Citation Nr: 18152044 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-40 480 DATE: November 20, 2018 ORDER 1. The application to reopen the claim of entitlement to service connection for a left foot disability, to include as secondary to the service-connected stress fracture of the 3rd metatarsal in the right foot (right foot disability), is granted. 2. Entitlement to service connection for a lumbar spine disability, to include degenerative disc disease and arthritis, to include as secondary to the service-connected right foot disability, is denied. 3. Entitlement to service connection for right knee degenerative joint disease, to include as secondary to the service-connected right foot disability, is denied. 4. Entitlement to service connection for a right leg disability is denied. 5. Entitlement to service connection for a left leg disability is denied. 6. The reopened claim of entitlement to service connection for a left foot disability, to include degenerative changes at the first metatarsophalangeal joint, to include as secondary to the service-connected right foot disability, is denied. 7. Entitlement to service connection for a retained foreign object in the chest and right hand is denied. 8. Entitlement to service connection for a bilateral hearing loss disability is denied. 9. Entitlement to service connection for coronary artery disease (CAD), to include as due to exposure to herbicides/Agent Orange (AO), is denied. 10. Entitlement to service connection for right foot cellulitis is denied. 11. Entitlement to service connection for a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s application to reopen the claim for service connection for a left foot disability was initially denied in December 2004. The Veteran was notified of the decision and his right to appeal. The Veteran did not appeal the December 2004 rating decision, and it became final. 2. Evidence submitted since the December 2004 rating decision relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for a left foot disability. 3. Degenerative disc disease and arthritis of the lumbar spine is neither proximately due to nor aggravated beyond its natural progression by the service-connected right foot disability and is not otherwise related to an in-service injury, event, or disease, nor was arthritis manifested to a compensable degree within one year following service discharge. 4. Right knee degenerative joint disease did not have its onset in service, was not manifested within one year of service discharge, is not otherwise related to service, and is neither proximately due to nor aggravated beyond its natural progression by the service-connected right foot disability. 5. The Veteran does not have a currently-diagnosed bilateral leg disability, other than right knee degenerative joint disease, as noted above. 6. Left foot disability, to include degenerative changes at the first metatarsophalangeal joint, is neither proximately due to nor aggravated beyond its natural progression by the service-connected right foot disability and is not otherwise related to an in-service injury, event, or disease and was not manifested within one year following service. 7. The preponderance of the evidence of record does not show that the Veteran has a foreign object in his chest or right hand. 8. The preponderance of the evidence of record is against finding that a bilateral hearing loss disability is at least as likely as not related to service, was manifested within one year following service discharge, or is otherwise related to service. 9. The Veteran does not have a diagnosis of CAD or any other heart disability. 10. The Veteran does not have a current diagnosis of right foot cellulitis or any other skin disability of the right foot. 11. The preponderance of the evidence is against a finding that the Veteran is unable to obtain and maintain any form of substantially gainful employment. CONCLUSIONS OF LAW 1. The December 2004 rating decision denying service connection for a left foot disability is final. New and material evidence has been received to reopen the claim for service connection for a left foot disability. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156(a), 20.1103 (2017). 2. The criteria for entitlement to service connection for degenerative disc disease and arthritis of the lumbar spine, to include as secondary to the service-connected right foot disability, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310(a). 3. The criteria for entitlement to service connection for right knee degenerative joint disease, to include as secondary to the service-connected right foot disability, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310(a). 4. The criteria for entitlement to service connection for a bilateral leg disability. have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for entitlement to service connection for a left foot disability, to include degenerative changes at the first metatarsophalangeal joint, to include as secondary to the service-connected right foot disability, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310(a). 6. The criteria for entitlement to service connection for a retained foreign object in the chest and right hand have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for entitlement to service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.385. 