Citation Nr: 21024423 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 14-33 306 DATE: April 22, 2021 ORDER Service connection for left ear hearing loss is granted. Service connection for tinnitus is granted. Service connection for costochondritis is denied. Service connection for right foot pes planus is denied. Service connection for left foot pes planus is denied. REMANDED Service connection for right ear hearing loss is remanded. Service connection for a right shoulder disorder is remanded. Service connection for a left wrist disorder is remanded. FINDINGS OF FACT 1. The Veteran currently has left ear sensorineural hearing loss to an extent recognized as a disability for VA purposes; the Veteran was exposed to loud noise (acoustic trauma) while in service; the Veteran’s current left ear hearing loss is etiologically related to exposure to acoustic trauma in service. 2. The Veteran currently has tinnitus; the current tinnitus is etiologically related to exposure to acoustic trauma in service. 3. The Veteran is not currently diagnosed with costochondritis. 4. Right and left foot pes planus was noted at service entrance; preexisting right and left foot pes planus, which was noted at service entrance, did not undergo an increase in severity during service beyond its natural progression in either foot. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1131, 1154(b), 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326, 3.385. 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1131, 1154(b), 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 3. The criteria for service connection for costochondritis have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. The preexisting right foot pes planus was not aggravated by active service; therefore, the criteria for service connection for right foot pes planus are not met. 38 U.S.C. §§ 1153, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.306. 5. The preexisting left foot pes planus was not aggravated by active service; therefore, the criteria for service connection for left foot pes planus are not met. 38 U.S.C. §§ 1153, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from March 1974 to May 1976. Service Connection Legal Criteria Service connection may 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(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability. With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1132. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306. In explaining the meaning of an increase in disability, the Court has held that “temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered ‘aggravation in service’ unless the underlying condition, as contrasted to symptoms, is worsened.” Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). The Veteran is currently diagnosed with left ear sensorineural hearing loss and tinnitus (as an organic diseases of the nervous system) which are “chronic diseases” under 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding that where there is evidence of acoustic trauma, the presumptive provisions of 38 C.F.R. § 3.309(a) include tinnitus as an organic disease of the nervous system). Therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as organic diseases of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from 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. 38 C.F.R. § § 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 1. Service connection for left ear hearing loss The Veteran seeks service connection for left ear hearing loss due to exposure to hazardous noise from detonating grenades during service. See February 2019 Board hearing transcript. During the February 2019 Board hearing, the Veteran testified to experiencing acoustic trauma when a grenade detonated very close to him during service, after which the Veteran began experiencing ringing in his ears. The Veteran also testified that the communications equipment he worked around constantly during service was also very noisy. For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater, the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, the Court has held that “the threshold for normal hearing is from 0 to 20 dBs [decibels], and higher threshold levels indicate some degree of hearing loss.” See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Initially, the Board finds the Veteran is currently has left ear hearing loss disability as defined by VA regulatory criteria under 38 C.F.R. § 3.385. A July 2018 VA treatment record shows a speech recognition score using the Maryland CNC Test revealed speech discrimination of 84 percent in the left ear. The evidence shows that the Veteran was exposed to loud noise (acoustic trauma) while in service. The DD Form 214 reflects a military occupational specialty of Communications Equipment Operator/Mechanic, which indicates a probable exposure to excessive noise during service. Service treatment record also reflect a significant shift in pure tone thresholds occurred in the left ear during service. A January 1974 service enlistment examination report shows pure tone thresholds in the left ear were measured at 5 decibels, 0 decibels, 5 decibels, and 5 decibels at 500 Hz, 1000 Hz, 2000 Hz, and 4000 Hz, respectively. A May 1976 service separation examination report reflects pure tone thresholds in the left ear were measured at 15 decibels, 10 decibels, 15 decibels, and 10 decibels at 500 Hz, 1000 Hz, 2000 Hz, and 4000 Hz, respectively. Similar to tinnitus, sensorineural hearing loss is linked with nerve damage that most often occurs “when the tiny hair cells in the cochlea are injured.” Fountain, 27 Vet. App. at 266. More specifically, in Fountain, the Court noted that chronic sensorineural hearing loss, as an organic disease of the nervous system, was due to a