Citation Nr: 24005167 Decision Date: 02/01/24 Archive Date: 02/01/24 DOCKET NO. 20-25 038 DATE: February 1, 2024 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for bilateral plantar fasciitis is remanded. Entitlement to service connection for degenerative arthritis left knee is remanded. Entitlement to service connection for degenerative arthritis right knee is remanded. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that the Veteran's bilateral hearing loss qualifies as a disability for VA compensation purposes at any time during or approximate to the pendency of claim. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, ,3.104, 3.156, 3.303, 3.385, 4.85, 20.801. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marines from May 2000 to November 2000 and from May 2006 to June 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2019 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). A timely notice of disagreement (NOD) was received by the Veteran in May 2019. The RO issued a statement of the case in March 2020, and the Veteran timely filed a VA Form 9 in May 2020, appealing the statement of the case, and elected to appeal without a Board hearing. The appeal was perfected and certified to the Board in June 2020. Thus, the appeal is properly before the Board and this decision follows. SERVICE CONNECTION 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 service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 ; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for bilateral hearing loss is denied. The Veteran contends that he has bilateral hearing loss due to service. The Board finds that service connection for bilateral hearing loss is not warranted. There is no indication of bilateral hearing loss for VA compensation purposes close in proximity to, or during, the pendency of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowksy v. Shinseki, 26 Vet. App. 289 (2013). Service connection for impaired hearing is subject to 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. The Veteran underwent a September 20, 2018 VA examination for hearing loss. The puretone thresholds test results, in decibels, are as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 20 25 15 10 15 Left Ear 20 20 20 15 15 The speech recognition score for the right ear was 100 percent. The score was 100 percent for the left ear. The Board finds that service connection for bilateral hearing loss cannot be established as the Veteran did not have a disability of bilateral hearing loss for VA compensation purposes at any time during the appeal period. While the Veteran has alleged that he has bilateral hearing loss due to noise exposure in service, the Board must adhere to the guidelines of 38 C.F.R. § 3.385, which do not provide for a finding of a current disability for puretone thresholds or speech recognition scores that fail to meet the required minimum requirement listed in the regulation. The claims file, including the September 20, 2018 VA examination report, is devoid of any clinical findings demonstrating that the Veteran met the requisite minimum criteria under 38 C.F.R. § 3.385 for either ear at any point during the appeal period. The Veteran, as a lay person, does not possess specialized knowledge to offer a diagnosis of bilateral hearing loss, which requires the administration and interpretation of audiological test results. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). While the Board accepts the Veteran's statements regarding matters that he is competent to address, a significantly greater probative weight is assigned to the September 20, 2018 VA examination report. The Board is cognizant of the holding in Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018). In Saunders, the Federal Circuit held that, in certain circumstances, symptoms without an underlying malady may constitute a disability for VA compensation purposes if the symptoms reach the level of a functional impairment of earning capacity. However, as pertaining to hearing loss, impaired hearing is subject to 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability when meeting auditory thresholds or speech recognition scores. The Veteran requested to be provided another audiometric evaluation. See August 27, 2020 Appellate Brief. VA must provide a medical examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. McClendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38U.S.C. §5103A (d)(2); 38C.F.R. §3.159 (c)(4)(i). Here, the request fails the fourth prong, as there is overwhelming evidence of record to make a decision. The Veteran argues that the results were inaccurate, but does not provide any basis or evidence for that argument. The Board finds that a new audiometric exam is not warranted. Accordingly, the approximate balance of the evidence is against the Veteran's service connection claim for bilateral hearing loss, as there is no evidence of a current disability. Entitlement to bilateral hearing loss is denied. The benefit-of-the-doubt doctrine is not for application. See 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to service connection for bilateral plantar fasciitis is remanded. The Veteran contends that his bilateral plantar fasciitis was due to his service. Specifically, the Veteran asserts that his "diagnosis of bilateral plantar fasciitis occurred while he was still on Federal Active Duty." See May 2019 NOD. Service treatment records document complaints and treatments of the Veteran's plantar fasciitis. Specifically, in an April 17, 2007 service treatment record, the Veteran was noted as having "pain in foot near around arch area." In a May 2, 2007 medical treatment record submitted by the Veteran with his May 2019 NOD on May 28, 2019, the provider noted the Veteran had clinical plantar fasciitis bilateral and was referred to a podiatrist. In the same record, in an August 18, 2007 post-deployment health assessment, under the section that asked if the Veteran had a health concern or condition