Citation Nr: 21041046 Decision Date: 07/08/21 Archive Date: 07/07/21 DOCKET NO. 17-34 481 DATE: July 8, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral tinea pedis and tinea unguium is granted. REMANDED Entitlement to service connection for a right knee disability, to include as secondary to service-connected right ankle tendinosis, is remanded. FINDINGS OF FACT 1. The Veteran was exposed to acoustic trauma during his active duty service. 2. The Veteran's bilateral hearing loss was incurred in, or caused by, his military service. 3. The Veteran's tinnitus was incurred in, or caused by, his military service. 4. The Veteran's current bilateral tinea pedis and tinea unguium were incurred in, or caused by, his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for bilateral tinea pedis and tinea unguium have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1980 to July 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In September 2019, the Board denied service connection for bilateral tinea pedis, a right knee disability, bilateral hearing loss, and tinnitus. The Veteran appealed the Board's decision, in part, to the United States Court of Appeals for Veterans Claims (Court). In October 2020, the Court issued an Order granting a Joint Motion for Partial Remand (JMPR) by the parties, vacating the decision with respect to the issue described above, and remanding the matter to the Board for further action. In March 2021, the Board remanded the matter for compliance with the terms of the JMPR. Service Connection 1. Entitlement to service connection for bilateral hearing loss is granted. 2. Entitlement to service connection for tinnitus is granted. Service connection will generally be awarded when a Veteran has 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). To establish service connection on a direct basis, the evidence must show (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link or nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 252 (1999). In addition, certain chronic diseases, including sensorineural hearing loss and tinnitus, may be presumed to have been incurred or aggravated during service if it becomes disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Other organic diseases of the nervous system include sensorineural hearing loss. See Fountain v. McDonald, 27 Vet. App. 258 (2016). For VA compensation purposes, hearing loss is defined as a disability when the auditory puretone threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory puretone 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 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The auditory thresholds set forth in § 3.385 establish when hearing loss is severe enough to constitute a disability. Hensley 5 Vet. App. at 159. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran maintains that he suffers from bilateral hearing loss and tinnitus, which are the direct result of noise exposure during active service. He specifically asserts that he developed hearing loss during his active service after serving as a combat heavy engineer and being exposed to loud noise constantly. See July 2015 Notice of Disagreement. The Veteran has been diagnosed with bilateral hearing loss and tinnitus. See March 2021 VA Examination. Accordingly, he has a current disability. Davidson, 581 F.3d 1313. The Veteran has reported unprotected exposure to acoustic trauma and resultant hearing loss symptoms, including tinnitus, during his active service. See July 2015 Notice of Disagreement; March 2021 VA Examination (stating tinnitus began during service). Moreover, the Veteran's Form DD 214 shows his Military Occupation Specialty (MOS) as a heavy construction equipment operator, spanning 3 years and 8 months. He stated that he operated D-7 large cats and an 830 scrapper as part of his military duties. See June 2017 VA Form 9. Therefore, his significant exposure to acoustic trauma has been established. The Veteran is competent to report observable hearing loss symptomatology and experiencing an injury and resultant auditory pathology in the form of hearing loss and tinnitus during service, as well as experiencing hearing loss symptoms since his separation from active service, as such are capable of lay observation. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson, 581 F.3d 1313. The Board notes that there are negative etiological opinions of record in the form of March 2015 and March 2021 VA examination reports. The examiners opined it was less likely that the Veteran's bilateral hearing loss was related to his military service. The VA examiners' rationales were based primarily on the absence of documented hearing loss in the Veteran's service treatment records. See 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). Further, the VA examiners did not address the Veteran's statements regarding his in-service hearing loss symptomatology. Finally, both examiners noted the Veteran's post-service noise exposure as a heavy equipment operator and related this exposure to his current hearing loss. However, the examiners failed to acknowledge that the Veteran also worked as a heavy equipment operator during service