Citation Nr: 18149283 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 12-34 399 DATE: November 9, 2018 ORDER Entitlement to service connection for bilateral shin splints is denied. Entitlement to service connection for right ear hearing loss disability is denied. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for headaches is remanded. FINDINGS OF FACT 1. The preponderance of the evidence fails to establish that the Veteran has or had a right shin splints disability at any time during the pendency of the appeal. 2. The preponderance of the evidence fails to establish that the Veteran has or had a left shin splints disability at any time during the pendency of the appeal. 3. The preponderance of the evidence fails to establish that the Veteran has or had a right ear hearing loss disability for VA purposes at any time during the pendency of the appeal. CONCLUSIONS OF LAW 1. The criteria for service connection have not been met for right shin splints. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. The criteria for service connection have not been met for left shin splints. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 3. The criteria for service connection have not been met for right ear hearing loss. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from January 1990 to January 1996. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. These matters were before the Board in May 2017 when they were remanded for further development. Subsequently, in a May 2018 rating decision, the Appeals Management Center (AMC) granted service connection for left ear hearing loss disability; thus, that issue is no longer for appellate consideration. The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons or bases supporting its decision, there is no requirement that each item of evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board will summarize the evidence as deemed appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). 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. In order to prevail on a claim of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Right and Left Shin Splints The Veteran contends that service connection is warranted for bilateral shin splints. The Board acknowledges that the Veteran had complaints of shin pain in service (e.g. see March 1990 service treatment records); however, there are not clinical records noting a shin disability post service or during the pendency of his claim. Notably, his 1995 Report of Medical History for separation purposes reflects that he had several complaints, to include knee complaints; however, he did not complain of shin pain. A review of the medical evidence of record fails to establish that the Veteran has been diagnosed with right or left shin splints at any time during the appeal period or proximate thereto. Historically, the Veteran appeared for a VA general medical examination in March 1996. While the Veteran reported prior left knee injuries and further complained of discomfort in the knee that was increased by prolonged standing, walking, or exercising, he did not complain of shin splints. Upon examination of the lower extremities, the examiner indicated that the arterial pulses were normal and no bruits nor varicose veins were noted. Examination of the lower extremities also revealed normal range of motion and no evidence of swelling, deformity, atrophy, or tenderness. No shin abnormalities were noted, and the VA examiner did not diagnosis any shin disability. The Veteran’s claim has been pending since 2009. The Veteran appeared for a VA knee and lower leg conditions examination in April 2012. The examiner diagnosed status-post fracture of the left fibular. There were no objective findings of “shin splints” (medial tibial stress syndrome) bilaterally upon examination. The examiner opined that it was less likely than not that the Veteran’s right and left shin splints were incurred in or caused by service, as there was no evidence of shin splints. The Federal Circuit has held that pain alone, even in the absence of a diagnosis or underlying pathology, can establish a current disability if it results in functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In the present case the Veteran has not shown that he has pain in the shins which reaches the level of functional impairment of earning capacity. In this regard, the Board has considered both lay and medical evidence. While the Veteran has reported that he had shin complaints in service, he has not stated that he has pain during the pendency of his claim which causes functional impairment of earning capacity, and the evidence does not reflect such. Notably, in his substantive appeal, he argued that service connection was warranted because he had the condition while on active duty. However, importantly, service connection requires a current disability, not merely that a Veteran had the disability while on active duty. Accordingly, the Board finds that the evidence does not support a finding that the Veteran has a current disability of right and/or left shin splints. As such, service connection is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims of entitlement to service connection, that doctrine is not applicable. Right Ear Hearing Loss Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including other organic diseases of the nervous system (which includes sensorineural hearing loss), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Service connection 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) 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). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability 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. 38 C.F.R. § 3.385 (2017). A review of the medical evidence of record does not show that the Veteran has a current hearing loss disability for VA purposes in the right ear. The Veteran appeared for a VA hearing loss examination in April 2012. Audiometric testing results did not show an auditory threshold of 40 dB or higher at any of the above-referenced frequencies or auditory thresholds of 26 dB or greater for at least three of the above-referenced frequencies in right ear. Additionally, the reported Maryland CNC Test score of 100 percent does not meet the VA definition of a hearing loss disability for the right ear. The Veteran appeared for most recently for a VA hearing loss examination in October 2017. Audiometric testing results did not show an auditory threshold of 40 dB or higher at any of the above-referenced frequencies or auditory thresholds of 26 dB or greater for at least three of the above-referenced frequencies in the right ear. Additionally, the reported Maryland CNC Test score of 100 percent does not meet the VA definition of a hearing loss disability for the right ear. As the Veteran’s hearing acuity has been tested twice during the appeal period and the test results have not been shown by competent credible evidence to be inaccurate, the Board finds that the evidence does not support a finding that the Veteran has or had hearing loss for VA purposes during the pendency of his claim. Although the Veteran is competent to report difficulty with hearing acuity, he is not competent to diagnosis a hearing loss disability for VA purposes. Accordingly, the Board finds that the claim of entitlement to service connection for right ear hearing loss