Citation Nr: A25035452 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 240729-468588 DATE: April 17, 2025 ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. The appeal for service connection for hallux limitus/rigidus with degenerative changes first metatarsophalangeal joint of the right foot is dismissed. REMANDED The claim for service connection for a left foot condition is remanded. The claim for service connection for left foot pes planus is remanded. The claim for service connection for hallux limitus/rigidus with degenerative changes first metatarsophalangeal joint of the left foot is remanded. FINDINGS OF FACT 1. The evidence of record persuasively favors the conclusion that the Veteran's bilateral hearing loss is less likely than not to have been either incurred in or otherwise caused by her active military service, to include as a result of military noise exposure. 2. The Veteran's tinnitus neither began during, nor was otherwise caused by her active service, to include as a result of any noise exposure therein. 3. In a March 2024 rating decision, the Veteran was granted service connection for right great toe hallux rigidus and valgus with degenerative arthritis (previously denied as hallux limitus/rigidus with degenerative changes first metatarsophalangeal joint of the right foot). The March 2024 rating decision serves as a full grant of the benefit being sought in this appeal, that is service connection. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for dismissal of the appeal for service connection for hallux limitus/rigidus with degenerative changes first metatarsophalangeal joint of the right foot have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1988 to October 1991. The rating decisions on appeal were issued in November 2023, December 2023, and March 2024, and constitute initial decisions; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the August 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, regarding the issues of service connection for hallux limitus/rigidus with degenerative changes first metatarsophalangeal joint of the right foot, and service connection for hallux limitus/rigidus with degenerative changes first metatarsophalangeal joint of the left foot, the Board may only consider the evidence of record at the time of the November 2023 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Concerning the issues of service connection for bilateral hearing loss and service connection for tinnitus, the Board may only consider the evidence of record at the time of the December 2023 AOJ decision on appeal. With regard to the issues of service connection for left foot pes planus and service connection for a left foot condition, the Board may only consider the evidence of record at the time of the March 2024 AOJ decision on appeal. Any evidence submitted after the AOJ decisions on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, concerning the issues of service connection for bilateral hearing loss and service connection for tinnitus, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claims for service connection for a left foot condition, service connection for left foot pes planus, and service connection for hallux limitus/rigidus with degenerative changes first metatarsophalangeal joint of the left foot, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). 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 military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, service connection may be established under 38 C.F.R. § 3.303(b), when a symptom or symptoms of a chronic disease are noted in service, or within a year of the date of separation from service, and when chronicity is established through a continuity of symptomatology after service. The continuity of symptomatology provision is an alternative method to establishing service connection for the specific chronic diseases listed under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). 1. Service Connection Bilateral Hearing Loss The Veteran seeks service connection for bilateral hearing loss. At a December 2023 VA examination, the Veteran reported noise exposure while in the military to rifle fire and grenades during basic training. She noted that her hearing protection did not fit well. The VA examiner noted that the Veteran's MOS was radiology technologist, which has a low probability of noise exposure. Based upon the Veteran's exposures to rifle fire and grenades during basic training, military noise exposure is conceded. However, in-service noise exposure alone does not mandate service connection be granted for bilateral hearing loss; rather, it must be shown that the in-service noise exposure caused a current bilateral hearing loss disability. At the December 2023 VA examination, it was established that the Veteran has bilateral hearing loss for VA purposes. For VA purposes, 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. 38 C.F.R. § 3.385. Further, the United States Court of Appeals for Veterans Claims has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). When audiometric test results at a Veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, a Veteran may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley, at 160. Here, the Veteran's service treatment records (STRs) contain results from audiometric testing at her enlistment examination in April 1988 and at a May 1991 examination in conjunction with Medical Board evaluations shortly before her separation. The Veteran's hearing acuity at her May 1991 examination showed the following decibel loss: HERTZ 1000 2000 3000 4000 RIGHT 10 5 10 5 LEFT 5 5 10 10 Thus, the Veteran was not shown to have any impairment in hearing acuity at the May 1991 examination. The Veteran's Maryland CNC Word List speech recognition score and puretone thresholds, in decibels, from the December 2023 VA examination were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 40 40 35 35 100 LEFT 20 25 40 45 32.50 96 The Veteran is shown to have bilateral hearing loss for VA purposes. Thus, the question for the Board is whether there is a causal relationship between the Veteran's current bilateral hearing loss and her military noise exposure. As previously noted, a Veteran may show that her hearing loss is the result of her military noise exposure and that some hearing impairment at separation marks the onset of hearing loss which appears decades later, however, this has not been done in this case. At the December 2023 VA examination, the VA examiner found that it was less likely than not (likelihood is less than approximately balanced or nearly equal) that the Veteran's bilateral hearing loss was incurred in or otherwise caused by her military service, including her military noise exposure. The VA examiner noted that the Veteran received a Marksmanship Badge for Rifle and grenade. Audiology tests showing hearing to be within normal limits while the Veteran was in military service were referenced from April 1988, February 1991, March 1991, and May 1991. As noted above, the examiner acknowledged the Veteran's reported in-service noise exposure that included exposure to rifle fire and grenades during basic training, as well as her report that her hearing protection did not fit well. Her MOS was radiology technologist, which the VA examiner noted to have a low probability of noise exposure. The examiner cited to medical literature and explained that once noise exposure is discontinued, noise induced hearing loss does not develop. The examiner again indicated that the Veteran's hearing at both enlistment and in May 1991 was normal without any significant hearing loss in either ear. Thus, based upon the foregoing, the examiner found that it was less likely than not that the Veteran's bilateral hearing loss was incurred in or otherwise caused by her active military service, including any military noise exposure. The Board acknowledges the Veteran's lay contentions, as well as her time as a radiological technician during service, however, the record does not show that she has any audiological medical knowledge. Nevertheless, she is considered competent to report the observable health effects she experiences. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Her assertions that she experienced symptoms are also credible. However, the mere presence of military noise exposure or decreased hearing acuity, does not mean that either a hearing loss disability was present during service or that a later diagnosed hearing loss disability was related to military noise exposure, as determining whether such symptoms are diagnostic of bilateral hearing loss is a medically complex question, which it is unclear from the record whether the Veteran has the medical training and expertise to answer. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). To address the questions that it appears the Veteran lacks the medical expertise to answer, VA obtained a medical opinion that considered the symptoms the Veteran credibly reported experiencing and answered questions about whether her bilateral hearing loss could be linked to her military service, to include military noise exposure. Unfortunately, the medical opinion that was provided explained why it was felt that the Veteran's symptoms did not suggest that her bilateral hearing loss was incurred in or otherwise related to her active military service, including her in-service noise exposure. This opinion was well-supported, considered the Veteran's statements, and has not been contradicted or undermined by any competent evidence. Even if the Veteran does have the medical competency to provide a medical opinion concerning the etiology of her bilateral hearing loss, outside of her claim for service connection for bilateral hearing loss, and her reports of in-service noise exposure to rifle fire and grenades during basic training, the Veteran herself has not provided any explanations for why she believes her hearing loss is related to her military service. As such, the December 2023 VA medical opinion is afforded much greater weight than the Veteran's claim for service connection for bilateral hearing loss with reported in-service noise exposure to rifle fire and grenades during basic training with ill-fitting hearing protection. Thus, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Further review of the Veteran's VA and private treatment records does not show any findings of any greater significance than those relayed above. That is, there are no indications or suggestions found within the Veteran's post-service medical treatment records that the Veteran's bilateral hearing loss may be related to her active military service, including her in-service noise exposure. As such, the evidence of record persuasively favors the conclusion that the Veteran's bilateral hearing loss is less likely than not incurred in or otherwise related to her active military service, including her in-service noise exposure. Accordingly, service connection for bilateral hearing loss is denied. 2. Service Connection Tinnitus The Veteran seeks service connection for tinnitus. The Veteran's STRs do not contain any complaints, treatments, or diagnoses for tinnitus. Her post-service medical treatment records first show a complaint for tinnitus in November 2021, where she reported that it had been ongoing for many years. She also noted that she had been in the military and had a history of loud noise exposure. As noted above, at the December 2023 VA examination, the Veteran reported noise exposure while in the military to rifle fire and grenades during basic training. She also noted that her hearing protection did not fit well. The Veteran's MOS of radiology technologist was indicated by the VA examiner to have a low probability of noise exposure. The Veteran was unable to state when her tinnitus began, and she did not know what had caused her tinnitus. She was only able to relay that her tinnitus had worsened since it had begun. She described her tinnitus as a constant cicada noise in the ears that varies in intensity. The VA examiner found that it was less likely than not (likelihood is less than approximately balanced or nearly equal) that the Veteran's tinnitus was incurred in or otherwise caused by her military service, including her military noise exposure. The examiner explained that tinnitus may occur following a single exposure to high-intensity impulse noise, long-term exposure to continuous noise, or exposure to a combination of impulses and continuous noise. In most cases tinnitus is accompanied by measurable hearing loss. It is recognized that the audiogram is an imperfect measurement, however, it is the accepted objective basis for determining noise injuries. The examiner indicated that there was not a significant shift in the Veteran's hearing threshold during service. Thus, in the absence of an objectively verifiable noise injury, the association between claimed tinnitus and noise exposure cannot be assumed to exist. In addition, her STRs contained no complaints, treatments, or diagnoses for tinnitus. As such, the examiner found that it was less likely than not that the Veteran's tinnitus was caused by military acoustic trauma/noise. The examiner did find that the Veteran's tinnitus is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) a symptom associated with her hearing loss, as tinnitus is known to be a symptom associated with hearing loss. Here, the Board finds that there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Board has considered the circumstances of the Veteran's service and acknowledges that the Veteran would have been exposed to loud noise during service. However, neither the lay evidence, nor the medical evidence of record, shows the onset of the Veteran's tinnitus to be either during service, or within one year of separation from service. The Board acknowledges that lay persons are competent to provide opinions on some medical issues, including tinnitus. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, the Veteran has not asserted that she had tinnitus during service, or that she has had ongoing symptomatology since separation. Rather, the Veteran has reported that she could not recall when or how her tinnitus first occurred. While the December 2023 VA examiner did indicate that the Veteran's tinnitus was at least as likely as not a symptom associated with her hearing loss, the Veteran is not service-connected for hearing loss. Additionally, the December 2023 VA examiner provided a negative nexus opinion with a thorough rationale finding it is less likely than not that the Veteran's tinnitus was incurred in or caused by her military service, to include her military noise exposure. This opinion was well-supported, considered the Veteran's statements, and has not been contradicted or undermined by any competent evidence. The Board is sympathetic towards the Veteran's claim and does not wish to minimize her assertions. However, the evidence of record does not persuasively favor the conclusion that her tinnitus was caused by military noise exposure. Here, there is simply no competent evidence indicating that service connection is warranted. The Veteran herself has not provided any statements indicating onset of tinnitus symptoms either in service or within a year of her separation from the military. Further, there are no competent medical opinions of record that would undermine the December 2023 VA medical opinion. As such, the Board finds that continuity of symptomatology has not been established. See 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Accordingly, service connection for tinnitus is denied. 3. Service Connection Hallux Limitus/Rigidus with Degenerative Changes First Metatarsophalangeal Joint Right Foot On the Veteran's August 2024 VA Form 10182 Board appeal, she identified a November 2023 rating decision and indicated that she was appealing the denial-of-service connection for hallux limitus/rigidus with degenerative changes first metatarsophalangeal joint of the right foot. However, in a March 2024 rating decision, the Veteran was granted service connection for right great toe hallux rigidus and valgus with degenerative arthritis, which the AOJ noted to have been previously denied as hallux limitus/rigidus with degenerative changes first metatarsophalangeal joint of the right foot. This decision represents a full grant of the issues on appeal. That is, the Veteran was seeking service connection, and service connection was granted for the entire period on appeal. To grant the claim again in this decision would not preserve the possibility of an earlier effective date or ancillary benefits. See Johnson v. Collins, No. 23-7589; Bailey v. Wilkie, 33 Vet. App. 188, 203-04 (2021); Warren v. McDonald, 28 Vet. App. 214, 221 (2016). Thus, there is no longer any case or controversy for the Board to decide regarding this matter, and therefore, the appeal for service connection for hallux limitus/rigidus with degenerative changes first metatarsophalangeal joint of the right foot is dismissed. 