Citation Nr: 22010569 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 18-23 467 DATE: February 24, 2022 ORDER Service connection for bilateral plantar fasciitis is granted. Service connection for bilateral hearing loss is granted. REMANDED The issue of service connection for a bilateral knee disability is remanded. The issue of service connection for gastroesophageal reflux disease (GERD) is remanded. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, his current bilateral plantar fasciitis onset due to injury sustained in service or was aggravated during service. 2. Affording the Veteran the benefit of the doubt, his current bilateral sensorineural hearing loss disability onset due to acoustic trauma sustained in service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for bilateral plantar fasciitis have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. 2. The criteria to establish service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Naval Reserve with a period of active duty from June 2006 to June 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision issued by the RO. The Veteran testified before the undersigned Veterans Law Judge in a virtual hearing in April 2021. A transcript of the hearing is of record. Service Connection The law provides that 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. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities such as other organic disease of the nervous system (i.e., sensorineural hearing loss), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted, other organic disease of the nervous system (i.e., sensorineural hearing loss) is a chronic disease. 38 U.S.C. § 1101. Therefore, section 3.303(b) is potentially applicable. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b). 1. Entitlement to service connection for bilateral plantar fasciitis The Veteran asserts that his plantar fasciitis onset due to service or was aggravated during service. The Veteran served in combat and is afforded a presumption of credibility regarding his reports of combat-related injuries. See 38 U.S.C. § 1154(b). A September 2003 reserve treatment record reflects that the Veteran received treatment for a blister on the right foot. A December 2004 private treatment record reflects that the Veteran had severe plantar fasciitis. He was prescribed custom orthotics, went to physical therapy, and took anti-inflammatories for treatment of his plantar fasciitis. April 2005 MRI findings of the right foot showed plantar fasciitis. A June 2005 private treatment record reflects that the Veteran was scheduled for foot surgery in July. A March 2006 reserve treatment record reflects that the Veteran had left foot surgery in January 2006 for severe plantar fasciitis. After the plantar fasciotomy, the Veteran's symptoms improved, and he was returned to full duty as prison guard. In addition, he could run three miles without difficulty. A January 2016 VA foot conditions examination documents diagnosis of bilateral plantar fasciitis. The Veteran reported that in 2006 prior to his last deployment he suddenly developed pain under his feet. Inserts provided some relief but he had right foot surgery in 2006 which provided more relief. He reported that his feet were sore after long walks and runs and with changes in weather. He complained of constant left foot pain and reported that he was considering surgery because the pain was constant. He had flareups of pain on rainy and cold days or when running distances greater than three miles. When he had his symptoms, he would ice and stretch his feet. The examiner opined that the Veteran's bilateral plantar fasciitis was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran developed plantar fasciitis due to strenuous foot condition during his military service. He had surgical intervention on his right foot in 2006 and his symptoms improved. The examiner concluded that the surgical intervention on his right foot was not the cause of his plantar fasciitis. During his April 2021 Board hearing, the Veteran testified that his feet hurt constantly during his period of service. Though the January 2016 VA foot conditions examination reflects the examiner's opinion that the Veteran's bilateral plantar fasciitis was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, the examiner explained that the Veteran developed plantar fasciitis due to strenuous foot condition during military service (i.e., his plantar fasciitis onset due to event or injury sustained during service or was aggravated during service). In addition, the examiner noted that the Veteran's surgical intervention on his right foot was not the cause of his plantar fasciitis. The Veteran has credibly asserted that his bilateral foot disability symptoms onset during service and his report of in-service incurrence or consistent with the circumstances and conditions of his service. See 38 U.S.C. § 1154(b). The VA examiner in January explained that the Veteran developed plantar fasciitis due to strenuous foot condition during military service (i.e., his plantar fasciitis onset due to event or injury sustained during service or was aggravated during service). Theus, the evidence is in relative equipoise in showing that his current bilateral plantar fasciitis had its onset during service (or was aggravated therein). Reasonable doubt is resolved in the Veteran's favor and entitlement to service connection for