Citation Nr: 21005930 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-16 132 DATE: February 2, 2021 ORDER Entitlement to service connection for a right foot condition, claimed as residuals of fracture, is DENIED. REMANDED Entitlement to service connection for bilateral hearing loss is REMANDED. Entitlement to service connection for tinnitus is REMANDED. Entitlement to service connection for diabetes is REMANDED. FINDING OF FACT The weight of the evidence is against a finding that the Veteran’s currently diagnosed right foot disabilities either began during, or were otherwise caused by, her active duty service in the United States Air Force. CONCLUSION OF LAW The criteria for entitlement to service connection for a right foot disability have not been satisfied. 38 U.S.C. §§ 1101, 1131, 1133, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Air Force from July 1965 to November 1966. The Veteran had periods of ACDUTRA or INACDUTRA in the Air National Guard from 1981 to 1990. 1. Entitlement to service connection for a right foot condition, claimed as residuals of fracture, is denied. In August 2014, the Veteran submitted a VA Form 21-526EZ. Thereby, the Veteran initiated a claim for service connection for a right foot condition. Service connection may be established for disability resulting from personal injury suffered or disease contracted while in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In each case where service connection for any disability is sought, due consideration shall be given to the places, types, and circumstances of the Veteran’s service as shown by the Veteran’s service record, the official history of each organization in which the Veteran served, the Veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In August 2014, an OBGYN Note was generated in the Central Texas Healthcare System (HCS). Therein, the Veteran reported right foot pain that resulted from a fracture during military service. The Board notes that, throughout the appellate period, the Veteran has stated that her right foot is painful. The Veteran is competent to report this pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the Board notes that while the Veteran is competent to relay the right foot symptoms that she has observed during the course of her claimed disability, she is not competent to identify the etiology for her current right foot disability. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (citing Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992)). In March 2015, correspondence from VA was associated with the Veteran’s claims file. Therein, VA notified the Veteran that it was unable to locate the service treatment records (STRs) for the active duty period, July 1965 to November 1966. The VA relayed that it had exhausted efforts to obtain the STRs for this period, and any further attempts to locate the records would be unsuccessful. Importantly, the Board notes that the Veteran’s active duty STRs have not been obtained and/or associated with the electronic claims file. Where service records have been lost or destroyed through no fault of the Veteran, the United States Court of Appeals for Veterans Claims (Court) has held that there is a heightened obligation on the part of VA to assist the appellant in pursuit of their claim, including a duty to inform the appellant that she can submit “alternative” sources of evidence in place of the missing service records. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); see also Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992). Moreover, the Board has a heightened obligation to explain its findings and conclusions and to carefully consider the benefit-of-the-doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). Although case law does not lower the legal standard for proving a claim of service connection, it does increase the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Furthermore, there is no presumption, either in favor of the Veteran or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). In April 2015, the Veteran submitted a notice of disagreement (NOD). Therein, the Veteran relayed that she injured the right foot while on active duty in 1965-1966. The Veteran relayed that a cast was applied to the right foot at the military hospital on Maxwell Air Force Base. In August 2015, the Veteran submitted a NOD. Therein, the Veteran posited that a right foot condition was diagnosed while she was on active duty. In February 2016, a Report of General Information was associated with the claims file. Therein, the Veteran relayed that she did not have any service treatment records (STRs) for 1965 to 1966, which is when she injured her right foot during active duty in the United States Air Force. In May 2016, the Veteran submitted a VA Form 21-4138. Therein, the Veteran posited that, “I cracked my right foot playing softball while stationed at Maxwell AFB in Alabama. I wore a cast for 2 wks. There are no records of this.” In the April 2018, the Veteran supplied sworn testimony to the undersigned Veterans’ Law Judge (VLJ). The Veteran testified that she broke her foot playing softball on active duty. The Veteran testified that she wore a cast for 10 days; the cast was applied on Maxwell Air Force Base. The Veteran testified that she used a crutch for a couple of weeks after the cast was removed. In October 2018, the Board considered the Veteran’s claim for service connection for a right foot disability. At that time, the Board remanded the claim to the agency of original jurisdiction (AOJ) for additional development. In October 2019, the Veteran underwent a VA examination that considered the nature and etiology of currently endured foot conditions. The VA examiner noted diagnoses for pes planus, a 2014 right foot fracture, and a 2019 sprain post-fracture. The Veteran relayed that she was casted for a right foot fracture in 1965 – 1966. The Veteran relayed that she could not walk to far due to right foot pain. The VA examiner