Citation Nr: 21016174 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 17-43 764 DATE: March 22, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for bilateral foot disability, including flat feet, degenerative changes of the bilateral feet, bilateral calcaneal, and achilles spurs, is denied. Entitlement to service connection for residuals of a cold injury to the feet is denied. REMAND Entitlement to service connection for a psychiatric disorder is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s bilateral hearing loss began during active service, within the first post service year, or is otherwise related to an in-service injury, event, or disease. 2. The preponderance of the evidence is against finding that Veteran’s tinnitus began during active service or is otherwise related to an in-service injury or disease 3. The preponderance of the evidence is against finding that the Veteran’s current bilateral foot disabilities, diagnosed as degenerative changes of the bilateral feet, bilateral calcaneal, and achilles spurs, began during active service, within the first post service year, or is otherwise related to an in-service injury, event, or disease. 4. The preponderance of the evidence is against finding that the Veteran currently has flat feet or residuals of a cold injury to the feet. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for tinnitus are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for bilateral foot disability, including flat feet, degenerative changes of the bilateral feet, bilateral calcaneal, and achilles spurs, are not met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for residuals of a cold injury to the feet are not met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1978 to October 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2013, July 2016, and September 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran testified at a video conference hearing held before the undersigned Veterans Law Judge. A transcript of this hearing has been added to the record. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Moreover, where a veteran served continuously for 90 days or more during active service, and sensorineural hearing loss or arthritis manifests to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for hearing loss The Veteran contends that she has bilateral hearing loss related to in-service noise exposure. The Veteran has been diagnosed with bilateral sensorineural hearing loss which is considered an organic disease of the nervous system and is recognized as a chronic disease under 38 C.F.R. § 3.309(a); thus, it is subject to the chronic diseases presumption. As to the first element of service connection, a current disability, the record indicates that the Veteran has bilateral sensorineural hearing loss for VA compensation purposes as noted on her June 2016 VA audiological examination. As to the second element of service connection, the Veteran’s in-service noise exposure from generators, lawn mowers, grenades, and gunfire is conceded. Thus, the remaining issue is whether her current bilateral hearing loss is causally related to the in-service exposure to hazardous noise. The VA examiner in June 2016 opined that it was less likely than not that the Veteran’s bilateral hearing loss is related to her military service. In support of this opinion, the VA examiner noted that the Veteran’s discharge examination revealed normal hearing, and that no significant threshold shifts are shown when comparing the audiological findings on her entrance and separation examinations. The VA examiner also noted that the audiometric threshold information does not support a noise injury to the ears or aggravation to hearing in relation to her in-service noise exposure. As this opinion was based on a review of the Veteran’s entire claims file, including consideration of his entrance and separation audiological evaluations, and is supported by a plausible rationale, the Board finds it highly probative as to the nexus element. There is no other competent evidence in support of the Veteran’s contention that her current hearing loss is related to his active service. To the extent that the Veteran contends that her current bilateral hearing loss disability is related to her active service, the Board finds this contention not to be competent. Determining the etiology of a disability such as hearing loss is complex and requires specialized medical knowledge or training that the Veteran is not shown to have. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, service connection on a direct basis for bilateral hearing loss is not warranted. Regarding the presumption in favor of chronic diseases and the continuity of symptomatology, the Veteran has been diagnosed with bilateral sensorineural hearing loss. For VA purposes, diagnosis of sensorineural hearing loss is a chronic disease, thus warranting consideration under 38 C.F.R. § 3.309(a). However, for the presumption under 38 C.F.R. § 3.309 to apply, the disability must manifest to a compensable degree within one year of discharge from service. There is no competent or credible evidence that the Veteran’s hearing loss was manifest to a compensable degree within one year of discharge from service. Since the Veteran’s bilateral hearing loss did not manifest to a compensable degree within one year of discharge from service and there is no evidence of a chronic disability in service, the presumption in favor of chronic diseases is not warranted in this case. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). As to continuity of symptomatology, the Veteran testified that she had a little bit of hearing loss when she got out of the service. While competent to report symptomatology of hearing loss, she has not been consistent in doing so. On an August 1978 medical history report, completed pursuant to her separation examination, the Veteran denied having any ear trouble or hearing loss. Given the proximity of this denial of symptomatology, along with the normal audiological evaluation at that time, the Board finds the current evidence of continuity to be lacking probative value. In summary, the Board finds that the Veteran’s bilateral hearing loss did not have its onset during his active service, is not related to her service, and was not manifest to a compensable degree within a year of that service. As such, the preponderance of the evidence is against the claim of service connection; there is no doubt to be resolved; and service connection for bilateral hearing loss is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for tinnitus The Veteran contends that she has tinnitus as a result of in-service noise exposure. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of tinnitus, the preponderance of the evidence weighs against finding that her tinnitus began during service or is otherwise related to an in-service injury, event, or disease. A review of the Veteran’s service treatment records was silent as to any complaints or diagnoses of tinnitus during service. Post-service treatment records are also silent as to any complaints or diagnoses of tinnitus for more than 35 years after her separation from service. On her June 2016 examination for hearing loss and tinnitus, the Veteran reported a history of her ears ringing on and off for years. At the October 2020 Board hearing, the Veteran testified that she has had on and off ringing in her ears for years, since getting out of the service. While competent to report symptomatology of tinnitus, she has not been consistent in doing so. On an August 1978 medical history report, completed pursuant to her separation examination, the Veteran denied having any ear trouble or hearing loss. Moreover, the Veteran is not competent to determine that her current tinnitus was related to her military service. Jandreau, 492 F.3d at 1377. The June 2016 VA examiner opined that the Veteran’s tinnitus is not at least as likely as not related to an in-service injury, event, or disease. In support of this opinion, the VA examiner noted that the Veteran’s service treatment records are silent as to any subjective complaints of or treatment for tinnitus. The examiner also indicated that the objective audiometric threshold information remained consistent during her service and does not provide evidence a significant inservice noise injury. Hence, the VA examiner opined that the Veteran’s tinnitus is less likely than not a result of military noise exposure. The VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board gives the most probative weight to the June 2016 VA examiner’s opinion. For these reasons, the preponderance of the evidence is against the claim; thus, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service-connection for tinnitus is denied. 3. Entitlement to service connection for bilateral foot disability, including flat feet, degenerative changes of the bilateral feet, bilateral calcaneal, and achilles spurs. 4. Entitlement to service connection for residuals of a cold injury to the feet. The Veteran contends that she developed bilateral foot disabilities as a result of her feet having been injured during service. At the November 2020 Board hearing, the Veteran testified that she was treated for flat feet during service. She claimed that this in-service treatment included the use of soft casts for a period of time during her basic training. As a result, she contends her feet were exposed to the very cold winter weather that year at Fort Chastain, South Carolina, leading to cold injury to her feet. The Veteran has current diagnoses of degenerative changes of the bilateral feet, bilateral calcaneal, and achilles spurs. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the Veteran’s degenerative changes of the feet were not shown as chronic in-service, did not manifest to a compensable degree within a presumptive period, and were not noted in service with attributable continuity of symptomatology. Thus, entitlement to service connection for degenerative changes of the bilateral feet on a presumptive basis is not warranted. A review of the Veteran’s service treatment records indicate that she was treated for a few weeks for flexible flat feet with soft gel cast/arch supports. A February 1978 treatment report noted an assessment of fascial strain, for which she was prescribed gel casts to wear for 8 days. X-ray examination of the feet was conducted to rule out pes cavus, and was negative. A March 1978 treatment report noted an assessment of flexible flat feet, mild. Physical examination at that time revealed a full range of motion and no edema in the feet. The report indicated that the Veteran was returned to duty. No follow up treatment or complaints relating to her feet were indicated. The Veteran’s separation examination, conducted in August 1978, noted that her feet and lower extremities were normal. On a medical history report completed at that time, the Veteran denied having any foot trouble. In December 2011, the Veteran filed her claim seeking service connection for a foot disability. While the Veteran is competent to report having experienced symptoms of foot pain, coldness, numbness, and discomfort during and since service, she is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of her current foot disabilities as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires knowledge and interpretation of complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377. The Board gives more probative weight to competent medical evidence, which establishes that the Veteran’s current foot disabilities, including degenerative changes of the bilateral feet, bilateral calcaneal, and achilles spurs are not related to her military service. The March 2013 VA examiner opined that it was less likely than not that the Veteran’s current foot disabilities, diagnosed as degenerative changes of the bilateral feet, bilateral calcaneal, and achilles spurs, were incurred in or caused by her military service, including her inservice treatment for flexible flat feet and gel cast/arch support treatment. In support of this opinion, the VA examiner noted that there was no evidence of heel pain within the Veteran’s service treatment reports. The examiner noted that the use of gel arch supports is very common, and that the Veteran was shown to have only required this treatment for a short period of time. The VA examiner also noted that the Veteran’s February 1978 x-ray examination of the feet did not support a diagnosis of pes planus, and the Veteran’s August 1978 separation examination was negative for any foot trouble. Finally, the examiner noted that while the Veteran reported experiencing ongoing pain and foot problems since her active military service, there is no evidence of any treatment having been sought or requested for this condition for more than 35 years after her separation from service. The examiner then concluded that