bilateral plantar fasciitis is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for bilateral hearing loss Specific to claims of service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran asserts that noise exposure in service caused his bilateral hearing loss disability. The Veteran is a combat veteran and is afforded a presumption of credibility regarding his reports of combat-related injuries. See 38 U.S.C. § 1154 (b). The June 2002 Navy Reserve enlistment audiological examination showed that the Veteran's Puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 10 15 20 LEFT 10 10 15 20 25 The March 2003 Navy Reserve enlistment audiological examination showed that the Veteran's Puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 15 20 LEFT 10 5 5 25 25 The March 2006 Navy Reserve medical board audiological examination showed that the Veteran's Puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 10 15 25 LEFT 20 15 10 30 35 The service treatment records show no complaints or findings of hearing loss disability. However, that the absence of in-service evidence of hearing loss disability is not fatal to the claim, see Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In January 2016, the Veteran underwent a VA audiological examination which showed that the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 15 25 25 LEFT 15 10 15 35 30 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 94 percent in the left ear. The Veteran did not have a bilateral hearing loss disability for VA purposes. The audiologist found that the Veteran's current hearing loss was at least as likely as not caused by or a result of an event in military service because the Veteran reported a history of military noise exposure. The audiologist explained that noise exposure was a known causative factor in the development of hearing loss but noted that there was no exit examination in the Veteran's claims file. Therefore, threshold shifts could not be ruled out. The Veteran also reported that he had constant bilateral tinnitus since 2006. The audiologist opined that the tinnitus was at least as likely as not a symptom associated with the Veteran's hearing loss because tinnitus was known to be a symptom associated with hearing loss. The Veteran's tinnitus is service connected. In March 2018, the Veteran underwent a VA audiological examination which showed that the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 15 25 40 LEFT 15 10 15 35 35 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 100 percent in the left ear. He therefore demonstrated a right ear hearing loss disability for VA purposes, but he did not have a left ear hearing loss disability for VA purposes. The audiologist opined that the Veteran's current hearing loss was not at least as likely as not caused by or a result of an event in service. The audiologist noted that the service audiological examinations of record showed normal hearing at pre-induction and normal hearing for the right ear and borderline normal hearing for the left ear in 2006. The audiologist explained that when comparing the pre-induction audiological examination and the audiological examination in 2006, there was no significant shift in hearing in the right or left ear. The audiologist concluded that the Veteran's hearing was stable while he served in the Navy and noted there were no changes documented while the Veteran served in the Navy. However, the audiologist cautioned that the opinion was subject to change if specific 2006 and post deployment audiological examinations proved otherwise. The Veteran also reported that he had constant bilateral tinnitus since being near an improvised explosive device (IED) explosion while deployed to Iraq in 2006. The audiologist opined that the tinnitus was at least as likely as not a symptom associated with the Veteran's hearing loss because tinnitus was known to be a symptom associated with hearing loss. In addition, the audiologist opined that the Veteran's tinnitus was as likely as not caused by or a result of military noise exposure because his claims file indicated that the tinnitus onset while he was deployed to Iraq. In May 2021, the Veteran underwent a VA audiological examination which showed that the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 25 30 40 LEFT 10 20 20 35 45 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 100 percent in the left ear. He therefore demonstrated bilateral hearing loss disability for VA purposes. The Veteran complained of noise exposure during service from explosions, automatic weapons fire, grenade launchers and police transition team training of Iraqi police with weapons. He reported that after service he worked for the police department conducting investigations, mostly in quiet interrogation rooms and offices. He reported that once a year he had to pass weapons qualifications testing but testing was performed with hearing protection. The Veteran reports that he was exposed to acoustic trauma (noise). His military personnel records document that he was deployed to Iraq from September 2006 to April 2007. He describes bilateral hearing loss since exposure to acoustic trauma in service. His statements are credible and consistent with circumstances of his service. The Board has no reason to doubt the credibility of his statements and concludes that there has been continuity of hearing loss symptoms since service. 