Citation Nr: A24029068 Decision Date: 06/04/24 Archive Date: 06/04/24 DOCKET NO. 210317-144501 DATE: June 4, 2024 ORDER New and relevant evidence having been received, the Veteran's claim for service connection for tinnitus may be reconsidered. Service connection for tinnitus is granted. REMANDED The appeal for entitlement to service connection for bilateral plantar fasciitis is remanded. FINDINGS OF FACT 1. Entitlement to service connection for tinnitus was denied in an August 2018 rating decision; new and relevant evidence pertaining to this issue has been received. 2. Resolving any doubt in the Veteran's favor, his tinnitus had its onset in service. CONCLUSIONS OF LAW 1. As the evidence received subsequent to the August 2018 rating decision is new and relevant, the claim of entitlement to service connection for tinnitus may be reconsidered. 38 C.F.R. §§ 5108, 7105; 38 C.F.R. §§ 3.102, 3.156. 2. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from August 1990 to August 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2020 and October 2020 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO), also known as the Agency of Original Jurisdiction (AOJ). In March 2021, the Veteran filed VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement (NOD)), electing the Direct Review Lane. Under the Direct Review Lane, the Board may only consider evidence of record at the time of the April 2020 and October 2020 AOJ decisions on appeal. 1. New and relevant evidence has been received sufficient to reconsider the claim for service connection for tinnitus. The Veteran contends that he suffers from tinnitus resulting from noise exposure during his military service. See March 2021 NOD; April 2022 Representative Brief. This claim was first denied in an August 2018 rating decision. The Veteran filed a VA Form 20-0995 Supplemental Claim seeking reconsideration in June 2019. In July 2019 and April 2020 rating decisions, the RO declined to reconsider the claim finding that the record did not contain sufficient new and relevant evidence. A claimant may request adjudication of a previously denied claim if new and relevant evidence is presented or secured. VA will readjudicate the claim taking into consideration all of the evidence of record. 38 C.F.R. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously to agency decisionmakers. The term "relevant evidence" means evidence that tends to prove or disprove a matter in issue. 38 C.F.R. § 3.2501. The standard shall not be construed to impose a higher evidentiary threshold than the new and material evidence standard that was in effect prior to the date of the enactment of the Appeals Modernization Act (AMA). In the August 2018 rating decision, service connection for tinnitus was denied because the evidence did not show complaint of tinnitus during service and the medical opinion obtained was against the claim. In a June 2019 Correspondence, the Veteran provided additional information regarding his noise exposure during service and experiencing a slight buzzing in his ears following missions performed in his MOS as an Amphibious Assault Repairman in 1991. He stated the buzzing was intermittent during service, but it had continued and worsened since that time. Along with the filing of another Supplemental Claim in March 2020, the Veteran provided further information regarding the background and continuing nature of his tinnitus from the time of service through the present. In April 2022, the Veteran's representative argued that the Veteran's lay evidence "provides the link and fills the gap between service and his current condition." Upon review of the evidence, the Board finds that new and relevant evidence has been received allowing the claim for service connection to be reconsidered and granted. As noted below, the first and second elements of service connection have already been conceded. As such, only the third element of nexus remains for this claim, and the new evidence submitted is relevant as it tends to prove this element. 2. Service connection for tinnitus is granted. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). As an organic disease of the nervous system, tinnitus is considered a chronic disease for VA compensation purposes. See Fountain v. McDonald, 27 Vet. App. 25 (2015). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran was afforded a VA examination for his hearing loss and tinnitus in March 2018, where the examiner diagnosed him with tinnitus. Moreover, in its April 2020 rating decision, the RO made a favorable finding of a current diagnosis of tinnitus. The Board is bound by this favorable finding. See 38 C.F.R. § 3.104. The Board finds, therefore, that the first element of service connection has been met. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). As to the second element of an in-service injury or event, while the Veteran's service treatment records (STRs) are silent as to symptoms or reports of tinnitus, in its April 2020 rating decision the RO conceded military noise exposure due to the Veteran's military operational specialty of Assault Amphibious Repairman. The Board is once more bound by this favorable finding. See 38 C.F.R. § 3.104. The Board finds, therefore, that the second element of service connection has been met. Turning to the third element of a nexus, as noted above the Veteran was afforded a VA examination for his hearing loss and tinnitus in March 2018. The examiner concluded that the Veteran's tinnitus is less likely than not related to his military service due to the Veteran reportedly stating that his tinnitus symptoms began many years after service ended. The examiner concluded that because there is no medical literature to support late onset of tinnitus, a nexus was not supportable. The Veteran's reporting in his VA examination and VA and private medical records, however, demonstrate a consistent contention that these symptoms began during, or stem from, the noise