problem in the inner ear or in the auditory nerve between the inner ear and the brain, and was commonly caused by chronic exposure to excessive noise, in addition to age related hearing loss. The Court noted that chronic sensorineural hearing loss caused by acoustic trauma resulted in damage to the inner ear and qualified as an organic disease of the nervous system under 38 C.F.R. § 3.309. The Board finds that, based upon both medical and legal authority, the in service acoustic trauma caused permanent nerve damage to the auditory nerve or inner ear, which denotes the onset of the current left ear sensorineural hearing loss in service. Such sensorineural hearing loss is a permanent disability that was incapable of actual improvement of the nerve damage because chronic sensorineural hearing loss either progresses or remains the same (i.e., progression may be prevented), while restoration (i.e., improvement) of chronic sensorineural hearing loss that was caused by acoustic trauma is not medically possible. See Fountain, 27 Vet. App. 258. Although the Veteran was provided with a VA audiometric examination in January 2013, the VA examiner reported that left ear hearing acuity could not be tested in any of the frequencies as the Veteran’s responses were too inconsistent; accordingly, the January 2013 VA examiner did not provide a nexus opinion as to the etiology of the Veteran’s current left ear hearing loss. Based on the foregoing, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria for service connection for left ear sensorineural hearing loss have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As service connection has been granted on a direct basis, there is no need to discuss entitlement to service connection on a presumptive or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. 2. Service connection for tinnitus The Veteran generally contends that tinnitus had its onset during military service. During the February 2019 Board hearing, the Veteran testified to experiencing acoustic trauma when a grenade detonated very close to him during service, after which the Veteran began experiencing ringing in his ears. Initially, the Board finds the Veteran is currently diagnosed with tinnitus. See January 2013 VA examination report. After a review of all the lay and medical evidence, the Board finds the evidence is at least in equipoise on the question of whether the tinnitus is etiologically related to acoustic trauma experienced during service. As discussed above, the Board finds that, based on both medical and legal authority, the Veteran was exposed to acoustic trauma during service that caused permanent nerve damage to the auditory nerve or inner ear, which resulted in the now service-connected left ear hearing loss disability. Because the Veteran sustained nerve damage that caused the service-connected sensorineural hearing loss, by necessary logical inference, the same nerve damage to the inner ear caused the current bilateral tinnitus. Such tinnitus is a permanent disability that was incapable of actual improvement of the nerve damage because tinnitus either progresses or remains the same (i.e., progression may be prevented), while restoration (i.e., improvement) of tinnitus that was caused by acoustic trauma is not medically possible. See Fountain. Further, during the February 2019 Board hearing, the Veteran credibly testified to military noise exposure and the onset of tinnitus during service. The record includes a February 2013 VA addendum opinion containing the VA examiner’s opinion that it is less likely than not that the current tinnitus is etiologically related to service. The VA examiner acknowledged that the Veteran had possible noise exposure during service but, because the Veteran did not specifically associate tinnitus beginning during service and service treatment records do not contain any complaints or treatment for tinnitus, the VA examiner opined that tinnitus was not related to service. The February 2013 VA examiner based the negative nexus opinion on a lack of specific evidence of treatment for tinnitus during service, and did not address whether acoustic trauma experienced during service, or the demonstrated shifts in pure tone thresholds during service, were evidence of nerve damage to the inner ear that could have caused the current bilateral tinnitus. Because the February 2013 VA examiner’s negative nexus opinion is based on an incomplete medical history and premised on a lack of evidence, the Board finds that it is of no probative value in establishing whether or not the current tinnitus is etiologically related to service. As there is no further competent medical opinion to the contrary, the Board resolves reasonable doubt in the Veteran’s favor and finds that service connection for tinnitus is warranted as directly incurred in service. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303(a), (d). As service connection has been granted on a direct basis, there is no need to discuss entitlement to service connection on a presumptive or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. 