for 3 years and 8 months. The VA examiners did not explain why his current hearing loss was related to his post-service work as a heavy equipment operator rather than his in-service work in the same field. Accordingly, the VA medical opinions form an inadequate foundation upon which to base a denial of entitlement to service connection for bilateral hearing loss. In sum, the Veteran has competently and credibly described suffering in-service acoustic trauma and reported a continuity of symptomatology of bilateral auditory pathology in the form of hearing loss and tinnitus during and since his active service. See Charles, 16 Vet. App. 370; Jandreau, 492 F.3d at 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001). Accordingly, the Board finds that service connection for bilateral hearing loss and tinnitus is warranted. 3. Entitlement to service connection for bilateral tinea pedis and tinea unguium is granted. The Veteran asserts that he has a bilateral foot condition that is etiologically related to his active service. Specifically, he asserts that he has had various conditions, such as itchy feet, trench foot, and soreness during active service that continue today. See March 2021 VA Examination. The Veteran has a current diagnosis of tinea pedis (athlete's foot) and tinea unguium (nail). Thus, the Veteran has a current disability and the first element of service connection has been met. As discussed above, the Veteran states that his bilateral foot condition began in service. The Veteran's Service Treatment Records (STRs) show repeated treatment for athlete's foot. See August 1980, September 1981, and June 1982 STRs. As there is a documented diagnosis of tinea pedis, or athlete's foot, in the Veteran's STRs, the Board finds that the second element of service connection has been met - incurrence of a disease or injury in service. The Veteran is competent to report observable tinea conditions, such as itch on the top and bottom of his feet, as well as in between his toes, since active service, as such are capable of lay observation. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson, 581 F.3d 1313. The Board notes that a negative etiology exists in the form of the March 2015 and March 2021 VA examinations. The March 2015 VA examiner based her negative nexus opinion on the fact that the Veteran did not have tinea pedis at the time. The March 2021 VA examiner based her negative opinion on the fact that the Veteran's medical records were silent for tinea pedis from 1982 to 2012. As the March 2021 VA examiner noted, tinea pedis is usually treatable but can recur again. Furthermore, the Veteran first established care with the VA in 2009. As the Veteran's STRs show a diagnosis of treatment for a fungal foot condition, as the Veteran currently has a diagnosis of tinea pedis and tinea unguium, and as the Veteran has competently testified that he has had symptoms of itchiness in both feet since active service, the Board finds that the third element of service connection, nexus, has been established. Accordingly, resolving all reasonable doubt in favor of a nexus between the Veteran's bilateral tinea pedis and tinea unguium and his active service, the Board finds that service connection for bilateral tinea pedis and tinea unguium is warranted. See 38 U.S.C. § 5107(b) REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability, to include as secondary to service-connected right ankle tendinosis, is remanded. The Board remanded the Veteran's claim for service connection for a right knee disability in March 2021, in part to obtain a VA medical opinion to determine whether the Veteran's right knee disability was secondary to his service-connected right ankle disability, to include as due to an irregular gait pattern. A VA medical opinion was obtained in March 2021, where the examiner plainly stated that the Veteran's "right ankle and/or an irregular gait pattern (not noted in 2013) did not cause his right knee condition." The Board finds the March 2021 VA medical opinion inadequate, as it is conclusory in nature and does not meaningfully discuss whether the Veteran has an altered gait due to this service-connected right ankle tendonosis that causes or aggravates his right knee disability. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, a new medical opinion is warranted. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's right knee disability. The examiner must opine on the following and provide a rationale to support each opinion: a) Whether the Veteran's service-connected right ankle tendonosis causes him to have an irregular gait pattern. b) Whether the right knee disability is at least as likely as not proximately due to his service-connected right ankle tendonosis and any irregular gait pattern associated therewith. c) Whether the right knee disability is at least as likely as not aggravated beyond its natural progression by his service-connected right ankle tendonosis and any irregular gait pattern associated therewith. A complete rationale for all opinions is required. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Mohammad 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.