Citation Nr: 22016549 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 19-21 235 DATE: March 22, 2022 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for left foot disability is remanded. Entitlement to service connection for right foot disability is remanded. FINDINGS OF FACT 1. The evidence of record shows the Veteran does not currently have bilateral ear hearing loss for VA purposes. 2. The Veteran's tinnitus is related to in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1995 to January 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases, including hearing loss and tinnitus, will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 1. Bilateral hearing loss The Veteran seeks service connection for bilateral hearing loss which she asserts was caused by in-service noise exposure. For VA compensation purposes, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. The Board has reviewed the evidence and finds that the Veteran does not have a current bilateral hearing loss disability for VA purposes. The Veteran underwent a May 2015 VA audiological examination. The audiological evaluation shows puretone thresholds, in decibels, were as follows: Hertz 500 1000 2000 3000 4000 Right 10 10 5 5 10 Left 10 10 5 5 10 Speech recognition testing using the Maryland CNC word list revealed a score of 100 percent in the right ear and 98 percent in the left ear. The Veteran's representative submitted a more recent July 2021 audiological examination. The audiological evaluation shows puretone thresholds, in decibels, were as follows: Hertz 500 1000 2000 3000 4000 Right 10 20 10 25 15 Left 10 20 15 20 10 No speech recognition testing was performed. The Board notes this additional evidence was received after the most recent supplement statement of the case (SSOC) which was issued in October 2019. The Veteran has not waived Agency of Original Jurisdiction (AOJ) review of this evidence, but as the evidence is cumulative and redundant of evidence previously considered by the AOJ and is, therefore, not pertinent to the matter on appeal, and no waiver is required. The evidence of record does not contain a current diagnosis of bilateral hearing loss that meets the criteria for a hearing disability for VA purposes. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Although the Veteran was exposed to acoustic trauma in service working on a flight line, audiological testing did not show bilateral hearing loss sufficient to constitute a disability for VA compensation purposes. See 38 C.F.R. § 3.385. While the Veteran is competent to report hearing difficulties, she is not competent to diagnose bilateral hearing loss, including by VA standards or otherwise. Such a diagnosis requires specialized knowledge of audiograms and an ability to interpret all pertinent responses. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In the absence of a present disability there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Since there is no competent evidence that the Veteran currently has bilateral hearing loss that meets the definition of a disability for VA purposes, service connection for bilateral hearing loss must be denied. 2. Tinnitus At the May 2021 Board hearing, the Veteran stated that she first experienced tinnitus during service which has continued since service. She stated that she worked on a flight line launching and recovering planes when her tinnitus began. The evidence of record documents that the Veteran has current tinnitus because the Veteran has credibly stated that he currently has ringing in her ears. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that the veteran was competent to as to the ringing in his ears because ringing in the ears is capable of lay observation). Because tinnitus is observable by a layperson, the Board finds the Veteran's observation both competent and credible evidence of a current disability. As to the in-service occurrence or aggravation of a disease or injury, the Board finds the Veteran to be a reliable historian of her experiences and noise exposure in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's DD Form 214 shows that her military occupational specialty (MOS) was aviation storekeeper. Her MOS is consistent with the circumstances of the noise exposure the Veteran has testified while she was exposed to planes while working on the flight line. This evidence persuasively suggests that the Veteran likely was exposed to significant noise during active service. As discussed above, service connection for the recognized chronic disease can be established through continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331. Thus, recognizing that continuity of symptomatology requires the chronic disease to have manifested in service, the Board finds the Veteran's statements as to tinnitus since service to be credible. Following a review of the medical and lay evidence of record, the Board finds the competent and credible statements of the Veteran as to ongoing tinnitus since service to be sufficient to warrant service connection for tinnitus based upon continuity of symptomatology. Accordingly, the Board resolves reasonable doubt in the Veteran's favor and finds that evidence of noise exposure, current tinnitus, and continuity of symptoms since service, support a grant of entitlement to service connection for tinnitus. See Walker at 1331; see also 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND 1. Left foot disability 2. Right foot disability At the Board Hearing, the Veteran stated that she was outsourced from VA treatment to a private podiatrist in Covington, Louisiana to examine her feet in late 2020. She stated that the doctor diagnosed her feet with various conditions including bone spur, thinning cartilage, decreased blood flow, and flat feet. However, it appears that these records have not yet been associated with the record. Therefore, upon remand, any outstanding relevant records must be associated with the claims file. Regarding the Veteran's claims for entitlement to service connection for bilateral foot disabilities, remand is required to provide the Veteran with a VA examination. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103 (d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third prong may be satisfied by lay evidence of continuity or equivocal or non-specific medical evidence). The Veteran has not yet been provided with an examination. Here, the Veteran has testified she had received several diagnoses for her feet from a private podiatrist in late 2020. As to an in-service event, injury or disease the Veteran's service treatment records do not reflect complaints related to her boots or any other injuries to her feet. At the May 2021 Board hearing the Veteran testified that she complained that her boots caused pain and numbness during service. The Board notes that use of boots is generally consistent with the conditions of the Veteran's service, as reflected in her DD Form 214 and the service records. See 38 U.S.C. § 1154 (a)(1). In addition, the Veteran is competent to report symptoms, such as pain, that she experienced while in service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As such, the Board finds there is evidence of an in-service injury of bilateral foot pain. Furthermore, the Veteran has competently and credibly stated that she has had feet disabilities since service. Thus, there is evidence of a current disability, an in-service event, and an indication that the disability may be associated with service. Accordingly, remand is required for an examination The matters are REMANDED for the following action: 1. With the assistance of the Veteran and her representative, obtain any outstanding records relevant to the Veteran's left and right foot disability claims, including records at a private podiatrist in Covington, Louisiana. All steps taken must be documented and associated with the record. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any bilateral foot disability. Provide a copy of this remand and the record for the examiner to review. The examiner is asked to address the following: (Continued on the next page) Provide a diagnosis for any disabilities of the bilateral feet demonstrated since service, found on current examination or in the record. For each disability of the bilateral feet, provide an opinion as to whether it is at least as likely as not that the condition had its onset in service or is otherwise related to the Veteran's service, to include the Veteran's reports of pain and numbness of the feet while in service. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. St. Laurent, 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.