Citation Nr: 1320917 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 10-18 482 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for sleep apnea. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to an increased rating for bilateral flat foot, currently evaluated as 30 percent disabling. 5. Entitlement to an increased rating for hallux valgus of the left foot, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from November 1992 to October 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). By rating action dated January 2009, the RO denied the Veteran's claim for service connection for sleep apnea. This rating decision also recharacterized the Veteran's service connected residuals of surgery of the left great toe as bilateral hallux valgus, status post operation on the left great toe, and confirmed and continued the 10 percent evaluation that was in effect. Service connection for hallux valgus of the right foot was severed in a June 2010 rating action, and the Veteran did not appeal this determination. The Veteran has also disagreed with a December 2009 rating action that denied service connection for bilateral hearing loss and back spasms, and with a February 2012 rating decision that denied his claim for an increased rating for bilateral flat feet. The Veteran indicated on his substantive appeal received in April 2010 that he wanted to testify at a hearing before a Veterans Law Judge at the RO. A hearing was scheduled for November 2012, but in a statement dated that month, the Veteran's representative reported the Veteran would not be able to attend the hearing and requested that the appeal be forwarded to the Board for a decision. The Board considers the Veteran's hearing request to be withdrawn. FINDINGS OF FACT 1. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the Veteran has sleep apnea that is etiologically related to military service. 2. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the Veteran has a back disability that is etiologically related to military service. 3. Bilateral hearing loss was not shown in service, and has not been demonstrated following service. 4. The Veteran's pes planus is manifested by marked pronation and extreme tenderness of the plantar surfaces 5. The Veteran's hallux valgus of the left foot is manifested by pain and is severe. CONCLUSIONS OF LAW 1. Sleep apnea was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002). 2. A back disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002). 3. Bilateral hearing loss was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002). 4. The criteria for a 50 percent evaluation for bilateral flat foot have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2012). 5. The criteria for a rating in excess of 10 percent evaluation for hallux valgus of the left foot have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002)\; 38 C.F.R. § 4.71a, Diagnostic Code 5280 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In an increased rating claim, VA must notify the Veteran to submit evidence showing (1) a worsening or increase in severity of the disability and (2) the effect that worsening has on the claimant's employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). The duties to notify and assist were met in this case. Notice was provided in letters dated June and July 2008, July 2009 and September 2011. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include the service treatment records, private and VA medical records and VA examination reports. VA clinical examinations have been obtained. 38 C.F.R. § 3.159(c) (4). The Board finds that the VA clinical examinations obtained in this case are more than adequate, as they are predicated on a full reading of the medical records in the Veteran's claims file. As appropriate, clinical findings pertinent to the schedular criteria for rating the disabilities at issue were obtained. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). The Board acknowledges the appellant has not been afforded a VA medical examination to obtain an opinion regarding the etiology of the Veteran's bilateral hearing loss, sleep apnea or back disability. Based on the evidence in this case, the Board finds that an examination is not necessary. As is discussed in greater detail below, there has been no indication that any current claimed disability, if present, may be associated with service, so as to warrant a VA examination. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. Service connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies 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 (2012). With regard to hearing loss, 38 C.F.R. § 3.385 defines what constitutes the existence of a hearing loss disability. For service connection, it is not required that a hearing loss disability by the standards of 38 C.F.R. § 3.385 be demonstrated during service, although a hearing loss disability by such standards must be currently present, and service connection is possible if a current hearing loss disability can be adequately linked to service. Ledford v. Derwinski, 3 Vet. App. 87 (1992). In Hensley v. Brown, 5 Vet. App. 155, the United States Court of Appeals for Veterans Claims held that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. The Veteran asserts service connection is warranted for a back disability, sleep apnea and bilateral hearing loss. He alleges he sought treatment during service for breathing problems and was told he had a sinus condition. He maintains he had his nose drained in service. He argues he explained his problem to a civilian physician who referred him for a sleep study and that he was then advised he had sleep apnea, which he insists was misdiagnosed in service as a sinus problem. He also argues he strained his back while changing tires on a five-ton tractor trailer. He states he went to sick call and was given medication, but his problem persisted. Finally, he asserts he was subjected to acoustic trauma in service, and this resulted in a current hearing loss. A report of medical history in March 1997 discloses the Veteran denied recurrent back pain, sinus problems or a hearing loss. No pertinent abnormality was reported on examination in March 1997. An audiometric test disclosed that the hearing threshold levels in decibels were 10, 5, 15, 15 and 0, at 500, 1,000, 2,000, 3,000 and 4,000 Hertz, respectively. At corresponding frequencies in the left ear, the hearing threshold levels in decibels were 10, 0, 10, 5 and 20. Private medical records show the Veteran underwent a nasal CPAP titration study in April 2005. It was indicated he had evidence of sleep apnea on a previous sleep study. The diagnosis was obstructive sleep apnea. Magnetic resonance imaging of the lumbar