Citation Nr: 1317415 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 09-41 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for a right foot/ankle condition. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1970 to January 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. FINDINGS OF FACT 1. The Veteran's reported history regarding his right foot/ankle disorder and hearing loss is not credible. 2. Clear and unmistakable evidence shows that the Veteran suffered from a right foot/ankle condition prior to his active service and that it was not permanently aggravated by his active service. 3. Clear and unmistakable evidence shows that the Veteran suffered from hearing loss prior to his active service and that it was not permanently aggravated by his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right foot/ankle disorder have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for service connection for hearing loss have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The VA has a duty to provide notification to the Veteran with to respect establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). VA's notice requirements were satisfied in an April 2007 letter, which was sent to the Veteran prior to the initial adjudication of his claims. That letter advised the Veteran of the information VA would obtain, the information he was responsible for obtaining, and the criteria for establishing service connection. Regarding VA's duty to assist, the Veteran's service, private, and VA treatment records have been obtained, and the Veteran has not identified any records as relevant that are not of record. On the contrary, the Veteran has reported that all of his treatment is received at the VA Medical Centers in Decatur, Dublin, and Augusta, Georgia. The Board is cognizant that the Veteran's most recent VA records have not been obtained for review in conjunction with this appeal; however, neither the Veteran nor his representative has suggested that they are relevant to this appeal. Furthermore, recent evidence reflecting on-going treatment for the Veteran's hearing loss or right foot/ankle disability is not probative of in-service aggravation of those pre-existing conditions. The Board also notes that a May 2007 VA treatment note indicates that the Veteran was completing an application for Social Security Administration disability benefits. However, there is no indication that the Veteran actually applied, or that those records are relevant to the issues on appeal. Nor has it been asserted by the Veteran or his representative that they are relevant. As such, the Board finds that a remand of this appeal to obtain any recent treatment records or SSA records is not warranted. The Board acknowledges that the Veteran was not provided with examinations regarding his hearing loss and right foot/ankle service connection claims; however, the Board finds that VA's duty to provide the Veteran with an examination for those claims has not been triggered. Specifically, the Veteran alleges that his hearing loss and right foot/ankle conditions were aggravated by his active service, but has offered no medical evidence to support this theory, and the medical evidence of record fails to suggest such a theory. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that a VA examination is only warranted when the evidence suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits). For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claims. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Service Connection The Veteran seeks to establish service connection for bilateral hearing loss and a right foot/ankle condition. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). A veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence 1) that the disability existed prior to service, and 2) was not aggravated by service, will rebut the presumption of soundness. 38 U.S.C.A. § 1111; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. In this regard, it has been held that a pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) . In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Initially, the Board acknowledges that the Veteran has current disabilities. Post-service VA treatment records dated from February 2007 through October 2009 show ongoing treatment and/or diagnoses of mild hearing loss and osteoarthritis of multiple joints, including the right foot/ankle. The right ankle was also diagnosed to have early arthritis in April 2007. However, the Board finds that clear and unmistakable evidence shows that the Veteran's hearing loss and right foot/ankle disabilities pre-existed service and were not aggravated therein. Service treatment records show that during a January 1970 pre-induction examination, the Veteran reported a history of foot trouble. The examiner noted that the Veteran fractured his right ankle in August 1967 and experienced some pain on long walks. The Veteran was also noted at that time to have defective hearing based on pre-induction audiometric testing, though it was not considered disabling. Based on the foregoing, the Board finds the evidence to be clear and unmistakable that the claimed disabilities existed prior to service. Indeed, the Veteran does not dispute the conclusion that the conditions on appeal preexisted service. Instead, he asserts that his "already injured ankle and foot" condition was aggravated by service. The Board also finds that clear and unmistakable evidence shows that those disabilities were not aggravated by service. In this regard, the evidence does not show an increase in either disability during service. While service treatment records show sick call visits related to various complaints, they are notably negative for complaints or treatment related to hearing loss or right foot/ankle problems. Moreover, clinical evaluation upon separation examination in January 1972 revealed no abnormalities of the feet or lower extremities, and bilateral hearing acuity was found to be completely within normal limits and improved from the January 1970 examination. Nor does the examination report show any complaints by the Veteran related to hearing loss or right foot/ankle problems. Instead, at that time, the Veteran stated, "I am in good health." To the extent that the Veteran asserts that his current bilateral hearing loss and right foot/ankle disabilities were aggravated by service, this is contradicted by his service treatment records, and in any case, he is not shown to be competent to identify the distinction between the occurrence of symptoms and an underlying increase in the severity disability. Therefore, his statements cannot be accepted for such purposes. Moreover, the Board finds that, given inconsistencies of record relating to the Veteran's reports of onset of various medical conditions, the evidence fails to reflect that the Veteran is a credible historian. In this regard, the Veteran reported during his initial February 2007 VA treatment that he sustained a right fractured forearm when he served in the military and that he still experience some pain related to that injury. However, service treatment records contradict that assertion, as they are not only negative for evidence of a right arm fracture, but also show that the Veteran reported a history of a broken arm prior to service. Moreover, the Veteran's August 2008 report that he lost his hearing completely at one point in service, but did not seek treatment because he did not know treatment was available, is belied by the service treatment records showing that he sought treatment for various other medical disabilities, demonstrating that he was aware of the availability of medical treatment in service. Similarly, the Veteran's reports during July 2007, September 2007, January 2008, and May 2008 VA treatment that the pain in his right ankle and foot "started ever since his early military experience" or had been ongoing for 40 years, is contradicted by the Veteran's January 1970 report during pre-induction of some right foot/ankle pain prior to service; his January 1972 report during separation that he was in good health; a private September 2001 private record showing a negative past medical history in conjunction with a lumbar strain and complaints related to the right hip, leg, thigh, and knee; and, his report during March 2007 of painful joints and arthritis, with a history of pain "OFF AND ON X 2 YEARS." Moreover, the Board finds it likely that had the Veteran experienced as much difficulty during service with his hearing (going completely deaf) and his right foot/ankle as he now asserts, he would have sought medical treatment at some point, as he sought treatment for other relatively minor conditions such as rashes, colds, and warts. The Board also finds it significant that the Veteran did not seek any treatment for his right foot/ankle or hearing loss disabilities until weeks prior to filing a claim for VA benefits. Based on the foregoing, the Board determines that the Veteran's account of the history of his bilateral hearing loss and right foot/ankle disability is not credible and should be afforded little to no probative weight. See Cromer v. Nicholson, 19 Vet. App. 215 (2005) (finding a history, provided by a veteran, that had varied over time was not credible). Furthermore, any medical conclusion that is based on the Veteran's reported history is deemed not probative. In this regard, the Board notes that periodic VA treatment notes contain a notation of "chronic back/foot pain secondary to injury." Notwithstanding the fact that there is no clarification as to the causal injury referenced (e.g. service injury, post service injury, etc.), that conclusion is apparently based on the Veteran's own reported history, which the Board deems not credible. In sum, given the Board's finding that the Veteran's reported history regarding his right foot/ankle and hearing loss is not credible; the service treatment records showing improvement in the Veteran's pre-existing hearing loss and, at worst, no improvement but no worsening in the Veteran's pre-existing right foot/ankle condition at separation; and the lack of evidence suggesting a basis for awarding direct service connection, a basis for granting service connection for bilateral hearing loss and a right foot/ankle disability has not been presented. Accordingly, the Veteran's appeal is denied. (CONTINUED ON NEXT PAGE) ORDER Service connection for hearing loss is denied. Service connection for a right foot/ankle disorder is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs