Citation Nr: 0809921	
Decision Date: 03/26/08    Archive Date: 04/09/08

DOCKET NO.  04-31 784	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, 
Texas


THE ISSUES

1.  Entitlement to an initial rating greater than 10 percent 
for gastroesophageal reflux disease (GERD).

2.  Entitlement to service connection for bilateral pes 
planus.

3.  Entitlement to service connection for right ventricular 
conduction relay.

4.  Entitlement to service connection for bilateral hearing 
loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Michael T. Osborne, Counsel


INTRODUCTION

The veteran had active service from October 1982 to February 
2003.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal of an April 2003 rating decision issued by 
the Department of Veterans Affairs (VA) Regional Office (RO) 
in St. Petersburg, Florida, which granted, in pertinent part, 
the veteran's claim of service connection for GERD, assigning 
a zero percent rating effective February 1, 2003, and also 
denied the veteran's claims of service connection for 
bilateral pes planus, right ventricular conduction relay, and 
for bilateral hearing loss.  The veteran disagreed with this 
decision in May 2003.  In July 2003, the veteran notified VA 
that he had moved to the jurisdiction of the RO in Waco, 
Texas; this RO retains jurisdiction over the veteran's 
appeal.  He perfected a timely appeal in August 2004.  

In an April 2007 rating decision, the RO, in pertinent part, 
assigned a higher 10 percent rating to the veteran's service-
connected GERD effective February 1, 2003.  Because the 
initial rating assigned to the veteran's service-connected 
GERD is not the maximum rating available for this disability, 
this claim remains in appellate status.  See AB v. Brown, 6 
Vet. App. 35 (1993).



FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable 
disposition of the veteran's appeal has been obtained.

2.  The veteran's service-connected GERD is not manifested by 
persistently recurrent epigastric distress with dysphagia, 
pyrosis, and regurgitation, accompanied by substernal or arm 
or shoulder pain, and is not productive of considerable 
health impairment.

3.  The veteran's currently diagnosed bilateral pes planus is 
not related to active service.

4.  The veteran does not experience any current disability 
due to his claimed right ventricular conduction relay.

5.  The veteran has normal hearing in his right ear

6.  The veteran's high frequency hearing loss in the left ear 
is not a disability for VA compensation purposes.



CONCLUSIONS OF LAW

1.  The criteria for an initial rating greater than 
10 percent for GERD have not been met.  38 U.S.C.A. §§ 1155, 
5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.114, 
Diagnostic Code (DC) 7346 (2007).

2.  Bilateral pes planus was not incurred during active 
service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 
2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304, 3.305 (2007).

3.   The veteran's claimed right ventricular conduction relay 
was not incurred during active service.  38 U.S.C.A. §§ 1110, 
1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.102, 3.159, 3.303, 3.304 (2007).

4.  Bilateral hearing loss was not incurred during active 
service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 
5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.303, 3.304, 3.307, 3.309, 3.385 (2007).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Before assessing the merits of the appeal, VA's duties under 
the Veterans Claims Assistance Act of 2000 (VCAA) must be 
examined.  The VCAA provides that VA shall apprise a claimant 
of the evidence necessary to substantiate his claim for 
benefits and that VA shall make reasonable efforts to assist 
a claimant in obtaining evidence unless no reasonable 
possibility exists that such assistance will aid in 
substantiating the claim.

The veteran's higher initial rating claim for GERD is a 
"downstream" element of the RO's grant of service 
connection for GERD in the currently appealed rating decision 
issued in April 2003.  For such downstream issues, notice 
under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 is not 
required in cases where such notice was afforded for the 
originating issue of service connection.  See VAOPGCPREC 8-
2003 (Dec. 22, 2003).  In a letter issued in May 2003, VA 
notified the veteran of the information and evidence needed 
to substantiate and complete his claims, including what part 
of that evidence he was to provide and what part VA would 
attempt to obtain for him.  See 38 U.S.C.A. § 5103(a); 38 
C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. 
App. 183, 187 (2002).  The letter informed the veteran to 
submit medical evidence, statements from persons who knew the 
veteran and had knowledge of his disabilities during service, 
and noted other types of evidence the veteran could submit in 
support of his claims.  In addition, the veteran was informed 
of when and where to send the evidence.  In response, the 
veteran notified VA in May 2007 that he had no further 
information or evidence to submit in support of his claims.

