TINNITUS

Summary

The veteran, who served in the U.S. Navy from November 1977 to October 1979, with subsequent National Guard service, appeals multiple rating decisions concerning various conditions. The Board granted service connection for tinnitus, finding it related to in-service noise exposure, specifically noting the veteran's MOS as an engineerman with conceded hazardous noise exposure. The Board resolved all doubt in the veteran's favor for tinnitus. However, claims for residuals of frostbite to the upper extremities were denied, as the Board found no current diagnosis and noted that service treatment records were silent regarding frostbite complaints, with VA examinations finding no current disability. The veteran's claims for increased ratings for asthma and allergic rhinitis were also denied. For asthma, the Board found the evidence did not support a higher rating than 30 percent, as the veteran did not meet criteria for more frequent corticosteroid use or physician visits, despite reporting severe shortness of breath that prevented pulmonary function testing. For allergic rhinitis, the denial was based on the lack of nasal polyps or significant obstruction, as noted in a VA examination. Several other claims, including bilateral hearing loss, acquired psychiatric disorder, bilateral gout, an ear condition, bilateral arm condition (shoulder strain), obstructive sleep apnea, and bilateral foot condition (pes planus), were remanded for further development and new medical opinions, as the existing opinions were found inadequate.

Rationale

Current disability with onset in service; Related to in-service noise exposure; Hazardous noise exposure conceded due to MOS; Benefit of the doubt resolved in veteran's favor

Full Decision Text

Citation Nr: 26005120
Decision Date: 04/30/26	Archive Date: 04/30/26

DOCKET NO. 14-38 757A
DATE: April 30, 2026

ORDER

Entitlement to service-connection for tinnitus is granted.

Entitlement to service-connection for the residuals of frostbite to the upper extremities is denied.

Entitlement to a rating in excess of 30 percent for service-connected asthma is denied.

Entitlement to a rating in excess of 10 percent for service-connected allergic rhinitis is denied.

REMANDED

Entitlement to bilateral hearing loss is remanded.

Entitlement to service-connection for an acquired psychiatric disorder is remanded. 

Entitlement to service connection for left lower extremity gout is remanded.

Entitlement to service connection for right lower extremity gout is remanded.

Entitlement to service connection for an ear condition is remanded.

Entitlement to service connection for a bilateral arm condition, to include shoulder strain, is remanded. 

Entitlement to service connection for obstructive sleep apnea is remanded. 

Entitlement to service connection for a bilateral foot condition, to include pes planus, is remanded. 

FINDINGS OF FACT

1. The Veteran's tinnitus is related to in service noise exposure.

2. The evidence of record persuasively weighs against finding that the Veteran has had residuals of frostbite at any time during or approximate to the pendency of the claim.

3. The Veteran's asthma is manifested by daily inhalational anti-inflammatory medication and intermittent inhalational bronchodilator therapy.

4. Throughout the pendency of the appeal, allergic rhinitis has not been manifested by polyps.

CONCLUSIONS OF LAW

1. The criteria for service connection for tinnitus are met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for service connection for residuals of frostbite are not met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for a disability rating in excess of 30 percent for service-connected asthma are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.97, DC 6602.

4. The criteria for a disability rating in excess of 10 percent for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. § 4.97, DC 6522.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active-duty service in the United States Navy under honorable conditions from November 1977 to October 1979, with additional service in the National Guard.

These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions in September 2011, October 2013, September 2016, and January 2017 by the Department of Veterans Affairs (VA) Regional Office. They were most recently remanded in September 2019 and return to the Board for adjudication. On remand, the Veteran's claim for service connection for a bilateral elbow condition were granted in a September 2024 Rating Decision. As this is considered a full grant of benefits sought, the matter of service connection for a bilateral elbow disability is no longer before the Board. 

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).

1. Entitlement to service-connection for tinnitus is granted.

The Veteran contends that he has tinnitus which is related to in-service noise exposure. 

The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.
 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).

1. Entitlement to service-connection for tinnitus is granted.

The Veteran contends that he has tinnitus which is related to in-service noise exposure. 

The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

In May 2024, the Veteran presented for a VA examination pertaining to his tinnitus claim. He reported that tinnitus had an onset in 1979 and described symptoms as constant ringing sound, with the functional impact being "annoying." The examiner opined that it was at least as likely as not that the currently diagnosed tinnitus was due to in service noise exposure. In support of the opinion, the examiner noted the Veteran's military occupational specialty was as an engineerman that had conceded hazardous noise exposure. 

Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

2. Entitlement to service-connection for the residuals of frostbite to the upper extremities is denied.

The Veteran contends that he has frostbite residuals to the upper extremities from service.  

The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.

The Board concludes that the Veteran does not have a current diagnosis of frostbite residuals and has not had one at any time during the pendency of the claim or recent to the filing of the claim.  Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

Service treatment records are silent for any complaints of frostbite or cold injuries. The Veteran was seen for hand numbness in January 1979, noting he was handcuffed for more than 9 hours after "violence" in November 1978. There is no mention of a cold weather injury in the assessment. As the Veteran reported other ailments during service, and frostbite or cold weather injury problems are the type that a reasonable person would report while in the military with access to healthcare, if the Veteran was experiencing problems with frostbite during service the Board would expect that he would have reported these problems to medical professionals. At his October 1979 separation examination, evaluation of the Veteran was normal.

VA treatment records do not show a diagnosis or treatment for frostbite residuals.

In May 2024, the Veteran presented for a VA examination. He reported a cold weather injury in 1977 where he went to sick call and was told he had frostbite. Current symptoms were described as stiffness only when cold. Evaluation of the Veteran at the examination was normal. Therefore, the examiner opined that there were no findings, signs or symptoms to warrant a cold injury disability. In an August 2024 addendum opinion, an examiner was asked to discuss a January 1978 notation of mild frostbite. The examiner opined that the complaints of numbness in the hands were subjective and that there was no evidence of chronicity or severity to warrant a current diagnosis. The Board places probative value in the May 2024 opinion as it is supported by the available medical evidence and considers the Veteran's contention of frostbite in service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran has received consistent treatment from the VA for roughly 25 years and while there are complaints of hand stiffness, there is not a diagnosis of frostbite or cold injury residuals.

While the Veteran believes there is a current diagnosis of frostbite residuals, [the Veteran is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires knowledge of cold weather injuries, such as frostbite to the extremities.  Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).  Consequently, the Board gives more probative weight to the competent medical evidence. 

INCREASED RATING

Disability ratings
 Veteran has received consistent treatment from the VA for roughly 25 years and while there are complaints of hand stiffness, there is not a diagnosis of frostbite or cold injury residuals.

While the Veteran believes there is a current diagnosis of frostbite residuals, [the Veteran is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires knowledge of cold weather injuries, such as frostbite to the extremities.  Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).  Consequently, the Board gives more probative weight to the competent medical evidence. 

INCREASED RATING

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. Part IV. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. All the elements specified in a disability grade need not necessarily be found; however, coordination of rating with impairment of function will be expected in all instances. See 38 C.F.R. § 4.21; see also Pierce v. Principi, 18 Vet. App. 440, 445 (2004).

1. Entitlement to a rating in excess of 30 percent for service-connected asthma is denied.

The Veteran contends that he is entitled to a higher rating for his service-connected asthma. 

In general, asthma is evaluated under Diagnostic Code 6602, based on the results of pulmonary functioning tests (PFTs), treatment regimens prescribed to treat or prevent symptoms, and other symptoms. 38 C.F.R. § 4.96 (d)(5) provides guidance for how to apply the results of PFTs under several diagnostic codes. While Diagnostic Code 6602 is not specifically listed amongst the diagnostic codes to which the regulation applies, this regulation still is significant for reference purposes. The regulation provides in pertinent part, that when evaluating based on a PFT, to use post-bronchodilator results in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, the pre-bronchodilator values should be used for rating purposes. So, while this regulation is not directly applicable to Diagnostic Code 6602, the regulation nonetheless clarifies the existing VA practice and policy for the use of post-bronchodilator values where utilizing PFT results.

Under Diagnostic Code 6602, a 100 percent disability rating is assigned for FEV-1 less than 40-percent predicted, or FEV-1/FVC less than 40 percent, or more than one attack per week with episodes of respiratory failure or requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. A 60 percent disability rating is assigned for FEV-1 of 40 to 55 percent predicted, or FEV-1/FVC of 40 to 55 percent, or at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A 30 percent disability rating is assigned for FEV-1 of 56 to 70 percent predicted, or FEV-1/FVC of 56 to 70 percent, or daily inhalational or oral bronchodilator therapy, or inhalational antiinflammatory medication. Diagnostic Code 6602 also notes that in the absence of clinical findings of asthma at time of examination, a verified history of asthmatic attacks must be of record.

