Citation Nr: 18148864 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-03 087 DATE: November 8, 2018 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for high cholesterol is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for a prostate disorder is denied. REMANDED Entitlement to service connection for left foot plantar fasciitis is remanded. Entitlement to service connection for right foot plantar fasciitis is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for an upper respiratory disability, claimed as sinusitis is remanded. Entitlement to service connection for a gastrointestinal disability, claimed as gastritis is remanded. Entitlement to service connection for tinea cruris is remanded. Entitlement to service connection for tinea pedis is remanded. Entitlement to an initial compensable disability rating for hallux valgus, left foot is remanded. Entitlement to an initial compensable disability rating for hallux valgus, right foot is remanded. Entitlement to an initial compensable disability rating for frontal headaches is remanded. FINDINGS OF FACT 1. The Veteran’s tinnitus is etiologically related to his active service. 2. A bilateral hearing loss disability has not been present at any time during the pendency of this claim. 3. High cholesterol is a lab finding, and not a chronic disability for which VA disability benefits may be awarded. 4. The preponderance of the evidence is against finding that hypertension began during active service, or is otherwise related to an in-service injury, event, or disease, and the Veteran’s hypertension did not manifest to a compensable degree within the applicable presumptive period (1 year) following his discharge from active duty. 5. The preponderance of the evidence is against finding that the Veteran’s current prostate disorder began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. A bilateral hearing loss disability was not incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.385 (2017). 3. The criteria for service connection for high cholesterol have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 4. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309 (2017). 5. The criteria for service connection for a prostate disorder have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Introduction The Veteran served on active duty from December 1971 to May 1993. VA’s Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The record reflects that all pertinent available service treatment records (STRs) and all available post-service medical evidence identified by the Veteran have been obtained. The Veteran was afforded an appropriate VA examination to address his claimed tinnitus, bilateral hearing loss, hypertension, and prostate disorder disabilities in October 2013. Further, the Board notes that, with respect to the Veteran’s claim for service connection for high cholesterol, the pertinent facts in this case are not in dispute and the law is dispositive. Consequently, there is no additional evidence that could be obtained to substantiate the claim, and no further action is required to comply with VA’s duties to notify and assist. See Manning v. Principi, 16 Vet. App. 534, 542 (2002); VAOPGCPREC 5-2004 (June 23, 2004). The Veteran was also afforded an opportunity for a hearing before a Decision Review Officer of the Regional Office (RO), or a Veterans Law Judge at the Board of Veteran’s Appeals, but declined. The Veteran has not identified any outstanding evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Veteran’s claims. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Where a veteran served for at least 90 days during a period of war and manifests hypertension to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. “Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability... in the absence of a proof of present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary’s adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis Tinnitus Claim The Veteran seeks service connection for tinnitus, which he contends originated in service. The medical evidence confirms the Veteran currently has tinnitus. The central issue that must be resolved at this time is whether the Veteran’s current disability originated during service or is otherwise related to service. Initially, the Board notes that the Veteran’s STRs do not show he was treated for or diagnosed with tinnitus in service; however, the Veteran’s DD-214 shows he was an Infantryman and Military Policeman in the Army. The U.S. Army has acknowledged these military occupational specialties (MOS) carry a high probability for exposure to acoustic trauma. On VA examination in October 2013, the examiner diagnosed the Veteran with tinnitus. However, the examiner did not provide a medical opinion as to whether the Veteran’s current tinnitus could be related to his conceded military noise exposure. The examiner did find the Veteran has some degree of diminished hearing, and attributed the Veteran’s tinnitus to his current hearing impairments. Notwithstanding the medical opinion provided by the October 2013 VA examiner, the Veteran has reported he was exposed to significant noise exposure during his period of active duty. Further, the Veteran has also stated that he initially noticed his ringing in his ears during his time in the Army, and that his tinnitus has persisted intermittently since that time. In this case, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has “unique and readily identifiable features” that are “capable of lay observation.” See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (providing that a veteran’s testimony regarding tinnitus is competent evidence, as “ringing in the ears is capable of lay observation.”). Here, the Veteran has reported that he experienced ringing of the ears in service, which has persisted ever since. The Board finds the Veteran competent to report his hearing limitations. It is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Many symptoms are readily observable by a lay person. Accordingly, the lay evidence provided by the Veteran is unquestionably competent evidence. In this respect, the Board finds the Veteran’s own reports of experiencing ringing of the ears to be at least as probative as the above-noted VA examiner’s findings. As previously noted, this appeal turns on whether there is a nexus between the Veteran’s current disability and his exposure to acoustic trauma in service. The Veteran has competently and credibly reported that he experienced tinnitus during and since service due to the in-service acoustic trauma. Accordingly, a nexus to service is established. To the extent the October 2013 VA examiner opined the Veteran’s tinnitus was as likely as not attributable to his hearing impairment, the Board finds this opinion to be of limited probative value as the opinion failed to address the Veteran’s lay statements regarding the onset of his tinnitus. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). In sum, the Board is satisfied that the evidence supporting a nexus between the Veteran’s currently diagnosed disability and his in-service acoustic trauma is at least in equipoise with the evidence against a nexus. Therefore, the Veteran is entitled to service connection for his tinnitus. Bilateral Hearing Loss Claim The Veteran also seeks service connection for bilateral hearing loss, which he contends was a consequence of his military service. As acknowledged above, exposure to acoustic trauma in service is shown. The central issue in this case is whether the Veteran has a current bilateral hearing loss disability that is related to his military noise exposure. The Veteran has not submitted any private treatment records, and his outpatient treatment records from the Jackson VAMC do not indicate he has undergone any audiological assessments in accordance with 38 C.F.R. § 3.385 noted above. During his above-noted October 2013 VA examination, the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 25 20 35 LEFT 10 10 15 15 35 Speech audiometry revealed speech recognition ability of 100 percent in the right ear, and 96 percent in the left ear. This examination report fails to show sufficient hearing impairment to qualify as a disability for VA purposes. There is no other evidence showing the presence of sufficient hearing impairment in either ear to qualify as a disability for VA purposes. Accordingly, the Board must conclude that service connection is not warranted for a bilateral hearing loss disability. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. High Cholesterol Claim Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the claim for service connection for high cholesterol. Hypercholesterolemia or hyperlipidemia (high cholesterol) is not a disability for VA purposes. Elevated cholesterol is a finding or lab value and not a disability in and of itself for which VA compensation benefits are payable. The Board notes that a symptom, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999); 61 Fed. Reg. 20,440 (1996) (although Veteran is competent to describe symptoms of pain, pain, alone, without a sufficient factual showing that the pain is derived from the in-service injury is not a disability). Congress specifically limits entitlement for service-connected disease or injury to cases where those incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim. Brammer v. Brown, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection can only be granted for a disability resulting from disease or injury. 38 U.S.C. § 1110 (2012). High cholesterol is a lab finding that manifests itself only in examination and is not a disability for which service connection can be granted. Therefore, service connection for high cholesterol itself is not warranted. In sum, the evidence demonstrates that the Veteran is not entitled to service connection for high cholesterol as that does not represent a disability for which service connection can be granted. As the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). Hypertension and Prostate Disorder Claims The Veteran asserts that service connection is warranted for hypertension and a prostate disorder. A review of his outpatient treatment records and October 2013 VA examinations shows he has been diagnosed with both hypertension and benign prostate hypertrophy (BPH). The question for the Board is whether the Veteran’s current disabilities began during service or are at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of hypertension and BPH, the preponderance of the evidence is against finding that the disabilities began during active service, or are otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). A review of the Veteran’s service treatment records shows he underwent several blood pressure readings during annual evaluations in service, which were within normal limits. During his April 20, 1993 separation examination, the Veteran’s blood pressure was 110/70, which the examiner found to be normotensive. Likewise, the Veteran underwent a prostate examination in service on May 15, 1990, which was normal. Prior to his separation the Veteran underwent a prostate specific antigen test, which was also within normal limits. The Veteran was not diagnosed with hypertension until September 1995, more than two years after his discharge from active duty. There is no indication this disability manifest to a compensable degree within the one-year period following his discharge from active duty, and as such, service connection is also not warranted on a presumptive basis under 38 C.F.R. § 3.309 (a). Likewise, the Veteran’s BPH was not shown to have been diagnosed until many years after his discharge from active duty. Further, following a comprehensive review of the file, the Board notes the Veteran did not provide any specific details as to how or why he felt these disabilities were consequentially related to his military service. While the Veteran is competent to report that he believes his hypertension and BPH should be service-connected, his reports are largely not credible due to internal inconsistency and