Citation Nr: 18141861 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 15-35 576A DATE: October 11, 2018 ORDER Entitlement to service connection for hearing loss is denied. Entitlement to service connection for a sinus disability is denied. Entitlement to service connection for obstructive sleep apnea is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for a disability claimed as Valsalva is denied. Entitlement to service connection for a disability of the veins in the left leg is denied. Entitlement to service connection for a disability of the veins in the right leg is denied. Entitlement to service connection for hemorrhoids, claimed as digital rectal problems, is denied. Entitlement to service connection for obesity is denied. REMANDED Entitlement to service connection for a left ankle/leg disability, to include as secondary to pes planus is remanded. Entitlement to service connection for a right ankle/leg disability, to include as secondary to pes planus, is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to pes planus, is remanded. Entitlement to an initial evaluation in excess of 30 percent for bilateral pes planus is remanded. FINDINGS OF FACT 1. Hearing loss did not arise in and is not otherwise etiologically related to a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). 2. A sinus disability did not arise in and is not otherwise etiologically related to a period of ACDUTRA or INACDUTRA. 3. Obstructive sleep apnea did not arise in and is not otherwise etiologically related to a period of ACDUTRA or INACDUTRA. 4. Hypertension did not arise in and is not otherwise etiologically related to a period of ACDUTRA or INACDUTRA. 5. “Valsalva” is not a disease or disability for which service connection may be established. 6. A disability of the veins in the left leg did not arise in and is not otherwise etiologically related to a period of ACDUTRA or INACDUTRA. 7. A disability of the veins in the right leg did not arise in and is not otherwise etiologically related to a period of ACDUTRA or INACDUTRA. 8. Hemorrhoids did not arise in and are not otherwise etiologically related to a period of ACDUTRA or INACDUTRA. 9. Obesity is not a disease or disability for which service connection may be established. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 101, 1110, 1112, 1131, 5103, 5103A; 38 C.F.R. § 3.303, 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection for a sinus disability have not been met. 38 U.S.C. §§ 101, 1110, 1112, 1131, 5103, 5103A; 38 C.F.R. § 3.303. 3. The criteria for entitlement to service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 101, 1110, 1112, 1131, 5103, 5103A; 38 C.F.R. § 3.303. 4. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 101, 1110, 1112, 1131, 5103, 5103A; 38 C.F.R. § 3.303. 5. The criteria for entitlement to service connection for a disability claimed as Valsalva have not been met. 38 C.F.R. §§ 1110, 1131. 6. The criteria for entitlement to service connection for a disability of the veins in the left leg have not been met. 38 U.S.C. §§ 101, 1110, 1112, 1131, 5103, 5103A; 38 C.F.R. § 3.303. 7. The criteria for entitlement to service connection for a disability of the veins in the right leg have not been met. 38 U.S.C. §§ 101, 1110, 1112, 1131, 5103, 5103A; 38 C.F.R. § 3.303. 8. The criteria for entitlement to service connection for hemorrhoids, claimed as digital rectal problem, have not been met. 38 U.S.C. §§ 101, 1110, 1112, 1131, 5103, 5103A; 38 C.F.R. § 3.303. 9. Entitlement to service connection for obesity is denied as a matter of law. 38 C.F.R. §§ 1110, 1131; VAOPGCPREC 1-2017. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on a period of ACDUTRA from February 1975 to June 1975 in the Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions issued by a Regional Office (RO) of the Department of Veterans Affairs (VA) in September 2013 and November 2014. Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. See Jandreau, supra. Although service connection is typically granted in the context of an injury, event, or illness that occurred during active duty service, the law provides that military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled from injury, but not also disease, incurred in or aggravated in the line of duty, or when a cardiac arrest or cerebrovascular accident occurs during such training. 38 U.S.C. §§ 101(21), (22), (23), (24), 106; 38 C.F.R. § 3.6(a), (d); Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010); Acciola v. Peake, 22 Vet. App. 320, 324 (2008) (citing Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998)); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). 1. Entitlement to service connection for hearing loss In contrast to most other claims for service connection, claims for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels or dBs) over a range of frequencies (in Hertz), and the threshold for normal hearing is from 0 to 20 dB. Higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 156 (1993). However, for VA purposes, impaired hearing is considered a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 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. At the outset, the Board finds that there is no question that the Veteran has a current diagnosis of bilateral hearing loss for VA purposes. He attended an August 2013 VA audiological evaluation which found the following audiometric test results: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 45 40 50 LEFT 30 40 45 50 55 In addition, the Veteran had speech discrimination scores of 90 percent in the left ear and 86 percent in the right ear using the Maryland CNC word list. As his thresholds at the 2000 through 4000 Hz frequencies in each ear were at least 40 decibels, the Board is satisfied that the Veteran has a current hearing loss disability. 