VA also provided the veteran with additional VCAA notice, 
including notice of the Dingess requirements, in June 2007.  
Although complete content-complying VCAA notice was not 
provided before the April 2003 rating decision, the claimant 
has had the opportunity to submit additional argument and 
evidence and to participate meaningfully in the adjudication 
process.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 
2006).  The veteran has not alleged any prejudice as a result 
of the untimely notification, nor has any been shown.

To the extent that Dingess requires more extensive notice as 
to potential downstream issues such as disability rating and 
effective date, because the April 2003 rating decision was 
fully favorable to the veteran on the issue of service 
connection for GERD, and because the veteran's service 
connection claims for bilateral pes planus and for bilateral 
hearing loss are being denied in this decision, the Board 
finds no prejudice to the veteran in proceeding with the 
present decision and any defect with respect to that aspect 
of the notice requirement is rendered moot.  See Bernard v. 
Brown, 4 Vet. App. 384, 394 (1993); see also Dingess/Hartman 
v. Nicholson, 19 Vet. App. 473 (2006).  In Dingess, the 
United States Court of Appeals for Veterans Claims (Veterans 
Court) held that, in cases where service connection has been 
granted and an initial disability rating and effective date 
have been assigned, the typical service-connection claim has 
been more than substantiated, it has been proven, thereby 
rendering section 5103(a) notice no longer required because 
the purpose that the notice is intended to serve has been 
fulfilled.  See Dingess, 19 Vet. App. at 490-91.  

The Board notes that the Veterans Court, in Vazquez-Flores v. 
Peake, No. 05-0355 (U.S. Vet. App. Jan. 30, 2008) clarified 
VA's notice obligations in increased rating claims.  The 
appeal for a higher initial rating for GERD originates, 
however, from the grant of service connection for GERD.  
Consequently, Vazquez-Flores is inapplicable.

With respect to the veteran's service connection claim for 
right ventricular conduction relay, although complete 
content-complying VCAA notice was not provided prior to the 
April 2003 rating decision which denied the benefit sought on 
appeal, the Board observes that VCAA notice is not required 
because the issue presented involves a claim that cannot be 
substantiated as a matter of law.  See Sabonis v. Brown, 
6 Vet. App. 426, 430 (1994) (where the law and not the 
evidence is dispositive the Board should deny the claim on 
the ground of the lack of legal merit or the lack of 
entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) 
(VA is not required to provide notice of the information and 
evidence necessary to substantiate a claim where that claim 
cannot be substantiated because there is no legal basis for 
the claim or because undisputed facts render the claimant 
ineligible for the claimed benefit).  In this case, the 
veteran is seeking service connection for a symptom-right 
ventricular conduction relay-and not for any underlying 
cardiovascular disability.  See generally Sanchez-Benitez v. 
West, 13 Vet. App. 282, 285 (1999), vacated in part and 
remanded on other grounds sub nom., Sanchez-Benitez v. 
Principi, 239 F.3d 1356 (Fed. Cir. 2001).  

The Board also finds that VA has complied with the VCAA's 
duty to assist by aiding the veteran in obtaining evidence 
and affording him the opportunity to give testimony before 
the RO and the Board, although he declined to do so.  It 
appears that all known and available records relevant to the 
issues here on appeal have been obtained and are associated 
with the veteran's claims file; the veteran does not contend 
otherwise.  VA also provided the veteran with examinations to 
determine the current nature and severity of his service-
connected GERD and to address the contended causal 
relationship between active service and his bilateral pes 
planus, claimed right ventricular conduction relay, and 
bilateral hearing loss.  Thus, the Board finds that VA has 
done everything reasonably possible to notify and to assist 
the veteran and that no further action is necessary to meet 
the requirements of the VCAA.