that he felt was related to his deployment, the Veteran marked "feet" and had noted "painful feet" under Provider Review and Interview. The Veteran has a current diagnosis of bilateral plantar fasciitis. See October 29, 2018 VA Examination. In the October 29, 2018 VA examination, the examiner rendered a negative nexus opinion by stating the Veteran's plantar fasciitis is less likely than not due to wearing boots and military service and is most likely due to his lifelong obesity. As rationale, the examiner stated the Veteran was active duty for a minimal time period - about 8 months in Iraq. The examiner stated the Veteran had no known injuries and has been overweight his entire adult life and morbidly obese in recent years. The examiner noted the Veteran's feet x-rays done May 2007 were normal, showing no pes planus, as are the current x-rays. In a December 2018 addendum, the examiner noted having reviewed additional evidence submitted by the Veteran of evidence of possible falling arches while in service, but the examiner stood by the original opinion. The examiner stated to already having noted the plantar fasciitis onset in 2007 and the negative x-rays for pes planus in service, and repeated the prior rationale. The Board finds the examiner's opinion inadequate for adjudication purposes. To that end, the examiner based the conclusion on an inaccurate premise as the Veteran's service period was longer than 8 months in Iraq. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993). Additionally, the examiner did not address all relevant evidence of record regarding the Veteran's feet, including the Veteran's April 17, 2007 service treatment record indicating pain in foot around arch area and the May 2, 2007 government medical treatment record with the plantar fasciitis diagnosis. Accordingly, the Board finds that a remand is warranted to obtain an addendum opinion that addresses the nature and etiology of the claimed bilateral plantar fasciitis. 2. Entitlement to service connection for degenerative arthritis in left knee is remanded. 3. Entitlement to service connection for degenerative arthritis right knee is remanded. The Veteran contends that his degenerative arthritis in both left and right knees were due to his service. Specifically, the Veteran asserts that he spent countless hours on his legs while performing his duties in Al Anbar Province. See August 2020 Appellate Brief. Service treatment records are silent to complaints, treatments, or diagnoses related to the Veteran's left and right knee, and the Veteran's separation examination report is negative for knee conditions. The Veteran has a current diagnosis of degenerative arthritis in both left and right knees. See October 29, 2018 VA Examination. In the October 29, 2018 VA examination, the examiner rendered a negative nexus opinion by stating the Veteran's knee condition was less likely than not due to his military service and vehicle rollover and more likely due to lifelong obesity and morbid obesity in recent years. As rationale, the examiner stated the Veteran had at least lifelong adult obesity and morbid obesity to cause excessive wear and tear on the knees in particular. The examiner stated the Veteran had no known injury in service to the knees, and his x-rays completed after leaving the service in November 2007 were normal. The Board finds the examiner's opinion inadequate for adjudication purposes. To that end, the examiner's opinion is conclusory and is not supported with a sufficient analysis. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (stating that a medical opinion must support its conclusion with an analysis that the Board can weigh, and a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision). Additionally, the examiner did not address all relevant evidence of record regarding the Veteran's knee pain, including the Veteran's October 31, 2007 government medical treatment record with the Veteran's complaint of pain in both knees worsening on climbing up stairs. Accordingly, the Board finds that a remand is warranted to obtain an addendum opinion that addresses the nature and etiology of the claimed degenerative arthritis in both left and right knees. The matter is REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician, different than the one who provided the October 2018 VA opinions, for the Veteran's claimed bilateral plantar fasciitis, degenerative arthritis left knee, and degenerative arthritis right knee. A copy of this remand request and the Veteran's casefile should be provided. If the clinician determines it is necessary, schedule the Veteran for an examination to determine the nature and etiology of the Veteran's claimed conditions. The clinician must render an opinion as to whether it is at least as likely as not that such disabilities are related to or occurred during the Veteran's service. The clinician must specifically consider the service treatment records and relevant medical records documenting each condition, including (a) the April 17, 2007 service treatment record indicating pain in foot around arch area, (b) the May 2, 2007 government medical treatment record with the plantar fasciitis diagnosis and x-rays, (c) the August 18, 2007 post-deployment health assessment, where the Veteran marked "feet" and had noted "painful feet" under Provider Review and Interview, and (d) the October 31, 2007 government medical treatment record with the Veteran's complaint of pain in both knees worsening on climbing up stairs. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the likelihood is at least approximately balanced or nearly equal, if not higher. Note that the lack of documented treatment in service, or a long period after, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination. (Continued on the next page) ? 2. After ensuring compliance with this remand, readjudicate the claim. Danette Mincey Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hahn 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.