spine was done in October 2006. It was reported the Veteran had a history of back pain and right thigh pain. The test revealed a broad central annular tear and a small protrusion at L4-5, but was otherwise normal. In a February 2009 letter, F. Lockwood, M.D., a private physician, wrote he had treated the Veteran since 2005 for sleep apnea, which had been confirmed on a sleep study. The physician stated the Veteran was diagnosed with sinusitis by physicians in service, prior to the confirmed sleep apnea diagnosis, due to the similarities in symptoms. The Veteran was afforded a VA audiometric examination in March 2012. He asserted he had experienced a gradual hearing loss since 1997/1998. He claimed he was a combat engineer and worked with explosives. He also states he was exposed to heavy equipment and diesel engines while in motor transport. An audiometric test disclosed the hearing threshold levels in decibels in the right ear were 10, 10, 15, 10 and 15 at 500, 1,000, 2,000, 3,000 and 4,000 Hertz, respectively. At corresponding frequencies in the left ear, the hearing threshold levels in decibels were 5, 10, 15, 10 and 10. The diagnosis was the Veteran had normal hearing in each ear. As noted above, the Veteran argues he was treated during service for sinusitis, but he actually had sleep apnea. A private physician maintains the symptoms are similar. Contrary to the Veteran's allegations, however, the service treatment records do not reflect any treatment for sinus-related symptoms. The Board notes there is no indication that when the Veteran sought treatment for sleep apnea more than seven years following his separation from service, his symptoms had been present since service. With respect to the claim for service connection for a back disability, the service treatment records are negative for complaints or findings concerning the spine. The initial indication of back problems was at the time of the October 2006 magnetic resonance imaging which showed a central annular tear. The evidence demonstrates that sleep apnea and a back disability were first manifested years after service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed.Cir.2000) ("evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the veteran's health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service). There is no indication in the record that the Veteran has sleep apnea or a back disorder that is associated with service. The Board observes the February 2009 letter from Dr. Lockwood asserts the Veteran was diagnosed in service with sinusitis because the symptoms are similar to those of sleep apnea. This is not supported by the record, as the Veteran denied sinusitis on examination in March 1997. In addition, Dr. Lockwood reported the Veteran's symptoms, including morning headaches, fatigue, trouble sleeping and daytime sleepiness, which are signs and symptoms of sleep apnea, had been present just for months prior to the confirmed diagnosis in 2005. This is inconsistent with the argument implicit in his claim that his symptoms had been present since service. The Board acknowledges the assertions of the Veteran that he has sleep apnea and a back disorder that are related to service. He is competent to report he experienced back spasms and pain after changing tires in service. Lay persons are competent to provide opinions on some medical issues; however, the specific issues in this case, the etiology of sleep apnea or a back disability, fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). This is so because complex, internal processes like respiratory disorders or orthopedic disorders fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer. There is no competent evidence linking any current sleep apnea or a back disability to service. In the absence of any indication of sleep apnea or a back disability for years after service, the Board finds that the objective medical evidence of record outweighs the credibility of his reported onset and continuity of symptomatology. Such records are more reliable, in the Board's view, than the Veteran's unsupported and contradictory assertions of the onset of his symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence); see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). In the absence of such evidence, the Board concludes that the preponderance of the evidence is against the claims for service connection for sleep apnea or a back disability. The Veteran also asserts service connection is warranted for bilateral hearing loss. He maintains he was subjected to acoustic trauma in service. The Board acknowledges the Veteran's discharge certificate reflects he was a motor transport operator for more than one year, and a combat engineer for greater than four years. The fact remains, however, that a hearing loss was not shown in service, and has not been demonstrated following the Veteran's discharge from service. The Board notes that the audiometric test conducted in March 1997 shows the Veteran had normal hearing. Similarly, the March 2012 VA audiometric test also demonstrated normal hearing. The examiner specifically stated the Veteran had normal hearing in each ear. While she stated she could not provide a medical opinion regarding the etiology of the Veteran's hearing loss without resorting to speculation, no such opinion was necessary since the test results established the Veteran did not have a hearing loss. Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). As noted above, the record fails to demonstrate the Veteran has hearing loss and, accordingly, service connection may not be granted. II. Increased rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board acknowledges that a claimant may experience multiple degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. A 50 percent rating will be assigned for bilateral acquired flatfoot which is pronounced; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achillis on manipulation, not improved by orthopedic shoes or appliances. A 30 percent rating will be assigned when severe; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. 