The veteran contends that he is entitled to an initial rating 
greater than 10 percent for service-connected GERD.

In general, disability evaluations are assigned by applying a 
schedule of ratings that represent, as far as can be 
determined, the average impairment of earning capacity. 38 
U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2007).  Separate diagnostic 
codes identify the various disabilities and the criteria that 
must be met for specific ratings.  The regulations require 
that, in evaluating a given disability, the disability be 
viewed in relation to its whole recorded history.  38 C.F.R. 
§ 4.2 (2007); see also Schafrath v. Derwinski, 1 Vet. App. 
589 (1991).

Where the appeal arises from the original assignment of a 
disability evaluation following an award of service 
connection, the severity of the disability at issue is to be 
considered during the entire period from the initial 
assignment of the disability rating to the present time.  
Separate ratings can be assigned for separate periods of time 
based on the facts found, a practice known as "staged" 
ratings.  See Fenderson v. West, 12 Vet. App. 119 (1999); 
Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. November 19, 
2007).

The veteran's service-connected GERD is currently evaluated 
as 10 percent disabling by analogy to 38 C.F.R. § 4.114, 
DC 7346 (hiatal hernia).  See 38 C.F.R. § 4.114, DC 7346 
(2007).  A 10 percent rating is available under DC 7346 for a 
hiatal hernia with two or more of the symptoms for the 
30 percent rating of less severity.  A 30 percent rating is 
available under DC 7346 for a hiatal hernia with persistently 
recurrent epigastric distress with dysphagia, pyrosis, and 
regurgitation, accompanied by substernal or arm or shoulder 
pain, and productive of considerable health impairment.  A 
maximum 60 percent rating is available under DC 7346 for a 
hiatal hernia with symptoms of pain, vomiting, material 
weight loss and hematemesis or melena with moderate anemia or 
other symptom combinations productive of severe health 
impairment.  Id.

A review of the veteran's service medical records indicates 
that he denied any medical history at his enlistment physical 
examination in November 1981.  

The veteran reported that he was in excellent health on a 
medical history form completed in June 1990.

An upper gastrointestinal (UGI) series in May 1999 showed a 
normal esophagus without gastroesophageal reflux.  The 
impression was a normal UGI.

X-rays of the veteran's abdomen in July 1999 were normal.  

In July 2000, the veteran's complaints included reflux and 
occasional nausea.  He denied any vomiting.  Objective 
examination showed a soft, non-tender abdomen with positive 
bowel sounds.  The assessment included GERD.

In August 2002, the veteran complained of acid reflux for the 
past 2 years that had worsened progressively in the last few 
months.  He awakened at night with a burning sensation in the 
epigastric region up in to his throat.  He also experienced 
an "acidy taste" at night.  He denied any dysphagia.  The 
veteran's medical history included GERD.  Objective 
examination showed a soft, non-tender, non-distended abdomen 
with normal bowel sounds.  The assessment was GERD.

In September 2002, the veteran complained of slight pain in 
the kidney area.  He reported that, after taking medication 
to treat his GERD for 30 days, he had markedly decreased acid 
reflux symptoms with no adverse side effects.  He also denied 
any epigastric distress in the past.  His bowel movements 
occurred every 3 days of normal caliber with no hematochezia 
or diarrhea.  Objective examination showed a soft, non-tender 
abdomen with normal bowel sounds.  The assessment included 
GERD.

At his separation physical examination in December 2002, the 
in-service examiner noted that the veteran had a history of 
reflux symptoms that was relieved with medication.  

The post-service medical records show that, on VA examination 
in January 2003, the veteran's complaints included GERD.  The 
veteran reported that an in-service upper GI series and 
gastroscopy showed GERD.  Physical examination showed a soft 
abdomen.  The impressions included GERD, substantiated by 
gastroscopy and upper GI series.

