Citation Nr: 18150418 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 14-19 102 DATE: November 15, 2018 ORDER Entitlement to service connection for a right ankle disability is denied. Entitlement to service connection for left foot ingrown toenails is denied. Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for left foot numbness is remanded. Entitlement to service connection for right foot numbness is remanded. Entitlement to service connection for right foot ingrown toenails is remanded. Entitlement to service connection for a sinus disability is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to sinusitis is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current right ankle disability. 2. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of left foot ingrown toenails. 3. The evidence of record indicates the Veteran’s bilateral (left and right ear) hearing loss is not severe enough to be considered a ratable disability according to VA standards. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for left foot ingrown toenails have not been met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty (AD) from June 1998 to December 1998, from November 2003 to April 2005, from August 2008 to September 2009, and from October 2009 to April 2010, with additional periods of National Guard service, so presumably on active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). This appeal to the Board of Veterans’ Appeals (Board) is from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during a November 2014 Travel Board hearing. A transcript of the hearing is of record. 1. Entitlement to service connection for a right ankle disability The Veteran contends that he has a current right ankle disability that was caused by strain from his in-service job as a mechanic. The question for the Board 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 right ankle diagnosis and has not had one at any time during the pendency of the claim or recent to the filing 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). The Board’s review indicates that service treatment records, VA treatment records and treatment records from Madigan Army Medical Center are all silent for complaints, diagnosis or treatment of a right ankle disability. While the Veteran believes he has a current right ankle disability, he 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 therefore finds that the evidence does not support the conclusion that the Veteran has a current right ankle disability. As with all claims for service-connection, in the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection is therefore not warranted. 38 C.F.R. § 3.303. 2. Entitlement to service connection for left foot ingrown toenails The Veteran contends that he has a current disability of left ingrown toenails that was caused by boot wear during service. The question for the Board 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 left ingrown toenails and has not had one at any time during the pendency of the claim or recent to the filing 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). The Board’s review indicates that service treatment records, VA treatment records and treatment records from Madigan Army Medical Center are all silent for complaints, diagnosis or treatment of left foot ingrown toenails. While the Veteran believes he has a current disability of left foot ingrown toenails, the medical evidence of record does not support the conclusion that the Veteran has a current left ingrown toenail disability. As with all claims for service-connection, in the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection is therefore not warranted. 38 C.F.R. § 3.303. 3. Entitlement to service connection for bilateral hearing loss The Veteran contends that his bilateral hearing loss was caused by service. The question for the Board is whether the Veteran has bilateral hearing loss for VA purposes 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 while the Veteran has a diagnosis of bilateral hearing loss, his hearing loss does not meet the threshold criteria for disability due to impaired hearing and that service connection is therefore not warranted. 38 C.F.R. § 3.385. Impaired hearing is considered a ratable disability for VA compensation purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of these frequencies 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. The Board’s review of the evidence relevant to this claim indicates that VA treatment records and treatment records from Madigan Army Medical Center are unremarkable for complaints, diagnosis or audiometric testing for bilateral hearing loss. During a September 2011 VA audiological examination, however, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 0 0 15 LEFT 20 10 0 0 10 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 100 percent in the left ear. The Veteran was diagnosed with bilateral sensorineural hearing loss. But, ultimately, the examiner found that the Veteran’s bilateral sensorineural hearing loss did not meet the threshold minimum requirements for a ratable disability for VA compensation purposes. That is to say, none of his pure tone thresholds were 40 or 26 decibels or greater, and his speech recognition scores were not under 94 percent. As the medical evidence of record indicates his bilateral hearing loss does not meet the criteria for either pure tone thresholds or speech recognition ability to be considered a ratable disability for VA compensation purposes, service connection is not warranted. 38 C.F.R. § 3.385. REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder disability is remanded. 2. Entitlement to service connection for a low back disability is remanded. 3. Entitlement to service connection for a left knee disability is remanded. 4. Entitlement to service connection for a right knee disability is remanded. The Veteran testified at his November 2014 Travel Board hearing that he injured his right shoulder, low back and bilateral knees during his deployment to Iraq while working as a mechanic on heavy equipment and vehicles. Testimony was also provided by Staff Sergeant D.M., who served with the Veteran during his 2004-2005 deployment to Iraq and worked as a medic. Staff Sergeant D.M. testified that the Veteran frequently came to him to ask for Motrin, ice packs and ace wraps for injuries, and that he would give the Veteran the requested treatment but did not document it in the service treatment records due to the demands of deployment. The Board notes that Staff Sergeant D.M. is competent to report treatment he administered to the Veteran during deployment. The Veteran has also submitted lay statements from fellow servicemembers regarding his in-service injuries. Staff Sergeant D.V. submitted a June 2010 statement attesting that he was deployed with the Veteran in Iraq and that he worked as a health care NCO at the aid station. Staff