must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection, that doctrine is not applicable. REASONS FOR REMAND Lumbar Spine The Veteran contends that his currently diagnosed lumbar spine disability is causally related to his service. Historically, the Veteran appeared for a VA general medical examination in March 1996. The examiner noted the Veteran’s complaints of low back pain. Examination of the lumbar spine revealed normal curvature and the absence of paraspinal muscle spasm. Range of motion of the lumbar spine was normal. The examiner diagnosed low back sprain and strain. The Veteran next appeared for a VA back examination in April 2012. The Veteran reported the onset of his low back condition after stepping in a hole during a march in 1994. The examiner diagnosed osteoarthritis of the lumbar spine with degenerative disc disease (DDD). The examiner opined that the Veteran’s osteoarthritis of the lumbar spine with DDD was less likely than not related to service, as there were no clinic visits for a thoracic or lumbar spine condition. The examiner indicated that there was no report of a back condition on the Veteran’s report of medical history nor upon examination upon separation from service. The examiner further noted that there was a normal back finding during the March 1996 examination. The Board finds a supplemental opinion may be useful. The examiner based the negative opinion upon a finding that there was no report of a back condition on the Veteran’s report of medical history nor upon examination at the time of separation from service. The examiner failed to address the Veteran’s indication of “yes” on his December 1995 report of medical history when asked if he had or ever had recurrent back pain. Additionally, though the examiner noted that there were normal findings in relation to the Veteran’s back during the March 1996 examination, he failed to address the contemporaneous diagnosis of low back sprain and strain. Accordingly, a supplemental opinion is warranted. Hypertension The Veteran contends that his hypertension is causally related to his service. Historically, the Veteran appeared for a VA general medical examination in March 1996. The Veteran reported that his blood pressure was noted to be high in service in 1992, but that with frequent monitoring it has always been normal. The Veteran’s service treatment records reflect numerous blood pressure readings such as 120/70, 110/70, 140/106, 142/72, 116/78, 140/80, 128/84, 120/78, 122/82, 140/80, and 134/70. He denied high or low blood pressure on his March 1995 Report of Medical History for separation purposes; however, the Physicians Summary and Elaboration of pertinent data indicates “borderline systolic HTN NCD”. A 1996 VA examiner indicated that there was no evidence of established hypertension. The examiner noted that the Veteran’s blood pressure was normal on examination and there was no evidence of postural hypotension nor clinical evidence of cardiac enlargement. The examiner opined that it was likely that the blood pressure elevation may have represented an exaggerated response to stress. The Veteran appeared for a VA hypertension examination in April 2012. The examiner opined that the Veteran’s hypertension was less likely than not incurred in or caused by service, as only one mild increase with pain was noted in service. The examiner further indicated that there was no diagnosis of hypertension rendered during the March 1996 examination. The Board finds that a supplemental opinion may be useful. The examiner based the negative opinion upon a finding that there was only one mild increase with pain was noted in service and the lack of diagnosis of established hypertension at the time of the March 1996 examination. However, the examiner failed to discuss the significance of possible other elevated blood pressure readings in-service and the notation of “borderline systolic HTN NCD” on the Veteran’s report of medical history at the time of his separation examination in December 1995. Headaches An August 2009 VA record reflects that the Veteran was sent to the emergency department with uncontrolled blood pressure and a headache. A September 2009 record reflects a history of “intermittent headache”. A May 2011 neuropsychology record reflects that the Veteran reported that he had not had headaches in several years (i.e. since he began treatment for high blood pressure.) Additional records with regard to his hypertension reflect that the Veteran denied headaches (e.g. April 2010, September 2010, July 2016). The Board finds that the issue is inextricably intertwined with the issue of entitlement to service connection for hypertension; thus, it must be remanded. In addition, a VA examination would be useful to ascertain whether the Veteran has had a headache disability during the pendency of the claim, and if so, it’s relationship, if any, to his hypertension. The matters are REMANDED for the following action: 1. Obtain a supplemental opinion to the April 2012 VA examination for the Veteran’s lumbar spine. (a.) the examiner must state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s current lumbar spine disability had its onset in service or is otherwise etiologically related to active service. The examiner’s attention is directed to the December 1995 report of medical history where the Veteran indicated that he suffered recurrent back pain, as well as the March 1996 diagnosis of low back sprain and strain. 2. Obtain a supplemental opinion with regard to hypertension. The examiner must state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s current hypertension had its onset in service or is otherwise etiologically related to active service. The examiner’s attention is directed to a.) the notation of “borderline systolic HTN NCD” on the December 1995 report of medical history; b.) the numerous in-service blood pressure readings (e.g. 120/70, 110/70, 140/106, 142/72, 116/78, 140/80, 128/84, 120/78, 122/82, 140/80, 134/70); and c.) the March 1996 examination findings. 3. Schedule the Veteran for an examination for a headache disability. The examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran has, or has had, a headache disability during the pendency of his claim (since September 2009). If the Veteran has had a headache disability during the pendency of his claim, the examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that any headache condition was caused or chronically worsened beyond its natural progression (aggravated) by the Veteran’s hypertension. The examiner’s attention is directed to a.) the August 2009 VA record which reflects that the Veteran was sent to the emergency department with uncontrolled blood pressure and a headache; b.) the September 2009 record reflects a history of “intermittent headache”; c.) the May 2011 neuropsychology record reflects that the Veteran reported that he had not had headaches in several years (i.e. since he began treatment for high blood pressure); and d.) records which reflect that the Veteran denied headaches (e.g. April 2010, September 2010, July 2016). Rationale for all requested opinions shall be provided. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). (Continued on the next page)   If an adequate opinion cannot be rendered without an examination, the Veteran should be scheduled for such. T. WISHARD Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Joseph, Associate Counsel