3. Service connection for costochondritis The Veteran generally seeks service connection for costochondritis. See July 2012 VA Form 21-526. The determinative question in this case is whether the Veteran is currently diagnosed with costochondritis. After a review of all the lay and medical evidence of record, the Board finds that the weight of the evidence demonstrates that the Veteran does not have a current diagnosis for costochondritis. The Veteran underwent a VA examination in January 2013, the examination report for which shows the Veteran was diagnosed with costochondritis during service in 1975, but that he had no current complaints of any costochondritis symptoms. The January 2013 VA examination did not result in a current diagnosis for costochondritis. Other VA and private treatment records throughout the claims period on appeal similarly do not reflect any complaints, treatment, symptoms, or diagnosis for costochondritis. The record includes a March 2013 private medical opinion from Dr. E.S. opining that it is at least as likely as not that costochondritis is linked to military service. Dr. E.S. stated that there is no evidence to show, or reason to expect, that the Veteran has a new or different cause for medical problems. Dr. E.S. stated that the March 2013 private medical opinion is based on review of VA treatment records; however, VA treatment records do not reflect any complaints, symptoms, treatment, or diagnosis for costochondritis. Instead, VA treatment records show the Veteran denied symptoms of chest pain. See e.g. January 2019 VA treatment record; June 2019 VA treatment record. Additionally, Dr. E.S.’s private medical opinion is not accompanied by private treatment records showing complaints, symptoms, treatment, or a diagnosis for costochondritis. As such, the Board finds that Dr. E.S.’s March 2013 private medical opinion assumed inaccurate facts regarding the presence of costochondritis, including the inaccurate assumption that costochondritis was reported or found during treatment; therefore, Dr. E.S.’s statement is of no probative value in establishing whether the Veteran has a current diagnosis for costochondritis. In the absence of a current disability at any time during or immediately prior to this claim period, the appeal for service connection costochondritis must be denied.  4. Service connection for right foot pes planus 5. Service connection for left foot pes planus The Veteran contends that preexisting right and left foot pes planus were aggravated during service. In a January 2013 statement, the Veteran wrote that working as a radio relay carrier during service, he had to constantly walk to and from different locations wearing combat boots in and out of the field that aggravated the preexisting right and left foot pes planus. After consideration of all the lay and medical evidence of record, the Board finds that service connection for right and left foot pes planus is not warranted. As explained below, the weight of the evidence shows that the Veteran had preexisting right and left foot pes planus, which was “noted” at entrance into active service, and that the preexisting pes planus disability did not increase in severity during active service in either foot. The evidence shows that the right and left foot pes planus preexisted service, as pes planus was “noted” at service entrance. See January 1974 service enlistment examination report; thus, the presumption of sound condition as it relates to right and left foot pes planus is not applicable. Because a preexisting pes planus was “noted” upon entrance to active service, service connection may be granted only if it is shown that the pes planus was aggravated by service, that is, if the preexisting pes planus was worsened in severity beyond its natural progression during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Where a disorder is noted on service entrance, 38 U.S.C. § 1153 applies, and the claim is one for aggravation by service. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service (presumption of aggravation), unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153. In such claims of preexisting disability, the veteran (the evidence of record) bears the burden of showing that there was an increase in disability during service to trigger the presumption of aggravation. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Only if this burden is met does the burden of proof shift to VA to prove non-aggravation (by clear and unmistakable evidence). The Board next finds that the weight of the evidence demonstrates that the preexisting right and left foot pes planus did not increase in severity during active service beyond its natural progression, that is, was not aggravated by service. Although service treatment records contain complaints of foot problems treated with orthotics, the foot problems were related to the now service-connected right and left foot hallux valgus. See e.g. July 1975 service treatment record; September 1975 service treatment record; October 1975 service treatment record. The May 1976 service separation examination report reflects the Veteran’s feet were found to be clinically normal. Post-service private and VA treatment records also do not show any complaints or treatment for either right or left foot pes planus until January 2018. A January 2018 VA treatment record reflects the Veteran reported chronic plantar fasciitis and requesting a podiatry consultation. Such evidence does not indicate that there was a worsening of pes planus beyond its natural progression during service in either foot. The Veteran was provided with a VA examination in January 2013, the examination report for which reflects a current diagnosis for right and left foot pes planus. After examining the Veteran, the January 2013 VA examiner opined that it is less likely than not that the current pes planus was aggravated by service. The VA examiner explained that the preexisting pes planus is a natural variant for many people and that the evidence does not indicate that either the right or left foot pes planus had caused the Veteran any problems during service. The record includes a March 2013 private medical opinion from Dr. E.S. opining that it is at least as likely as not that the Veteran’s current right and left foot pes planus is linked to military service. Dr. E.S. stated that there is no evidence to show, or reason to expect, that the Veteran has a new or different cause for his current medical problems. However, Dr. E.S. did