8. The criteria for entitlement to service connection for CAD, to include as due to exposure to herbicides/AO, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 9. The criteria for entitlement to service connection for right foot cellulitis have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 10. The criteria for referral for entitlement to a TDIU rating have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16(b) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to August 1971. New and Material Evidence 1. The application to reopen the claim for entitlement to service connection for a left foot disability, to include as secondary to the service-connected right foot disability Prior unappealed decisions of the RO are final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The Board does not have jurisdiction to consider a claim that has become final before it determines that new and material evidence has been presented, irrespective of what the regional office may have determined with respect to new and material evidence. If, however, new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof; the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117–20 (2010). The Veteran’s claim for entitlement to service connection for a left foot disability was previously considered and denied by the RO in a December 2004 rating decision. The Veteran was notified of that decision and of his appellate rights. The Veteran did not appeal this decision, and the December 2004 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In January 2012, the Veteran requested to reopen his claim for entitlement to service connection for a left foot disability, to include as secondary to the Veteran’s now service-connected right foot disability. The RO denied service connection for a left foot disability in December 2004 as the Veteran had not provided evidence of a current disability. Additionally, the Board notes that the Veteran was not service connected for a right foot disability at that time. Since the December 2004 rating decision, the Veteran has provided statements from his spouse supporting the Veteran’s continued pain in his left foot. Though later examinations still assert the Veteran does not have a diagnosis of a left foot disability, at a November 2012 VA examination, the Veteran was diagnosed with bilateral calcaneal spurs since 2012 and bilateral symmetric degenerative changes at the first metatarsophalangeal joints. The Veteran also asserts that his left foot disability is caused or aggravated by his right foot disability. Service connection for the Veteran’s right foot was granted in July 2015, after the Veteran filed this application to reopen his claim for service connection for a left foot disability. The Board finds this evidence is new and material as it relates to at least one of the reasons for the April 2008 denial of service connection for a left knee disability and raises a reasonable possibility of substantiating the Veteran’s claim. Accordingly, the claim is reopened. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). The Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. A lay person is competent to report to the onset and continuity of his symptomatology. Moreover, lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence or common knowledge of a lay person, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376–77 (Fed. Cir. 2007). The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person. A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. 2. Entitlement to service connection for degenerative disc disease and arthritis of the lumbar spine, to include as secondary to the service-connected right foot disability The Veteran asserts that he has back pain that is caused or aggravated by his service-connected right foot disability as he tries to keep as much weight off of his right foot as possible. The first question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or was aggravated beyond its natural progress by the service-connected right foot disability. The Board concludes that, while the Veteran has current diagnoses of degenerative disc disease and arthritis of the lumbar spine, the preponderance of the evidence is against finding that the lumbar spine disability is proximately due to, the result of, or aggravated beyond its natural progression by the service-connected right foot disability. The reasons follow. The November 2012 VA examiner, after diagnosing the Veteran with diffuse degenerative changes in his spine and noting some disc space narrowing, osteophytic spurring, and mild degenerative sclerosis, opined that the Veteran’s lumbar spine disability is not at least as likely as not caused or aggravated by the service-connected right foot disability as the Veteran’s right foot disability was not ongoing, but rather was a fracture in service that had since healed with no residuals. This is evidence against the Veteran’s secondary service-connection claim. The Veteran was provided another VA examination in June 2016. The June 2016 examiner further opined that the Veteran’s disabilities of the lumbar spine, including degenerative disc disease and spondylosis, are the result of the regular wear and tear associated with aging, which was supported by the x-rays taken in November 2012. Additionally, the examiner opined that as there was no evidence of degenerative disc disease of the lumbar spine until the Veteran first sought chiropractic care in 2010, it was less likely than not that any back pain is associated with the Veteran’s right foot injury in service as the in-service injury took place decades before the onset of degenerative disc disease of the lumbar spine. This is further evidence against the Veteran’s secondary service-connection claim. The Veteran has not submitted competent evidence of a nexus between the lumbar spine disability and his service-connected right foot disability upon which to weigh against the two negative medical opinions. The Veteran is not competent to provide such a nexus, as this would require medical expertise, which the Veteran has not alleged he has such expertise. This is an internal process, which is not conducive to lay opinions. Service connection may also be granted on a direct basis. However, the Board finds the preponderance of the evidence is against a finding that the Veteran’s degenerative disc disease of the lumbar spine is related to an in-service injury, event, or disease. At his November 2012 VA examination, the Veteran reported that he injured his back when he was thrown from a truck while serving in Vietnam. The