On VA general surgical examination in March 2007, the veteran 
complained of pyrosis and reflux once a month if he took his 
medication and followed his diet.  However, if he did not 
take his medication, the veteran experienced pyrosis and 
reflux once or twice a week.  The VA examiner reviewed the 
veteran's claims file, including his service medical records.  
The veteran denied any nausea, vomiting, anemia, weight loss, 
gastrointestinal malignancy, peritoneal tuberculosis, ventral 
hernias, or recurrence of inguinal hernias.  Physical 
examination showed no signs of anemia and no evidence of 
bleeding.  The VA examiner stated that the severity of the 
veteran's esophageal reflux had decreased with medication and 
a bland diet.  The impressions included hiatal hernia and 
esophageal reflux once a month when the veteran took his 
medication or twice a week when he did not take his 
medication.

The Board finds that the preponderance of the evidence is 
against the veteran's claim for an initial rating greater 
than 10 percent for GERD.  The veteran's service-connected 
GERD is not manifested by persistently recurrent epigastric 
distress with dysphagia, pyrosis, and regurgitation, 
accompanied by substernal or arm or shoulder pain, and is not 
productive of considerable health impairment such that a 
higher initial rating is warranted under DC 7346.  See 
38 C.F.R. § 4.114, DC 7346 (2007).  Instead, the medical 
evidence shows continuing treatment for GERD which the 
veteran experiences once a month when taking his medication 
or twice a week when he is not on medication.  The VA 
examiner noted in March 2007 that the severity of the 
veteran's service-connected GERD had decreased with 
medication and use of a bland diet.

As noted above, there is no evidence that the veteran's GERD 
should be increased for any other separate period based on 
the facts found throughout the appeal period.  The evidence 
of record from the day the veteran filed the claim to the 
present supports the conclusion that he is not entitled to 
additional increased compensation during any time within the 
appeal period.

The veteran also contends that his bilateral pes planus, 
right ventricular conduction relay, and bilateral hearing 
loss were all incurred during active service.

Service connection may be granted if the evidence 
demonstrates that a current disability resulted from an 
injury or disease incurred or aggravated in active military 
service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  

Service connection may also be granted for any disease 
diagnosed after discharge, when all the evidence, including 
that pertinent to service, establishes that the disease was 
incurred in service.  38 C.F.R. § 3.303(d).

Where a veteran served ninety days or more during a period of 
war and certain chronic diseases, including an organic 
disease of the nervous system such as sensorineural hearing 
loss, becomes manifest to a degree of 10 percent within one 
year from date of termination of such service, such disease 
shall be presumed to have been incurred in service even 
though there is no evidence of such disease during the period 
of service.  This presumption is rebuttable by affirmative 
evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113; 
38 C.F.R. §§ 3.307, 3.309.

Veterans will be presumed to have been accepted in sound 
condition when examined, accepted and enrolled for service, 
except as to defect, disabilities, or other disorders noted 
at the time of his or her enlistment.  Only such disabilities 
as are listed on an enlistment physical examination will be 
considered to have been "noted" at a veteran's entry on to 
active service.  38 C.F.R. § 3.304(b) (2007).

Impaired hearing is considered a disability for VA purposes 
when the auditory threshold in any of the frequencies 500, 
1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or 
greater or where the auditory thresholds for at least three 
of these frequencies are 26 dB or greater or when speech 
recognition scores are less than 94 percent.  38 C.F.R. 
§ 3.385 (2007).

If there is no evidence of a chronic condition during service 
or an applicable presumptive period, then a showing of 
continuity of symptomatology after service may serve as an 
alternative method of establishing the second and/or third 
element of a service connection claim.  See 38 C.F.R. § 
3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997).  
Continuity of symptomatology may be established if a claimant 
can demonstrate (1) that a condition was "noted" during 
service; (2) evidence of post-service continuity of the same 
symptomatology; and (3) medical or, in certain circumstances, 
lay evidence of a nexus between the present disability and 
the post-service symptomatology.  Evidence of a chronic 
condition must be medical, unless it relates to a condition 
to which lay observation is competent.  If service connection 
is established by continuity of symptomatology, there must be 
medical evidence that relates a current condition to that 
symptomatology.  See Savage, 10 Vet. App. at 495-498.