opined that the Veteran’s right foot condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury or event. The VA examiner supplied the following rationale: “(a)ccording to Veteran's C-file, the earliest mention of a right foot fracture causing strain is in 2014 during an OB GYN visit. There is no mention of a fracture prior to that office visit. The is no evidence that the fracture or injury occurred while in service. Veteran's x-ray imaging is normal and state that there is no evidence of a fracture or abnormality. Veteran has a diagnosis of (a) right foot condition, claimed as residuals of fracture that did not incurred in or caused by (the) fractured right foot playing softball in 1965 to 1966 during service.” The record reflects that the Veteran currently maintains diagnoses for a 2014 right foot fracture and a 2019 sprain post-fracture. Despite the lack of in-service, active-duty STRs, the Board finds that the Veteran incurred a right foot injury during a softball game while on active duty service in the United States Air Force. Consequently, the first and second elements for direct service connection have been substantiate. See Hickson, 12 Vet. App. at 253. However, the claims file is devoid of a competently identified nexus between the Veteran’s conceded in-service right foot injury and her current right foot disabilities. Consequently, the third and final requisite element for direct service connection has not been substantiate. See id. Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran’s claim for service connection for a right foot disability. Since the preponderance of the evidence is against this service-connection claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran’s claim of entitlement to service connection for a right foot disability must be denied, because the preponderance of the evidence weighs against her claim. REASONS FOR REMAND Again, the Veteran served honorably in the United States Air Force from July 1965 to November 1966. The Veteran was an administration specialist during active duty service. The Veteran had periods of ACDUTRA or INACDUTRA in the Air National Guard service from 1981 to 1990. The Veteran was a personnel technician and information management specialist during Air National Guard duty. After deliberate review of the Veteran’s military personnel records, the Board finds that the Veteran did not serve in a combat-arms military specialty, and she did not receive the Combat Infantry Badge (CIB). Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran’s service to her country, a remand is necessary to ensure VA provides the Veteran with appropriate assistance in developing her claims prior to final adjudication. 2. Entitlement to service connection for bilateral hearing loss and tinnitus is remanded. In August 2014, the Veteran submitted a VA Form 21-526EZ. Thereby, the Veteran initiated claims for service connection for bilateral hearing loss and tinnitus disabilities. In April 2015, the Veteran submitted a NOD. Therein, the Veteran posited that, “in 1980, I was stationed in Ellington AFB. My duty states was located in the airplane hanger.” In May 2016, the Veteran submitted a VA Form 21-4138. Therein, the Veteran posited that, “at Ellington ANG, my office was located in the hanger. The planes roared all day. I lost some of my hearing later.” In the April 2018, the Veteran supplied sworn testimony to the undersigned VLJ. The Veteran testified that, during reserve service, her office was located adjacent to the flight line for seven or eight years. The Veteran relayed that, during her reserve service period, she had exposure to hazardous noise on a regular basis. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty training (ACDUTRA), or for injury incurred in or aggravated in the line of duty while performing inactive duty training (INACDUTRA). 38 U.S.C. §§ 101 (24), 106 (West 2014); 38 C.F.R. § 3.6 (2020). ACDUTRA, among other things, is full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c) (1). It usually covers the two weeks of training done during each summer (“summer camp”), whereas INACDUTRA generally encompasses the one weekend of training done each month (“weekend warrior” training). When a claim is based on a period of INACDUTRA, there must be evidence that the individual concerned died or became disabled as a result of an injury incurred or aggravated in the line of duty (unless the claim involves myocardial infarction, cardiac arrest, or cerebrovascular accident which occurred during such training, which are not at issue in this appeal). In the absence of such evidence, the period of INACDUTRA would not qualify as “active military, naval, or air service.” The Board has reviewed the Veteran’s military personnel records (MPRs) and available service treatment records (STRs). After deliberate review, the Board notes that the Veteran did not receive a line of duty (LOD) for any hearing injury or disability during her service in the Air National Guard. In October 2018, the Board considered the Veteran’s claims for service connection for bilateral hearing loss and tinnitus. At that time, the Board remanded the Veteran’s claims to the AOJ in order to obtain a VA examination report that addressed the nature and etiology of any hearing loss and/or tinnitus currently endured by the Veteran. In October 2019, the Veteran underwent a VA examination that addressed the nature and etiology of any currently endured hearing loss and tinnitus. At that time, the Veteran demonstrated the following audiometric values: HERTZ OCT ‘19 500 1000 2000 3000 4000 RIGHT 60 55 65 70 75 LEFT 60 70 80 90 95 Additionally, the Veteran demonstrated 92 percent speech recognition values, bilaterally. The VA examiner identified bilateral sensorineural hearing loss. The VA examiner relayed that, “(e)ntrance exam showed normal hearing. There was no audiogram at separation located in the claims file reviewed. Veteran reports a decrease in hearing during active duty. Noise exposure