Citation Nr: 21029602 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 18-01 807 DATE: May 14, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. REMANDED Entitlement to an initial compensable rating for left ear hearing loss is remanded. Entitlement to service connection for coronary heart disease (claimed as ischemic heart disease) is remanded. Entitlement to service connection for a foot disorder is remanded. FINDING OF FACT Resolving all doubt in the Veteran's favor, the Veteran's currently diagnosed hearing loss in his right ear was incurred during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from April 1970 to November 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. These matters were previously before the Board in June 2020 at which time the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then, generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303 (b), Walker v. Shinseki 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Additionally, other organic diseases of the nervous system, which may include sensorineural hearing and tinnitus, are classified as "chronic diseases" under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) also applies. 38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015) (including tinnitus as an organic disease of the nervous system). Presumptive service connection for "chronic diseases" must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the veteran's separation from service. Walker, 708 F.3d at 1338. In this case, because there is no indication that the Veteran's hearing loss was manifested within one year of service, service connection is not available on a presumptive basis in this case. 38 C.F.R. §§ 3.307, 3.309. Direct service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then, generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the present of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although lay persons are considered competent to provide opinions on some medical issues, some medical issues fall outside of the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same, and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for right ear hearing loss The Veteran contends that his hearing loss of his right ear is due to consistent exposure to noise working as a pavement and equipment operator during his service in the military. The Veteran was afforded an August 2015 VA audiological examination that reflects that he has current hearing loss disability in his right ear. See, August 2015 VA examination report; 38 C.F.R. § 3.385. Hence, the Veteran has a current disability of right ear hearing loss. Nonetheless, with regards to nexus, the VA examiner opined that because the Veteran's service treatment records (STRs) reflects that there was no significant change in the Veteran's hearing threshold sensitivity from the time of his enlistment examination to the time of service separation, the Veteran's right ear hearing loss is not connected to his military service. However, the evidence of record includes an October 2014 private opinion which also found that the Veteran has a sensorineural bilateral hearing loss but provided a contrasting medical nexus opinion, concluding that the Veteran has a noise-induced hearing loss that "[m]ore than likely due to his military experience." See, October 2014 Non-Government Medical Treatment Record. The Board notes that the VA examiner formulated his August 2014 opinion solely based on the absence of documented treatment in service, and no significant in-service threshold shift of the right ear, which the Board finds inadequate as establishing service connection is possible if the current hearing loss can be adequately linked to service. The law clearly provides that this cannot be the sole basis for a "no-nexus" opinion. Ledford v. Derwinski, 3 Vet. App. 87 (1992). Further, the Veteran testified during his Board Hearing that he was consistently exposed to noise as an equipment operator and a concrete paver during his active service. See, June 2020 Board Hearing Transcript. The Veteran's military personal records also reflect his military occupational specialty (MOS) as a pavement and equipment specialist. Given the Veteran's statements of his significant exposure to noise while in the military because of the nature of his duties, as noted above, the Board accepts the Veteran's assertions of significant in-service noise exposure as consistent with the circumstances of his service. 38 U.S.C. § 1154(b). The Board further acknowledges that the Veteran is considered competent to report his observable symptoms, based on his own lay assertions. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). In weighing these facts, the Board finds that the most credible evidence of record establishes the in-service incurrence of an injury, in this case, the acoustic trauma. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). As the Board finds the Veteran competent and credible with respect to his observable symptoms of what in-service occurrences precipitated his right ear hearing loss, the Board has assigned his statements high probative value. Further, the RO has conceded to the Veteran's in-service noise exposure in granting service connection for hearing loss in the left ear and tinnitus, based on the same circumstances that the Veteran is asserting is the basis for his claim for service connection for right ear hearing loss. See, August 2015 Rating Decision. Therefore, the Board finds that the evidence is at least in equipoise regarding whether the Veteran's current right ear hearing loss was incurred in service. Accordingly, and affording the Veteran the benefit of the doubt, the Board finds that service connection for his hearing loss in his right ear is warranted. 38 U.S.C. § 1101, 1131, 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to an initial compensable rating for left ear hearing loss is remanded. The Veteran was granted service connection for his high frequency hearing loss of the left ear under Diagnostic Code 6100 in September 2015, with a noncompensable rating, effective the date of his claim. He filed a Notice of Disagreement (NOD) in October 2015 seeking a compensable rating, and during his June 2020 Board hearing, the Veteran asserted that his hearing loss has gotten worse. Although the Veteran subsequently submitted a private audiological evaluation report in October 2020, the report specifically states that it is not adequate for rating purpose. Therefore, a remand is necessary to afford the Veteran a VA examination that is ratable so that the severity of his left ear hearing loss can be appropriately evaluated. Further, the Board has granted service connection for right ear hearing loss in this decision, which must be taken into consideration in order to properly assess the Veteran's rating for his now service-connected bilateral hearing loss. 2. Entitlement to service connection for coronary heart disease (claimed as ischemic heart disease) is remanded. The Veteran contends that his currently diagnosed coronary artery disease (CAD) resulted from his