38 U.S.C. § 7105. REASONS FOR REMAND 1. Service Connection: Left Foot Condition, Left Foot Pes Planus, Hallux Limitus/Rigidus with Degenerative Changes First Metatarsophalangeal Joint Left Foot The Veteran seeks service connection for a left foot condition, left foot pes planus, and hallux limitus/rigidus with degenerative changes first metatarsophalangeal joint of the left foot. She underwent a VA examination in February 2024, at which she was noted to have diagnoses for left foot pes planus, left foot hallux valgus, left foot hallux rigidus, and left foot degenerative arthritis. The VA examiner opined that it is less likely than not (likelihood is less than approximately balanced or nearly equal) that the Veteran's left foot pes planus, hallux valgus, hallux rigidus, and degenerative arthritis were incurred in or caused by her active military service. The examiner's rationale was that the Veteran's entrance examination showed mild hallux valgus and pes planus. There was no medical evidence of treatment or diagnosis or injury or aggravation or chronic pain of the left foot while on active duty or within a year of discharge from active duty. There was no further rationale provided. Here, the examiner's rationale was based upon a pre-existing condition having a lack of in-service treatment. Concerning pre-existing conditions, service connection will be granted if the evidence demonstrates that a pre-existing disability was aggravated by active military service. 38 U.S.C. §§1110, 1131; 38 C.F.R. § 3.303(a). A pre-existing disability will be presumed to have been aggravated by service, where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a). The presumption of aggravation may be rebutted but only by clear and unmistakable evidence (obvious or manifest). 38 C.F.R. § 3.306(b). Of particular note, once the presumption of aggravation is triggered, it is the VA's burden to affirmatively show that any increase in the severity of the pre-existing disease clearly and unmistakably was due to its natural progression. The clear and unmistakable evidentiary standard is "onerous" and "very demanding," essentially requiring the evidence to be "undebatable." See Laposky v. Brown, 4 Vet. App. 331 (1993). As the February 2024 VA examiner indicated that the Veteran's left foot conditions pre-existed service, but did not utilize the clear and unmistakable standard regarding the presumption of aggravation for pre-existing disabilities, in addition to only providing a conclusory opinion based upon a lack of in-service treatment, remand is necessary due to a pre-decisional duty to assist error to obtain an appropriate medical opinion regarding aggravation of a pre-existing condition utilizing the correct standard with a thorough rational. The matters are REMANDED for the following action: 1. Obtain a VA addendum medical opinion to determine the etiology of the Veteran's left foot pes planus, left foot hallux valgus, left foot hallux rigidus, and left foot degenerative arthritis. If a physical examination is necessary to answer the Board's questions, one should be scheduled. The examiner should answer the following questions: (a.) Is there clear and unmistakable evidence that the Veteran's left foot pes planus, left foot hallux valgus, left foot hallux rigidus, and left foot degenerative arthritis pre-existed military service? Why or why not? The examiner is advised that "clear and unmistakable" means that the conclusion is undebatable, unconditional, unqualified, and cannot be misinterpreted or misunderstood. (b.) If there is clear and unmistakable evidence that the Veteran's left foot pes planus, left foot hallux valgus, left foot hallux rigidus, and left foot degenerative arthritis pre-existed service, the examiner is asked to opine whether there is clear and unmistakable evidence that the pre-existing disorder was NOT aggravated by service (meaning that any increase in disability was not beyond the natural progression of the disorder)? Why or why not? (c.) If the Veteran's left foot pes planus, left foot hallux valgus, left foot hallux rigidus, and left foot degenerative arthritis did not clearly and unmistakably preexist the Veteran's service, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's left foot pes planus, left foot hallux valgus, left foot hallux rigidus, and left foot degenerative arthritis began in or were otherwise caused by her active military service? Why or why not? Regarding the above questions (1a, 1b, 1c), the examiner should review and discuss the Veteran's STRs, specifically the April 1988 enlistment examination and a December 1990 left foot x-ray (See STRs received 10/30/1991 pp. 53 and 174). The examiner should also review and discuss the Veteran's statements concerning onset found within the medial history portion of the February 2024 VA Foot Conditions examination. Ann K. Minami Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Lutgens-Staley, 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.