on active duty is conceded. The hearing loss noted on today's examination is consistent with noise induced hearing loss and is beyond the normal progression for age. There is no evidence to confirm or deny a significant shift in hearing thresholds or auditory damage from conceded noise. In the absence of proof otherwise the opinion will favor the Veteran: Therefore, the hearing loss is at least as likely as not related to acoustic trauma from military noise.” The VA examiner remarked that the Veteran complained of hearing loss and ringing in both ears with onset in 1990. The VA examiner noted that the Veteran’s noise exposure included explosions, firearms, aircraft noise, an office in a hanger, and heavy equipment. The VA examiner opined that tinnitus was at least as likely as not (50% probability or greater) caused by or a result of military noise exposure. The VA examiner supplied the following rationale: “(t)he Veteran was exposed to excessive noise during service as indicated by conceded noise on active duty. Onset of tinnitus is reported to be on active duty. Excessive noise exposure is known to cause tinnitus; therefore it is at least as likely as not a result of military noise exposure.” The VA examiner relayed that, “(t)he veteran did work as a clerk near the flight deck with a low probability for hazardous noise. Separation exam in 1975 indicates a DD214 MOS with high probability for hazardous noise.” The VA examiner also relayed that, “(h)earing loss results are consistent while in the service. 1971 separation exam indicates normal hearing and no complaint of tinnitus with a low probability for hazardous noise as the MOS listed as a clerk typist. The Entrance exam in 1972 indicates normal hearing with no complaints of hearing loss and/or tinnitus. The separation exam in 1975 indicates a normal to mild bilateral hearing loss with a DD214 MOS high probability for hazardous noise, Army Infantryman, receipt of combat infantry badge.” In September 2020, an Addendum Report was associated with the claims file. Therein, the VA examiner was asked to address the prior report of infantry service and the award of the CIB. The VA examiner clarified with, “(t)he last current service dates 08/81 - 09/90 indicate normal hearing at time of start date 08/81 and no discharge test for audiometry. She was stationed at Ellington Air National Guard working in hanger repairing airplanes in the civil engineering for 7 years. That would indicate the service member was exposed to hazardous levels of noise in the service.” The October 2019 and September 2020 VA examiner based the opinions on conceded noise exposure. The Veteran’s exposure to hazardous noise has not been conceded and/or presumed. The VA-generated list on hazardous duty noise exposure does identify multiple aircraft occupational specialties with a high probability of hazardous noise exposure. However, the Veteran’s occupational specialties during active duty and reserve service all have a low probability of hazardous noise exposure. On active duty, the Veteran was an administration specialist. In the Air National Guard, the Veteran was a personnel technician and information management specialist. The October 2019 and September 2020 VA examiner relayed that the Veteran was in the infantry and was awarded the CIB. The VA examiner also relayed that the Veteran worked in hanger repairing airplanes in the civil engineering for 7 years. The claims file does not support a finding that the Veteran’s service included either duty role, on active duty or in the Reserves. As the October 2019 and September 2020 VA examiner’s opinions were based on the fact that the Veteran endured conceded hazardous noise exposure during active duty and/or Reserve service, the Board finds that it was based on an inaccurate factual premise, which render the opinions inadequate. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on incomplete or inaccurate factual premise are not probative). Accordingly, on remand, an addendum opinion regarding the etiology of the Veteran’s current hearing loss and tinnitus should be obtained. Barr v. Nicholson, 21 Vet. App. 303, 31 (2007). 3. Entitlement to service connection for diabetes is remanded. In April 2015, the Veteran submitted a VA Form 21-526EZ. Thereby, the Veteran initiated a claim for service connection for diabetes mellitus, Type II. In August 2015, the Veteran submitted a NOD. Therein, the Veteran posited that diabetes mellitus was diagnosed while she was on active duty. In February 2016, a Report of General Information was associated with the claims file. Therein, the Veteran relayed that diabetes was initially diagnosed during service in the Air National Guard. The Veteran relayed that the diabetes accompanied her inability to lose weight/maintain weight standards. In May 2016, the Veteran submitted a VA Form 21-4138. Therein, the Veteran posited that, “I entered the military weighing 98 lbs. They said I need to gain weight. I developed diabetes and was downhill from there on.” In the April 2018, the Veteran supplied sworn testimony to the undersigned VLJ. The Veteran testified that she gained approximately 55 pounds during basic training. However, the Veteran testified that diabetes was initially identified during her service in the Reserves in the 1990s. In October 2018, the Board considered the Veteran’s claim for service connection for diabetes mellitus. At that time, the Board remanded the Veteran’s claim to the AOJ in order to secure a VA examination report that addressed the etiology of any currently diagnosed diabetes mellitus. The Board specifically directed the VA examiner to address the following: “(t)he examiner should also opine whether diabetes at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner should also opine whether the Veteran’s diabetic condition noted in the STRs from 1989 to 1990 resolved completely prior to separation from service in September 1990 . . ..” In September 2019, the Veteran’s private medical