Citation Nr: 18148924 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 17-00 771 DATE: November 8, 2018 ORDER Entitlement to service connection for bilateral flat feet (also claimed as pes planus) is denied. Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a right ankle disorder is remanded. Entitlement to service connection for a left ankle disorder is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has a current diagnosis of bilateral flat feet or pes planus. 2. The preponderance of the evidence is against a finding that the Veteran has bilateral hearing loss for VA purposes. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral flat feet (also claimed as pes planus) have not been met. 38 U.S.C. §§ 1101, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Marine Corps from July 2003 to July 2014. Service Connection The Veteran and his representative assert that the Veteran is entitled to service connection for bilateral flat feet and bilateral hearing loss, as he is asserting that both conditions had their onset while he was serving on active duty. 1. Entitlement to service connection for bilateral flat feet (also claimed as pes planus) Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may also be granted where disability is proximately due to or the result of already service-connected disability. 38 C.F.R. § 3.310. The requirement of a current disability 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. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (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. It may also include statements conveying sound medical principles found in medical treatises and/or 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A condition precedent for establishing service connection is the presence of a current disability. The question currently for the Board on this issue is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of bilateral flat feet or pes planus, and has not had one at any time during the pendency of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). In this regard, the Board notes the Veteran’s April 2014 VA examination and separation health assessment conducted in connection with his claim. During the April 2014 VA examination, which occurred following a review of the Veteran’s record and included an in-person examination, the VA examiner opined that the Veteran did not have a diagnosis of bilateral flat feet, or any other foot related diagnosis. In coming to this conclusion, the examiner noted the Veteran’s right foot pain and his contentions that his symptoms began while he was in-service, but ultimately concluded that because there was no pathology in either foot, the Veteran’s bilateral feet were normal did not warrant a diagnosis of pes planus. See, April 2014 VA examination; April 2014 Separation Health Assessment. While the Board acknowledges that the Veteran believes that he has a current diagnosis of pes planus and that the Veteran is competent to report symptoms such as pain, the Veteran is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board also acknowledges one periodic examination from April 2010 which indicates that the Veteran has asymptomatic pes planus, but notes that follow-up examinations indicate that the Veteran’s feet were normal. Additionally, the Board notes that the Veteran was given insoles while on active-duty service, but that treatment appears to be for low back pain and was subsequently discontinued. Consequently, the Board gives more probative weight to the competent medical evidence, and more specifically, the opinion of the April 2014 VA examiner. As the Board finds that the Veteran does not have a current diagnosis of bilateral flat feet or pes planus, service connection is therefore denied. 2. Entitlement to service connection for bilateral hearing loss As outlined above, in order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). For certain chronic diseases, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year of discharge from service. 38 C.F.R. § 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed in 38 C.F.R. § 3.309(a). Service connection for impaired hearing is subject to 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability for VA compensation purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. With the above criteria in mind, the Board notes that the Veteran’s in-service audiograms and his most recent April 2014 VA examination are negative for a diagnosis of bilateral hearing loss as defined by VA. Pure tone thresholds for each audiogram, in decibels, were as follows: July 2003 HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 -5 10 LEFT 10 5 0 -5 10 April 2011 HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 5 0 -5 LEFT 15 15 15 0 5 March 2014 HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 35 20 25 LEFT 25 25 35 20 20 April 2014 VA Examination HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 15 20 LEFT 15 10 15 10 20 At the Veteran’s April 2014 VA examination, the average decibel loss in the right ear was 17.5 and the average decibel loss in the left ear was 13.75. Speech recognition ability, using the Maryland CNC test was 100 percent in the right ear and 96 percent in the left ear. As outlined above, the Veteran’s record is negative for a diagnosis of bilateral hearing loss disability as defined by VA. While the Board acknowledges the Veteran’s service-treatment record and post-service treatment records both document complaints about hearing loss and do in fact indicate some degree of hearing loss and standard threshold shifts, there is no diagnosis of hearing loss for VA purposes. 38 C.F.R. § 3.385. Additionally, a post-service treatment record dated December 2014 indicated that the Veteran has “normal hearing” and only that he has abnormal hearing when there is background noise. See, post-service treatment record dated December 2014. The examination finding that the Veteran does not have bilateral hearing loss for VA purposes is not contradicted by any other medical evidence of record and therefore, the Board has given the audiological findings significant probative weight. The Board nots that the Veteran is competent to report on the symptoms that he observed and has not overlooked his consistent statements in which he has indicated that it is difficult for him to hear. However, the Veteran is not competent to measure auditory thresholds in his ears because it requires medical training that he has not been shown to possess. Accordingly, the Board finds the objective findings of the audiological examiners regarding the Veteran’s lack of current diagnosis to be more probative than any lay claims to the contrary. Black v. Brown, 10 Vet. App. 297 (1997). Accordingly, despite some documented hearing loss, since a condition precedent for establishing service connection is the diagnosis of the claimed disease or disorder, and the Veteran does not have a diagnosis bilateral hearing loss disability as defined by 38 C.F.R. § 3.385 at any time during the pendency of the appeal, the Board finds that a preponderance of the evidence is against the claim and therefore, service connection is denied. REASONS FOR REMAND While the Board sincerely regrets the delay, additional development is required before the Veteran’s remaining claims may be adjudicated on the merits. 1. Entitlement to service connection for a left knee disorder is remanded. 2. Entitlement to service connection for a right knee disorder is remanded. The Veteran and his representative assert that the Veteran is entitled to service connection for bilateral knee conditions because the pain began while the Veteran was on active-duty service and has continued since. While the Veteran was afforded a VA examination in connection with his claim in April 2014, the Board finds the examination report to be incomplete. Specifically, the Board notes that the VA examiner does not address the Veteran’s multiple in-service complaints of bilateral knee and joint pain. Additionally, while the VA examiner found that the Veteran did not have a current bilateral knee disability, the United States Court of Appeals for the Federal Circuit recently held in Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018) that the term “disability” as used in 38 U.S.C. 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. Accordingly, the Board finds that a remand is warranted to address the Veteran’s contentions that his bilateral knee pain began in-service and has continued since and to address the applicability of Saunders if the Veteran is not diagnosed with a current disability. Barr v. Nicholson, 21 Vet. App. 303 (2007). 3. Entitlement to service connection for a right ankle disorder is remanded. 4. Entitlement to service connection for a left ankle disorder is remanded. The Veteran and his representative have asserted that the Veteran is entitled to service connection for bilateral ankle conditions on the basis that his current symptoms began while he was on active-duty and have continued since. While the Veteran was most recently afforded a VA examination in connection with is claim in November 2015 and addendum opinion was obtained in January 2016, the Board finds both examination reports to be incomplete. Specifically, the VA examiner notes that the Veteran has a documented in-service injury of bilateral ankle strain, but does not note whether or not the Veteran has a current bilateral ankle disability. The examiner does note that the Veteran continues to have daily pain with flare-ups from certain activities, but the examiner does not provide an etiological opinion regarding the Veteran’s alleged bilateral ankle condition. Accordingly, the Board finds that a new examination is warranted in order to determine if the Veteran currently has a bilateral ankle disability and if so, whether or not that disability is related to the Veteran’s active duty service. If no diagnosis is provided, in light of the Veteran’s continued bilateral ankle pain, an opinion and to address the applicability of Saunders should be completed. Barr v. Nicholson, 21 Vet. App. 303 (2007). 5. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran and his representative assert that he is entitled to service connection for obstructive sleep apnea as he had documented sleeping difficulties while on active-duty and was diagnosed with obstructive sleep apnea, confirmed by a sleep study, shortly after being discharged. To date, the Board notes that the Veteran has not had a VA examination specific to his claim for entitlement to service connection for obstructive sleep apnea. The Veteran has documented in-service sleep disturbances and was diagnosed with obstructive sleep apnea less than a year following his discharge. While the Veteran’s in-service sleep disturbances were previously attributed to his posttraumatic stress disorder (PTSD) disability, the Board finds that it is possible that some of the Veteran’s documented sleep disturbances could have been early onset symptoms of his subsequently diagnosed obstructive sleep apnea. As it stands, the Board finds that the evidence of record does not contain sufficient competent medical evidence to determine if the Veteran’s documented in-service sleep disturbances were early symptoms of his obstructive sleep apnea, and therefore, an examination is warranted to determine the nature and etiology of the Veteran’s obstructive sleep apnea. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records and associate them with the Veteran’s claims file. 2. Once any outstanding treatment records have been obtained, schedule the Veteran for VA examinations with the appropriate medical personnel for ankle, knee, and obstructive sleep apnea examinations. The Veteran’s entire claims file, to include a copy of this remand, should be provided to any examiner that examiners the Veteran. Following a complete review of the record, the examiner is asked to provide the following opinions: a. Determine if the Veteran has a current left or right knee disability. If any diagnosis is indicated, provide an opinion as to whether the knee disability is at least as likely as not due to the Veteran’s active duty service. In providing their opinion, the examiner is asked to address the Veteran’s documented in-service knee pain. Even if there is no diagnosed disorder, pain resulting in functional impairment may constitute a disability for service-connection purposes. If present, describe any functional impairment; if not, state why. b. Determine if the Veteran has a current left or right ankle disability. If any diagnosis is indicated, provide an opinion as to whether the ankle disability is at least as likely as not due to the Veteran’s active duty service. In providing their opinion, the examiner is asked to address the Veteran’s documented in-service bilateral ankle sprain and continued treatment for pain. Even if there is no diagnosed disorder, pain resulting in functional impairment may constitute a disability for service-connection purposes. If present, describe any functional impairment; if not, state why. c. Determine if it is at least as likely as not that the Veteran’s obstructive sleep apnea is related to his active duty service. In providing this opinion, the examiner is asked to address the Veteran’s documented in-service sleep disturbances and whether or not the symptoms were early manifestations of the Veteran’s current obstructive sleep apnea. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Daugherty, Associate Counsel