Citation Nr: 21011422 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 17-20 496 DATE: March 1, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a right foot disorder is granted. Entitlement to service connection for a left foot disorder is granted. REMANDED Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. FINDING OF FACT Tinnitus as well as right and left foot disorders, diagnosed as gouty arthritis, had their onset in service. CONCLUSION OF LAW The criteria for service connection for tinnitus as well as right and left foot disorders, diagnosed as gouty arthritis, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Air Force from January 1954 to May 1974. In September 2019 the Veteran had a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the file. In December 2019 the Board of Veterans’ Appeal (Board), among other things, denied the Veteran’s claims of service connection for tinnitus, right and left foot disorders, and right and left knee disorders. As to the claims of service connection for tinnitus, right and left foot disorders, and right and left knee disorders, the Veteran appealed the December 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 order, which incorporated the parties Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the Board decision to the extent that it denied these claims. Lastly, the Board notes that additional VA treatment records dated from 2017 to 2020 were added to the claims file since the RO issued the December 2019 decision. However, the Board finds that it may adjudicate these claims without first obtaining a waiver of agency of original jurisdiction (AOJ) review of these records or remanding for AOJ review because the Veteran will not be prejudiced by this adjudication because the below decision is grating service connection for tinnitus as well as the right and left foot disorders. The Service Connection Claims Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Tinnitus The Veteran asserts, in substance, that service connection is warranted for his tinnitus because they were caused by acoustic trauma due to his exposure to aircraft engine and aircraft weapons noise as a weapons technician while in the United States Air Force for 20 years. As to a current disability, the record shows the Veteran being diagnosed with tinnitus. See, e.g., VA examination dated in December 2014. Next, the Board notes that the Veteran’s DD 214 and service personnel records list his occupational specialty as first a weapons mechanic and later a weapons technician. Additionally, service treatment records document the Veteran’s complaints and treatment for left ear pain in March 1974. Similarly, an audiological examination in April 1964 noted that the Veteran had jet power unit noise exposure, in February 1965 noted that he had aircraft noise exposure, in October 1966 reported that his principle work area is the flight line, in December 1967 reported that his principle work area is the hanger shop, and in November 1969 noted that he had jet aircraft noise exposure. Moreover, the Board finds the Veteran both competently and credibly reported being exposed to aircraft engine and weapons noise as first a weapons mechanic and later a weapons technician in the United States Air Force for 20 years. See Davidson, supra. Furthermore, the Board notes that the RO has already granted the Veteran service connection for bilateral hearing loss in a January 2015 rating decision based on the same acoustic trauma reported above. Given this record and granting the Veteran the benefit of any doubt in this matter, the Board concludes that the Veteran had an injury (i.e., acoustic trauma) while on active duty. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. Further, given the nature of the Veteran’s service (i.e., being exposed to aircraft engine and weapons noise while serving in the United States Air Force as first a weapons mechanic and later a weapons technician for 20 years) it is reasonable for the Board to find that he had problems with ringing in his ears during and since service. See Davidson, supra; Owens, supra. On the other hand, the December 2014 VA examiner opined that the Veteran’s tinnitus was not due to his military service. However, the examiner did not appear to take into account the Veteran’s competent and credible claims of being exposed to aircraft engine and weapons noise while serving in the United States Air Force as a weapons mechanic and later a weapons technician for 20 years with documented jet aircraft engine/flight line noise exposure as well as the reports of ear pain. See Davidson, supra. Therefore, because symptoms of tinnitus in and since service are observable by a lay person and because the examiner did not appear to consider the Veteran’s competent and credible lay claims of observable adverse symptomatology, the Board finds that the VA examiner’s negative etiology opinion is not credible. See Madden v. Gober, 125 F.3d. 1477, 481 (Fed. Cir. 1997) (holding that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (“the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators. Therefore, the Board finds that the question of whether the Veteran’s tinnitus had continued since service is in equipoise and with affording him the benefit of the doubt the Board concludes that it did and service connection is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. Accordingly, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The