Citation Nr: 21014874 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 15-32 616 DATE: March 16, 2021 ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for a right foot disability (claimed as loss of feeling in the dorsal/digital arteries). 3. Entitlement to service connection for a left foot disability (claimed as loss of feeling in the dorsal/digital arteries). 4. Entitlement to service connection for a right knee disability. 5. Entitlement to service connection for a left knee disability. ORDER Entitlement to service connection for tinnitus is denied. Entitlement to service connection for a right foot disability (claimed as loss of feeling in the dorsal/digital arteries) is denied. Entitlement to service connection for a left foot disability (claimed as loss of feeling in the dorsal/digital arteries) is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. FINDINGS OF FACT 1. The Veteran’s tinnitus, which was not diagnosed until many years after service, is not shown to be causally or etiologically related to any disease, injury, or incident in service. 2. The Veteran’s right foot disability (claimed as loss of feeling in the dorsal/digital arteries) is not shown to be causally or etiologically related to any disease, injury, or incident in service. 3. The Veteran’s left foot disability (claimed as loss of feeling in the dorsal/digital arteries) is not shown to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 2. The criteria for entitlement to service connection for a right foot disability have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 3. The criteria for entitlement to service connection for a left foot disability have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Cost Guard from May 1988 to April 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in October 2018 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran’s claims file. The Veteran’s claims were previously before the Board in March 2019, and more recently in August 2020, when they were remanded for further development and adjudication. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § § 3.303(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In deciding the Veteran’s claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for tinnitus. The Veteran has claimed that his tinnitus is related to his active duty service. In addition to service connection on a direct basis, service connection for tinnitus can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303 (b). For a chronic disease to be considered to have been “shown in service,” there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. Turning to the first criteria, the Veteran has claimed that he has a diagnosis of tinnitus, as he experiences a “ringing in his ear.” See October 2018 Board Hearing. The Veteran is competent to report that he has a diagnosis of tinnitus. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Thus, the first criteria has been met, in that the Veteran has a current diagnosis of tinnitus. 38 C.F.R. § 3.303. Turning to the second criteria, and as discussed in the Board’s August 2020 remand, the Veteran has argued that while on active duty service he was a part of the search and rescue crew of the U.S. Coast Guard, and he was subjected to loud noises from the engines, and that he has experienced constant ringing since that time. He also testified during his hearing October 2018 that he was a part of the Presidential Honor Guard, and that in that capacity he had to fire weapons without adequate hearing protection. The Board has also previously conceded this acoustic trauma, as the Veteran’s DD Form 214 indicates service in the Honor Guard, and that he received the Sharpshooter pistol ribbon. See August 2020 Board Decision. Thus, the second criteria has also been met. 38 C.F.R. § 3.303. As it relates to the third criteria, the Board is reminded that in the August 2020 Board Decision, it was determined that a March 2020 VA examination was inadequate. That VA examination report provided a negative etiological opinion for the Veteran’s diagnosed tinnitus, however that opinion was solely based on the lack of in-service complaints of tinnitus, which was deemed an insufficient basis to base the negative rationale on. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Thus, the Veteran’s claim was remanded for a VA addendum opinion and another etiological opinion. That VA addendum opinion came in September 2020. The examiner noted the Veteran’s diagnosed tinnitus, and it is clear from the opinion provided that the claims file was reviewed. The examiner stated that the Veteran’s tinnitus was less likely than not incurred in or caused by the Veteran’s active duty service. The following rationale was provided: Entrance exam dated April 7, 1988 showed normal hearing bilaterally. Separation exam dated Feb 14, 1992 showed normal hearing bilaterally with no significant threshold shift from entrance. While noise exposure on duty is conceded with award of National Defense Service Medical, [Coast Guard] Sharpshooter Pistol Ribbon and [Coast Guard] Expert Rifle Medal, there is no evidence of permanent auditory damage on active duty and no nexus to relate current tinnitus to military noise. C-file and medical records are silent for tinnitus on active duty. Primary Care Provider document dated February 25, 2015 for Annual Employee Health Physical indicated patient did not complain of difficulty