Sergeant D.V. stated that he remembers the Veteran coming into the station to get ice pack and ace wraps and that he had shoulder and knee problems. Another servicemember, Sergeant T.H., submitted a statement attesting that he was the Veteran’s roommate on deployment and that he saw the Veteran using back brace and walking with a limp. He also noted that the Veteran’s knees were swollen at times and that he used one arm instead of two due to shoulder problems. The Veteran has not yet been afforded a VA examination regarding the issues of service connection for right shoulder, low back and bilateral knee disabilities. The Board notes that VA treatment records indicate that the Veteran has been diagnosed with right shoulder tendinopathy and intrasubstance degeneration of the anterior superior labrum, chronic thoracolumbar dysfunction and bilateral knee arthralgia. The Veteran has also submitted competent testimony from the medic who treated him during service and lay statements from other fellow service members that they witnessed his musculoskeletal injuries during deployment. Remand for VA examinations is therefore required. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 5. Entitlement to service connection for left foot numbness is remanded. 6. Entitlement to service connection for right foot numbness is remanded. May 2013 VA treatment records note left foot numbness at the left foot medial aspect and state that it was possibly due to lower back pain with radiculopathy. November 2013 VA treatment records note left lower extremity numbness. Examination was performed of the bilateral lower extremities and the VA provider noted sensation grossly intact but diminished in the foot, ankle and shin area in a “somewhat stocking glove distribution.” The Veteran was advised to return for additional assessment of his foot numbness. As the medical evidence of record indicates that the Veteran’s bilateral lower extremity numbness may be associated with the remanded issue of service connection for a low back disability, the issues of service connection for left and right foot numbness must be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when the adjudication of one issue could have “significant impact” on the other issue). 7. Entitlement to service connection for right foot ingrown toenails is remanded. The Veteran contends that he has right foot ingrown toenails that began during deployment in Iraq and that were due to boot wear. A September 2006 VA post combat evaluation documents a right great toe ingrown toenail. The Veteran has not yet been afforded a VA examination regarding his right foot ingrown toenails. The Board notes that service treatment records are silent for right foot complaints, but also notes that the Veteran’s reports of boot wear are consistent with the conditions of his service and that he is competent to report symptoms such as an ingrown toenail. Remand for a VA examination is therefore required. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 8. Entitlement to service connection for a sinus disability is remanded. The Veteran contends that his current sinus disability had its onset in service and that it is due to exposure to sandstorms while deployed in Iraq from 2004 to 2005. The Veteran has not yet been afforded a VA examination regarding his sinus disability. February 2007 VA treatment records note sinus congestion and rhinitis, progressive for the prior two years. August 2007 VA treatment records note progressive sinus congestion since deployment, and a CT showed near complete opacification of anterior ethmoid sinuses, left maxillary sinus and bilateral frontal sinuses, as well as marked mucosal thickening of the remaining sinuses. The Board notes that the Veteran testified at his November 2014 hearing that his sinus symptoms began in service and that he is competent to report the onset of lay observable symptoms such as nasal congestion. The Board also notes his reports of exposure to sandstorms in Iraq and that such exposures are consistent with the conditions of his service. Remand for VA examinations is therefore required. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 9. Entitlement to service connection for obstructive sleep apnea, to include as secondary to sinusitis is remanded. October 2010 VA treatment records note the Veteran’s sleep apnea diagnosis. The provider observed that Veteran’s sinus disability and bilateral nasal polyps may contribute to his obstructive sleep apnea. February 2014 VA treatment records after the Veteran’s nasal surgery note findings of airway collapse during the procedure and state that the Veteran’s sleep apnea largely due to the noted collapse. The Board therefore finds that the question of whether the Veteran’s obstructive sleep apnea is secondary to his sinusitis has been raised by the record. The issue of entitlement to service connection for sleep apnea must therefore be remanded as it is inextricably intertwined with the remanded issue of service connection for a sinus disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when the adjudication of one issue could have “significant impact” on the other issue). These remaining matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from February 2014 to the Present. 2. Schedule the Veteran for an appropriate VA examination, to determine the etiology of any current right shoulder, low back and bilateral knee disabilities. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current right shoulder, low back and bilateral knee disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the statements of the Veteran, his wife and fellow service members regarding the onset and persistence of his symptoms. Attention is also requested to the November 2011 testimony from the staff sergeant who served as a medic during the Veteran’s deployment to Iraq. 3. Schedule the Veteran for an appropriate VA examination, to determine the etiology of any current right foot ingrown toenail disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current right foot ingrown toenail disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service, to include as due to environmental exposures during deployment. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. 4. Schedule the Veteran for an appropriate VA examination, to determine the etiology of any current sinus disability. The examiner should review the file and provide a complete rationale for all opinions expressed. (Continued on the next page)   For any current sinus disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service, to include as due to environmental exposures during deployment. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. Attention is requested to February 2007 and August 2007 VA treatment records noting progressive sinus congestion for the prior two years. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Arnold, Associate Counsel