treatment records were associated with the claims file. After review, the Board notes that a diagnosis for uncontrolled diabetes mellitus, Type II was reported on multiple occasions. However, the treatment records do not address the etiology of the Veteran’s current diabetes. In October 2019, the Veteran underwent a VA examination that addressed the nature and etiology of any currently endured diabetes mellitus. The VA examiner noted an initial diagnosis for diabetes mellitus in 1990. The VA examiner relayed that, “(t)hroughout C-file it states that Veteran was diagnosed in 1990 but does not state the lab values that had confirmed her diagnosis. No such information found in C-file.” The VA examiner remarked that, “(u)nable to find records that meet VA criteria of two fasting blood glucose levels of 126 or greater, or 2 Hgb A1C levels >6.5. However, going through the Veteran's claims file, there is sufficient documentation of continued treatment for diabetes over the years. Therefore rendering a diagnosis of diabetes day of exam.” The VA examiner opined that the current diabetes mellitus was less likely as not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner supplied the following rationale: “Veteran claims the diagnosis of diabetes came about due to the fact that she wanted to lose weight and even after trying she couldn't. At that point in time she got blood work done which diagnosed her with Diabetes Type II.” The VA examiner also relayed that, “(d)iabetes began no earlier then 1990 per C-file and Veteran. Veteran does not mention or complain about any weight that she had gained during service. She does state that she has a strong family history of Diabetes Type II. There is no mention of Diabetes resolving prior to separation from service in C-file.” The Board notes that he Veteran’s available STRs show that she was initially diagnosed with diabetes during her time in the Air National Guard. In February 1990, the Veteran’s command ordered that the she undergo a Medical Evaluation Board to determine if she should be released from service because of her diabetes. The Board notes that strict compliance with remand directives is not an absolute necessity; however, substantial compliance is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Since the Board’s analysis for this service connection claim requires a competent medical opinion on the etiology of the Veteran’s current diabetes, the October 2019 VA examiner’s failure to address the continuity, if any, of the Veteran’s symptoms after the in-service / Reserves diagnosis for diabetes renders the opinion inadequate and non-compliant. On remand, the AOJ must secure a VA examination report that adequately addresses the etiology of the Veteran’s current diabetes mellitus, Type II. Consequently, the matters are REMANDED to the AOJ for the following action(s): 1. If available, an addendum opinion should be secured from the October 2019 and September 2020 VA examiner. The addendum must address the nature and etiology of the Veteran’s currently endured hearing loss and tinnitus. The claims file should be made available to, and be reviewed by, the examiner, and it should be confirmed that such records were reviewed. The examiner should: (a) For the current bilateral ear hearing loss, indicate whether the disability is at least as likely as not (a 50 percent probability or greater) related to the Veteran’s active duty or Reserve service. (b) For the current tinnitus, indicate whether the disability is at least as likely as not (a 50 percent probability or greater) related to the Veteran’s active duty or Reserve service. An explanation for all opinions expressed must be provided. All opinions must take into account the Veteran’s own history and contentions. The VA examiner should note the following: a. The Veteran’s active duty service period was from July 1965 to November 1966. b. The Veteran’s claims file does not contain a line of duty (LOD) determination for a hearing injury or disability during Air Force National Guard service. c. On active duty, the Veteran was an administration specialist. d. As a Reservist, the Veteran was a personnel technician and information management specialist on the Ellington Air National Guard base. e. The MPRs do not reflect aircraft maintenance or civil engineering were among the Veteran’s military specialties. f. The Veteran was not in an infantry unit, and she did not receive a Combat Infantry Badge (CIB). If the VA examiner has or obtains evidence that conflicts with these facts, the evidence should be cited and associated with the claims file for review and consideration. 2. If available, the October 2019 VA examiner must supply and addendum report. The claims file should be made available to, and be reviewed by, the examiner, and it should be confirmed that such records were reviewed. The examiner should: For the current diabetes mellitus, indicate whether the disability is at least as likely as not (a 50 percent probability or greater) related to the Veteran’s military service. The VA examiner must address the continuity, if any, of the Veteran’s diabetes mellitus from the diagnosis in the Air National Guard / Reserves to present. An explanation for all opinions expressed must be provided. All opinions must take into account the Veteran’s own history and contentions. 3. The AOJ must ensure that the examination reports requested above are in compliance with the directives of this remand. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures at once. 4. After completing the above development, the AOJ should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the claims for service connection for bilateral hearing loss and tinnitus. If the benefits sought are not granted, the AOJ must then issue a Supplemental Statement of the Case (SSOC) and allow   the Veteran and her representative an opportunity to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board RLBJ, 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.