The Veteran presented for a VA examination in May 2024. He reported symptoms of shortness of breath and coughing.  Medication for the condition was an inhaler. Functional impact was noted to be shortness of breath when walking long distances. His condition did not require the use of oral or parenteral corticosteroid medications. He was noted to require intermittent use of inhalational bronchodilator therapy and daily use of inhalational anti-inflammatory medication. The use of oral bronchodilators was intermittent. Antibiotics and outpatient oxygen therapy were denied. There were no asthma attacks with episodes of respiratory failure in the past 12 months and thus did not have physician
 verified history of asthmatic attacks must be of record.

The Veteran presented for a VA examination in May 2024. He reported symptoms of shortness of breath and coughing.  Medication for the condition was an inhaler. Functional impact was noted to be shortness of breath when walking long distances. His condition did not require the use of oral or parenteral corticosteroid medications. He was noted to require intermittent use of inhalational bronchodilator therapy and daily use of inhalational anti-inflammatory medication. The use of oral bronchodilators was intermittent. Antibiotics and outpatient oxygen therapy were denied. There were no asthma attacks with episodes of respiratory failure in the past 12 months and thus did not have physician visits for required care. Pulmonary function testing was not performed as the Veteran stated he gets severe shortness of breath with any activities. 

In an August 2024 VA addendum opinion, the examiner noted that the use of oral bronchodilator was incorrectly marked and that the Veteran did not require intermittent use of an oral bronchodilator. 

Upon review of the record, the Board finds that a rating in excess of 30 percent is not warranted. The Veteran's service-connected asthma disorder does not meet the criteria for a 60 percent rating, as there is no medical evidence showing his asthma does not require at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. The record does not contain any evidence that the Veteran has undergone at least monthly visits to a physician for required care of exacerbations of his condition or had any asthma attacks with episodes of respiratory failure.  The record does not contain any evidence that he has undergone intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids or taken any immuno-suppressive medications for his asthma. The Board notes that a PFT was not performed in this instance, and there is no record of a previous PFT being performed for the claimed disability. However, as noted in the May 2024 VA examination, a PFT examination was not performed for the reason that he "stated he gets severe shortness of breath with any activity." In an October 2017 VA examination, the Veteran was noted to be unable to perform a PFT due to excessive coughing. The Board notes that it is unfortunate that the Veteran was unable to perform PFTs due to the reported severity of his service-connected respiratory symptomatology at each of the VA exams.  Taken together, the record evidence as a whole does not support finding that the service-connected disability is more disabling than currently evaluated because it is manifested by daily inhalational anti-inflammatory medication and intermittent inhalational bronchodilator therapy. 

Further, as noted above, while the Veteran reported an inability to do the testing due to severe shortness of breath, his lay statement of functional impact is shortness of breath when walking long distances. Although the Veteran is competent to report symptoms he can observe, such as difficulty breathing, he is not competent to report that asthma warrants a higher evaluation under VA's criteria for rating bronchial asthma disabilities.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  However, even affording the lay statements full competence and credibility, the evidence simply does not show entitlement to a higher evaluation under any applicable diagnostic code as the Veteran's only complaint is shortness of breath performing activities that require exertion which is a common symptom of asthma.

Accordingly, a 30 percent rating, but no higher, is warranted for the service-connected asthma disability.

2. Entitlement to a rating in excess of 10 percent for service connected allergic rhinitis is denied.

The Veteran contends that his allergic rhinitis warrants a higher rating. 

His allergic rhinitis is currently rated under Diagnostic Code 6522. Under DC 6522 for allergic rhinitis, a 10 percent rating is warranted for rhinitis without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. A 30 percent rating is warranted for rhinitis with polyps.

VA treatment records are silent for any findings of rhinitis with polyps. 

In May 2024, the Veteran presented for a VA examination for his increased rating claim. He stated that he was given nose drops for his condition and symptoms consisted of watery eyes, congestion, sore throat, cough, sinus pressure, and itchy eyes. Functional impact was that frequent sneezing affects his ability to focus. There was no evidence of obstruction greater than 50 percent of the nasal passage on both sides, no complete obstruction, no permanent hypertrophy of the nasal turbinates
 than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. A 30 percent rating is warranted for rhinitis with polyps.

VA treatment records are silent for any findings of rhinitis with polyps. 

In May 2024, the Veteran presented for a VA examination for his increased rating claim. He stated that he was given nose drops for his condition and symptoms consisted of watery eyes, congestion, sore throat, cough, sinus pressure, and itchy eyes. Functional impact was that frequent sneezing affects his ability to focus. There was no evidence of obstruction greater than 50 percent of the nasal passage on both sides, no complete obstruction, no permanent hypertrophy of the nasal turbinates, and no nasal polyps. The Veteran did not have any granulomatous conditions. 