38 C.F.R. § 3.303(b). As documented in the May 2021 VA examination report, the Veteran has a current bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. The January 2016 VA examination report documents the audiologist's opinion that the Veteran's bilateral hearing loss (though not a hearing loss disability for VA purposes) at least as likely as not onset due to noise exposure incurred during his military service. In addition, the January 2016 and March 2018 VA examination reports reflect the audiologist's opinion that the Veteran's tinnitus was at least as likely as not a symptom associated with his hearing loss because tinnitus was known to be a symptom associated with hearing loss. Moreover, in March 2018, the audiologist opined that the Veteran's tinnitus was as likely as not caused by or a result of military noise exposure incurred in Iraq in 2006. The Board is aware that, in the March 2018 VA examination, the audiologist opined that the Veteran's current hearing loss was not at least as likely as not caused by or a result of an event in service because his service audiological examinations of record showed normal hearing at pre-induction and normal hearing for the right ear and borderline normal hearing for the left ear in 2006. The audiologist explained that when comparing the pre-induction audiological examination and the audiological examination in 2006, there was no significant shift in hearing in the right or left ear. The audiologist concluded that the Veteran's hearing was stable while he served in the Navy and noted there were no changes documented while the Veteran served in the Navy. However, the VA audiologist essentially relied on the absence of a hearing loss disability in service. Such deficiency is not a bar to service connection. Ledford v. Derwinski, 3 Vet. App. at 89 (1992). Moreover, the audiologist cautioned that the opinion was subject to change if specific 2006 and post deployment audiological examinations proved otherwise. The Veteran has credibly asserted that he incurred acoustic trauma in service and sustained the onset of his hearing loss symptoms therein and has continued to experience hearing loss since. His exposure to military noise is unquestioned. While the VA audiologist in March 2018 opined that the current bilateral hearing loss is not attributable to noise exposure incurred during service, the VA audiologist in January 2016 opined that the Veteran's bilateral hearing loss at least as likely as not onset due to noise exposure incurred during his military service. Moreover, service connection has been established for tinnitus due to noise exposure incurred during service in Iraq in 2006. The audiologists in January 2016 and March 2018 opined that the tinnitus was at least as likely as not a symptom associated with the Veteran's hearing loss because tinnitus was known to be a symptom associated with hearing loss. It logically follows that if tinnitus, a symptom associated with hearing loss, onset due to noise exposure incurred during service, then the hearing loss also must have onset from noise exposure incurred during service. The evidence is in relative equipoise in showing that his current bilateral hearing loss disability had its onset due to acoustic trauma sustained in service. Reasonable doubt is resolved in the Veteran's favor and entitlement to service connection for a bilateral hearing loss disability is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. The issue of service connection for a bilateral knee disability is remanded. 2. The issue of service connection for GERD is remanded. The matters are REMANDED for the following action: 1. This is a remand under Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In the January 2016 VA knee and lower leg conditions examination report, the physician opined that the Veteran's right and left knee patellofemoral pain syndrome was less likely than not incurred in or caused by the claimed in-service injury, event, or illness because there was no report of knee pain in service; there was no treatment for the bilateral knees during service; and the Veteran had not sought treatment for knee pain after service. The VA physician essentially relied on the absence of a bilateral knee disability in service. Such deficiency is not a bar to service connection. A negative etiology opinion cannot be solely based on a lack of symptoms, treatment, or diagnosis of disability during service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993); see also 38 C.F.R. § 3.303 (d). The January 2016 examination opinion is insufficient for determining whether service connection may be granted because the obtained opinion is not fully explained. See, e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 305 (2008) (finding that the lack of a reasoned medical explanation is a significant factor in assessing the value of a medical opinion). The obtained opinion is not fully responsive to the relevant inquiry. The January 2016 and March 2018 VA esophageal conditions examination reports document diagnosis of GERD. However, the physicians provided no opinion as to whether the diagnosed GERD was caused in or because of military service. An opinion as to the etiology of the GERD is required to determine if service connection for GERD can be granted. 