Citation Nr: 18151105
Decision Date: 11/19/18	Archive Date: 11/16/18

DOCKET NO. 16-41 812
DATE:	November 19, 2018
ORDER
Service connection for a left thigh disability is denied.
Service connection for a right foot injury is denied.
Service connection for bilateral hearing loss is denied.
Service connection for headaches is denied.
REMANDED
Entitlement to service connection for a lower back disability is remanded.
Entitlement to an initial increased rating for a left ankle sprain 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 diagnosis of a left thigh 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 a right foot disability.  
3. The weight of the competent and probative evidence is against a finding that the Veteran has a diagnosis of bilateral hearing loss for VA purposes. 
4. 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 headaches.  
CONCLUSIONS OF LAW
1. The criteria for service connection for a left thigh disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.310.
2. The criteria for service connection for a right foot disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.310.
3. The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385.
4. The criteria for service connection for a headache disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.310.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active service in the United States Air Force from October 1979 to February 1987 and from June 1987 to March 2000. This matter is before the Board of Veterans’ Appeals (Board) on appeal from April 2014 and 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).  
Service Connection
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110,1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 
3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, in Saunders v. Wilkie, the Federal Circuit recently held that "pain in the absence of a presently-diagnosed condition can cause functional impairment," which may qualify as a "disability" under section 1110. 886 F.3d 1356, 1368 (Fed. Cir. 2018).  
Regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a).  Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown.  Allen v. Brown, 7 Vet. App. 439, 449 (1995); 38 C.F.R. § 3.310(b).  
In order to establish entitlement to secondary service connection, there must be 
(1) evidence of a current disability; (2) evidence of a service-connected disability; (3) medical evidence establishing a nexus between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).
In a claim of service connection for impaired hearing, demonstration of the first Shedden element—i.e., the existence of a current disability—is subject to the additional requirements of § 3.385, which provides that service connection for impaired hearing shall not be established until the hearing loss meets pure tone and/or speech recognition criteria.  Under this regulation, hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 
40 decibels or greater; the auditory thresholds 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.
Service connection for certain diseases, such as an organic disease of the nervous system, including sensorineural hearing loss and tinnitus, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.309(a)(3), 3.309(a). In such cases, 
the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). 
A nexus between a current disability and an in-service injury or event may be established by evidence of continuity of symptomatology, if the condition is a chronic disease enumerated under 38 U.S.C. § 1101. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Tinnitus is considered an organic disease of the nervous system, and as such is an enumerated chronic disease. See 38 U.S.C. §§ 1101, 1112; Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, Oct. 4, 1995; see Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding that 38 C.F.R. § 3.309(a) “includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an ‘organic disease of the nervous system’”); 38 C.F.R. §§ 3.307, 3.309.
The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57–58 (1990).
 