It is the defined and consistently applied policy of VA to 
administer the law under a broad interpretation, consistent, 
however, with the facts shown in every case.  When, after 
careful consideration of all procurable and assembled data, a 
reasonable doubt arises regarding service origin, the degree 
of disability, or any other point, such doubt will be 
resolved in favor of the claimant.  By reasonable doubt is 
meant one which exists because of an approximate balance of 
positive and negative evidence which does not satisfactorily 
prove or disprove the claim.  It is a substantial doubt and 
one within the range of probability as distinguished from 
pure speculation or remote possibility.  See 38 C.F.R. § 
3.102.

At the veteran's enlistment physical examination in November 
1981, clinical evaluation showed moderate asymptomatic pes 
planus and high frequency hearing loss in the left ear in the 
6000 Hertz (Hz) range that was non-progressive.  

An echocardiogram (ECG) in November 1981 showed sinus 
bradycardia that was within normal limits.

The veteran was placed on a temporary physical profile in 
November 1981 for stress pain in the left foot.  

In March 1983, the veteran's pure tone thresholds, in 
decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
0
0
5
LEFT
0
0
10
10
0

In May 1983, the veteran's pure tone thresholds, in decibels, 
were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
0
0
5
LEFT
0
0
10
10
0

On periodic physical examination in June 1984, clinical 
evaluation was completely normal.  The veteran's pure tone 
thresholds, in decibels, were as follows:






HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
10
0
LEFT
0
5
5
5
0

No significant threshold shift was noted.

In July 1985, the veteran's pure tone thresholds, in 
decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
0
0
LEFT
0
5
5
0
0

No significant threshold shift was noted.

On periodic physical examination in July 1986, clinical 
evaluation was completely normal except for bilateral 
7 centimeter inguinal herniorrhaphy scars that were well-
healed with no sequelae.  The veteran's pure tone thresholds, 
in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
0
0
LEFT
0
0
5
5
5

No significant threshold shift was noted.

On periodic physical examination in June 1988, clinical 
evaluation was unremarkable.  The veteran's pure tone 
thresholds, in decibels, were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
5
15
5
LEFT
0
0
5
5
0

No significant threshold shift was noted.

In July 1989, the veteran's pure tone thresholds, in 
decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
0
0
0
LEFT
5
5
10
15
10

No significant threshold shift was noted.

On periodic physical examination in June 1990, clinical 
evaluation was unchanged.  The veteran's pure tone 
thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
10
10
LEFT
0
0
10
10
5

The in-service examiner noted that the veteran had high 
frequency hearing loss in the left ear that was considered 
non-progressive.  

In June 1991, the veteran's pure tone thresholds, in 
decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
0
0
10
LEFT
0
5
5
10
5

No significant threshold shift was noted.

In August 1992, the veteran complained of increased heel pain 
in the past year when running.  Objective examination of the 
feet showed bilateral flat arches.  The assessment included 
bilateral pes planus.  

On periodic physical examination in August 1992, clinical 
evaluation was completely normal.  The veteran's pure tone 
thresholds, in decibels, were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
0
5
5
5
10
LEFT
5
0
0
5
10

The veteran was prescribed orthotics in December 1992, at 
which time it was noted that his complaints of bilateral heel 
pain appeared to be resolving with treatment.

In July 1993, the veteran's pure tone thresholds, in 
decibels, were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
0
5
0
5
10
LEFT
0
0
0
0
0

No significant threshold shift was noted.

In June 1994, the veteran's pure tone thresholds, in 
decibels, were as follows:






HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
0
10
5
LEFT
5
5
10
10
5

No significant threshold shift was noted.

On periodic physical examination in August 1995, clinical 
evaluation was unremarkable.  The veteran's pure tone 
thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
0
0
10
10
LEFT
0
0
5
5
5

The in-service examiner stated that the veteran's sinus 
bradycardia suggested right ventricular conduction delay.  
The veteran's ECG was "borderline."  He also had asymmetric 
hearing loss at 6000 Hz.