hearing or tinnitus. Research does not support late onset of noise-induced tinnitus. Given time from separation from active duty in 1992 to initial claim for tinnitus in late 2014 there is no nexus of auditory damage on active duty to relate current report of tinnitus to military noise exposure. As such, a negative etiological opinion was provided. There is no evidence that the VA examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the etiology of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board finds that the Veteran’s diagnosed tinnitus is not due to his active duty service. While the Veteran’s diagnosis has been confirmed, and the in-service acoustic trauma has also been conceded, the VA examiner’s report from September 2020 provided a negative etiological opinion. That opinion considered the Veteran’s hearing acuity on entrance, and at separation, and they also reviewed medical files that denied tinnitus through at least February 2014. The opinion noted research related to late onset of noise-induced tinnitus, and still provided a negative nexus opinion. Again, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson, Id. The Board has also afforded this report significant probative weight, and the Veteran’s claims file does not contain a positive etiological opinion. As such, the Board finds that the Veteran’s tinnitus is not due to or caused by his active duty service. 38 C.F.R. § 3.303. The Board also notes that, service connection for tinnitus is recognized as a chronic disease, which can be established through continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). While the Veteran stated that he first noticed ringing in his ears while on active duty, his medical records are silent for complaints from the time of his separation from service until his initial tinnitus claim, a period of over two decades. Moreover, in the February 25, 2015, Annual Employee Health Physical indicated the Veteran did not complain of tinnitus; this is evidence that tends to sever an alleged continuity of symptomatology. Thus, the Veteran’s claim for entitlement to service connection for tinnitus can also not be established through continuity of symptomatology. 38 C.F.R. § 3.309. In conclusion, entitlement to service connection for tinnitus is not warranted. 38 C.F.R. § 3.303(a). In reaching this conclusion, the Board finds that the preponderance of the evidence is against the claim. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for right and left foot disabilities (claimed as loss of feeling in the dorsal/digital arteries). The Board incorporates its discussion from the sections above by reference. The Veteran has claimed that his right and left foot disabilities are related to his active duty service. He has stated that his bilateral foot pain and loss of feeling may be due to him having to wear special shoes, with “a gear placed on the bottom of them,” while on duty with the Honor Guard. See October 2018 Board Hearing. As mentioned above, the Veteran’s claims were previously before the Board in August 2020. In that Board Decision, it was noted that the March 2020 VA examination was inadequate. While the examination did confirm the Veteran’s diagnosis of bilateral metatarsal numbness of the joints, also described as hammer toes, the examiner provided a negative etiological opinion that used the incorrect legal standard. The March 2020 examiner wrote that the Veteran’s bilateral hammertoes and metatarsal neuropathy to his feet “could not be stated with greater than 50 percent likelihood that they occurred or were the result of service.” The Board noted that the correct legal standard does not need a “greater than 50 percent likelihood,” but in fact requires that a diagnosed disability simply be “at least as likely as not” due to an in-service occurrence or injury. 38 C.F.R. § § 3.303(a). Following that Decision, the Veteran’s claims file has been updated to include an August 2020 private physician’s report from the Creekside Medical Clinic. The examiner noted that they were “asked to write a letter for the Veteran,” but it is unclear if this is the Veteran’s regular primary care physician. The examiner noted that the Veteran had medical concerns of “sensory deficits in his lower extremities,” in addition to weakness in his left upper extremity, chronic migraine headaches, and chronic low back pain. Etiological statements were provided for each of those disabilities, which the examiner likened to the Veteran’s “prolonged standing while performing Honor Guard duties and repetitive extreme impact forces during open water patrols in extreme weather conditions while in the Coast Guard.” The etiological opinion for the bilateral foot disabilities was the following: “these repetitive extreme impact forces also are a likely contributing factor to his chronic neuropathies in his lower extremities.” As such, a positive nexus opinion was provided. Chronologically, as the Veteran’s claim was remanded in August 2020, he was to be given a VA addendum opinion regarding his bilateral foot disabilities. That opinion was given in September 2020. The VA examiner reviewed the Veteran’s claims file. The examiner checked that the Veteran’s bilateral foot disability was less likely than not incurred in or caused by the Veteran’s active duty service. The following rationale was provided: There is no indication of a right foot disability in service. The separation