Citation Nr: 21020849 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 16-52 488 DATE: April 8, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. REMANDED The claim for service connection for foot conditions, to include plantar fasciitis is remanded. FINDINGS OF FACT 1. The evidence is at least in relative equipoise regarding whether the Veteran’s bilateral hearing loss was caused by noise exposure during service. 2. The evidence is at least in relative equipoise regarding whether the Veteran’s tinnitus was caused by noise exposure during service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from January 1984 to January 1988. He also served various terms in the Navy Reserve and Army National Guard between 1988 and 2016. A January 2020 Board decision denied service connection for bilateral hearing loss, tinnitus, and bilateral plantar fasciitis, to which the Veteran appealed to the United States Court of Appeals for Veterans Claims (the “Court”). In September 2020, the Court vacated the portion of the January 2020 Board decision regarding the denial of the service connection claims and remanded the issues for actions consistent with a Joint Motion for Partial Remand (JMPR). Service Connection Hearing Loss and Tinnitus The Veteran is seeking service connection for bilateral hearing loss and tinnitus, which he believes, resulted from noise exposure he experienced during his military service. The January 2020 Board decision conceded the Veteran’s noise exposure during his active duty service. However, military noise exposure alone is not considered to be a disability, rather, it must be shown that the military noise exposure caused hearing loss for VA purposes. For VA purposes, hearing loss will be considered to be a disability when (1) the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or (2) the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or (3) when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R.§ 3.385. Here, the March 2016 VA examination found the Veteran had bilateral hearing loss for VA purposes, specifically the auditory threshold in all frequencies 500, 1000, 2000, 3000, 4000 Hertz was 40 decibels or greater in both ears. The examiner also diagnosed him with tinnitus. However, the examiner (Dr. L.) provided a negative nexus opinion for hearing loss and tinnitus. In September 2016, the same examiner (Dr. L.) again provided a negative nexus opinion for hearing loss and tinnitus. In December 2016, the same audiologist (Dr. L.), provided a positive nexus opinion for hearing loss and tinnitus. In the JMPR, the parties agreed that the January 2020 Board decision errored in not adequately weighing the March 2016 and the September 2016 VA negative opinions and the December 2016 positive nexus opinion, which were provided by the same audiologist, Dr. L. In light of the all three medical opinions were provided by the same audiologist, the Board finds that the evidence is at least in relative equipoise regarding whether the Veteran’s bilateral hearing loss and tinnitus were caused by noise exposure during service. Accordingly, service connection for hearing loss and tinnitus are granted. REASONS FOR REMAND Foot Conditions In the September 2020 JMPR, parties agreed that (1) VA failed to obtain complete private treatment records from Dr. Moore since January 2005, as Dr. Moore indicated in a letter dated October 2016 that she had treated the Veteran since January 2005 for recurring plantar fasciitis (contained in a 10/14/2016 document entitled “Medical Treatment Records – Non-Government Facility”), and (2) the Board relied on March 2016 VA examination on foot conditions which failed to address other foot conditions (such as right tibial tendinitis and pes planus) in addition to plantar fasciitis, or to discuss other evidence, to include lay statements from the Veteran and his sister (a nurse) regarding his foot symptoms since the 2007 Army Endurance Challenge and periods of active duty for training (ACDUTRA) in 2015. The matter is are REMANDED for the following actions: 1. With the Veteran’s assistance, make reasonable effort to obtain complete private treatment records from Dr. Moore since January 2005. 2. Schedule a medical examination to address the current diagnosis of the Veteran’s foot conditions and etiologies thereof. The examiner should answer the following questions: (a) What are the current diagnoses of the Veteran’s foot conditions, to include plantar fascitis, pes planus and right tibial tendinitis? In doing so, the examiner should discuss (1) Dr. Moore’s letter dated October 2015 showing that the Veteran was diagnosed with right tibialis posterior tendinitis, plantar fasciitis, and congenital pes planus (contained in a 10/14/2016 document entitled “Medical Treatment Records – Non-Government Facility”). (2) Physical profile dated October 2015 showing that the Veteran was put on a temporary profile due to right tibialis posterior tendinitis (contained in a 4/27/2016 document entitled “Military Personnel Record”). (b) Were the Veteran’s current foot conditions incurred during or were otherwise caused or aggravated (made worse) by his active duty service or his ACDUTRA periods in 2007 and 2015? Why or why not? In doing so, the examiner should discuss the following: (1) The Veteran’s statement dated April 2016 stating that he participated in the Army Endurance Challenge in June of 2007 and experienced foot problems during the Challenge (contained in a 4/27/2016 document entitled “correspondence”); (2) Lay statements from the Veteran’s sister dated October 2015, noting that the Veteran was limping badly and expressed severe foot pain that began during the Challenge and that he was exhibiting what she thought to be plantar fasciitis symptoms (contained in a 10/27/2015 document entitled “Buddy/lay statement); (3) The lay statements from the Veteran’s wife dated October 2015 and April 2016, stating that the Veteran’s planter fasciitis started in 2007 (contained in a 10/27/2015 document entitled “Buddy/Lay Statement”) and that the Veteran suffered pain in his feet and legs after he participated in the Challenge in 2007 (contained in a 4/27/2016 document entitled “Buddy/Lay Statement”) ; (4) Buddy statements from the Veteran’s NCO (Mr. S. Z.) that the Veteran experienced extreme discomfort in his feet and legs after participating in military training in 2015 (contained in an 4/27/2016 document entitled “Buddy/lay statement”) . (5) Private opinion from Dr. Moore dated October 2016, stating that the Veteran reported that his foot conditions had been exacerbated during the 2007 Challenge, and that the Veteran’s long standing service with the Army National Guard would have contributed to some portion of his foot symptoms (contained in a 10/14/2016 document entitled “Medical Treatment Records – Non-Government Facility”). MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Wang, 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.