38 C.F.R. § 4.71a, Diagnostic Code 5276. A 10 percent rating may be assigned for unilateral hallux valgus, when operated with resection of the metatarsal head or if severe, if equivalent to amputation of the great toe. 38 C.F.R. § 4.71a, Diagnostic Code 5280. On VA examination in June 2008, the Veteran reported left foot pain, characterized as 7/10. The left great toe bunionectomy scar had hypopigmentation of less than six square inches and abnormal texture of less than six square inches. There was no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, inflammation, edema, keloid formation or hyperpigmentation. An examination of the feet revealed no signs of abnormal weight bearing or breakdown, callosities or any unusual shoe pattern. There was active motion of the metatarsophalangeal joint of the left great toe. The Veteran's gait was within normal limits. An examination of the right foot showed a moderate degree of valgus present, which could be corrected by manipulation. There was forefoot/midfoot malalignment of a slight degree, which could be corrected by manipulation. There was deformity of inward rotating of the superior portion of the os calcis, deformity of medial tilting of the upper border of the talus, deformity of marked pronation and deformity of the forepart of the foot abducted and the whole foot everted. There was no tenderness to palpation of the right foot plantar surface. The right Achilles tendon revealed malalignment with inward bowing which could be corrected by manipulation, and this did not produce pain. There were identical findings in the left foot. The examination also revealed there were no hammertoes, and Morton's metatarsalgia was not present in either foot. Hallux valgus of the left foot was present, and the degree of angulation was moderate. There was resection of the metatarsal head. Hallux rigidus was not present. The Veteran did not have any limitation with standing and walking. The Veteran required arch supports, but not orthopedic shoes, corrective shoes, foot supports or build-up of the shoes and shoe inserts. It was indicated his symptoms were not relieved by the corrective shoe wear. The diagnoses were bilateral flat feet and hallux valgus, status postoperative left great toe with residual scar. The Veteran was examined by the VA for his feet in September 2011. It was noted he had recently had surgery involving the right ankle, his foot was in a cast and that he could not walk or bear weight on the right foot. He stated he was wearing inserts in his left shoe due to the pain in the left great toe. He described decreased sensation in the entire left great toe and the scar. It was noted he did not have Morton's neuroma or hammertoes, but did have metatarsalgia. It was reported the symptoms of hallux valgus were mild or moderate. Hallux rigidus was not present, and the Veteran did not have pes cavus. Monofilament and pinwheel testing of the entire left great toe and over the bunionectomy scar at the base of the toe revealed decreased sensation. Dorsalis pedis and posterior tibialis pulses were 2+. The Veteran had a slight arch of the left foot non weight-bearing, no arch weight-bearing and no inward bowing. X-rays of the left foot revealed a moderate hallux valgus deformity and findings consistent with pes planus. The diagnoses were hallux valgus and paresthesia of the left great toe and over the bunionectomy scar. The Veteran was again examined by the VA for pes planus in January 2012. He reported pain at the balls of his feet and the bottom of his heel at the end of the day. He related the pain was usually tolerable. He had received custom molded orthotics and said they were comfortable. The Veteran indicated his pain was accentuated on use and on manipulation bilaterally. There was no indication of swelling on use, and the Veteran did not have characteristic calluses. His feet remained symptomatic bilaterally, despite the use of arch supports or orthotics. There was extreme tenderness of the plantar surface of each foot, which was not improved by orthopedic shoes or appliances. He did not have decreased longitudinal arch height on weight-bearing, and there was no objective evidence of marked deformity of the foot. He did not have marked pronation of the feet. The Veteran did not have inward bowing of the Achilles tendon or marked inward displacement and severe spasm of the Achilles tendon on manipulation. Any scar was not painful or unstable, and was not greater than six square inches. The diagnoses were bilateral flat foot, and status post bunionectomy on the left. The evidence summarized above shows that marked pronation was demonstrated on the June 2008 VA examination, and extreme tenderness of the plantar surface of each foot was present on the most recent VA examination conducted in January 2012. Further, both examiners noted that the Veteran's symptoms were not improved by orthopedic shoes or appliances. The Board acknowledges that the more recent examination did not reveal marked pronation or deformity of the foot, nor did it show inward bowing of the Achilles tendon. It is not necessary for each of the factors cited in Diagnostic Code 5276 to be present in order to assign a higher rating. Under the circumstances of this case, and resolving reasonable doubt in the Veteran's favor, the Board finds that a 50 percent evaluation is warranted for bilateral flat foot. This is the maximum rating assignable for pes planus, and there is no basis on which a higher rating may be assigned. With respect to the claim for an increased rating for hallux valgus of the left foot, the Board points out that 10 percent is the highest rating assignable under Diagnostic Code 5280. The record establishes the Veteran has undergone resection of the metatarsal head. The Board has considered other pertinent Diagnostic Codes, but finds a rating in excess of 10 percent is not warranted. Finally, the Board has considered whether extraschedular consideration is warranted. The discussion above reflects that the symptoms of the Veteran's bilateral flat foot or hallux valgus of the left foot are contemplated by the applicable rating criteria. The effects of the Veteran's disabilities have been fully considered and are contemplated in the rating schedule; hence, referral for an extraschedular rating is unnecessary at this time. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). Total Rating for Compensation Based on Individual Unemployability (TDIU) TDIU is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised where a Veteran : (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Veteran has not argued, and the record does not otherwise reflect, that his service-connected bilateral flat foot or hallux valgus of the left great toe has rendered him totally unemployable. Accordingly, consideration of TDIU is not before the Board. Additional considerations In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, except where as noted above, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for sleep apnea, a back disability and for bilateral hearing loss is denied. A 50 percent evaluation for bilateral flat foot is granted, subject to the governing law and regulations pertaining to the payment of monetary benefits. An increased rating for hallux valgus of the left foot is denied. ____________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs