review of a November 2016 private post-service treatment record documents X-ray findings of arthritis in the Veteran's back, and mild osteoarthritis changes in his bilateral feet. Further, November 2017 and December 2017 private doctors opined that the Veteran's back disability was related to service. In that regard, the doctors stated that they treated the Veteran for his back disability, that he was initially injured during military service, and that he continued to have significant chronic back pain. Moreover, the doctors stated that the Veteran had facet arthropathy which developed at an accelerated rate due to his time in service. In May 2017, a VA examiner noted the diagnoses of degenerative disc disease of the lumbar spine, and degenerative arthritis of both feet. She opined that it was less likely than not that the Veteran's low back and bilateral feet arthritis was incurred in or caused by the claimed in-service injury, event, or illness. In support of that opinion, the examiner stated that the STRs show one visit for low back pain without neuropathy, and there was no further mention of back pain in service. Further, that VA treatment records document a visit for back pain in June 2004, but that there was no medical evidence to support that the Veteran's current lumbar condition was incurred in service. Likewise, she stated that the STRs show one visit for blisters of the feet during service, and there is no further mention of foot pain in service. That there was no medical evidence to suggest the Veteran's current mild bilateral foot arthritis was caused by service. The Board finds the May 2017 medical opinions to be inadequate for adjudication purposes. In this regard, the examiner did not adequately explain why the Veteran's back pain did not develop into disc degeneration considering the Veteran's continuity of symptomatology, nor did she adequately explain why his foot pain did not develop into arthritis considering the Veteran's continuity of symptomatology. Indeed, it appears that the examiner relied on the finding that the Veteran did not have a diagnosis of low back and bilateral foot arthritis while in active service. As the opinions are not adequate, they cannot serve as the basis of a denial of entitlement to service connection. The Board notes that for certain chronic diseases, set forth in 38 C.F.R. § 3.309 (a), such as arthritis, continuity of symptoms is required when the condition noted in service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. §§ 3.303 (b), 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, the Veteran has competently identified that his low back pain and bilateral foot pain began in service and has continued since that time, and those statements have been found credible by the Board. While the Veteran is not competent to establish a diagnosis of arthritis, as that requires medical imaging and a medical opinion, his statements of continuity of low back pain and bilateral foot pain are sufficient to establish a link between his current diagnoses of arthritis and his in-service treatment for low back and bilateral foot pain. Arthritis is a chronic disease, and the Veteran has competently and credibly attested to the continuity of symptomatology of low back and bilateral foot pain, which was immediately noted during service and later diagnosed. Accordingly, the Board finds that the evidence for and against the claim of entitlement to service connection for a back disability and for bilateral foot arthritis with hallux vagus is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for a back disability and bilateral foot arthritis with hallux valgus is warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Trench foot The Veteran seeks entitlement to service connection for bilateral trench foot. Specifically, that he developed trench foot while walking through wet conditions in Thailand. As discussed above, STRs do note that the Veteran had pain, and severe blisters with loose skin of his bilateral feet. However, a review of the post-service medical evidence does not show the Veteran was diagnosed with bilateral trench foot. While the Veteran has testified that he continues to have sensitive, scaly feet that never returned to their original form after his in-service foot complaints; there is no medical evidence of record indicating a diagnosis of trench foot during the appeal period. A diagnosis of such requires medical expertise, clinical testing, and knowledge that are outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide a diagnosis in this case. At a May 2017 VA examination, the examiner noted diagnoses of bilateral hallux valgus, and foot arthritis. Additionally, she noted that the Veteran had a history of a torn left achilles tendon status post-surgical repair. Notably, the Veteran was not diagnosed with trench foot. For a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during, or proximate to, the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Here, there is no evidence of record showing the Veteran to have a diagnosis of trench foot at any time during the current appeal. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the preponderance of the evidence is against the claim and entitlement to service connection for bilateral trench feet is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Benign prostatic hypertrophy (BPH) (claimed as prostate condition). The Veteran has asserted that his prostate disability was related to his low back disability. In the above decision, the Board granted service connection for the Veteran's back disability. In light of the above decision, the Veteran's statements, and his current diagnosis of benign prostatic hypertrophy, the Board concludes that the Veteran should be afforded a VA examination to determine the nature and etiology of any current prostate disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: Schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of any current prostate disability. The examiner should review the claims file and indicate that review in the report. Any indicated studies should be performed. (Continued on the next page) The examiner should opine as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's prostate disability is caused or chronically worsened by service-connected lumbar spine disability. The rationale for all opinions expressed must be provided. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Cannaday, 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.