In August 1995, it was noted that the veteran had experienced 
asymmetric hearing loss (less than 15 dB) in the left ear 
since 1986.  The provisional diagnosis was asymmetric hearing 
loss in the left ear.  On audiology consult, objective 
examination showed that the veteran's ears were normal.  
Audiology testing showed no progression in the veteran's 
acknowledged left ear hearing loss.

In June 1996, the veteran's pure tone thresholds, in 
decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
10
5
0
LEFT
0
0
10
10
10

The audiologist's assessment was stable audiogram with 
asymmetry above 6000 Hz and excellent speech discrimination 
bilaterally.

In July 1997, objective examination showed normal hearing in 
the right ear and mild hearing los in the left ear at 6000 Hz 
only.  The veteran's tympanometry, reflexes, and decay were 
all within normal limits bilaterally.  The veteran's word 
recognition scores also were excellent.  The assessment was 
unilateral mild loss at 6000 Hz only in the left ear, which 
the audiologist noted was consistent with previous 
audiometric testing completed in June 1996.

In August 1997, the veteran complained of congestion in both 
ears for the past 36 hours.  He also reported waking up two 
nights earlier with sharp substernal chest pain without 
radiation that resolved 30-45 minutes later.  Objective 
examination showed normal tympanic membranes bilaterally, a 
regular heart rate and rhythm without murmurs, rubs, or 
gallops, and a soft, non-tender abdomen with normal bowel 
sounds.  An ECG showed normal sinus rhythm.  The assessment 
included chest pain that was likely gastrointestinal with 
very low suspicion of cardiac etiology.

On periodic physical examination in June 1998, clinical 
evaluation showed moderate-severe pes planus without 
symptoms.  The veteran's pure tone thresholds, in decibels, 
were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
5
5
5
LEFT
0
0
5
0
5

The in-service examiner noted that the veteran had sinus 
bradycardia which was unchanged from August 1995 and elevated 
hearing loss in the left ear above 6000 Hz.

In June 1999, the veteran complained of bilateral foot pain.  
His history included pes planus.  Objective examination of 
the right foot showed a bunion and mild tenderness and 
scaling over the medial instep.  Objective examination of the 
left foot showed a small bunion and cracking between the 
toes.  The assessment included bilateral pes planus.  

An ECG in September 1999 was abnormal with non-specific 
changes to the S1 heart rhythm.  

In September 2000, the veteran's pure tone thresholds, in 
decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
5
0
0
LEFT
0
0
5
5
10

In June 2001, the veteran's pure tone thresholds, in 
decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
5
10
LEFT
5
0
5
5
10

No significant threshold shift was noted.  

On August 19, 2002, the veteran's pure tone thresholds, in 
decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
5
0
10
0
LEFT
15
5
10
10
15

A significant threshold shift was noted at 4000 Hz.  However, 
following subsequent audiological evaluation on August 21, 
2002, no significant threshold shift was noted.

At his separation physical examination in December 2002, the 
veteran reported a history of "some recurring foot 
problems."  

On VA examination in June 2005, the VA examiner stated that 
the veteran's claims file was not available for review.  
Physical examination showed no relevant pain, weakness, 
fatigability, problematic motion, edema, instability, or 
tenderness.  The veteran had a full range of motion in both 
feet without limitation, including the first 
metatarsophalangeal joints.  There was minimal decreased 
light touch sensation in the right foot.  Standing 
demonstrated pes planus valgus feet with moderate symmetric 
collapse of the longitudinal arches bilaterally.  The 
assessment included pes planovalgus (hereditary/congenital) 
that was not related to active service.