exam dated 2/14/1992 indicates no right foot condition. The reports of symptoms to the foot since 1988 are subjective only and there is no documentation of these symptoms in service. There is no indication of current treatment for the claimed right foot disability. With no documentation of the onset during service and subjective reposts only of the right foot condition, it is less likely than not that the claimed right foot disability is due to onset or in relation to his time in service. A nexus has not been established. As such, a negative etiological opinion was provided. A similar opinion was provided for the Veteran’s left foot disability. The Board notes that this opinion was in part based on an apparent lack of “current treatment for the claimed” foot disabilities. The RO then requested another VA addendum opinion, as the September 2020 opinion intimated that they had “no indication of current treatment for the” foot disabilities. That updated opinion was given in December 2020, yet the examiner still wrote that the Veteran’s bilateral foot disabilities were less likely than not due to the Veteran’s active duty service. The following opinion was offered: There is no evidence of a foot condition arising while in service. Separation exam in 1992 is negative for a foot condition. There is no evidence of a foot condition until 2019/2020. Technically speaking, the Veteran does not have a foot condition, but a peripheral nerve condition involving the feet. EMG [from July 31, 2020] revealed bilateral, anterior tarsal tunnel syndrome … the clinic notes from [September 30, 2020] and the Letter from Dr. L. [of the Creekside Medical Clinic] received in October 2020 both opined it is possible due to the Veteran’s military service through 1992. It is unlikely a neuropathy would have been missed or unreported at separation exam. Such exams are notably thorough, especially with respect to the feet. There is a 20+ year gap from separation to first evidence of the condition. Therefore, it is less likely than not that the Veteran’s bilateral neuropathies are due to or incurred in service. The opinions offered by the private physicians are broad and general and are not supported by evidence. No continuity from service is demonstrated, despite claims to the contrary. Thus, a negative opinion was offered for both foot disabilities. In consideration of the above, while there is nothing to doubt the competence or credibility of Dr. L. of the Creekside Medical Clinic, the Board finds that the report is general and written to broadly address multiple disabilities. The opinion provided links the Veteran’s bilateral foot disability to his service generally, in the same way that it does other claimed disabilities. As such, the Board affords the August 2020 private physicians’ opinion minimal probative weight. See, Nieves-Rodriguez, Id. Generally, the Board would also afford the September 2020 opinion minimal probative weight, as the rationale relied on lack of current treatment options for the bilateral feet, suggesting that the examiner did not review the Veteran’s claims file. That opinion has however been updated by the December 2020 addendum opinion, which specifically draws attention to treatment that the Veteran had received for his foot disabilities. Therefore, as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the etiology of the Veteran’s disability. Nieves-Rodriguez v. Peake, Id. In consideration of the above, the Board finds that the Veteran’s bilateral foot disabilities are not due to his active duty service. The Veteran has diagnosed disabilities to each of his feet, and he has provided competent testimony of in-service injuries regarding his shoes he wore with the Honor Guard. Having said that, the most complete etiological opinion available is that from December 2020, whereby the examiner addressed the Veteran’s specific diagnosis, and the twenty-year gap between active duty and the Veteran’s first complaints of foot problems. Again, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson Id. That examiner also specifically cited the positive opinion that was provided by Dr. L. and refuted it, an opinion to which the Board has also attributed minimal probative weight. As such, the Board finds that the Veteran’s bilateral foot disabilities are each not due to or caused by his active duty service. 38 C.F.R. § 3.303. In conclusion, entitlement to service connection for the left and right foot disabilities are not warranted. 38 C.F.R. § 3.303(a). In reaching this conclusion, the Board finds that the preponderance of the evidence is against the claims. As such, the benefit of the doubt rule is not for application, and the claims must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. 1. Entitlement to service connection for left and right knee disabilities are remanded. The Board incorporates its discussion from the sections above by reference. The Veteran has claimed that his left and right knee disabilities are due to his active duty service. Specifically, he testified in October 2018 that he was required to wear special shoes during this time in the Honor Guard, and that that may have contributed to his current knee problems. He also stated that he had to stand for long periods of time. As noted above, these claims were previously before the Board in August 2020. In that Decision, the Board found that a VA examination from March 2020 was inadequate, as it used the incorrect legal standard when forming the basis of an etiological opinion. Specifically, the examiner’s opinion denied the nexus element of the Veteran’s claim, based on a “greater than 50 percent likelihood.” As discussed above however, the requirements for entitlement to service connection instead require that a diagnosed disability be “at least as likely as not” due to an in-service occurrence or injury. 