not acknowledge that the current right and left foot pes planus preexisted service; therefore, the doctor relied on an inaccurate factual assumption that the pes planus began during service. As the factual premise for the purported opinion was faulty, and did not account for preexisting pes planus, Dr. E.S. does not opine or explain how the pes planus may have been worsened beyond its normal progression by active service. Because Dr. E.S. did not address how pes planus may have been aggravated by active service, the Board finds that the March 2013 private medical opinion is of no probative value in demonstrating that the preexisting right and left foot pes planus was worsened beyond their normal progression by active service. For the foregoing reasons, the Board finds that the weight of the evidence demonstrates that the preexisting pes planus did not increase in severity during service beyond its natural progression - i.e., it was not aggravated by service; therefore, the criteria for service connection for right and left foot pes planus, based on aggravation in service, have not been met. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. REASONS FOR REMAND 6. Service connection for right ear hearing loss is remanded. As discussed above, the Veteran was provided with a VA audiometric examination in January 2013, but the VA examiner reported that the Veteran’s responses were too inconsistent so hearing acuity in the right ear could not be tested in any of the frequencies. It is unclear from VA and private treatment records whether the Veteran has right ear hearing loss to the extent recognized as a disability by VA under 38 C.F.R. § 3.385. Given that in-service acoustic trauma has now been established and service connection for left ear hearing loss and tinnitus have been granted, the Board finds that remand for a new VA audiometric examination is needed to assess the current level of right ear hearing loss, in order to see if there is a disability by VA under 38 C.F.R. § 3.385. 7. Service connection for a right shoulder disorder is remanded. The Veteran seeks service connection for a right shoulder disorder due to a right shoulder injury sustained during service. The Veteran underwent a VA examination in January 2013, the examination report for which indicates a diagnosis for right shoulder rotator cuff tendinitis. The VA examination report also contains the VA examiner’s opinion that it is less likely than not that the current right shoulder cuff tendinitis is etiologically related to service. The January 2013 VA examiner explained that the current right shoulder rotator cuff tendinitis would not be caused by something as remote as an injury in 1974, but rather developed over time, long after his service duty ended. However, the January 2013 VA examiner’s negative nexus opinion is conclusory, is not premised on any specific evidence of record including any post-service injury, and does not consider the Veteran’s contention that he has experienced right shoulder pain since injuring his right shoulder during service in 1974. Because the January 2013 VA opinion is inadequate, remand for a new VA addendum opinion is needed. 8. Service connection for a left wrist disorder is remanded. The Veteran contends that service connection for a left wrist disorder is warranted due to the left wrist injury sustained during service. The Veteran was provided with a VA examination in January 2013, the examination report for which reflects no current diagnosis for a left wrist disorder; consequently, the January 2013 VA examiner did not provide a nexus opinion for the claimed left wrist disorder to the left wrist injury sustained during service. Despite finding no current left wrist pathology, the January 2013 VA examiner also noted positive left wrist findings such as reduced range of motion and left wrist tenderness or pain on palpation of the joints/soft tissue. As it is unclear from the January 2013 VA examination report whether the Veteran’s left wrist symptoms result in functional impairment of earning capacity, remand for a new VA examination and opinion are needed. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018) (holding that pain can qualify as a disability where there is evidence of functional impairment of earning capacity). The matters are REMANDED for the following actions: 1. Schedule a VA audiometric examination in order to assess the current severity of the claimed right ear hearing loss. Request that a VA medical professional review the electronic file and provide the following VA opinion (or addendum opinion) for the claimed right shoulder disorder. Is it at least as likely as not (i.e., 50 percent probability or greater) that the current right shoulder rotator cuff tendinitis is etiologically related to a right shoulder injury treated during service in 1974? 2. Schedule a VA examination in order to assess the claimed left wrist disorder. The VA examiner should provide the following opinions: a. Does the Veteran currently have a left wrist disability? In providing response to this question, the VA examiner should take into account that pain can qualify as a disability where there is evidence of functional impairment of earning capacity. b. If the Veteran does have a current left wrist disability, is it at least as likely as not (i.e., a 50 percent probability or greater) that the current left wrist disability is etiologically related to the left wrist injury treated during service in 1975? A rationale should be given for all opinions and conclusions rendered. The opinions should address the particulars of this Veteran’s medical history and the relevant medical science as applicable to this claim. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Choi, 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.