On VA podiatry examination in March 2007, the veteran 
complained of a history of plantar calcaneal heel pain.  The 
VA examiner reviewed the veteran's claims file, including his 
service medical records.  Physical examination showed no 
relevant pain, weakness, fatigability, problematic motion, 
edema, instability, or tenderness.  There was moderate to 
severe bilateral pes planovalgus feet with collapse of the 
longitudinal arch, more so on the right foot than the left 
foot without impaired form or function of the tibialis 
posterior or tendo Achillis.  There was no pain on 
manipulation of either foot.  The veteran was mild tenderness 
to palpation in the bilateral plantar calcaneal tubercle 
regions and both first metatarsophalangeal joint lines 
without limitation of motion in either of these joints.  
There is no painful motion, edema, weakness, or instability 
in either foot.  The veteran had a normal gait and 
weightbearing without abnormal shoe wear pattern or 
callosities.  The veteran's walking ability, standing 
ability, and distance tolerance were normal and unimpaired.  
There was limitation of motion in any range of motion for 
either foot.  The assessment included pes planus, right foot 
more so than left foot, of hereditary origin that was not 
related to active service and was at least as likely not 
aggravated by active service beyond normal progression in any 
way.

On VA examination in March 2007, the veteran complained of a 
cardiovascular disability manifested by right ventricular 
conduction relay.  The VA examiner reviewed the veteran's 
claims file, including his service medical records, and noted 
that no heart disease or heart disability was seen in these 
records.  The veteran denied any chest pain, heart 
palpitation, or shortness of breath.  He was quite active, 
riding a bicycle 30 minutes a day and doing yard work at 
home.  He denied any elevated cholesterol.  Physical 
examination showed that carotid arteries pulsated equally 
well, no bruits, a regular heart rate and rhythm.  After 
obtaining an ECG, the VA examiner noted that this showed a 
sinus arrhythmia which was a normal phenomena and an 
incomplete right bundle branch block which was not heart 
disease.  These findings were not significant.  The veteran 
denied that his heart interfered with his work and activity.  
Therefore, the VA examiner determined that there was no 
evidence of heart disease.

On VA audiology examination in March 2007, the veteran 
complained of progressive bilateral hearing loss which had 
developed gradually since the mid-1980's.  He denied ear 
infections, ear surgery, or dizzy spells.  His noise history 
included exposure to aircraft and ground power units as well 
as flight line noise.  The VA examiner reviewed the veteran's 
claims file, including his service medical records.  The 
veteran's pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
10
10
15
5
LEFT
15
10
15
15
25

Speech audiometry revealed speech recognition ability of 
98 percent in the right ear and of 96 percent in the left 
ear.  The VA examiner noted that, although the veteran 
presented with asymmetric hearing loss, it was of 
longstanding origin.  Audiologic test results showed hearing 
within normal limits in the right ear and within normal 
limits through 4000 Hz in the left ear.  The VA examiner 
opined that it was at least as likely as not that the 
veteran's high-frequency hearing loss in the left ear was 
related to in-service noise exposure and that the veteran had 
normal hearing through 4000 Hz in both ears.

The Board finds that the preponderance of the evidence is 
against the veteran's claim of service connection for 
bilateral pes planus.  The veteran's enlistment physical 
examination shows that he was in sound condition at his entry 
on to active service except for moderate asymptomatic pes 
planus.  Thus, pes planus was noted at the veteran's entrance 
on to active service.  See 38 C.F.R. § 3.304(b) (2007).  
Repeated periodic physical examinations during service were 
negative for bilateral pes planus until the veteran was 
diagnosed as having bilateral pes planus in August 1992.  
After being prescribed orthotics, it was noted that his 
bilateral heel pain was resolving in December 1992.  Periodic 
physical examination in June 1998 showed moderate-severe pes 
planus without symptoms.  The veteran was again diagnosed 
with bilateral pes planus in June 1999.  He reported a 
history of recurring foot problems at his separation physical 
examination in December 2002.  

The post-service medical evidence shows that, following VA 
examination in June 2005, the VA examiner determined that the 
veteran's bilateral pes planus was not related to active 
service.  Additionally, after reviewing the veteran's claims 
file and thoroughly examining him in March 2007, a different 
VA examiner concluded that the veteran's pes planus, right 
foot more so than left foot, was hereditary in nature and was 
not related to active service.  This VA examiner also 
determined that the veteran's bilateral pes planus was not 
aggravated by active service beyond normal progression in any 
way.  Thus, the Board finds that these VA examiner's opinions 
are more than probative on the issue of whether the veteran's 
bilateral pes planus is related to active service.

