Citation Nr: 22016381 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 19-03 216 DATE: March 22, 2022 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for plantar fasciitis is denied. REMANDED Entitlement to service connection for pes planus (flat feet) is remanded. FINDINGS OF FACT 1. Bilateral hearing loss was not shown during service or to a compensable degree within one year of the Veteran's discharge from service, and the most probative evidence indicates the current bilateral hearing loss is not related to service. 2. Resolving all doubt in the Veteran's favor, the evidence is in equipoise as to whether his tinnitus arose during service and has continued since service. 3. A current diagnosis of plantar fasciitis or symptoms that result in functional impairment of earning capacity is not shown by the evidence of record dated since the claim was filed. CONCLUSIONS OF LAW 1. The criteria to establish service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria to establish service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria to establish service connection for plantar fasciitis are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1968 to August 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, 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); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during active service, and an organic disease of the nervous system, such as hearing loss or tinnitus, becomes manifest to a degree of 10 percent within one year from date of termination of such service, such diseases shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for bilateral hearing loss The Veteran asserts that his bilateral hearing loss was caused by traumatic noise exposure while serving in the U.S. Navy. See July 2016 statement and July 2021 Board hearing transcript. He testified that he had no hazardous noise exposure prior to service; was exposed to hazardous noise without hearing protection while serving as a seaman apprentice in the U.S. Navy; worked in construction after service and did not always wear hearing protection; and was not tested for hearing loss after service until approximately the 1990's. VA conceded that the Veteran was exposed to hazardous noise during service based on his military duties. For the purposes of applying the law administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (specified frequencies) is 40 decibels or greater; or when the auditory 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. "[W]hen audiometric test results at a Veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). A January 2017 VA examination report shows findings consistent with a current hearing loss disability. Thus, the question for the Board is whether the current bilateral hearing loss was incurred in or is related to service, to include the conceded noise exposure. After reviewing the record, the Board finds that the probative and persuasive evidence is against the claim. Service treatment records do not show any complaints or findings related to hearing loss. The Veteran's March 1968 entrance examination indicated the Veteran's hearing was within normal limits bilaterally and examination of the ears was normal. Further, the Veteran denied hearing loss and ear trouble in the accompanying March 1968 report of medical history. The Veteran's August 1969 discharge examination revealed 15/15 on whisper test bilaterally. The Board acknowledges that the results of whisper testing is not frequency specific and thus not a reliable method of determining hearing loss. See Fagan v. Shinseki, 573 F.3d 1282, 1284 (Fed. Cir. 2009). However, there is no indication that additional testing was required, and an August 1969 chronological record of medical care indicates that the Veteran was examined and found to be physically qualified for discharge with no noted defects. The earliest post service mention regarding his hearing is during VA treatment in September 2014, at which time the Veteran complained of worsening hearing in certain frequencies and requested referral to the audiology clinic. The earliest medical evidence documenting an assessment of bilateral hearing loss is one month later, as noted in an October 2014 VA treatment record. This treatment record reflects complaints of worsening hearing, military noise exposure without hearing protection; occupational noise exposure including construction, heavy equipment operations and truck driving (left ear exposed more while truck driving) without hearing protection; and recreational noise exposure without hearing protection, including woodworking, gas powered lawn equipment and history of hunting (left ear more exposed). The assessment was slightly asymmetrical sensorineural hearing loss bilaterally. The clinician noted the assymetry was likely due to noise exposure. As a hearing loss disability was not shown during service or within one year after the Veteran's 1969 discharge, competent evidence linking the current bilateral hearing loss to service is needed to substantiate the claim. On this question, the competent and probative evidence is against the claim. A January 2017 VA examiner diagnosed bilateral sensorineural hearing. He opined that the bilateral hearing loss was less likely than not related to service and military noise exposure and more likely due to occupational noise exposure. He reasoned that the Veteran's reporting of service as a deckhand for one year in the Navy is consistent with his service records; however, his separation