right and left foot disorders The Veteran claims he has right and left foot disorders due to his military service. As to current disabilities, the record shows the Veteran being diagnosed with right foot gouty arthritis (see, e.g., treatment records from Healthsouth Rehabilitation Hospital of Arlington dated in December 2012) and left foot gout (see, e.g., VA treatment records dated in March 2014, March 2017, and April 2018). Next, the Board notes that while neither noted in the JMPR or the earlier Board decision, a further detailed review of the Veteran’s 20 years of service medical records reveals a July 1961 record that shows his being seen for “gout” in a big toe; albite, without identifying the toe. Moreover the Board finds, and as noted in the JMPR, that the Veteran is both competent and credible to report/testify on observable symptoms of his right and left foot disorders to include the pain caused by what would later be diagnosed as gout. See Davidson, supra. Given this record and granting the Veteran the benefit of any doubt in this matter, the Board concludes that he had a right and left foot disease or injury (i.e., gout) while on active duty. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. Further, given the nature of the Veteran’s documented in-service disease or injury (i.e., gout in a big toe) and the current diagnosis of gouty arthritis in the right and left foot, the Board finds that the question of whether his right and left foot gouty arthritis is the same gout that he was first diagnosed while on active duty and had continued since service is in equipoise. Given the above record and with affording him the benefit of the doubt, the Board concludes that they did. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Davidson, supra; Owens, supra; Gilbert, supra. Accordingly, the Board finds that service connection for right and left foot disorders diagnosed as gouty arthritis are warranted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS FOR REMAND Entitlement to service connection for right and left knee disorders are remanded. As to the claims of service connection for right and left knee disorders, the JMPR vacated and remanded the December 2019 Board decision because the September 1976 VA medical opinion it relied upon when adjudicating the claim was not adequate. Specifically, the JMPR found the VA opinion inadequate because, while the examiner opined the knee disorders were not due to his military service, the examiner did not opine as to the cause of the knee disorders. As a rule, the Board does not attempt to determine what caused a disability. The key issue is if the disability is at least as likely as not the result of service, nothing more. The cause of any problem is sometimes very unclear. Therefore, while the Board cannot divine why a VA examiner is being required to provide an opinion as to whether a disability is due to military service and, if not, what caused the disability, it nonetheless finds that the JMPR compels the Board to remand these claims to obtain new etiology opinions. See 38 U.S.C. § 5103A(d); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled). While these issues are in remand status, any outstanding VA and private treatment records should also be obtained and associated with the record on appeal. See 38 U.S.C. § 5103A(b). These issues are REMANDED for the following actions: 1. Obtain from the Veteran authorizations to obtain any outstanding private medical records. If possible, the Veteran himself should submit any pertinent evidence the Board/VA does not have. 2. Obtain and associate with the claims file any other outstanding VA treatment records. 3. In order to comply with the JMPR, provide the Veteran with a VA examination to obtain a medical opinion as to origins of his right and left knee disorders. The claims folder should be made available to and reviewed by the examiner. Following consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: i. Provide diagnoses for all right and left knee disorders. ii. As to all diagnosed right and left knee disorders, provide an opinion as to whether it is at least as likely as not that it had its onset directly during the Veteran’s service or is otherwise related to any event or injury during his service. iii. If arthritis is diagnosed in either knee, provide an opinion as to whether it manifested in the first post-service year. iv. In order to comply with the JMPR, provide an opinion as to the most likely etiology as to each right and left knee disorder that it is opined is not due to the Veteran’s service. In providing answers to the above questions the examiner should consider and discuss, among other things, the Veteran’s competent lay claims regarding observable symptomatology. In providing answers to the above questions the examiner should consider and discuss the service treatment records including the August 1968 record that documented the Veteran’s treatment for right knee pain diagnosed as a sprain. In providing answers to the above questions the examiner is also advised 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 conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In answering the question please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation he or she should so state and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.