1. Entitlement to service connection for a left thigh disability. 
The Veteran asserts service connection for a left thigh disability. 
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 a left thigh disability 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); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).
The Veteran’s medical records are absent for a left thigh disability. The Board acknowledges in-service complaints of left thigh pain. The service treatment records reflect treatment for a left thigh injury in June and July 1992. However, 
he does not have a current diagnosis of a left thigh disability, nor do the available current treatment records show persistent or recurrent symptoms of disability. Additionally, the service records did not show a diagnosis while in service nor does the record contain evidence of continuing symptoms from a noted in-service event.  The evidence of record also weighs against finding that the Veteran has functional impairment causing loss of earning capacity due to his left thigh.
While the Veteran believes that he has a left thigh disability, to include residuals, he is not competent to provide a diagnosis in this case. Jandreau v. Nicholson, 
492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As such, the Veteran is not competent to report on such a matter and his statements in this regard lack weight.  Consequently, the Board gives more probative weight to the competent medical evidence which fails to provide a left thigh diagnosis. Indeed, the Veteran had a knee and lower leg examination in March 2014.  The report does not reflect relevant signs or symptoms related to the left hip.  In the section titled “additional conditions,” the examiner recorded bilateral shin splints, but nothing else. Additionally, the Board notes private treatment records reflect that the Veteran had a physical examination in November 2014 following left knee surgery and this report did not show complaints or finding related to the left hip.  
As the preponderance of the evidence is against finding a current disability, reasonable doubt does not arise, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.
2. Entitlement to service connection for a right foot injury.
The Veteran asserts service connection for a right foot disability. 
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 a right foot disability that is separate from his service-connected right great toe and/or right ankle disabilities, 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); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).
The Veteran’s current medical records are absent for a right foot disability. The Board acknowledges in-service documentation of a right foot injury wherein the Veteran stepped on a nail. It was noted that he has a full recovery. However, 
he does not have a current right foot disability, nor does he have residuals related to the nail injury that cause functional impairment with loss of earning capacity.  The Board notes that the record reflects that the Veteran is service-connected for residuals, fracture, base, proximal phalanx, right great toe with scar, that is rated at 10 percent disabling since December 2014.  
While the Veteran believes that he has a right foot disability to include residuals, he is not competent to provide a diagnosis in this case that is separate from his currently service-connected right great toe and right ankle disabilities. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).  As such, the Veteran is not competent to report on such matter and his statements in this regard lack weight.  Consequently, the Board gives more probative weight to the competent medical evidence which does not provide a diagnosis for his right foot that is separate from his currently service-connected right great toe and ankle disabilities. For the above reasons, reasonable doubt does not arise, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.
3. Entitlement to service connection for bilateral hearing loss.
The Veteran contends he has bilateral hearing loss that is related to his time in service. 
The question for the Board is whether the Veteran has a bilateral hearing loss disability 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 the Veteran does not have a current diagnosis of bilateral hearing loss for VA purposes 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. §§ 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 Veteran underwent a VA examination in March 2014. His audiologic results for his right ear were as follows:
A	B	C	D	E	F	G
500 Hz	1000 Hz	2000 Hz 	3000 Hz	4000 Hz	6000 Hz	8000 Hz
20	20	20	35	30	40	35

 
For his left ear as follows:
A	B	C	D	E	F	G
500 Hz	1000 Hz	2000 Hz 	3000 Hz	4000 Hz	6000 Hz	8000 Hz
15	20	15	25	25	25	20