Based on the above, the medical evidence does not support a higher rating as the evidence does not show a nasal obstruction and no nasal polyps. Therefore, the medical evidence does not support a higher rating.

REASONS FOR REMAND

1. Entitlement to bilateral hearing loss is remanded.

The Veteran contends that he has bilateral hearing loss due to service. 

In May 2024, he presented for a VA examination for his claim. He was diagnosed with mixed hearing loss in the right ear and sensorineural hearing loss in the left ear. The examiner opined that the Veteran's bilateral hearing loss was less likely than not due to service. While in service hazardous noise exposure was noted, the examiner indicated his hearing was normal at separation. She noted that while military noise exposure is conceded and the relationship between military noise, auditory damage, and hearing loss is well documented, hearing loss is not conceded based on noise exposure alone. 

While an opinion regarding the etiology of hearing loss was obtained in May 2024, the examiner's rationale for the adverse opinion was that the Veteran had normal hearing at separation.  The opinion does not explain the medical significance of this finding or address the possibility of delayed onset hearing loss. Thus, remand is necessary to obtain another nexus opinion regarding the etiology of the Veteran's hearing loss.

2. Entitlement to service-connection for an acquired psychiatric disorder is remanded. 

In the September 2019 Board decision, it was noted the Veteran contended he had an acquired psychiatric disorder due to service or his service-related disabilities. Additionally, he noted he had PTSD having witnessed a friend shot in front of him during service. 

While the AOJ was only directed to verify the claimed stressor in the remand directives, a VA examination was not obtained to determine the etiology of his acquired psychiatric disorders. In November 2023, a VA examination was cancelled for his psychiatric disorder claim. The reason was due to relocation of the Veteran. While the Veteran was re-scheduled for several other examinations due to his relocation, a psychiatric examination was not one of them. 

Therefore, remand is necessary to afford the Veteran a VA examination. 

3. Entitlement to service connection for left lower extremity gout is remanded.

See section 4 below.

4. Entitlement to service connection for left lower extremity gout is remanded.

The Veteran contends his bilateral gout disability is related to service, specifically standing for several hours while on duty. 

In a May 2024 VA opinion, the examiner opined the Veteran's gout was less likely than not due to service. In support of the opinion, the examiner noted that gout and obesity have a close relationship, "where there's one, there's usually the other." In addition, the examiner noted that chances of getting gout "go up 55% every time your body mass index goes up 5 points." 

The AOJ attempted to obtain an addendum opinion in August 2024, noting the Veteran's contention that he believes gout is related to his standing guard duty in the military for 8 to 16 hours. However, the August 2024 VA examiner did not address or consider the Veteran's lay statements. As a result, the matter must be remanded for a VA opinion that considers the Veteran's lay testimony. 

5. Entitlement to service connection for an ear condition is remanded.

In the September 2024 Supplemental Statement of the Case (SSOC), the AOJ did not provide an adequate reasons or basis for the denial of service connection for an ear infection nor any evidence that has been developed since the 2019 Board remand. Under the section for ear condition, the AOJ listed "x." As a result, remand is necessary to provide the Veteran with an adequate basis for denial of service connection for an ear condition.

6. Entitlement to service connection for a bilateral arm condition, to include shoulder strain, is remanded. 

The Veteran presented for a VA examination for his bilateral arm claim in May 202
 testimony. 

5. Entitlement to service connection for an ear condition is remanded.

In the September 2024 Supplemental Statement of the Case (SSOC), the AOJ did not provide an adequate reasons or basis for the denial of service connection for an ear infection nor any evidence that has been developed since the 2019 Board remand. Under the section for ear condition, the AOJ listed "x." As a result, remand is necessary to provide the Veteran with an adequate basis for denial of service connection for an ear condition.

6. Entitlement to service connection for a bilateral arm condition, to include shoulder strain, is remanded. 

The Veteran presented for a VA examination for his bilateral arm claim in May 2024. He noted pulling objects out of the water inservice when his shoulder popped. Current symptoms were popping, aching pain and weakness. The examiner diagnosed him with bilateral shoulder strain. The examiner opined that the shoulder strain was not related to service as there were no complaints in service or that manifested within one year from discharge. The opinion is inadequate as it is based on a lack of medical treatment records and does not consider the Veteran's lay statements. 

