Citation Nr: 21027148 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-12 864 DATE: May 4, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to an initial compensable rating for a left-hand fracture and finger injury is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a right foot disability is remanded. FINDING OF FACT The evidence is in equipoise as to whether the Veteran's tinnitus is related to service. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.159, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from February 1987 to April 1995, to include service in Southwest Asia. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge as to the issues of entitlement to service connection for a left ankle disability, right ankle disability, low back disability, bilateral hearing loss, and tinnitus and entitlement to an initial compensable rating for a left-hand fracture of the ring and pinky finger. A transcript of that hearing is associated with the claims file. As an initial matter, the Board notes that the record contains two timely substantive appeals to the Board (VA Form 9s) filed in response to the January 2017 Statement of the Case (SOC). First, the Veteran's former representative filed, on the Veteran's behalf, a VA Form 9, which was received by the Board in February 2017. On that VA Form 9, he checked that he was appealing all of the issues listed on the most recent SOC and did not wish to have a Board hearing as to the issues. Thereafter, VA received a second VA Form 9, in March 2017, where the Veteran indicated that he was only appealing the issues of entitlement to an initial increased rating for his service-connected left hand fracture and finger injury and entitlement to service connection for left and right ankle disabilities, a back disability, hearing loss, and tinnitus. He also indicated that he wished to have a teleconference hearing before the Board. See March 2017 VA Form 9. Read together, the Board interprets this to mean that the Veteran appealed all the issues associated with the January 2017 SOC, but only wished to have a hearing on the issues of entitlement to an initial increased rating for his service-connected left hand fracture and finger injury and entitlement to service connection for left and right ankle disabilities, a back disability, hearing loss, and tinnitus. In this regard, the Veteran's appeal was certified to the Board. See September 2018 Form 8. The Veteran's representative also submitted an Informal Hearing Presentation as to all issues listed in the most recent January 2017 SOC. See September 2018 Appellate Brief. The Board acknowledges an unsigned September 2018 Appeal Certification Worksheet, completed by the RO, indicating that the issues of service connection for left hip, right hip, left knee, and right foot disabilities were withdrawn. However, the record does not reflect that the Veteran, or his representative, withdrew these issues. See Hembree v. Wilkie, 33 Vet. App. 1, 16 (2020) (holding that when an appellant seeks to withdraw an appeal in writing, 38 C.F.R. § 19.55, formerly 38 C.F.R. § 20.204(b), governs whether that withdrawal is effective). Moreover, the RO did not seek clarification from the Veteran to resolve any ambiguity created by the second VA Form 9 or otherwise notify the Veteran that any appealed issues were considered withdrawn. As such, and after resolving any ambiguity in favor of the Veteran, the Board finds that the Veteran's filing of a second VA Form 9 in March 2017 does not necessarily suggest that he intended to withdraw the issues of service connection for a left hip, right, hip, left knee, and right foot disability; and, instead, served to limit the issues he wished to have a Board hearing on. Therefore, these issues have not been withdrawn and remain on appeal before the Board. See Evans v. Shinseki, 25 Vet. App. 7 (2011). Entitlement to service connection for tinnitus Service connection may be granted for a disability resulting from a 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 also be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurrent in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including tinnitus, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may also be granted for chronic conditions that have manifested continuous symptomology since separation of service. Id. Additionally, tinnitus is a condition that may be diagnosed by its unique and readily identifiable features, and the presence of the disorder is not a determination that is medical in nature and is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In the present case, the Veteran contends that his diagnosed tinnitus is related to noise exposure during service. Specifically, he reports that he routinely experienced noise exposure from artillery fire and explosions during training exercises in service. See e.g., April 2013 VA examination; March 2017 VA Form 9. Although the Veteran's service treatment records (STRs) are silent for any complaints of tinnitus, the Board finds that his reports of in-service noise exposure are credible as such are consistent with the type and circumstance of his military occupational specialty (MOS) as an Infantry Officer. Therefore, the remaining question before the Board is whether there is a nexus or link between the Veteran's current tinnitus and his military service. In this case, the Board finds that there is competent and credible lay evidence to establish that the Veteran's tinnitus is related to service. The Veteran has consistently reported that the onset of his tinnitus was in service. See e.g., December 2012 Statement in Support of Claim; April 2013 VA examination (reporting tinnitus began during service). Specifically, he testified that he began to experience ringing in his ears during active duty service after live fire trainings and that while the intensity of his tinnitus varied, he continued to experience tinnitus ever since service. See October 2019 Board hearing transcript, pp. 21-22. The Veteran is competent to identify tinnitus, to include the onset of the disorder and its continuity since his discharge from service. Moreover, the Veteran's assertions regarding the onset of his tinnitus are also credible. In this regard, the Board finds no reason to