inconsistency with other evidence in the record. In this respect, the Board notes that the most probative evidence of record shows the Veteran was normotensive just prior to discharge from active duty, and his prostate examinations were also normal during his time of military service. In sum, the Board finds the preponderance of the evidence weighs against findings that hypertension or a prostate disorder were incurred during the Veteran’s period of active duty. For this reason, the Board must deny these claims. REASONS FOR REMAND The Board is of the opinion that additional development is required before the remaining claims on appeal are decided. Increased Ratings Initially, the Board notes that in a June 2018 correspondence the Veteran asserted his service-connected disabilities on appeal are worse than when they were previously examined. He most recently underwent VA examinations to assess these disabilities in July 2018; however, in the course of the Veteran’s VA headaches examination, the examiner stated the Veteran has not experienced prostrating headaches. However, during his prior October 2013 VA examination, the examiner indicated the Veteran did experience prostrating attacks less than once every two months. Since the Veteran has indicated he does experience prostrating headaches, which have worsened, and the July 2018 VA examiner failed to discuss these prior findings, the Board finds a new VA examination is necessary. Additionally, in the course of the Veteran’s most recent VA foot examination, the examiner failed to assess the Veteran’s bilateral hallux valgus disability. Based on the foregoing insufficiencies, the Board finds new examinations are required to fully assess the Veteran’s bilateral hallux valgus and headache disabilities. Service Connection Claims Finally, the Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Though the Veteran underwent VA examinations to assess his claimed upper respiratory, gastrointestinal, left shoulder, plantar fasciitis, tinea pedis, and tinea cruris disabilities in October 2013, the Board finds the medical opinions provided with respect to these disabilities to be insufficient. In particular, the Board notes the Veteran was diagnosed with allergic rhinitis, left shoulder degenerative joint disease (DJD), plantar fasciitis, and tinea pedis/cruris during his October 2013 examinations. The examiners that diagnosed the Veteran’s allergic rhinitis and tinea pedis/cruris each found it would be speculative to state whether the Veteran’s current disabilities were incurred in service. However, the examiners failed to provide even a slight rationale to explain why it would be specious to provide an opinion in this case. Before the Board can accept an examiner’s statement that an opinion cannot be provided without resort to speculation, it must be clear that this is predicated on a lack of knowledge among the medical community at large and not the insufficient knowledge of the specific examiner. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The examiner that assessed the Veteran’s left shoulder and plantar fasciitis found these disabilities were less likely than not incurred in or caused by military service. In support of these conclusions, the examiner indicated the Veteran’s left shoulder DJD is more likely than not due to the normal aging process. However, the examiner failed to explain how he concluded the Veteran’s disability was age-related, and not caused by his left shoulder strain or overuse syndrome resulting from his Army training. The examiner went on to state the Veteran’s plantar fasciitis was less likely than not related to military service, because he could not find documentation of plantar fasciitis while the Veteran was in the military. To be considered adequate, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, an absence of contemporaneous service treatment records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Finally, with respect to the Veteran’s claimed gastrointestinal disorder, the October 2013 VA examiner acknowledged the Veteran had been diagnosed with gastroenteritis on several occasions in service, but indicated he had no current diagnosis of gastritis. Nonetheless, a review of the Veteran’s outpatient treatment records from the Jackson VAMC show he has been diagnosed with both a gastric ulcer with dysplasia and stomach cancer. These notes also intimate a possible connection between the Veteran’s ongoing stomach disabilities and his gastrointestinal problems in service. Based on the foregoing, the Board finds VA examinations and medical opinions are necessary to address these issues. On remand, relevant ongoing medical records should also be obtained. 38 U.S.C. § 5103A (c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, these matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Then, afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran’s service-connected bilateral hallux valgus and headache disabilities. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. 3. Also, afford the Veteran a VA examination by an examiner to address the etiology of the Veteran’s claimed upper respiratory, gastrointestinal, left shoulder, plantar fasciitis, tinea pedis, and tinea cruris disabilities. All pertinent evidence of record must be made available to and reviewed by the examiner(s). Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether any diagnosed upper respiratory, gastrointestinal, left shoulder, plantar fasciitis, tinea pedis, and tinea cruris disability at least as likely as not (a 50 percent probability or greater) originated during his period of active service or is otherwise etiologically related to his active service. The examiner(s) must specifically address the Veteran’s reports relative to the etiology of the claimed disabilities. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. (Continued on the next page)   4. Finally, undertake any other development determined to be warranted, and then readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Fraser, Counsel