Citation Nr: 21021965 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 17-39 182 DATE: April 14, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for a right knee disability secondary to bilateral pes planus is remanded. Entitlement to service connection for a left knee disability secondary to bilateral pes planus is remanded. Entitlement to service connection for a back disability secondary to bilateral pes planus is remanded. FINDING OF FACT The Veteran has experienced symptoms of tinnitus since active duty service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1967 to July 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2015 and October 2016 rating decisions from a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for tinnitus is granted. The Veteran claims to have tinnitus due to acoustic trauma during service, including exposure to noise from driving or riding in trucks and sleeping in a tent near a helicopter pad where helicopters were taking off and landing. Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of tinnitus as evidenced by the Veteran’s VA treatment records, including December 2015 and February 2016 VA treatment record. Tinnitus is an organic disease of the nervous system, which is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. The Veteran reported in a June 2015 statement that he experienced ringing in his ears since he was in active duty service. In the October 2016 VA Form 9, the Veteran reported that, although his job assignment was a laundry and bath specialist, when he served overseas, he drove or rode in a 5-ton truck often whenever a convoy needed supplies. He also reported that he slept in a tent constructed mostly of cloth and lived next to a helipad and was exposed to constant sound of helicopters arriving and leaving. The Veteran’s Service Personnel Records indicate that the his M.O.S. was a bath specialist, and that he had foreign service in the U.S. Army of the Pacific during active duty, and that he received the Vietnam Campaign Medal along with the Vietnam Service Medal with Bronze Service Stars. Here, although the prior Board decisions have found that noise exposure cannot be conceded, the Board finds that the evidence is at least in equipoise as to whether the Veteran was exposed to acoustic trauma during service. The Veteran’s treatment records do not reflect a diagnosis for tinnitus in service or the applicable presumptive period. However, as discussed above, the Veteran reported that while on active duty he noticed symptoms of tinnitus, and that his symptoms have been continuous since service. The Veteran is competent to report symptoms such as tinnitus as they are something that he senses. See Layno v. Brown, 6 Vet. App. 465 (1994). While no treatment records showing complaints of tinnitus during service or the applicable presumptive period, the Board finds that the Veteran continued to experience the same symptoms of tinnitus from his active duty service. The Veteran is competent to report that he experienced tinnitus symptoms and his statements are credible, consistent, and entitled to probative weight. The Veteran’s post-service treatment records of record do indicate that he reported symptoms of tinnitus at least as of December 2015. While the Veteran has not attended a VA examination, the Board finds that the medical evidence of record, along with the Veteran’s lay statements indicating that his tinnitus symptoms began during active duty service, are sufficient to place in equipoise the question of whether the Veteran’s current tinnitus was caused by the noise exposure he experienced during service. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s tinnitus was related to his active duty service and the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for bilateral pes planus is remanded. 2. Entitlement to service connection for a right knee disability secondary to bilateral pes planus is remanded. 3. Entitlement to service connection for a left knee disability secondary to bilateral pes planus is remanded. 4. Entitlement to service connection for a back disability secondary to bilateral pes planus is remanded. The Veteran claims entitlement to direct service connection for bilateral pes planus, as well as entitlement to a right knee, left knee, and back disability secondary to his bilateral pes planus. A veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except (1) as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or (2) where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304 (b). Only such conditions as recorded in examination reports are to be considered as “noted,” and a history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions, but will be considered together with all other material evidence in determinations as to inception. See 38 C.F.R. § 3.304(b). The Board finds that the presumption of soundness does not apply to the Veteran’s bilateral pes planus because the Veteran’s May 1967 entrance examination noted that he had symptomatic pes planus upon enlistment. Accordingly, 38 U.S.C. § 1153 applies and the burden falls on the Veteran to establish an increase in disability during service which causes the presumption of aggravation to attach. If the presumption of aggravation attaches, the burden shifts to the government to show by clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. 38 C.F.R. § 3.306(b). Moreover, pes planus may be either congenital or acquired, a question which must be resolved prior to considering service connection. 38 C.F.R. § 4.57. The opinion should address this matter and, if it is determined that the Veteran’s pes planus is acquired or a “congenital disease,” should address whether the Veteran’s acquired foot disability was aggravated by service. The Veteran underwent a VA examination in June 2016 for his pes planus. The June 2016 VA examiner opined that the Veteran’s pes planus clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by an in-service event, injury, or illness, but did not provide an adequate rationale to support the opinion. The June 2016 VA examiner addressed the Veteran’s July 1969 separation examination which noted “severe pes planus,” but did not address the Veteran’s in-service treatment for pes planus, or explain why, although the pes planus was noted to be “severe” upon separation, no in-service aggravation occurred. Additionally, the Veteran submitted a letter in June 2020 identifying several VA medical facilities where he claims to have received treatment, as well as at least two private physicians, and states that his complete medical records have not been associated with the claims file. On remand, the RO should attempt to obtain all outstanding VA and private treatment records identified by the Veteran. As there may be outstanding VA treatment records, and as the Veteran’s remaining claims are related to the Veteran’s pes planus, remand is appropriate for the Veteran’s claims for entitlement to service connection for a back disability and bilateral knee disabilities. The matters are REMANDED for the following action: 1. Make as many attempts as are necessary to obtain any outstanding VA treatment records for the period from July 1969 to the present and associate any outstanding records with the claims file. The RO must specifically inquire about any outstanding records from each facility identified by the Veteran’s June 2, 2020 letter. If no outstanding records are located, or if the RO has concluded that the records do not exist or that further efforts to obtain those records would be futile, a record should be made in the claims file detailing the RO’s efforts to obtain those records. 2. Ask the Veteran to complete a VA Form 21-4142 for any physicians or facilities where he sought treatment for his claimed disabilities. Make two requests for the authorized records from any physician or facility authorized by the Veteran, unless it is clear after the first request that a second request would be futile. Obtain an opinion from a qualified clinician regarding the Veteran’s pre-existing pes planus disability. The examiner is asked to opine: a) Is the Veteran’s pes planus congenital or acquired? The examiner should note that 38 C.F.R. § 4.57 states that “[t]he congenital condition, with depression of the arch, but no evidence of abnormal callosities, areas of pressure, strain or demonstrable tenderness,” is a congenital abnormality. b) If the pes planus is congenital, the examiner should opine whether the disorder is more properly classified as a congenital disease or a congenital defect. For VA purposes, a defect differs from a disease in that the former is “more or less stationary in nature” whereas the latter is “capable of improving or deteriorating.” c) If the Veteran’s pes planus is either acquired or a congenital disease (capable of improving or deteriorating), did the Veteran’s pre-existing pes planus increased in severity during service and if so, was that increase clearly and unmistakably (i.e., undebatably) the natural progression of the disorder? In providing the answers to the above, the examiner must address the Veteran’s May 1967 entrance examination noting “symptomatic” pes planus, the July 1969 separation examination noting “severe” pes planus, and the documented in-service treatment for pes planus. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Boal, 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.