active duty service, including herbicide exposure while serving in the Korean Demilitarized Zone (DMZ). See, October 2015 Correspondence. See, June 2020 Board Hearing Transcript. The Board notes that although the Veteran was afforded a VA examination for his claim in August 2015, the examiner's report does not include a nexus opinion. Rather, the basis of the denial of the Veteran's claim appears to be solely based on the Veteran's lack of presumptive service connection, citing that his military personal record reflects that he was assigned to the 8th Army, Company C 802d Engineer Battalion, and that he did not prove that he was temporarily assigned to the Korean DMZ during his active duty service period. In this regard, the Veteran should first be given an opportunity to provide additional information concerning his claim that he had "boots in Korea" service at the Korean DMZ during his active duty service. Specifically, what duties may have placed him on or near the DMZ and how often he was on or near the DMZ i.e., the frequency and level of herbicide exposure. Further, the examiner did not address whether such exposure (as the Veteran contends), could account for his current CAD disability, and whether service connection could also be based on direct service connection, given the Veteran's MOS as an operator of heavy machinery. Consequently, the Board finds this August 2015 VA examination to be inadequate. The Board also finds that this issue is sufficiently complex that an advisory opinion from an independent medical expert is necessary under 38 U.S.C. § 5109(a) and 38 C.F.R. § 3.328. Therefore, due to the heightened level of medical complexity and controversy involved in the Veteran's claim, upon remand, the Agent of Jurisdiction shall obtain an advisory medical opinion from an independent medical expert as set forth in the directives below. 3. Entitlement to service connection for a foot disorder is remanded. The Veteran's service connection claim for a foot disorder was denied by the RO in the August 2015 rating decision, stating that although the Veteran's STRs reflect his complaint of left hip and leg pain, X-rays revealed no diagnosis of a leg/foot condition. However, the Board finds that the Veteran should have been afforded a VA examination to evaluate the nature and etiology of his foot disorder, especially in light of the fact that his treatment records from 2009 reflect an array of and treatment for foot ailments, such as heel pain, plantar fascitis with secondary pes planus valgus (from x-ray findings), tinea pedis and hammer toes. See, November 2014 Medical Treatment Record-Non-Government. Consequently, the Board finds that this matter should be remanded for a VA examination before it can be adjudicated on its merits. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination in order to determine the current severity of his service-connected bilateral hearing loss disability. The entire claims file, including this Remand, must be made available to and reviewed by the examiner. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must also describe the severity of manifestations of the Veteran's bilateral hearing loss disability, to include the functional impairment of the disability on the Veteran's ordinary activities of daily life, including employment. All opinions offered must be supported by a complete rationale. 2. Request that the Veteran provide additional information regarding his claim that he had "boots in Korea" service at the Korean DMZ during his active duty service. Specifically, what duties may have placed him on or near the DMZ and how often he was on or near the DMZ i.e., the frequency and level of herbicide exposure. 3. Regardless of whether the Veteran responds to (2), the Agency of Jurisdiction (AOJ) should obtain an advisory medical opinion by an appropriate specialist in cardiology pursuant to 38 U.S.C. § 5109(a) and 38 C.F.R. § 3.328. The Veteran's claims file should be made available to and be reviewed by the specialist before rendering such an opinion, and the specialist should then provide the following response: 4. Offer an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or more) that the Veteran's diagnosed coronary artery disease (CAD) is due to or otherwise related to the Veteran's military service as an operated of heavy machinery, to include exposure to herbicide agents in the Korean DMZ. In rendering this opinion, the specialist is advised that the Veteran is considered competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the specialist rejects the Veteran's reports, he or she must provide an explanation for such rejection. The specialist is not to improperly discount the Veteran's lay statements or mistakenly primarily rely on an absence of medical evidence in the Veteran's service treatment records (STRs) to support his or her conclusions. The complete rationale for all opinions rendered should be set forth and a discussion of the facts and medical principles involved in formulating such opinions would be of considerable assistance to the Board, especially given the complexity of this issue. 5. Schedule the Veteran for an examination with a VA examiner with the appropriate medical expertise to determine the nature and etiology of the Veteran's claimed foot disability. The record and a copy of this Remand must be made available and reviewed by the examiner. The examiner should identify and/or confirm all of the Veteran's diagnosed foot disabilities, including plantar fascitis, pes planus valgus, tinea pedis and hammer toes. For any diagnosed foot disability, state whether it is at least as likely as not (i.e. 50 percent probability or greater) that such foot disability originated during, or is etiologically related to, active duty service. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The examiner is advised that the Veteran is considered competent to be able to report injuries and symptoms, and that his reports must be considered in formulating the requested opinions. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. If a negative opinion is offered based primarily on the length of time between the Veteran's military separation and the current diagnoses or an absence of evidence, the examiner should explain the medical significance of this fact, i.e., why this is indicative that any foot disability is not related to service. 6. After the above development has been completed, the Agency of Jurisdiction (AOJ) should readjudicate the issues on appeal, including implementing the decision granting service connection for right ear hearing loss and readjudicating the issue of entitlement to a compensable initial evaluation for the Veteran's now service-connected bilateral hearing loss. If any benefit sought is not granted, the AOJ should send the Veteran and his representative a Supplemental Statement of the Case (SSOC), provide an opportunity to respond, and then, if necessary, return the case to the Board for further appellate review. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, 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.