Citation Nr: 18149671 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 15-41 284 DATE: November 13, 2018 ORDER Service connection for broken toes of the right foot is denied. Service connection for a right foot disorder is denied. REMANDED Service connection for bilateral hearing loss is remanded. Service connection for tinnitus is remanded. Service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of broken toes of the right foot. 2. The preponderance of the evidence is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a right foot disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for broken toes of the right foot are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection a right foot disorder are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1976 to August 1979. These matters come before the Board of Veterans’ Appeals (Board) from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). 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). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran contends that service connection for broken toes of the right foot and residuals of a right foot injury is warranted. Unfortunately, a majority of the Veteran’s service treatment records are unavailable. In fact, the only service treatment record available is the Veteran’s September 1976 pre-enlistment examination and report of medical history. Significantly, a March 2013 memorandum shows that all efforts to obtain the Veteran’s missing service treatment records had been exhausted and that further attempts would be futile. When a veteran’s records are unavailable through no fault of his own, there is a heightened obligation for VA to assist the veteran in the development of his claim. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). In part, such a heightened duty obligates VA to advise a veteran to submit alternative forms of evidence in support of his claim. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Dixon v. Derwinski, 3 Vet. App. 261 (1992). The Veteran submitted an initial claim for service connection for broken toes of the right foot and residuals of a right foot injury in August 2011. However, a review of the medical evidence fails to show any complaints, treatment, or diagnoses related to the right foot. Significantly, a January 2013 physical evaluation of the right lower extremity showed no tenderness, swelling, crepitus, or deformity of the right foot. Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C. § 1131; Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In the absence of proof of a present disability, there can be no valid claim for service connection. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement 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 if the disability resolves prior to the adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). A VA examination for the right foot disorders was not provided in this case. In this regard, VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. The Veteran’s reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83. Here, the file contains no medical evidence suggesting that the Veteran has any disorders of the right foot. Moreover, the Veteran’s report of right foot disorders is not consistent with more credible medical records that show normal findings regarding the right foot. Accordingly, even the low threshold under McLendon has not been met here and VA’s duty to provide a VA examination has not been triggered. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c), 3.326; McLendon, 20 Vet. App. 79, 81-82 (2006). There is no competent evidence of broken toes of the right foot or a right foot disorder. Medical treatment records fail to show a diagnosis of any right foot disorder. Neither has the Veteran submitted any medical evidence showing a right foot disorder or even lay evidence of any symptomology. In the absence of evidence of current disabilities, the Veteran’s claims for broken toes of the right foot and a right foot disorder must be denied. REASONS FOR REMAND The Veteran’s VA treatment records reflect diagnoses of chronic tinnitus and sleep apnea as early as November 2012. See April 2013 CAPRI Records. In submitting a claim for bilateral hearing loss in August 2011, the Veteran has implied hearing loss symptomology. He asserts that these conditions had their onset in service. Given VA’s heightened duty to assist due to the unavailability of the Veteran’s service treatment records, he should be afforded a VA examination to determine the etiology of these conditions. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to evaluate the nature and etiology of his bilateral hearing loss, tinnitus, and sleep apnea. The examiner must acknowledge review of the pertinent evidence of record, including the Veteran’s reports of symptom manifestation. All necessary examinations, tests, and studies should be conducted. The examiner should address the following: a. Identify/diagnose any hearing loss, tinnitus, and/or sleep apnea disability that presently exists or that has existed during the appeal period. b. If hearing loss for VA purposes is diagnosed, is it at least as likely as not (50 percent probability or greater) that the disability had its onset in service or within a year of service discharge or is otherwise etiologically related to active service? c. Is it at least as likely as not (50 percent probability or greater) that tinnitus had its onset in service or within a year of service discharge or is otherwise etiologically related to active service? d. Is it at least as likely as not (50 percent probability or greater) that sleep apnea had its onset in service or is otherwise etiologically related to active service? Rationale for the requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, provide an 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 the limits of current medical knowledge with respect to the question. 2. Readjudicate the claim. APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Alhinnawi, Associate Counsel