38 C.F.R. § 3.385. Accordingly, the Board will turn to the central question of whether this hearing loss arose during a period of ACDUTRA or was caused by an injury during a period of INACDUTRA, or is otherwise related to any in-service event, injury, or illness. A review of the Veteran’s service records does not uncover any evidence that he complained of or received or sought treatment for symptoms of hearing loss at any point during any period of ACDUTRA or INACDUTRA for which there are medical records. At the January 1975 enlistment examination, an evaluation of the Veteran’s ears was reportedly normal and, although audiometric findings were not reported, he had a 15/15 on a whisper and spoken voice test. Of particular relevance to the Veteran’s claim, at the March 1975 examination during his release from active duty, audiometric test results were reportedly within normal limits. Moreover, the record does not contain any contention from the Veteran or any other competent evidence that suggests that the Veteran experienced any in-service acoustic trauma or injury during that period of ACDUTRA which could be said to have caused the Veteran’s current hearing loss. The Veteran’s service records do, however, contain subsequent periodic medical examinations with some abnormal audiometric findings. Specifically, he was evaluated in June 1978 and July 1981 and was observed to have hearing thresholds of 40 decibels at the 500 Hz frequency at each evaluation. To evaluate whether the Veteran’s current hearing loss was etiologically related to his service, to include the abnormalities relating to those audiometric findings, VA afforded the Veteran the August 2013 audiological evaluation noted above. After personally examining the Veteran and reviewing the claims file, the examiner opined that it was not at least as likely as not that the Veteran’s hearing loss was caused by or a result of an event in military service. The examiner acknowledged that the Veteran had exam results indicative of mild loss in both ears in 1978. However, he explained that the flat, symmetrical nature of the thresholds did not suggest hearing loss due to noise exposure. The examiner also explained that audiometric findings from 1983 found significantly improved thresholds and that an examination from 1986 indicated that the Veteran’s hearing loss was within normal limits bilaterally from 250 Hz to 6000Hz. Given these findings, the normal examination results from 1986, and the absence of reports of hearing difficulties in the Veteran’s historical records, the examiner therefore found that the Veteran’s current hearing loss was less likely as not due to noise exposure in the military. The Board finds that this examination and opinion are entitled to significant probative weight due to their thorough discussion of the service treatment records and examination findings and the logical explanation accompanying the opinion. The Board also finds that this opinion is further underscored by the lack of any specific contentions on the Veteran’s part that he was exposed to any significant noise or had any sort of injury that is alleged to have caused any current hearing impairment. On the contrary, at a September 2014 clinical audiological evaluation at a treating VA facility, the Veteran was explicitly noted not to have noise exposure and his history of hearing loss was described as a gradual decrease over four to five years. Given the probative, affirmative evidence that the Veteran did not have a history of noise exposure and the probative and credible opinion from the VA audiological examiner, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s current hearing loss arose in or is otherwise etiologically related to any period of ACDUTRA or INACDUTRA. Accordingly, the doctrine of the benefit of the doubt is not for application and the Veteran’s claim for service connection for bilateral hearing loss must be denied. 2. Entitlement to service connection for a sinus disability, obstructive sleep apnea, hypertension, a disability of the veins in each leg, and hemorrhoids As was the case with the Veteran’s claim for hearing loss, the Board does not find that the evidence demonstrates an in-service event, illness, or injury that has caused any of these claimed disabilities. A review of the claims file fails to uncover any instances where the Veteran has attributed any of these claimed conditions to any injury or illness that occurred during a period of ACDUTRA or INACDUTRA. In the initial claim for service connection in March 2012, the Veteran indicated that they began between 1975 and 1989. Notably, this period includes substantial periods during which the Veteran was not serving a period of ACDUTRA or INACDUTRA. Moreover, as stated above, to satisfy the criteria for service connection for a period of ACDUTRA or INACDUTRA, they must have either arisen in or have been caused by a specific occurrence during any such period. The Veteran’s service treatment records also include no evidence that he complained of or received treatment for any symptoms attributable to a sinus disability, hemorrhoids, sleep apnea, hypertension, or a disability of the veins of the leg. Rather, they contain unremarkable physical examinations, including at the March 1975 examination conducted at the time of the Veteran’s release from a period of ACDUTRA. The only abnormality noted at that time was pes planus of the Veteran’s feet and, while there was a note referring to a digital rectal examination