exposure that he suffered during his military service. Numerous lay statements also support this finding. The Veteran is competent to report both the onset and continuity of symptoms in the present case because tinnitus is a disability that is capable of observation by the person experiencing it, and generally is not capable of objective verification. See Charles v. Principi, 16 Vet. App. 370 (2002) (noting that, because tinnitus is subjective, its existence is generally determined by whether the Veteran claims to experience it). Furthermore, the Veteran's statements are consistent with the general circumstances of his service in the Marine Corps and the specific circumstances of his service, including an MOS of Assault Amphibious Repairman. Therefore, the Board acknowledges the opinion of the VA examiner; however, the Board assigns this opinion little probative weight. Rather, the Board finds that the Veteran's reporting to the VA examiners, in conjunction with his VA and private treatment records and lay statement submissions, warrants affording the benefit of the doubt to the Veteran. In this case, the evidence weighs persuasively in favor of a finding that tinnitus, a chronic disease, had onset in service and is present currently. Accordingly, the Board finds that the criteria necessary to grant tinnitus are met and the claim may be granted. See Fountain, supra; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). REASONS FOR REMAND 2. The appeal for entitlement to service connection for bilateral plantar fasciitis is remanded. The Veteran contends that his bilateral plantar fasciitis had onset while on active duty. See March 2021 NOD. Mild pes planus appears on the Veteran's December 1989 entrance examination. It was noted to be asymptomatic at that time. On the accompanying Report of Medical History, it was specifically noted that the Veteran did "not have feet trouble." STRs show treatment for medial tibial stress syndrome during service. The July 1994 separation examination is silent for complaints regarding the feet. The Veteran filed a claim for service connection for bilateral plantar fasciitis in February 2018. The Veteran was afforded a VA examination for his foot conditions in July 2018, where the examiner diagnosed the Veteran with bilateral plantar fasciitis. The examiner recognized pre-existing pes planus. In their opinion, the examiner failed to find evidence that the Veteran suffered from plantar fasciitis during service and therefore concluded it was unlikely that the Veteran's plantar fasciitis was incurred or caused during service. In the August 2018 rating decision, the RO denied the claim explaining that while service treatment records reflected complaints similar to that claimed, the medical evidence supports the conclusion that a persistent disability was not present in service and no link could be found between the Veteran's diagnosed plantar fasciitis and military service. In a June 2019 rating decision, the RO reopened the claim following the Veteran's submission of additional evidence with his Supplemental Claim explaining the pain he experienced in his feet, specifically the heel, after long runs and marches in service and how he tried to accommodate this pain without going to sick bay in order to avoid being unable to move up with his platoon due to medical reasons. The RO continued denial of the claim without obtaining a new medical opinion to take into account the Veteran's lay statements. Upon review of the evidence, the Board finds the July 2018 VA opinion is inadequate to the decide the claim and the duty to assist by providing an adequate medical opinion that took into account the Veteran's lay statements regarding his in-service foot symptomatology should have been obtained prior to continuing the denial of the Veteran's claim. Here, the evidence of record shows pre-existing pes planus. It does not show pre-existing plantar fasciitis. Pes planus and plantar fasciitis are not the same disability and, therefore, in terms of the claim for service connection for plantar fasciitis, the Veteran is a presumed sound. His contention appears to be that his currently diagnosed plantar fasciitis had onset in service and continued/worsened after service. A VA opinion should be obtained that takes into account his contentions regarding the onset and progression of his plantar fasciitis. Under the AMA, the Board's remand authority is generally limited to correcting pre-decisional duty to assist errors. See 38 C.F.R. § 20.802(a). As the pre-decisional June 2018 medical opinion is inadequate, remand is warranted to obtain an adequate opinion. These matters are REMANDED for the following action: Obtain a new opinion regarding the etiology of the Veteran's bilateral plantar fasciitis from an appropriate clinician. The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner. The decision as to whether a new examination is necessary to provide an adequate opinion is left to the discretion of the examiner. Following review of the record, the examiner must opine as to whether it is at least as likely as not (the likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's bilateral plantar fasciitis had its onset in, or is otherwise related to, military service. In rendering this opinion, the examiner is to consider the Veteran sound upon entrance into the service because mild pes planus, and not plantar fasciitis, was noted upon the December 1989 entrance examination. In addition, in rendering this opinion, the examiner is asked to consider the Veteran's lay statements regarding the onset and progression of his foot pain and symptomatology during service and thereafter. A complete rationale should accompany any opinion provided and if resort to speculation is necessary and reason for the need for speculation should be explained. C.B. Iwanowski Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Hillman, 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.