examination revealed normal hearing using whisper testing, and there was no indication that any further testing was necessary. He also reasoned that after service the Veteran worked for 40 years in construction without hearing protection and concluded that age-related hearing loss (presbycusis) could not be ruled out as a major contributing factor. The VA examiner's opinion, which stands uncontroverted in the record and which was based on a detailed rationale specific to the Veteran, is afforded high probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). There is no probative opinion linking the Veteran's current bilateral hearing loss to service. The Board acknowledges the October 2014 VA treatment record, discussed above, in which the clinician posited that the asymmetry of the Veteran's bilateral hearing loss was likely due to noise exposure; however, the statement is not afforded high probative value since the clinician did not distinguish between in-service and post-service occupational and recreational noise exposure. Further, the statement did not provide a rationale for the conclusions expressed. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion . . . must support its conclusion with an analysis that the Board can consider and weight against contrary opinions."). The Board finds the January 2017 VA examiner's opinion more probative and persuasive. While the Veteran believes his current hearing loss disability was caused by acoustic trauma during service, as a lay person, he has not been shown to have the medical training or expertise to determine hearing loss or its etiology; thus, his opinion on the diagnosis and causation of his hearing loss is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The Board finds the VA examiner's opinion to be significantly more probative than the lay assertions. In sum, the evidence persuasively weighs against a finding that the current bilateral hearing loss disability is related to service, and the claim for service connection for bilateral hearing loss is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for tinnitus The Veteran seeks service connection for tinnitus, which he asserts was caused by acoustic trauma during service. VA conceded military acoustic exposure based on the Veteran's service duties. A January 2017 VA examiner diagnosed recurrent tinnitus. Thus, the question for the Board is whether the current tinnitus was incurred in or is related to service, to include conceded in-service noise exposure. While the Veteran's service treatment records do not document evidence of tinnitus, the Veteran credibly reported during the Board hearing that he had intermittent ringing in his ears during service and within three months after he was discharged. Because tinnitus is subjective, it is a disorder with symptoms that can be identified through lay observation alone. Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board acknowledges that the January 2017 VA examiner opined that the Veteran's tinnitus was less likely than not related to service. However, in light of the positive and negative evidence of record regarding tinnitus, to specifically include the Veteran's competent and credible report that he had tinnitus during active duty and within one year after discharge and that he still experiences tinnitus, the Board finds the evidence is at least in equipoise as to whether the Veteran's tinnitus was incurred in service. Thus, after resolving all doubt in the Veteran's favor, service connection for tinnitus is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for plantar fasciitis The Veteran contends that he suffers from bilateral plantar fasciitis that was incurred in or is otherwise related to service. He testified that he first noticed foot pain during bootcamp, which he described as aching arches but did not complain at the time because everyone was complaining about the shoes; that he did not report foot pain at any time during service, including when he was discharged, because he was not thinking about it; and that his foot pain has continued since service. The question for the Board is whether the Veteran is currently diagnosed with plantar fasciitis and, if so, whether the condition was incurred in or is related to service. After reviewing the evidence, the Board finds that the medical evidence persuasively weighs against a finding that the Veteran has been diagnosed with plantar fasciitis during the pendency of the appeal, or approximate to the July 2016 claim for service connection. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Thus, a current disability is not shown. VA treatment records since the claim for service connection was filed do not show any complaints, treatment or findings related to plantar fasciitis, despite showing complaints and treatment related to left ankle pain and left foot pes planus. VA treatment in April 2015 for left ankle pain notes reported onset of pain one year prior in the sinus tarsi of the foot, mainly when standing or moving the foot in certain directions, but no other ankle/foot symptoms were reported. The clinician noted that examination of the foot and ankle showed the Veteran over pronates when he stands; otherwise, the Veteran had normal looking foot and ankle with some discoloration of the toes from smoking. January 2015 x-rays of the left ankle noted that the plantar arch was maintained, and no finding of plantar fasciitis was documented. Although VA treatment records show the Veteran raised complaints and sought treatment for symptoms related to his lower extremities, none document complaints of heel pain. The fact that the Veteran sought treatment for his left ankle and left foot arch when he was not feeling well suggests that he would have mentioned pain in his heel or plantar surface had such been occurring at that time and that those complaints would have been documented in the treatment records. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Although the Veteran's representative asserted at the Board hearing that a private disability benefits questionnaire identifies a diagnosis of left foot plantar fasciitis, a review of that record does not show such diagnosis. Rather, the December 2018 disability benefits questionnaire shows a diagnosis of left foot pes planus and no other foot condition. Although the private clinician noted subjective complaints of extreme tenderness of the plantar surfaces of the left foot, the clinician found no objective evidence of swelling of the foot, to includes swelling on use, and there is no identification of plantar fasciitis anywhere in the disability benefits questionnaire. Further, functional loss mentioned in the questionnaire, noted as pain limiting walking or standing for long periods, correlates to the diagnosed pes planus. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). While the Veteran believes he suffers from plantar fasciitis, as a lay person, he has not been shown to have the medical training or expertise to diagnose foot disorders. See Jandreau, 492 F.3d at 1376-77. Thus, his opinion as to the presence of plantar fasciitis is not competent medical evidence. The Board finds the medical evidence which does not document treatment or diagnosis of plantar fasciitis more persuasive and probative than the lay assertions. As a final matter, the Board notes that a VA examination or opinion has not been obtained on this issue. However, there is no probative evidence of a current plantar fasciitis condition; thus, a VA examination or medical opinion is not required. See 38 C.F.R. § 3.159(c); see also McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a conclusory lay statement that a current condition is related to service is insufficient to warrant a medical examination because it would "eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations in virtually every veteran's disability case"). In sum, the evidence persuasively weighs against finding a current diagnosis of plantar fasciitis of the right or left foot, and the claim for service connection for plantar fasciitis is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for pes planus (flat feet) The Veteran seeks service connection for pes planus. His March 1968 service entrance examination shows a diagnosis of mild pes planus; it does not indicate whether the diagnosis pertained to the left or right foot. Additional service treatment records do not document complaints related to the feet, and the feet were indicated as normal on the Veteran's August 1969 discharge examination report. VA treatment records show a diagnosis of left foot pes planus, as shown on an October 2013 x-ray of the left ankle, and reflect the use of arch supports. A December 2018 private clinician diagnosed left foot pes planus, but no opinion was provided. Given that an opinion addressing aggravation is not of record, a remand to obtain an opinion is warranted. In addition, there may be outstanding VA treatment records. The Veteran testified at the Board hearing that he was prescribed arch supports for flat feet at a VA hospital in the 1990's while seeking treatment for his back. VA treatment records prior to 2012 are not of record. On remand, VA treatment records prior to 2012 and since 2019 should be requested. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. The matter is REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for his claimed pes planus, including any VA and non-VA medical providers who prescribed orthotics. After securing any necessary releases, request any relevant records identified that are not duplicates of those associated with the claims file. In addition, obtain any outstanding VA treatment records prior to 2012 and since January 2019. If any requested records are unavailable, the Veteran should be notified of such, and the claims file annotated to reflect such. 2. Schedule the Veteran for a foot examination to address the claim for service connection for pes planus. The examiner must review the claims file in conjunction with the examination. All indicated tests should be conducted and the results reported. After reviewing the claims file and examination of the Veteran, the examiner should respond to the following: (a.) Did the pre-existing pes planus undergo a permanent worsening during service? The examiner should explain why or why not, to include addressing the Veteran's contention that he experienced foot pain during service. (b.) If the pes planus condition underwent a permanent worsening, was the worsening undebatably the result of natural progression of the disorder, rather than being the result of events during service? The examiner should explain why or why not. (c.) If the pes planus worsened during service beyond natural progression, are current foot complaints at least as likely as not (an approximate balance) related to service. The examiner should explain why or why not. 3. If the claim remains denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. C. Birder 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.