2. Schedule the Veteran for a VA examination TO DETERMINE IF THE VETERAN'S BILATERAL KNEE DISABILITY IS THE RESULT OF ACTIVE MILITARY SERVICE. The examiner must review the evidence and express a fully explained opinion as to whether the Veteran's bilateral knee disability (bilateral patellofemoral pain syndrome was incurred in service (i.e., caused by an in-service injury or disease). The examiner is advised that the courts have imposed a requirement on the board to evaluate any medical opinions by examinations of multiple factors, including but not limited to: whether the examiner conducted a personal interview of the veteran; whether clinical testing was conducted and the results; whether a comprehensive review of the claims folder and other medical and factual evidence was considered, including other medical opinions; the conclusions reached and whether they are based on the state of medical knowledge. the examiner is also advised that by law, the mere statement that the claims folder was reviewed the examiner has expertise is not sufficient to find that the examination is sufficient. The examiner must review the record as found in VA treatment reports and the electronic file. However, the record in substance indicates the following: The Veteran served in the Naval Reserves with a period of active military duty from June 2006 to June 2007. His service treatment records contain no complaints, treatment for, or diagnosis of a bilateral knee disability. The Veteran was deployed to Iraq from September 2006 to April 2007. He was discharged from active duty in June 2007. The January 2016 VA knee and lower leg conditions examination report documents diagnoses of right and left knee patellofemoral pain syndrome. The Veteran reported his knee pain onset in 2004 when he was in the Reserves. He reported the gradual onset of knee pain related to multiple 20-mile hikes. He reported that the bilateral knee pain had not significantly changed over the past few years. He reported that he did not seek treatment for the knee pain in service and instead choose to manage the pain with Ibuprofen. The physician opined that the bilateral patellofemoral pain syndrome was less likely related to service because there was no report of knee pain in service; there was no treatment for the bilateral knees during service; and the Veteran had not sought treatment for the knee pain after service. The physician concluded the bilateral patellofemoral pain syndrome was less likely than not incurred in or caused by the Veteran's military service. After review of the file, the above summary of the evidence, and any examination and clinical testing, the examiner must express a fully explained opinion as to whether the Veteran's bilateral knee disability (bilateral patellofemoral pain syndrome) was incurred in service (i.e., caused by an in-service injury or disease). 3. Schedule the Veteran for a VA examination TO DETERMINE IF THE VETERAN'S GERD IS THE RESULT OF ACTIVE MILITARY SERVICE OR WAS CAUSED OR AGGRAVATED BY THE SERVICE-CONNECTED POSTTRAUMATIC STRESS DISORDER (PTSD). The examiner must review the evidence and express a fully explained opinion as to whether the Veteran's GERD was incurred in service (i.e., caused by an in-service injury or disease) or was caused or aggravated (worsened) by the service-connected PTSD. The examiner is advised that the courts have imposed a requirement on the board to evaluate any medical opinions by examinations of multiple factors, including but not limited to: whether the examiner conducted a personal interview of the veteran; whether clinical testing was conducted and the results; whether a comprehensive review of the claims folder and other medical and factual evidence was considered, including other medical opinions; the conclusions reached and whether they are based on the state of medical knowledge. the examiner is also advised that by law, the mere statement that the claims folder was reviewed the examiner has expertise is not sufficient to find that the examination is sufficient. The examiner must review the record as found in VA treatment reports and the electronic file. However, the record in substance indicates the following: The Veteran served in the Naval Reserves with a period of active military duty from June 2006 to June 2007. His service treatment records contain no complaints, treatment for, or diagnosis of GERD. The Veteran was deployed to Iraq from September 2006 to April 2007. He was discharged from active duty in June 2007. The January 2016 VA esophageal conditions examination report documents diagnosis of GERD. The March 2018 VA esophageal conditions examination report documents diagnosis of GERD. A March 2021 VA treatment record reflects, in pertinent part, a diagnosis of GERD. The Veteran's symptoms were stable while managed by Omeprazole. During his April 2021 Board hearing, the Veteran testified that he had exacerbations of his GERD with manifestations of his service-connected PTSD. After review of the file, the above summary of the evidence, and any examination and clinical testing, the examiner must express a fully explained opinion as to whether the Veteran's GERD was incurred in service (i.e., caused by an in-service injury or disease) or caused or aggravated (worsened) by the service-connected PTSD. 4. The RO will then readjudicate the claims of service connection for a bilateral knee disability and GERD. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Jackson The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.