Citation Nr: 22008037 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 16-40 690A DATE: February 11, 2022 ORDER Entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for right and left foot pes planus is denied. Entitlement to service connection for right and left foot plantar fasciitis is denied. REMANDED Entitlement to a compensable rating for service-connected hearing loss is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his left ear hearing loss is at least as likely as not related to his in-service noise exposure. 2. The Veteran's preexisting bilateral pes planus was not aggravated beyond the natural progression of the disability by his active service. 3. The Veteran's bilateral plantar fasciitis was not incurred in, caused by, or otherwise etiologically related to active service; nor was it caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.385. 2. The criteria for service connection for right and left foot pes planus have not been met. 38 U.S.C. §§ 1153, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. 3. The criteria for service connection for right and left foot plantar fasciitis have not been met. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1990 to September 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran provided testimony before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. By way of history, in January 2020, the Board remanded, in part, these issues for additional development. Thereafter, a February 2021 Board decision again remanded the claims of entitlement to a compensable disability rating for right ear hearing loss, and for entitlement to service connection for left ear hearing loss and for bilateral foot disability for addendum opinions. Although opinions were obtained, another remand was issued in August 2021 due to noncompliance with the prior remand directives. It has since returned to the Board for adjudication. The Veteran has not raised any issues with the duty to notify or duty to assist in obtaining documentary evidence. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Further, neither the Veteran nor his representative has alleged any deficiency with the conduct of the Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 1. Entitlement to service connection for left ear hearing loss The Veteran contends that his left ear hearing loss was caused by exposure to noise in the military. Significantly, he originally claimed bilateral hearing loss due to noise exposure and his right ear hearing loss has already been service connected. For the purpose of applying the laws administered by the VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. With regard to a present disability, VA audiological examinations show the Veteran has bilateral hearing loss for VA purposes. As to an in-service event, service treatment records (STRs) are negative for any complaints of hearing loss. However, the Veteran's DD-214 shows a military occupational specialty of Armor Crewman and he has consistently reported exposure to gunfire, tank noise, diesel vehicles, jet engine noise with no hearing protection. His STRs also show shift in thresholds in both ears. Importantly, he has already been granted service connection for tinnitus and right ear hearing loss based on in-service noise exposure. As such, in-service noise exposure can be conceded. The remaining question is whether there is a medical nexus between the Veteran's in-service noise exposure and his current left ear hearing loss. The Veteran was afforded VA audiological examinations in February 2014, June 2020, February 2021, and March 2021. The 2014, 2020, and February 2021 examiners noted at the time of entrance there was a certain amount of reduced hearing acuity noted in the left ear. The examiners reported that there was no evidence of hearing loss incurred in service because there was no significant audio threshold shift in the left ear by the time of the separation examination. The examiners opined it was therefore less likely than not pre-existing left ear hearing loss was aggravated by military noise exposure. However, the Board remanded this claim specifically deeming each of those opinions inadequate and legally incorrect. All three of the examiners ignored the Board's clear instructions that it is legally incorrect that the Veteran's left ear hearing loss pre-existed service and all three solely relied on the Veteran having pre-existing hearing loss in the left ear with no significant shift in hearing noted during service as the rationale for a negative opinion. The March 2021 addendum opinion on direct service connection also relied solely on normal hearing acuity at separation but did not address the Veteran's lay statements, conceded in-service noise exposure, or that the audiogram from August 1993 indicated a slight threshold shift in the left ear since the 1992 hearing test and the entrance test. Therefore, the Board remanded the claim for a third time in August 2021, with specific instructions that the left ear did not have pre-existing hearing loss for VA purposes, that that there is legal authority providing that normal audiometric results in separation examinations alone are not an adequate basis for a negative audiological opinion, and that the examiner must consider delayed onset hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In an addendum opinion in August 2021, the examiner opined it less likely than not the left ear hearing loss was incurred in or caused by service, again relying on the fact that the Veteran's hearing was considered normal at separation and did not seek evaluation until 2014, 20 years post-service. The examiner then opined "any noise exposure through the Veteran's life, including traffic noise, smoke alarms, etc. would have to be considered in addition to any military noise exposure. Many factors contribute to age related hearing loss including genetic predisposition and medical conditions." First, this part of the opinion ignores the clear instructions in the remand that relying on normal separation examination is not adequate. Second, it is patently false that the Veteran did not receive treatment or report hearing