Citation Nr: 18143709 Decision Date: 10/23/18 Archive Date: 10/19/18 DOCKET NO. 15-05 540 DATE: October 23, 2018 ORDER Service connection for a right ankle disability is denied. The appeal of entitlement to service connection for a bilateral eye disorder is dismissed. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. FINDINGS OF FACT 1. There is no probative medical evidence that indicates the Veteran has a current right ankle disability. 2. Prior to the promulgation of a decision in the appeal, the Veteran withdrew his claim of service connection for a bilateral eye disorder at his June 2018 Videoconference Board hearing. 3. The Veteran’s bilateral hearing loss was not incurred in service. 4. The Veteran’s tinnitus was not incurred in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ankle disability have not been satisfied. 38 U.S.C. §§ 1110, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for withdrawal of a substantive appeal on the issue of entitlement to service connection for a bilateral eye disorder have been met. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2017). 3. The criteria for service connection for bilateral hearing loss have not been satisfied. 38 U.S.C. §§ 1110, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2017). 4. The criteria for service connection for tinnitus have not been satisfied. 38 U.S.C. §§ 1110, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1969 to June 1971. In June 2018, the Veteran and his spouse, and accompanied by legal counsel, testified at a Videoconference hearing before the undersigned Veterans Law Judge. The undersigned noted the issues on appeal and engaged in a colloquy with the Veteran toward substantiation of the claims. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In December 2014, the Veteran testified at a hearing at the Regional Office (RO) before a Decision Review Officer (DRO). Copies of both transcripts are associated with the claims file. Duty to notify and assist All necessary assistance to obtain evidence has been provided. As to the right ankle claim decided, there is no probative medical evidence suggesting the Veteran has a current ankle disability. Rather, only the Veteran’s general conclusory statement that his claimed disability is related to service is of record, which is insufficient to entitle a veteran to a medical examination under 38 U.S.C. § 5103A (d) (2) (B). Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (observing that “[s]ince all veterans could make such a statement, this theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations as a matter of course in virtually every veteran’s disability case”). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA has satisfied its duty to notify and assist and the Board may proceed with appellate review. Withdrawal The Board may dismiss any claim that fails to allege a specific error of fact or law in the decision being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all the issues on appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the veteran or by his or her authorized representative. Id. At his June 2018 Videoconference Board hearing, the Veteran withdrew the appeal of entitlement to service connection for a bilateral eye disorder. There remain no allegations of errors of fact or law for appellate consideration as to this issue. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). “To establish a right to compensation for a present disability, a Veteran must show: ‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service’ - the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 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 Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain disorders, listed as “chronic” in 38 C.F.R. § 3.309 (a) and 38 C.F.R. § 3.303 (b), are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss, as an organic disease of the nervous system, is a “chronic disease” listed under 38 C.F.R. § 3.309 (a). Therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303 (b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensorineural hearing loss, become manifest to a degree of 10 percent or more within one year after the date of separation from 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. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s 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 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a right ankle condition The Veteran testified he was told he has little to no cartilage remaining in his right ankle. There are no complaints, diagnoses, or treatments for a current right ankle condition in the record. The Veteran contends his current right ankle condition was incurred in service because he was given limited duty for approximately 3 weeks for tenosynovitis. Service treatment records (STRs) indicate that in October 1969, the Veteran was assessed with tenosynovitis in his Achilles’ heel and given a temporary light duty profile. In November 1969, the medical examiner noted the Veteran demonstrated no crepitus and full range of motion (ROM), and that his tenosynovitis had “resolved.” There are no other complaints, diagnoses or treatments for a right ankle condition in service. On his June 1971 report of medical history at separation, the Veteran denied arthritis, bone, joint or other deformity, or foot trouble. His clinical lower extremity evaluation at separation was normal. These medical records are highly probative both as to the Veteran’s subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran’s then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board’s decision); see also LILLY’S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). The preponderance of the evidence is against the claim for service connection. There is no probative medical evidence that indicates the Veteran demonstrates a current right ankle disability. Without a current disability, there can be no claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (“Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In absence of proof of a present disability there can be no valid claim.”) Since the Veteran does not demonstrate a current right ankle disability, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for bilateral hearing loss Service connection for impaired hearing is subject to the requirements of 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. See Hensley v. Brown, 5 Vet. App. 155 (1993). June 2012 VA treatment records indicate the Veteran demonstrates bilateral sensorineural hearing loss. STRs indicate the Veteran did not demonstrate hearing loss at his pre-induction examination. There are no complaints, diagnoses, or treatments for hearing impairment symptoms in service. On his June 1971 report of medical history, he denied hearing loss. His clinical audiological examination at separation did not indicate symptom, complaint or diagnosis of hearing loss. As noted, this report is highly probative. Rucker, supra. The Veteran contends he experienced acoustic trauma in service. He testified that he was exposed to loud noises during basic training; alleges that he was not given hearing protection during basic training, and that he was exposed to constant aircraft noises at MacDill Air Force Base during the remainder of his service. The Veteran’s contention that he was exposed to acoustic trauma in service is not credible. The Veteran’s military occupational specialty (MOS) was as a personnel clerk, which carries a low probability of exposure to hazardous noises. In addition, the Veteran did not engage in combat during active service or in other specialty training likely to involve acoustic trauma. The Veteran’s contention is essentially that his active service constituted an on-going acoustically traumatic experience. The contention that he experienced an in-service acoustic injury is therefore not substantiated. At the June 2014 VA medical examination, the Veteran reported he wore hearing aids, asked people to repeat themselves constantly, had difficulty hearing in group conversations and with background noise, and that he used the closed captioning on his television and the loud volume level on his telephone. He also reported post-service recreational noise exposure including hunting, although the Veteran also returned to work on his family’s farm after service before buying and running his own farm. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss. The examiner opined, however, that the Veteran’s hearing loss was not caused by or the result of his service because he did not demonstrate a significant threshold shift in his hearing between his pre-induction and separation audiological examinations. The examiner noted medical literature that indicated a significant threshold shift demonstrates with more than a 10 decibel (dB) change, which the Veteran’s service examinations did not show. The preponderance of the evidence is against the claim for service connection for bilateral hearing loss. There is no probative medical evidence that indicates the Veteran’s current bilateral hearing loss was incurred in service. The Board notes the May 2015 medical opinion of the Veteran’s private audiologist, in which the examiner states that the “fundamental” cause of the Veteran’s bilateral hearing loss was his noise exposure during service. This opinion is conclusory and does not provide sufficient analysis to consider and weigh his opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 124-125 (2007) (holding that “a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor’s opinion”). It does not account for the Veteran’s post-service history of noise exposure, his age, or the lack of a demonstrable significant threshold shift in his hearing during service. In comparison, the June 2014 VA medical opinion is highly probative. The examiner reviewed the record for fact-based objective evidence of symptoms related to sensorineural hearing loss during and after service, and acknowledged the Veteran’s lay statements regarding the circumstances of his military service. The Board has also considered the Veteran’s submissions of March 2015. These include internet-based articles on the onset and causes of noise-induced hearing loss. However, these articles provide general information only, and are of minimal probative value. They do not expressly address the Veteran’s medical history. See Wallin v. West, 11 Vet. App. 509 (1998) (observing that treatise evidence cannot simply provide speculative generic statements not relevant to the veteran’s claim, but “standing alone,” must include “generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion” (citing Sacks v. West, 11 Vet. App. 314 (1998)); see also Procopio v. Shinseki, 26 Vet. App. 76 (2012) (Board decision affirmed where Board recited law with respect to the probity of medical treatise evidence and found that it did not show to any degree of specificity that the Veteran’s disorder was linked to military service). Since there is no probative medical evidence that indicates the Veteran’s current bilateral hearing loss was incurred in service, nor that the Veteran demonstrated hearing loss during the presumptive period after service, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 3. Entitlement to service connection for tinnitus Tinnitus is defined as a ringing in the ears, and it is a disorder that is uniquely identifiable by the senses of the person experiencing it. It is a condition that is “simple” in nature in that respect, and thus, is a disability that can be diagnosed by the person experiencing the condition. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). That is, the confirmation of the existence of tinnitus does not require any medical expertise (i.e. is not “complex” in nature), and assuming the allegations of the Veteran are credible, testimonial evidence of an origin of the condition in service can be used to support a claim for service connection. The Veteran testified he has ringing in both ears. However, STRs do not indicate any complaints, diagnoses, or treatments for hearing impairment symptoms such as tinnitus. On his June 1971 report of medical history at separation, the Veteran denied “running” ears or hearing loss. As noted above, his report at separation is highly probative. Rucker, supra. August 2012 VA treatment records indicate the Veteran denied tinnitus at his audiology consultation. The Veteran reported more frequent tinnitus in May 2014. At the June 2014 VA medical examination, the Veteran reported he did not remember the onset of his tinnitus but that he had tinnitus for a “long time.” The examiner noted the Veteran’s MOS carried a low probability of noise exposure, and that the Veteran had civilian recreational noise exposure post-service. The examiner opined she could only speculate whether the Veteran’s service caused his tinnitus because the Veteran could not estimate when his tinnitus began. The preponderance of the evidence is against the claim for service connection. There is no probative medical evidence that indicates the Veteran’s tinnitus was incurred in service. As noted above, the Veteran’s internet submissions, which included an article on the causes and treatments for tinnitus, are of low probative value because they do not address the Veteran’s medical history. (Continued on the next page)   Since the Veteran’s tinnitus was not incurred in service, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Anwar, Associate Counsel