In August 2024, an addendum opinion was requested. The examiner addressed the Veteran's bilateral elbow condition, but did not address his bilateral shoulder strain. Therefore, a remand is necessary to obtain a medical opinion that considers the Veteran's lay statements. 

7. Entitlement to service connection for obstructive sleep apnea is remanded. 

The Veteran presented for a VA examination for his OSA claim in October 2023. He reported an onset of symptoms in 1978 that consisted of choking and gasping in his sleep. The examiner opined it was less likely than not that any currently diagnosed sleep apnea was a result of toxic exposures while serving onboard a tugboat as medical literature does not support the theory and is silent for such a relationship. 

In May 2024, an addendum opinion was obtained. The examiner opined that it was less likely than not that the claimed OSA was due to service. In support of the opinion, the examiner cited the Veteran was morbidly obese and that obese people have a narrowing of upper respiratory muscles that obstructs breathing. The examiner cited the same reasoning for why OSA was not secondary to or aggravated by a service-connected disability.

The Board finds these opinions inadequate as they do not address the Veteran's statements of choking and gasping in his sleep while inservice. As a result, the matter must be remanded for another opinion. 

8. Entitlement to service connection for a bilateral foot condition, to include pes planus, is remanded. 

The Veteran contends that he has a bilateral foot condition that is due to service. 

In May 2024, the Veteran presented for a VA examination for his claim. He reported his boots caused foot pain that began in 1978. Symptoms were soreness and ingrown toenails. A diagnosis of bilateral pes planus and hallux valgus were rendered. The examiner opined that the bilateral pes planus clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression. In support of the opinion, the examiner noted the Veteran was morbidly obese and being obese increases a strain on the arches, upping the risk of developing flat feet. Separately, the examiner opined that it was at least as likely as not that the Veteran's right foot pes planus was due to service. The rationale was that the October 1977 medical examination showed a foot abnormality, and the Veteran was seen for increased tenderness in the right foot in an October 1978 treatment record. 

The Board finds these opinions inadequate as the Veteran had complaints of foot pain while in service that is not considered in the aggravation opinion. The direct service connection opinion is inadequate as the Veteran had the condition prior to service. The October 1977 examination cited by the examiner is his entrance examination noting the pre-existing condition. Additionally, the Veteran had several foot complaints in service, to include ingrown toe nails and an opinion should be obtained for all foot conditions, not just pes planus. 

The matters are REMANDED for the following action:

1. Send the Veteran and authorized representative a supplemental statement of the case that addresses the issue of an ear condition. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration.

2. Schedule the Veteran for the appropriate VA examinations to address claims for service connection for bilateral hearing loss, an acquired psychiatric disorder, left lower extremity gout, right lower extremity gout, bilateral arm condition, ear condition, obstructive sleep apnea, and a bilateral foot condition, to include pes planus. The examiner should opine whether it is at least
 for all foot conditions, not just pes planus. 

The matters are REMANDED for the following action:

1. Send the Veteran and authorized representative a supplemental statement of the case that addresses the issue of an ear condition. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration.

2. Schedule the Veteran for the appropriate VA examinations to address claims for service connection for bilateral hearing loss, an acquired psychiatric disorder, left lower extremity gout, right lower extremity gout, bilateral arm condition, ear condition, obstructive sleep apnea, and a bilateral foot condition, to include pes planus. The examiner should opine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's bilateral hearing loss, an acquired psychiatric disorder, left lower extremity gout, right lower extremity gout, bilateral arm condition, obstructive sleep apnea, and a bilateral foot condition (1) had an onset in service, (2) is related to an injury or disease incurred in service, (3) is caused by a service-connected disability (to include the now service-connected type 2 diabetes), or (4) is aggravated by a service-connected disability.

(a) Regarding the Veteran's pes planus disability, does the evidence clearly and unmistakably show that this condition (is it undebatable) existed prior to the Veteran's service entrance in October 1977?

(b) If the answer to (a) is yes, does the evidence clearly and unmistakably show (is it undebatable) that the pes planus disability was not aggravated during or as a result of service? The examiner should consider and discuss the Veteran's October 1978 in-service complaint of right foot pain.

If any opinion requested above cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).

The examiner may NOT rely on the absence of a medical record or evidence of medical treatment as the sole rationale for any negative medical nexus opinion.  If the examiner finds the lack of documented treatment in service or post-service to be of medical significance given the relative severity, common symptomatology, and usual treatment of the claimed condition(s), the examiner should explain such a finding in the opinion.

If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted.  Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible?

 

B. MULLINS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Jarman, Timothy

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.