at a June 1983 periodic examination, that evaluation was explicitly noted to be normal. The only significant cause of any of these disabilities that the Veteran has asserted is that they might be a “condition of Valsalva.” However, as explained below, the record does not indicate that the reference to Valsalva at a periodic National Guard examination from June 1983 reflects an in-service event, illness, or injury. Similarly, there is no evidence that the Veteran has the medical knowledge, training, or experience to provide a competent opinion to suggest that this reference is etiologically related to sleep apnea, hypertension, a sinus disability, venous disabilities of the legs, or hemorrhoids. Without competent evidence of any in-service event, illness, or injury, that relates to any of these claimed disabilities, the Board cannot find that the criteria for service connection for these disabilities have been met. In making this determination, the Board recognizes that the Veteran has not been afforded a medical examination relating to his claim for service connection for these disabilities. However, given the fact that there is no evidence that any of these claimed disabilities occurred in service or may be associated with an in-service event, illness, or injury, the Board finds that a VA medical examination is not warranted with respect to these claims. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (holding that an examination and medical nexus opinion is required for a service connection claim when there is evidence of current disability or persistent or recurrent symptoms of a disability, evidence establishing in-service event, injury, or disease, or a disease manifested in accordance with presumptive service connection regulations, and an indication that the current disability may be related to an in-service event, injury, or disease; but insufficient evidence to decide the claim). 3. Entitlement to service connection for a disability claimed as Valsalva The Veteran also seeks service connection for a condition he described as “Valsalva bilateral problems.” As explained above, the Veteran’s service records include a June 1983 periodic medical examination. At that time, the Veteran was found to have normal findings in each of his body systems. Each system evaluated is assigned a number and a section for notes regarding the examination is included in the form. That section of the June 1983 report includes the notation “23 Valsalva Normal Bilaterally.” It appears that this notation forms the basis of the Veteran’s claim for service connection for a disability related to bilateral Valsalva problems. Unfortunately, the Board does not find that the criteria for service connection for a disability have been met. As was the case with the claims for service connection for sleep apnea, a sinus disability, and the other disabilities claimed above, a claim for service connection can only succeed when there is evidence that a current disability arose in or can be tied to an in-service event, illness, or injury. Here, the notation in question accompanies the number twenty-three, which is the number associated with the reportedly normal examination of the Veteran’s eardrums. The normal bilateral Valsalva noted at that exam also appears to reference the “Valsalva method” or test which, in the context of an examination of the ear, is defined as the “forcible exhalation effort against occluded nostrils and a closed mouth causes increased pressure in the eustachian tube and middle ear, so that the tympanic membrane moves outward; formerly used as a test of eustachian tube patency.” See Dorland’s Illustrated Medical Dictionary 1118 (31st ed. 2007). Rather than indicating any in-service abnormal event or examination finding, this notation suggests that the Veteran had a normal Valsalva test in June 1983. A normal examination finding would not appear to satisfy the definition of a disability. See 38 C.F.R. § 3.303. The record instead suggests that there has been a simple misunderstanding regarding this notation, and the claims file contains no competent evidence that there is any current abnormality relating to any Valsalva test. Given this evidence and the lack of any competent evidence suggesting that this normal examination finding has caused any current disability, the Board finds that the Veteran’s claim for service connection for a disability claimed as Valsalva problems must be denied. 4. Entitlement to service connection for obesity Obesity is an increase in body weight beyond the limitation of skeletal and physical requirement, as a result of an excessive accumulation of fat in the body. See Dorland’s Illustrated Medical Dictionary 1329 (31st ed. 2007). In his December 2013 claim, the Veteran sought service connection for this condition due to not being able to lose weight, which resulted in his discharge from service. In January 2017, VA’s Office of General Counsel (OGC) issued a precedential opinion addressing questions regarding whether obesity may be considered a “disease” for the purposes of service connection under U.S.C. § 1110; and, whether obesity may be considered a disability for purposes of secondary service connection, whether it may be treated as an in-service “event” from which a service-connected disability may result, and whether it may be an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis. Here, the Veteran seeks to directly connect obesity to service. However, VA’s OGC concluded that obesity is not a disease or injury for VA compensation purposes and the Board is therefore prohibited as a matter of law from granting the Veteran’s claim for service connection for this condition. See VAOPGCPREC 1-2017. Accordingly, his claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a left and right ankle/leg disability, to include as secondary to pes planus, is remanded. In the course of the instant proceeding, the Veteran attended an August 2013 VA medical examination to determine the etiology of any current left or right ankle disability. After personally examining the Veteran and reviewing the claims file, the examiner opined that the Veteran’s ankle condition was less likely than not related to service-connected pes planus. However, that examiner did not provide an opinion with respect to the question of whether the Veteran’s service-connected disability has aggravated any current ankle or leg disability. A remand is necessary to secure an addendum opinion regarding this question. 