question of veracity of his statements as they are internally consistent and there is no evidence of record that directly contradicts his statements of experiencing symptoms in and since service. As such, the Board assigns great probative weight to the Veteran's lay statements regarding his tinnitus. The Board is aware of the VA opinions of record in April 2013 and September 2013. The April 2013 VA examiner could not provide a medical opinion as to whether the Veteran's tinnitus is related to service without resorting to speculation because the Veteran's claims file was not available for the VA examiner to review. As such, the Board assigns no probative weight to this speculation opinion. The September 2013 VA examiner found that the Veteran's tinnitus is less likely than not related to his service because his separation physical examination did not note tinnitus. This opinion is not probative because the VA examiner relied solely on the lack of an in-service diagnosis or treatment and did not consider the Veteran's competent and consistent reports that he had an onset of tinnitus in service. See Dalton v. Peake, 21 Vet. App. 23 (2007). Accordingly, the Board finds that the evidence is in equipoise as to whether the Veteran's tinnitus is related to service. Specifically, the Board assigns no probative value to the VA medical opinions of record while the Board finds that the Veteran's reports of tinnitus are probative as they are consistent with his descriptions of in-service noise exposure and are consistent with the circumstances of his service and other medical evidence of record. Therefore, after resolving all reasonable doubt in favor of the Veteran, service connection for tinnitus is granted. See 38 C.F.R. § 5107. REASONS FOR REMAND 1. Entitlement to an initial compensable rating for a left-hand fracture and finger injury The Veteran was last afforded a VA examination in April 2013 to assess the severity of his service-connected disability. At the time of the VA examination, the examiner found that the Veteran did not have ankylosis of his fingers, to include any joint ankylosis. However, during the October 2019 Board hearing, the Veteran testified that his fingers are "stuck the way they are" and that his joint was frozen on his ring finger because he could not straighten that finger. See October 2019 Board hearing transcript, pp. 26, 28. He also testified that his pinky finger was frozen on the distal joint. See id. at p. 28. The Board notes that VA's duty to assist includes the conduct of a thorough and comprehensive medical examination. Robinette v. Brown, 8 Vet. App. 69, 76 (1995). This includes providing a new medical examination when the Veteran asserts or provides evidence that a disability has worsened, and the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that the Board should have ordered a contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). In this case, in light of the Veteran's Board testimony that he may have ankylosis of multiple finger joints of his left hand since his last VA examination several years prior, the Board finds that a remand is warranted for a contemporaneous VA examination to assess the severity of the Veteran's condition. 2. Entitlement to service connection for bilateral hearing loss The Veteran contends that he has bilateral hearing loss as a result of noise exposure during service. The Veteran was last afforded a VA examination in April 2013 to assess his hearing. The VA examiner found that the Veteran's puretone thresholds did not meet the criteria for bilateral hearing loss for VA compensation purposes. Thereafter, a March 2019 VA treatment record reflects that the Veteran reported that his hearing had declined since his last audiology examination in 2013 and that he could not hear in the presence of running water. As such, he underwent an audiologic evaluation for treatment purposes, wherein the audiologist noted that the Veteran had a good word recognition score of 92 percent and that results from his evaluation did not indicate a significant change in his hearing when compared to his previous audiogram. See March 2019 VA treatment record. The Board notes that for VA compensation purposes impaired hearing will be considered a disability when certain auditory thresholds are met or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. Here, although the March 2019 VA treatment audiology evaluation reflects the Veteran had a word recognition score of 92 percent, it is unclear whether the Maryland CNC test was used. Accordingly, in light of the Veteran's assertions that his hearing has worsened, the amount of time that has passed since his last VA examination, and the fact that the Veteran may have a hearing loss disability for VA purposes based upon speech discrimination scores, the Board finds that the Veteran should be scheduled for another VA examination to determine whether he has a current hearing loss disability for service connection purposes under 38 C.F.R. § 3.385. On remand, the RO should also clarify, if possible, whether the speech discrimination testing conducted at the March 2019 VA treatment audiology evaluation was performed using the Maryland CNC word list. 3. Entitlement to service connection for a low back disability, left ankle disability, right ankle disability, left knee disability, left hip disability, and right hip disability The Board finds that further development is necessary prior to final adjudication of the Veteran's claims. First, after careful review of the evidence, the Board finds there are outstanding VA medical records relevant to the low back and left hip matters at issue. Specifically, a February 2019 VA treatment record reflects that the Veteran had a history of a lumbar strain with sky diving/jumping as well as a history of chronic left hip pain and that x-rays were ordered for his hip and back pain. During the October 2019 Board hearing, the Veteran also testified that he had a back x-ray through VA and believed that he also had an x-ray for one of his hips. See October 2019 Board hearing transcript, p. 15. However, the record does not include any back and/or hip x-rays associated with the claims file. Accordingly, a remand is required so that the RO may obtain these outstanding VA x-rays and associate them with the claims file for evidentiary consideration. Next, the Board finds that a remand is also warranted because the only VA examinations of record, in April 2013, are inadequate. In this regard, the April 2013 VA examiner noted that the Veteran had or has a bilateral ankle sprain, lumbar strain, and left knee strain with onsets during service. However, the examiner did not elaborate whether these were current diagnoses and it is otherwise unclear from the examination reports what the Veteran's current diagnoses are for his claimed conditions. The Veteran's hip diagnoses are also unclear from the April 2013 VA examination because the examiner listed that the Veteran had left hip bursitis with an onset in 1989 but then checked that his right side was affected. Moreover, the STRs reflect various in-service diagnoses for the Veteran's claimed conditions, which the VA examiner did not appear to consider. For example, a November 1990 STR reflects an assessment that the Veteran had intermittent trochanteric bursitis of the hips with the right hip worse, an April 1987 STR reflects the Veteran had iliotibial band syndrome of the left knee, and his January 1995 separation Report of Medical Examination reflects that he had bilateral Osgood-Schlatter. Accordingly, a remand is warranted to clarify the Veteran's current diagnoses for his claimed conditions. Moreover, the Board also finds that the April 2013 VA opinions for these claimed conditions are inadequate. In this regard, the April 2013 VA examiner opined that the Veteran's disabilities were not related to service because there is no documentation of continuity of care from service until the April 2013 VA examinations. This opinion does not reflect consideration of the Veteran's reports of pain ever since service. The Board notes that a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton, 21 Vet. App. at 23. Additionally, a February 2007 private treatment record reflects that the Veteran had been undergoing private physical therapy for back pain, which included thoracic and cervical spine exercises. It is unclear if the VA examiner considered this evidence. Accordingly, remand is necessary so that the Veteran is afforded VA examinations that consider the Veteran's lay statements and all the medical evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Finally, the Veteran also reported that his low back, knee, hip, ankle, and foot pain may be related to carrying heavy packs weighing anywhere between 65 to 85 pounds during foot marches in service as well as from physical training in combat boots. See December 2012 Statement in Support of Claim and October 2019 Board hearing transcript, pp. 12-13. As such, on remand, the VA examiner should also provide an opinion as to whether the Veteran's disabilities are related to wear and tear from carrying heavy rucksacks during service and from physical training in issued boots. 4. Entitlement to service connection for a right foot disability The Board also finds that further development is necessary prior to final adjudication of the Veteran's claim for service connection for a right foot disability. In this regard, the Veteran underwent a VA foot examination in April 2013 where he was assessed with currently having or ever having a right foot injury with an onset in 1990. Thereafter, he underwent another VA foot examination in November 2016 where he was assessed with bilateral flat feet and metatarsalgia. The Agency of Original Jurisdiction (AOJ) subsequently granted service connection for bilateral plantar fasciitis and the Veteran later reported that his right foot injury and bilateral plantar fasciitis are related. See January 2017 Report of General Information. Based on review of the evidence, the Board finds that it is unclear from the record whether the Veteran has a right foot disability that is separate from his service-connected bilateral plantar fasciitis and, if so, whether such is related to his service-connected disability. Specifically, the April 2013 VA examiner did not elaborate on the Veteran's right foot injury diagnosis while the STRs in 1990 and 1991 indicate the Veteran was assessed with high arches, heel spur syndrome, chronic plantar fasciitis, and a contusion of the right foot. See March 1990, November 1990, and September 1991 STRs. Therefore, a remand is warranted for a VA examination and opinion to clarify if the Veteran has a right foot disability separate from and/or secondary to his service-connected plantar fasciitis disability. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records for the appeal period, to include all x-rays associated with VA treatment. Specifically, obtain and associate with the claims file a copy of the spine and left hip x-rays ordered in the February 8, 2019, VA treatment record. If any requested records are not available, the record should be annotated to reflect such, and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Provide the Veteran another opportunity to identify any relevant outstanding private treatment records pertaining to his claims. At the October 2019 Board hearing, the Veteran testified that he received treatment from Dr. Roman. See October 2019 Board hearing transcript, pp. 7-8. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained and associated with the claims file. 3. Seek clarification, such as from the facility/treating audiologist and/or a VA audiology examiner, if possible, whether the word recognition testing conducted at the March 29, 2019 VA audiology treatment evaluation was performed using the Maryland CNC word list. 4. Then, schedule the Veteran for an updated VA examination with an appropriate medical professional to determine the current severity of his service-connected left-hand fracture and finger injury. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. All appropriate tests and studies should be accomplished, and all clinical findings should be reported in detail. The VA examiner should provide a full description of the disability and report all signs and symptoms necessary for rating the disability under the pertinent rating criteria. The examiner should indicate whether the Veteran has ankylosis of any finger joints of his left-hand. The Veteran has provided testimony that his left ring finger and pinky finger are frozen. See October 2019 Board hearing transcript, pp. 26-28. 5. Schedule the Veteran for a VA audiology examination by an appropriate medical professional to address the claimed bilateral hearing loss. The record, to include a copy of this Remand, must be reviewed by the VA examiner. The examiner should respond to the following: The examiner should identify whether the Veteran currently has bilateral hearing loss. The audiological examiner should obtain the Veteran's auditory thresholds at frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, as well as speech recognition scores based on the Maryland CNC tests to determine whether the Veteran has impaired bilateral hearing pursuant to 38 C.F.R. § 3.385. For any diagnosed hearing loss, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the hearing loss (1) had its onset in or was otherwise incurred in service, to specifically include the competently reported in-service noise exposure, OR (2) is caused or aggravated by his service-connected tinnitus. The examiner should provide an opinion for BOTH causation and aggravation. If aggravation is found, the examiner should quantify the degree of aggravation, if possible. State whether there was a medically ascertainable increase in disability regardless of permanence. The examiner should consider the Veteran's report that his tinnitus interferes with his hearing. See March 2017 VA Form 9. The examiner is notified that the Veteran is competent to report as to the onset and continuity of symptomatology of the claimed hearing loss. A complete rationale should be given for all opinions and conclusions expressed. 6. Schedule the Veteran for a VA examination with an appropriate medical professional to address the Veteran's claims for service connection for a low back disability, left ankle disability, right ankle disability, left knee disability, left hip disability, and right hip disability. The claims file, to include a copy of this Remand, should be made available to and be thoroughly reviewed by the examiner. The examiner should respond to the following: (a) Identify all disabilities/diagnoses related to the Veteran's claims present throughout the appeal period. (b) If the examiner cannot identify a diagnosis/diagnoses associated with the Veteran's low back pain, bilateral ankle pain, left knee pain, and/or bilateral hip pain, or identify a diagnosis/diagnoses that encompasses the Veteran's symptomatology, the examiner should determine whether such pain and associated symptoms result in functional loss or impairment to the Veteran. Such impairment must be described in detail. If a diagnosis or functional impairment is not shown, it should be explained why this is so. The Board notes that evidence of pain alone that causes functional impairment, even without a specific diagnosis or identifiable disease, may constitute a disability for VA purposes (c) For each identified disability, or if the examiner determines that the Veteran's pain or symptomology results in functional loss or impairment, provide an opinion as to whether is it at least as likely as not (50 percent probability or greater) that such (1) had an onset in service; (2) manifested within one year from discharge from service; OR (3) is otherwise related to service, to include wear and tear from carrying heavy packs during foot marches and/or physical training in issued boots? The examiner MUST ADRESS the Veteran's lay statements regarding continuity of symptoms in and since service. The examiner should also consider: (1) the November 1990 STR reflecting that the Veteran reported a history of eight or nine episodes of trauma to the hips; (2) the November 1990 and September 1994 right hip radiologic examinations; (3) the November 1990 STR where the Veteran complained of feet, knee, and hip tenderness, reported everything below the hip hurt, and reported a history of motorcycle accidents between September and March 1989; (4) the September 1994 left and right ankle radiologic examination showing small osteophytes and some mild degenerative change at the talonavicular joint in the right ankle; and (5) the 2007 private treatment records reflecting the Veteran underwent private physical therapy for back pain. The examiner should comment on all questions above and set forth a complete rationale for all opinions. A discussion of the relevant facts and medical principles involved would be of considerable assistance to the Board. 7. Schedule the Veteran for an updated VA examination by an appropriate medical professional to address the claimed right foot disability. The record, to include a copy of this Remand, must be reviewed by the VA examiner. All indicated tests and studies should be accomplished. The examiner should respond to the following: (a) Identify all diagnoses related to the Veteran's service connection claim for a right foot disability. The examiner should specifically address whether the Veteran has a right foot disability that is separate and distinct from his service-connected bilateral plantar fasciitis. Why or why not? (b) If the Veteran has a right foot disability separate from his service connected bilateral plantar fasciitis, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such had an onset in service or is otherwise related to service, to include from wear and tear related to wearing issued boots during training and foot marches. (c) If the Veteran has a right foot disability separate from his service connected bilateral plantar fasciitis, also provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such is (1) caused by OR (2) aggravated by his service-connected bilateral plantar fasciitis. The examiner should provide an opinion for BOTH causation and aggravation. If aggravation is found, the examiner should quantify the degree of aggravation, if possible. State whether there was a medically ascertainable increase in disability regardless of permanence. The examiner should comment on all questions above and set forth a complete rationale for all opinions. The rationale must reflect consideration of the lay assertions of pertinent symptomatology. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Purcell, 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.