38 C.F.R. § § 3.303(a). As a result, the claim was remanded for a VA addendum opinion. That opinion was given in September 2020. The examiner noted that a review of the Veteran’s claims file took place. They then opined that the bilateral knee disabilities were less likely than not due to the Veteran’s active duty service. The following rationale was provided: There is no indication that the right knee disability had an onset in service or is due to or related to service. In addition, there is no record of current evaluation or treatment for the claimed knee disability. Without record of treatment for the knee condition in service and treatment for a knee condition currently, it is less likely than not that it occurred or is related to the Veteran’s service. Therefore, a nexus has not been established. As such, a negative etiological opinion was provided. A similar negative opinion was provided for the left knee disability. Importantly, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). In consideration of the above, the Board finds that another VA examination is required, as the September 2020 examination is inadequate. While the examiner noted that they reviewed the Veteran’s claims file, the rationale states that “there is no record of current evaluation or treatment for the claimed knee disability.” The Board also notes that the March 2020 VA examination, which was deemed inadequate in the previous Board Decision, also provided an opinion “without any history of diagnostic testing.” Furthermore, that report stated that records were reviewed, and that “there is no reference to right [or left] knee pain, knee conditions and no imaging records are available to review.” As a result, both the March 2020 examiner and the September 2020 VA examiner each denied that the Veteran had current treatment records available. While available records related to the Veteran’s claimed knee disabilities is limited, the Board notes that records from the Veteran’s claims file do indicate treatment for knee disabilities. A July 2016 chiropractic note from Solutions Chiropractic Clinic, LLC note “burning, dull, sharp, and stabbing pain that radiates into his posterior left thigh to the knee.” Other treatment notes discuss the right knee as well. This complaint was noted again in May 2017, February 2018, and November 2018 treatment notes. Thus, it is unclear if the September 2020 VA addendum opinion was made in consideration of those records. Because the Veteran's entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims for entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The Veteran should be given a new VA examination, whereby his lay statements and testimony can be considered, alongside his private treatment records related to the knee. The Veteran’s diagnoses should be confirmed, and an etiological opinion should then be rendered for both claimed disabilities. The matters are REMANDED for the following action: 1. Obtain all outstanding VA and/or private treatment records. For any private treatment records, obtain the appropriate signed releases from the Veteran, and associate any additional records with the claim. Should such records exist, associate them with the electronic claims file. 2. Schedule the Veteran for VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to assess the nature and etiology of the Veteran’s claimed left and right knee disabilities. The entire record must be reviewed by the examiner(s). All necessary tests should be conducted. Based on the examination results and the review of the entire claims folder, the examiner(s) are asked to opine as to the following: (a.) Confirm the current diagnosis of the Veteran’s claimed left and right knee disabilities. For any currently diagnosed disability, provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran’s diagnosed disability is causally related to, or aggravated by, his military service. Any opinion should include a complete rationale. The examiner is reminded that the Veteran’s claims file contains private chiropractor treatment records from at least July 2016 to November 2018 that discuss complaints of bilateral knee pain. The examiner is further reminded the Veteran has provided lay statements and testimony which describe in-service occurrences, such as having to stand for long periods of time with special shoes, as part of his service with the Honor Guard. A detailed rationale for the opinions must be provided. The examiner(s) are reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner(s) feels that the requested opinions cannot be rendered without resorting to speculation, the examiner(s) must state 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 the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). 3. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his Representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his Representative should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, Associate 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.