The Board also finds that the preponderance of the evidence 
is against the veteran's claim of service connection for 
right ventricular conduction relay.  The Board acknowledges 
that the veteran's in-service ECG in November 1981 and August 
1995 showed sinus bradycardia.  The in-service examiner also 
noted in August 1995 that the veteran's ECG was 
"borderline" and that his sinus bradycardia suggested right 
ventricular conduction relay.  A different in-service 
examiner determined in August 1997 that the veteran's 
complaint of chest pain was likely gastrointestinal in 
origin; this examiner also had a very low suspicion that the 
veteran's chest pain was of cardiac etiology.  Finally, a 
September 1999 ECG was abnormal with non-specific changes to 
S1 heart rhythm.  

The presence of a mere symptom alone, absent evidence of a 
diagnosed medical pathology or other identifiable underlying 
malady or condition that causes the symptom, does not qualify 
as disability for which service connection is available.  See 
generally Sanchez-Benitez v. West, 13 Vet. App. 282, 285 
(1999); vacated in part and remanded on other grounds sub 
nom., Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 
2001).  Further, on VA examination in March 2007, the VA 
examiner stated that the veteran's sinus arrhythmia was a 
normal phenomena and was not significant; this VA examiner 
also found no evidence of heart disease.  Thus, there is no 
diagnosis of an underlying disability based on the veteran's 
complaint of right ventricular conduction relay.  Finally, 
there is no evidence that the veteran currently experiences 
any disability as a result of his claimed right ventricular 
conduction relay.

With respect to negative evidence, the fact that there was no 
record of any complaint, let alone treatment, involving the 
veteran's condition for many years is significant.  See 
Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub 
nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) 
(holding that it was proper to consider the veteran's entire 
medical history, including a lengthy period of absence of 
complaints).

A service connection claim must be accompanied by evidence 
which establishes that the claimant currently has a 
disability.  Rabideau v. Derwinski, 2 Vet. App. 141, 144 
(1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  
Simply put, service connection is not warranted in the 
absence of proof of a present disability.

The Board further finds that the preponderance of the 
evidence is against the veteran's claim of service connection 
for bilateral hearing loss.  The veteran's non-progressive 
high frequency hearing loss in the left ear was noted at his 
enlistment physical examination; thus, he was accepted for 
active service in sound condition except for left ear hearing 
loss.  See 38 C.F.R. § 3.304(b) (2007).  Repeated audiometric 
testing during active service noted this asymmetric left ear 
hearing loss but otherwise noted no significant threshold 
shift in the veteran's hearing.  For example, in August 1995, 
an in-service audiologist concluded that there had been no 
progression in the veteran's acknowledged left ear hearing 
loss.  A different in-service audiologist reach the same 
conclusions in June 1998.  The post-service medical evidence 
shows that, following VA audiology examination in March 2007, 
a VA audiologist determined that the veteran's high frequency 
hearing loss above 4000 Hz in the left ear was at least as 
likely as not related to active service.  However, as noted 
above, impaired hearing is considered a disability for VA 
purposes based on the auditory thresholds in any of the 
frequencies 500, 1000, 2000, 3000, and 4000 or when speech 
recognition scores are less than 94 percent.  Thus, the 
audiometric results in March 2007 showing normal hearing 
through 4000 Hz and speech recognition scores higher than 
94 percent in each ear do not constitute impaired hearing for 
purposes of VA compensation.  See 38 C.F.R. § 3.385 (2007).  
Although the Board acknowledges the veteran's continuing 
complaints of hearing loss, the hearing loss that he 
currently experiences is not a disability for VA purposes and 
service connection is not warranted.

As the preponderance of the evidence is against the veteran's 
claims, the benefit-of- the-doubt doctrine does not apply. 38 
U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. 
App 49, 55-57 (1990).










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ORDER

Entitlement to an initial rating greater than 10 percent for 
GERD is denied.

Entitlement to service connection for bilateral pes planus is 
denied.

Entitlement to service connection for right ventricular 
conduction relay is denied.

Entitlement to service connection for bilateral hearing loss 
is denied.



____________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs