Citation Nr: 21022848 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 17-64 796 DATE: April 19, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for bilateral plantar fasciitis is denied. REMANDED Entitlement to service connection for bilateral pes planus is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran’s favor, his tinnitus is related to his active duty military service. 2. The preponderance of the evidence of record is against finding that the Veteran has had a bilateral hearing loss disability for VA compensation purposes at any time during or approximate to the pendency of the claim. 3. The preponderance of the evidence of record is against finding that the Veteran has had bilateral plantar fasciitis at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385. 3. The criteria for entitlement to service connection for bilateral plantar fasciitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from November 1992 to November 2000. The Veteran testified before the undersigned Veterans Law Judge in a virtual hearing in March 2021. A copy of the hearing transcript is of record. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.§§ 1110, 1131; 38 C.F.R. § 3.303. Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). VA has specifically defined the term “disability” for service connection claims involving impaired hearing. 38 C.F.R. § 3.385. “[I]mpaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.” 38 C.F.R. § 3.385. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See 38 C.F.R. § 3.385. Chronic diseases, such as sensorineural hearing loss and tinnitus, may be presumed to have been incurred in or aggravated during service if manifested to a compensable degree (10 percent) within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.§ 5107; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for tinnitus is granted. The Veteran seeks entitlement to service connection for tinnitus. He maintains that this disability had its onset during his active duty military exposure to hazardous noise. Tinnitus is, by definition “a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type.” Dorland’s Illustrated Medical Dictionary, 1914 (30th ed. 2003). As such, tinnitus is “subjective,” as its existence is generally determined by whether the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). If a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. As the Veteran has competently and credibly reported experiencing tinnitus since service, the first element of service connection is met. Further, the Veteran’s military personnel records show that he served as an aviation operation specialist. As such, the Board has no reason to dispute his credible reports of in-service noise exposure, as his service in an aviation unit would reasonably include exposure to loud noises. See 38 U.S.C. § 1154 (a). Accordingly, the Board finds that the Veteran was exposed to noise during his active duty service, and the second element has been satisfied. The Board now turns to the issue of whether there is a nexus between the Veteran’s tinnitus and his in-service noise exposure. The only medical opinion of record on this point follows the June 2016 VA examination. The examiner opined that the Veteran’s tinnitus was less likely than not caused by or the result of his in-service noise exposure. She reasoned that the Veteran’s service examinations showed normal hearing bilaterally, as did the audiometric evaluation performed that day, sixteen years post-separation. The examiner observed that there was no objective evidence for military-related noise injury, including tinnitus. She also noted that the Veteran’s service treatment records were silent for complaint, diagnosis, or treatment of tinnitus. The Board finds that the June 2016 medical opinion is inadequate to decide the claim. In particular, the VA examiner based the negative etiological opinion upon the lack of evidence of complaints of or treatment for auditory symptoms in the Veteran’s service treatment records. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran’s report of in-service injury and instead relied entirely on the absence of evidence in the STRs to provide a negative opinion). In this regard, the absence of evidence of an auditory pathology in the service treatment records does not preclude service connection. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (holding that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (finding that the lack of documented hearing loss while in service is not fatal to a claim for service connection.). The Board could remand this issue for an additional opinion. However, this is unnecessary because the probative evidence reveals currently diagnosed tinnitus, establishes in-service noise exposure based on the Veteran’s military operational specialty as an aviation operations specialist, and the Veteran competently and credibly testified that there were times when he worked in the aircraft hangars without hearing protection and that he first noticed tinnitus during service. 38 C.F.R. § 3.159 (c)(4); cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant’s case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Thus, the Board finds the evidence is at least in relative equipoise as to whether the Veteran’s tinnitus is related to service. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria for service connection for tinnitus have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for bilateral hearing loss is denied. The Veteran seeks entitlement to service connection for bilateral hearing loss. He maintains that this disability had its onset during his active duty military exposure to hazardous noise. The Board concludes that the Veteran does not have a current diagnosis of bilateral hearing loss and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In June 2016, the Veteran was provided a VA examination in conjunction with his service connection claim. There, audiometric findings were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 15 10 10 LEFT 5 10 10 15 15 Speech recognition scores were 96 percent in the Veteran’s right ear and 94 percent in the Veteran’s left ear. These are the only audiometric results of record during the appellate period, and they do not show that the Veteran’s bilateral hearing loss has reached the level of severity to be considered a hearing loss disability as defined in 38 C.F.R. § 3.385. The Board acknowledges that time has passed since the Veteran’s June 2016 examination; however, there have been no averments or evidence that the Veteran’s claimed hearing disability has worsened since that time and/or that this is an inaccurate representation of the current severity of his hearing. As there is no competent evidence that would establish the current disability element regarding the bilateral hearing loss claim, entitlement to service connection for bilateral hearing loss cannot be granted on any basis at this time. See Brammer v Derwinski, 3 Vet. App. 223, 225 (1992) (holding that there can be no valid claim for service connection “[i]n the absence of proof of a present disability”). Therefore, the claim for entitlement to service connection for bilateral hearing loss is denied. 3. Entitlement to service connection for bilateral plantar fasciitis is denied. The Veteran seeks entitlement to service connection for bilateral plantar fasciitis. He maintains that this disability had its onset during his active duty military service. The Board concludes that the Veteran does not have a current diagnosis of bilateral plantar fasciitis and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In June 2016, the Veteran was provided a VA examination in conjunction with his service connection claim. The examiner interviewed the Veteran and provided a clinical evaluation. The Veteran was diagnosed with bilateral pes planus. A diagnosis of bilateral plantar fasciitis was not rendered. There are no additional private or VA treatment records regarding the Veteran’s feet in the claims file that contain a diagnosis of bilateral plantar fasciitis. As there is no competent evidence that would establish the current disability element regarding the bilateral plantar fasciitis claim, entitlement to service connection for bilateral plantar fasciitis cannot be granted on any basis. See Brammer v Derwinski, 3 Vet. App. 223, 225 (1992) (holding that there can be no valid claim for service connection “[i]n the absence of proof of a present disability”). Therefore, the claim for entitlement to service connection for bilateral plantar fasciitis is denied. REASONS FOR REMAND Entitlement to service connection for bilateral pes planus is remanded. The Veteran seeks entitlement to service connection for bilateral pes planus. He maintains that this disability had its onset during his active duty military service. The Veteran was diagnosed with bilateral pes planus at the June 2016 VA examination provided in conjunction with his service connection claim. On the service entrance examination in March 1992, the examiner noted that the Veteran had asymptomatic pes planus. Because a diagnosis of pes planus is noted on the Veteran’s enlistment examination report, it is considered a pre-existing condition and the presumption of soundness does not attach. The June 2016 examiner was asked to opine whether the Veteran’s bilateral pes planus, which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression by an in-service event, injury, or illness. She found that it was not, stating that the pes planus (which clearly and unmistakably existed prior to service) is NOT corroborated as being aggravated beyond its natural progression by complaints of foot pain during service. The Board finds that this opinion is conclusory and provides insufficient analysis to consider and weigh the opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 124-125 (2007) (holding that “a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor’s opinion”). The examiner did not provide a fact-based explanation for her conclusion. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). As such, an addendum opinion must be obtained. The matters are REMANDED for the following action: Obtain an addendum medical opinion from a qualified medical professional to determine whether the Veteran’s bilateral pes planus, which clearly and unmistakably existed prior to service, clearly and unmistakably was not aggravated by service, including consideration of in-service treatment for foot pain. A complete rationale for all opinions should be provided. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bush 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.