given the Veteran’s age, social history and activities, her degenerative changes to the feet, in her toes and heels, is most likely related to normal age-related changes, and are expected age related processes. The June 2017 VA examination for cold injuries noted the Veteran’s contentions of a cold injury to both feet during service, left worse than right. The examination reports noted the Veteran’s contentions as to her claimed inservice cold injury to her feet. Following a physical examination, the report concluded that no current cold injury to the feet or flat feet were found. Thus, service connection for these conditions must be denied based upon no current disability having been shown. As for the Veteran’s current foot problems, the report listed diagnoses of degenerative changes of the bilateral feet, bilateral calcaneal, and achilles spurs. The VA examiner then opined that it was less likely than not that the Veteran’s current foot disabilities were caused by her military service, including her claimed inservice cold injury to the feet. In support of this opinion, the VA examiner noted that the Veteran’s current foot disabilities are not the type of conditions related to cold injury. The VA examiner noted that the Veteran had not required ongoing treatment for a cold injury to the feet for decades since separation from service in 1978, and did not seek care from a podiatrist for more than 30 years after her separation from service. The VA examiner noted that a review of literature, as well as a historical review of the temperatures in South Carolina during this time frame, indicates that the Veteran was not subjected to the type of extreme environment for any prolonged period of time which would normally lead to a cold injury. The VA examiner’s opinions herein are probative, because they are both based on an accurate medical history and both provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board gives the most probative weight to the VA examiners’ opinions herein. While the Veteran is competent to report experiencing symptoms of foot pain and discomfort during service and thereafter, the Board finds the reports of continuity of symptomatology not credible. The Veteran’s reports of ongoing foot problems since service are internally inconsistent with her reports in contemporaneous treatment records. The Veteran denied having any foot trouble on her medical history report completed pursuant to her August 1978 separation examination. Moreover, the separation examination listed her feet and lower extremities as normal. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Further, while the Veteran asserts that the reported foot symptoms were manifestations of her in-service injury, she is not competent to determine that these symptoms were manifestations of her inservice foot treatment as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires knowledge of the interaction of body parts and the ability to interpret complicated diagnostic medical testing. The Board gives more probative weight to competent medical evidence, which establishes that the Veteran’s current foot disabilities, including degenerative changes of the bilateral feet, bilateral calcaneal, and achilles spurs, were less likely than not due to her military service, including her inservice prescription for soft casts in January/February 1978. Accordingly, the preponderance of the evidence is against finding that the Veteran’s current bilateral foot disabilities, including degenerative changes of the bilateral feet, bilateral calcaneal, and achilles spurs, began during active service, within the first post service year, or is otherwise related to an in-service injury, event, or disease. Moreover, the preponderance of the evidence is against finding that the Veteran’s has a current bilateral foot disability due to cold injury residual or residual of wearing soft casts inservice. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 5. Entitlement to service connection for a psychiatric disorder. The Veteran is seeking service connection for a psychiatric disorder. She attributes this condition to inservice military sexual trauma, including multiple incidents of verbal sexual harassment. She also attributes this her current condition to having had miscarriage during service. The Board cannot make a fully-informed decision on this issue. The September 2017 VA examiner diagnosed the Veteran with generalized anxiety disorder, and then opined that this condition was less likely than not caused by or the result of the Veteran’s claimed in-service stressors. In support of this conclusion, the VA examiner stated that the Veteran’s current symptoms were more generalized and not linked directly and specifically to a particular trauma. As such, generalized anxiety disoder is the best diagnosis to capture the Veteran’s current symptoms based on DSM-5. The VA examiner then reasoned that since the Veteran’s current symptoms relate more to her post-military traumatic losses and stressors, her generalized axiety disorder is less likely than not caused by or the result of her reported inservice stressors. The Board finds the rationale provided to be inadequate. While the Veteran’s current condition may relate more to her post-military traumatic losses, the rationale provided fails to address if any part of her current psychiatric condition was caused or aggravated by her inservice stressors. Under these circumstances, a new medical examination, along with a medical opinion, should be obtained. 6. Entitlement to TDIU. Finally, because a decision on the remanded issue if entitlement to service connection for any acquired psychiatric disorder could significantly impact a decision on the issue entitlement to TDIU, the issues are inextricably intertwined. A remand of the TDIU claim is also required. 1. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any PTSD or other psychiatric disorder found during the course of this appeal. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. For any other acquired psychiatric disorders diagnosed during the course of this appeal, which includes generalized anxiety disorder, depression, and other specified trauma and stressor related disorder, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include an in-service miscarriage and her contentions of unwanted sexual advances. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Yates, 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.