2. Entitlement to service connection for tinnitus is remanded. As explained above, the Veteran was afforded a VA audiological evaluation in August 2013. Given that the examiner did not render a current diagnosis of tinnitus, no opinion regarding the etiology of this condition was provided. However, the Veteran has since endorsed symptoms of tinnitus and the claims file includes a September 2014 diagnosis of this disability. Once VA undertakes the effort to afford a claimant with an examination, VA must ensure that this examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion is adequate when it is based upon consideration of the veteran’s prior medical history and describes the disability in sufficient detail so that the Board’s evaluation of the claimed disability will be fully informed. D’Aries v. Peake, 22 Vet. App. 97, 104 (2008). Given this new diagnosis, the Board finds that the Veteran must be afforded an additional medical examination to evaluate the etiology of the Veteran’s current tinnitus. 3. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to pes planus, is remanded. A claim for service connection for a mental disability may encompass claims for service connection of any mental disability that may reasonably be encompassed by several factors, including a claimant’s description of the claim, the symptoms a claimant describes, and the information a claimant submits or that the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Here, the issues of entitlement to service connection for both depression and a stress or nervous-related condition have been certified to the Board. Accordingly, pursuant to Clemons, the Board has taken an expansive view of the Veteran’s claim in characterizing the acquired psychiatric disability claim, as noted above. In the course of the Veteran’s appeal, he attended an October 2014 VA psychological examination. In providing a negative nexus opinion, the psychologist who evaluated the Veteran at that time stated that the Veteran’s psychological treatment records did not include any mention of his bilateral pes planus. However, VA psychological treatment records from August 2014 include explicit references to the Veteran’s physical pain and suggest that this pain contributed to his psychological symptoms. Accordingly, the Board does not find that the October 2014 VA examiner’s opinion rests on an accurate factual basis and must return the report for corrective action. Upon remand, VA should also obtain an opinion with respect to the question of whether the Veteran’s service-connected disability has aggravated any current acquired psychological disability. 4. Entitlement to an initial evaluation in excess of 30 percent for bilateral pes planus is remanded. The Veteran was most recently afforded a medical examination relating to his service-connected pes planus in August 2013. In the five-year period since that examination, the Veteran has reported that he could no longer stand for any length of time due to significant swelling and pain in addition to his recent exacerbation of symptoms relating to his orthotics. Due to this competent evidence of an increase in the severity of this disability, the Board finds that a contemporaneous medical examination must be provided to determine the current severity of the Veteran’s service-connected foot disability. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s tinnitus. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner is reminded that, for VA compensation purposes, a “current disability” is one that has been present at any time since the claim for service connection, whether or not any such disability has resolved. 3. Obtain an addendum opinion from an appropriate clinician regarding the following questions: (a.) Is it at least as likely as not that the Veteran’s left and right ankle/leg disability is proximately due to his service-connected pes planus? (b.) Is it at least as likely as not that the Veteran’s left and right ankle/leg disability has been aggravated by (worsened in severity beyond the natural progression of the disease) the Veteran’s service-connected pes planus? (c.) Is it at least as likely as not that the Veteran’s acquired psychiatric disability is proximately due to his service-connected pes planus? (d.) Is it at least as likely as not that the Veteran’s acquired psychiatric disability has been aggravated by (worsened in severity beyond the natural progression of the disease) the Veteran’s service-connected pes planus? 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected pes planus. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the pes planus alone and discuss the effect of his pes planus on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). MATTHEW TENNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Whitelaw, Associate Counsel