His right ear average was 26, and his left ear average was 21 Hz. His speech discrimination score was 96 percent in his right ear and 98 percent in his left ear. The examiner noted that he had sensorineural hearing loss in the frequency range of 500-4000hz for his right ear and normal hearing for his left ear. However, the Veteran does not have a hearing loss disability for VA purposes as he does not have thresholds in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz of 40 decibels or greater; there are not auditory thresholds for at least three of these frequencies at 26 decibels or greater; and his speech recognition scores using the Maryland CNC Test are greater than 94 percent, and as such, are not less than 
94 percent.  38 C.F.R. § 3.385. 
The Board finds this examination to have much probative weight as the examiner conducted an audiological examination, and reviewed the Veteran’s pertinent medical records. For the above reasons, reasonable doubt does not arise, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 
4. Entitlement to service connection for headaches.
The Veteran asserts service connection for headaches. 
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 headaches or migraines, and has not had either 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); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).
The Veteran’s current medical records are absent for headache related complaints. The Board acknowledges an in-service motor vehicle accident where he hit his head on the windshield. However, his service treatment records show that his headaches resolved and there were not any residuals. 
While the Veteran is competent to testify that he had headaches in service, he does not have a current diagnosis of headaches or migraines, and he is not competent to provide a nexus related to his in-service motor vehicle accident.  Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).  As such, the Veteran is not competent to report on such matter and his statements in this regard lack weight.  Consequently, the Board gives more probative weight to the competent medical evidence which do not provide a current headache or migraine diagnosis. For the above reasons, reasonable doubt does not arise, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.
REASONS FOR REMAND
1. Entitlement to service connection for a lower back disability is remanded.
The Veteran asserts service connection for a lower back disability.
His service treatment records contain complaints of lower back pain without a specific injury. Additionally, the records document a diagnosis of spina bifida. 
The February 2015 VA examiner found that the Veteran had a lumbar strain while in service in 1984 but did not note any other diagnoses. The examiner concluded that it was less likely than not that the Veteran’s claimed condition was incurred in or caused by service. In support, the examiner stated there were no significant back injuries in service. The Board finds this opinion to have limited to no probative value as the examiner did not comment on the documented diagnoses the Veteran had in service.  
As such, the Board finds that a new VA examination is warranted to determine the nature and etiology of his claimed lower back disability. 
2. Entitlement to an initial increased rating for a left ankle sprain is remanded.
The Veteran last underwent a VA examination for his left ankle in March 2014. Additionally, the Board notes a VA examination was performed for the Veteran’s right ankle in February 2015, but no findings were provided for his left ankle. 
The Board notes that while a new examination is not required simply because of the time which has passed since the last examination, VA’s General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995).
Since the Veteran’s last VA examination for his left ankle, medical records from February 2015 indicate that he has pain, warm temperature, and swelling in his left ankle. However, there is a possibility that is due to the Veteran’s gout. As such, the Board finds that a new VA examination is warranted to assess the current state of the Veteran’s left ankle sprain and to accurately depict his symptoms. 
The matters are REMANDED for the following actions:
1. Obtain any outstanding VA treatment records. 
All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records.
2. After associating any outstanding records with the claims file, schedule the Veteran for a VA examination to assess the Veteran’s lower back and identify all current disorders of the lower back:
(a.) If spina bifida is diagnosed, the examiner should state whether such condition constitutes a congenital or developmental defect or a disease (per VAOPGCPREC 82.90, in general, a congenital abnormality that is subject to improvement or deterioration is considered a disease).
(b.) If the spina bifida is considered a defect, was there additional disability due to disease or injury superimposed upon such defect during service? If so, please identify the additional disability.
(c.) If the Veteran’s spina bifida is a disease, was it aggravated beyond the natural progression during his military service? 
(d.) If spina bifida is not a congenital or developmental defect or disease, provide an opinion whether the disorder increased in severity in service?
If so, provide an opinion whether there is a clear and unmistakable evidence that such increase in severity is due to the natural progress of the condition?
(e.) For each currently diagnosed lower back disability other than spina bifida, opine as to whether it is at least as likely as not (50 percent or greater probability) that such is related to the Veteran’s military service;
(f.) Additionally, provide an opinion whether each lower back disability other than spina bifida is at least as likely as not 1) proximately due to OR 
2) aggravated by his service-connected disabilities. 
The term “aggravated” refers to a worsening of the underlying condition beyond the natural progression of the disease, as opposed to temporary or intermittent flare-ups or symptoms that resolve with return to the baseline level of disability. 
If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation.
3. After associating any records with the claims file, schedule the Veteran for a VA examination to assess the current nature and severity of his service-connected left ankle disability.  Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss.  
Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare ups of his service-connected ankle disability, and how he characterizes the additional functional loss during a flare.
If the Veteran describes experiencing flare ups, identify the:
(a.) Frequency;
(b.) duration; 
(c.) precipitating factors; and
(d.) alleviating factors.
Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not 
(50 percent probability or greater) that during a flare up range of motion is additionally limited. Please explain why or why not.
Comment on the effect that the service-connected left ankle disability has on his ability to function in an occupational environment and describe any functional impairment/limitations caused by this service-connected disability.
If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner).
If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency.  If the inability to provide an opinion is due to the examiner’s lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion.  

 
Paul Sorisio
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	G. Morales, Associate Counsel