loss until 2014. Rather, the Veteran's August 2009 new patient intake at VA Medical noted he was positive for a history of hearing loss and this was when he was only 38 years old so relying on "age-related hearing loss" is irrelevant. Third, assuming traffic noise and smoke alarms should be considered in addition to military noise exposure is ambiguous and not relevant to this particular Veteran, but does imply the Veteran did, indeed have hearing loss due to military noise exposure. (emphasis added). Further, the examiner also opines that the Veteran was exposed to noise in the military "and the relationship of noise, auditory damage and hearing loss is well-established." While the examiner then states hearing loss cannot be conceded based on military noise alone due to not seeking support for hearing loss within one year of service, the Board finds this part of the opinion legally inaccurate and somewhat limits the probative value of her opinion. In addition, the examiner cites to the studies done on delayed onset hearing loss, but found the findings too generalized. However, as specifically cited to in the remand directives, under Hensley, delayed onset hearing loss must be considered, as service connection may be established even though test results at separation from service do not meet the regulatory requirements for establishing a hearing loss disability. The Board notes that the left ear hearing loss could be remanded for a new VA opinion that provides a better rationale. However, in light of the conceded in-service noise exposure and grant of service connection for right ear hearing loss and tinnitus based on in-service noise exposure, coupled with the August 2021 examiner conceding that military noise exposure did, at least in part, cause the hearing loss, the Board finds that the evidence is, at minimum, in equipoise regarding the question of whether the Veteran's current left ear hearing loss is related to his military service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Thus, while the Board finds the 2021 opinion is not perfect, the Board does not wish to remand for a fourth time. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (cautioning against multiple remands for the sole purpose of developing negative evidence against a claim). Therefore, the benefit of the doubt will be conferred in the Veteran's favor and another remand is not necessary. The claim for service connection for left ear hearing loss is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for bilateral pes planus The Veteran contends that his bilateral pes planus, which existed prior to service, was aggravated by his active service. Specifically, the Veteran contends that he had pain in his feet due to wearing boots during service. Upon enlistment into active service in 1990 the Veteran denied any foot problems, though his examination noted moderate asymptomatic pes planus. A July 1992 STR and February 1993 STR both note ingrown toenails that caused swelling, but no feet pain. No subsequent STRs note any further treatment related to the Veteran's feet. During his August 1993 separation examination, the Veteran denied any foot trouble and the examination indicated that he had normal feet. A February 2020 VA examination notes that the Veteran stated foot pain first starting nine years ago; he went to VAMC Podiatry and was fitted for custom foot orthoses. He said they helped initially but now they are completely worn out. He reported that he does landscaping, and he has to do a lot of walking and standing. Upon examination, it was noted that the Veteran had pain on use of his feet that is accentuated on use and with manipulation of the feet, but no swelling or characteristic callouses. The examiner provided diagnoses of bilateral pes planus. His VA medical records show that in November 2010, he stepped on a 3.5-inch thorn while at work that went through his boot to his foot, causing cellulitis and myositis with fasciitis of the plantar. A May 2011 VA treatment record notes right heel pain and that he was flatfooted; and he stated he has been experiencing right heel pain for the past two months, worse with weight bearing, that felt like a sharp knife was going through the heel. He denied any known injury and reported that he is a landscaper and wears boots Sunday through Friday and plays combat games. Notably, the majority of the first complaints related to foot pain noted in medical treatment records is related to the thorn injury or non-service-connected ankle pain. At his 2019 Board hearing, the Veteran reported he dragged his feet after service and that he went to a podiatrist who told him he had plantar fasciitis and was given inserts about six years ago (approximately 2012/2013). He also stated he first stated going to VA in 2009 but did not begin treatment for his feet until 2011. He testified that the wearing of combat boots during deployment hurt his feet. In October 2021, after reviewing the Veteran's medical treatment records, including his STRs noting pes planus at entrance, and his reports of symptoms post-service, the examiner opined that it was less likely than not that the Veteran's bilateral pes planus, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner reasoned that, after the notation at service entrance, no further documentation specific to pes planus or the feet was found. The examiner pointed out that the STRs are silent for any treatment or complaint of foot pain and the Veteran himself marked "no" to foot pain at separation. The examiner opined that the "the Veteran worked as landscaper and wore boots for years. Lay testimony says Veteran had pain due to combat boots, however this was for a limited period of time during service. The Veteran's foot pain/pes planus...is more likely due to post-service work and wearing work boots than due to his military period." The examiner also confirmed that the Veteran first reported any post-service foot pain in 2010 after an injury while landscaping with no other foot concerns noted or reported. Initially, the Board notes that if a pre-existing disability is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disability, but the Veteran may bring a claim for aggravation of that disability. In that case, section 1153 applies, and the burden falls on the Veteran to establish aggravation. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Under 38 U.S.C. § 1153; 38 C.F.R. § 3.306, a pre-existing disability will be considered to have been aggravated by active military 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 progression of the disease. Aggravation will be rebuttably presumed where there is affirmative evidence of in-service worsening. Conversely, aggravation will not be conceded where the pre-existing disability underwent no discernible increase in severity in service. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). After a review of the evidence, the Board finds the October 2021 VA examiner's opinion highly probative in determining whether the Veteran's pre-existing pes planus was aggravated during service. The examiner reviewed the evidence in the claims file, including the Veteran's lay statements of foot pain during service from wearing boots, and concluded that the Veteran's military service did not aggravate his pre-existing pes planus beyond its natural progression. This conclusion was based on a thorough review of the claims file and consideration of the Veteran's service treatment records, which reflected no changes in his pes planus. There is no competent opinion to the contrary. Additionally, the Board has considered the argument set forth by the Veteran that his feet hurt due to wearing boots during active service, which could not be the natural progression of his foot disability. However, the Board initially notes that the VA examiner indicated a review of the Veteran's STRs and post-service medical records and found it notable that no further medical symptoms were documented until 2010 when the Veteran was injured at work and diagnosed with left foot cellulitis after he stepped on a 3.5-inch thorn. Further, there are no records, to include his separation examination, noting any foot pain or worsening of his pes planus; indeed, his separation examination indicated that the Veteran's feet were normal. Thus, to the extent that the Veteran now contends that his pes planus symptoms worsened due to service, the Board finds this assertion is outweighed by the remaining evidence of record. Finally, to the extent the Veteran offers his lay opinion concerning aggravation, the probative value of his opinion is outweighed by that of the medical examiner. Accordingly, as the Veteran's pre-existing bilateral pes planus was evident at his entrance examination, and the weight of the evidence demonstrates that it did not increase in severity during service, the weight of the evidence demonstrates that there was no aggravation of his pre-existing bilateral pes planus by his active service. In light of the foregoing, the preponderance of probative evidence of record is against the Veteran's claim for entitlement to service connection for bilateral pes planus. The evidence was quite clearly against the Veteran and thus not in approximate balance and not 'nearly equal'; therefore, the benefit of the doubt rule has no application. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Lynch v. McDonough, No. 2020-2067 (Fed. Cir. December 17, 2021). Service connection for bilateral pes planus is therefore denied. 3. Entitlement to service connection for bilateral plantar fasciitis As for the Veteran's claim for bilateral plantar fasciitis, he contends that wearing boots during service caused his current plantar pain, or, in the alternative, as secondary to the pes planus. First, the Board acknowledges the above denial of service connection for bilateral pes planus. Therefore, the Veteran's contention that his plantar fasciitis is secondary to pes planus is moot. As for direct service connection, the question for the Board is whether the Veteran has a current foot disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. After review of all the evidence of record, both lay and medical, the Board finds that the evidence is against finding the Veteran's plantar fasciitis disorder was due to his military service. Upon enlistment into active service in 1990, the Veteran denied any foot problems, and his examination noted moderate asymptomatic pes planus. A July 1992 STR and February 1993 STR both note ingrown toenails that caused swelling but no foot pain. No subsequent STRs note any further treatment related to the Veteran's feet. During his August 1993 separation examination, the Veteran denied any foot trouble and the separation examination indicates that he had normal feet. That notwithstanding, the Veteran testified at the 2019 Board hearing that he would drag his feet following service, and that he went to a podiatrist who told him he had plantar fasciitis and was given inserts about six years ago (approximately 2012/2013). He also stated he first stated going to VA in 2009 but did not begin treatment for his feet until 2011. He testified that the wearing of combat boots during deployment hurt his feet. Therefore, the Veteran was scheduled for a VA examination and medical nexus opinion based on his lay testimony. A February 2020 VA examination notes that the Veteran stated he developed plantar fasciitis and the pain started nine years ago so he went to VA Podiatry and was fitted for custom foot orthoses. He reported that he does landscaping, and he has to do a lot of walking and standing. The examiner provided diagnoses of bilateral pes planus and bilateral plantar fasciitis. A review of his medical records shows that in November 2010, VA treatment record notes that he stepped on a 3.5-inch thorn that went through his boot to his foot which led to cellulitis and myositis and fasciitis of the plantar. A May 2011 VA treatment record notes right heel pain and that he was flatfooted and stated he has been experiencing right heel pain for the past two months, worse with weight bearing, that felt like a sharp knife was going through the heel. He denied any known injury and reported that he is a landscaper and wears boots Sunday through Friday and plays combat games. In August 2013, he requested a podiatry consult, stating he received inserts for his shoes over a year ago, but he is having pain and difficulty ambulating. The examiner noted he ambulates with a limp and complains of pain and that he works on his feet all day. Notably, the majority of the first complaints related to foot pain noted in medical treatment records is related to the thorn injury or non-service-connected ankle pain. In October 2021, after reviewing the Veteran's medical records, including his STRs noting pes planus at entrance, and his reports of symptoms post-service, the examiner opined that the Veteran's bilateral plantar fasciitis was less likely than not caused by or due to an in-service injury, event, or illness. The examiner reasoned that, after the notation of moderate pes planus at service entrance, no further documentation specific to any foot pain or feet issues was found. The examiner pointed out that the STRs were silent for any treatment or complaint of foot pain and the Veteran himself marked "no" to foot pain at separation. The examiner considered the Veteran's lay statements but opined those statements "establishes a subjective chronicity of symptoms, but the Veteran is not qualified to ascribe symptoms to diagnosis or determine an etiology." The examiner further noted the time between service and the first complaints for plantar fasciitis was 18 years, "therefore intercurrent injury/disease cannot be ruled out as an etiology." Specifically, the examiner opined that the "the Veteran worked as landscaper and wore boots for years. Lay testimony says Veteran had pain due to combat boots, however this was for a limited period of time during service. The Veteran's foot pain...and plantar fasciitis is more likely due to post-service work and wearing work boots than due to his military period." The examiner also confirmed that the Veteran first reported any post-service foot pain in 2010 after an injury while landscaping with no other foot concerns noted prior to or during this event. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors: whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In this case, the examiner was aware of the Veteran's medical history, provided a fully articulated opinion, and furnished a reasoned analysis for his conclusions with an alternative etiology. The Board therefore attaches significant probative value to this opinion. There is no other competent medical opinion to the contrary. While the Board recognizes the Veteran's assertions that his foot pain is related to service and is competent to testify as to events that occurred in military service, the Veteran is not competent to conclude that any condition he was diagnosed with in 2011 is connected to his service. Although lay persons are competent to provide opinions on some medical issues, the specific disabilities in this case, foot issues, fall outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Podiatry issues require specialized training and medical diagnostic testing for a determination as to diagnosis, and they are not susceptible of lay opinions on etiology. There are many different possible feet issues, and a layperson is not competent to diagnose among them or to provide an etiology. Therefore, the Board finds that the Veteran's statements of record cannot be accepted as competent evidence sufficient to establish service connection for his bilateral plantar fasciitis. Further, to the extent the Veteran argues his plantar fasciitis began in service, his medical records show he did not report any foot issues until 2010 which was a work-related injury and was not diagnosed with or complained of foot pain until approximately 2011. The Veteran reported in the 2019 Board hearing that he was first diagnosed with plantar fasciitis six years prior, and in the 2020 examination, reported that his foot pain began about nine years earlier this correlates with the medical records that show reports of foot pain did not begin until around 2011. In addition, it was also noted in the VA medical records that in May 2011, the Veteran reported experiencing right heel pain for the past two months and specifically denied an injury, but rather stated that he is a landscaper and wears boots Sunday through Friday and also plays combat games which corroborates with the examiner's opinion providing an alternative etiology. The Board finds these more contemporaneous medical records are far more credible than the statements he makes now, since it is reasonable to expect one would report foot pain that causes issues with ambulating and ability to work to their medical providers. Although he states he has had foot pain since service, the fact is the Veteran himself reported not having foot pain for almost two decades after service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving a claim). In light of the foregoing, the preponderance of probative evidence of record is against the Veteran's claim for entitlement to service connection for bilateral plantar fasciitis. The evidence was quite clearly against the Veteran and thus not in approximate balance and not 'nearly equal'; therefore, the benefit of the doubt rule has no application and service connection for bilateral plantar fasciitis is denied. Ortiz, 274 F.3d 1361, 1364; Lynch, No. 2020-2067 (Fed. Cir. December 17, 2021). REASONS FOR REMAND The above grant of service connection for left ear hearing loss may affect the resolution of the right ear hearing loss increased rating claim, as right ear and left ear hearing loss are rated together. The RO must first implement the Board's above grant of service connection for left ear hearing loss, including assigning a disability rating and effective date, before readjudicating the increased rating for the hearing loss claim. The matters are REMANDED for the following action: Implement the above grant of service connection for left ear hearing loss, including assigning a disability rating and effective date. Thereafter, readjudicate the claim for a higher rating for bilateral hearing loss. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, 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.