Veteran also reported that he fell during a couple of air raids, further injuring his back. The Veteran is competent to report in-service injuries; however, the Board finds that these allegations are not credible. For example, the Veteran’s contemporaneous service treatment records (STRs) do not document complaints of or treatment for symptoms associated with back pain or any other back injury while in service. Additionally, at the Veteran’s separation examination, conducted in April 1971, he specifically denied ever having or having then “back trouble of any kind.” When asked on the form if he had ever had an illness or injury other than those already noted on the form, the Veteran checked no. The Veteran checked yes to multiple symptoms on the form, which means he read through the symptoms and checked yes to those he had experienced and no to those he had not experienced. Additionally, clinical examination of the Veteran’s spine was normal. These facts tend to establish that the Veteran did not sustain a back injury and was not having back problems in service, as he specifically denied both an injury and denied back trouble of any kind. The Board finds the facts documented in the STRs are more probative than the Veteran’s lay statements of injuries to his spine in service, as the STRs were created contemporaneously with the time period in question, and the Board finds no reason to question their accuracy. The Veteran’s current statements were made decades after his discharge from active duty service, and the Board finds his current statements have lessened probative value than the STRs. Furthermore, the Board finds the opinion of the June 2016 VA examiner, which noted that Veteran’s lumbar spine disability was more likely than not caused by the normal wear and tear of aging, to be more probative as to the cause of the current lumbar spine disability. Consequently, entitlement to service connection for degenerative disc disease and arthritis of the lumbar spine, to include as secondary to the service-connected right foot disability, is denied. 3. Entitlement to service connection for right knee degenerative joint disease, to include as secondary to the service-connected right foot disability The Veteran contends that his right knee degenerative joint disease is caused or aggravated by his service-connected right foot disability. The question for the Board is whether the Veteran has a current disability that is proximately due to, the result of, or aggravated beyond its natural progress by the service-connected right foot disability. The Board concludes that, while the Veteran has a current diagnosis of degenerative joint disease of the right knee following a total right knee replacement in November 2009, the preponderance of the evidence is against a finding that the Veteran’s right knee degenerative joint disease is proximately due to, the result of, or aggravated beyond its natural progression by the Veteran’s service-connected right foot disability. The November 2012 VA examiner diagnosed the Veteran with degenerative joint disease of the right knee and opined that the Veteran’s right knee degenerative joint disease was not at least as likely as not caused or aggravated by his service-connected right foot disability as the Veteran does not have ongoing residuals from his right foot fracture in service. The Veteran was provided another VA examination in June 2016. The June 2016 VA examiner diagnosed the Veteran with osteoarthritis of the right knee and also opined that the Veteran’s right knee was not at least as likely as not related to his foot, but was rather more likely the result of the normal wear and tear of aging. The examiner further opined that though it is possible for osteoarthritis to be accelerated by an injury, the Veteran’s claims file did not document significant complaints of knee pain or a knee injury until May 2008, decades after discharge from active duty service. As such, the Board finds it is less likely than not that the Veteran’s right knee degenerative joint disease is caused or aggravated by the Veteran’s service-connected right foot disability. The Board notes that osteoarthritis/degenerative joint disease is a chronic disease under 38 C.F.R. § 3.309(a). However, the preponderance of the evidence is against a finding that the Veteran’s right knee degenerative joint disease was chronic in service, was manifested to a compensable degree within one year following service discharge, and continuity of symptomatology is not established. Private treatment records show the Veteran was not diagnosed with a right knee degenerative joint disease until May 2008 when an MRI showed a meniscal tear and a two-month history of knee pain. This diagnosis did not take place until decades after the Veteran’s discharge from active duty service. Additionally, at the Veteran’s June 2016 VA examination, the Veteran reported that he first began experiencing knee pain approximately 10 years prior to the examination, which suggests an onset of knee pain in 2006—35 years after the Veteran’s discharge from active duty service. Service connection for a right knee degenerative joint disease may still be granted on a direct basis. However, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s degenerative joint disease of the right knee and an in-service injury, event, or disease. The Veteran, at his November 2012 VA examination, reported that he had numerous incidents of knee pain while in service, including being thrown from a truck while in Vietnam, though he did note that he was never treated for knee pain in service. However, even accepting that the Veteran did not seek treatment for his right knee in service, at the Veteran’s separation examination in April 1971, he specifically denied ever having or having then “trick or ‘locked’ knee.” When asked on the form if he had ever had an illness or injury other than those already noted on the form, the Veteran checked no. The Veteran checked yes to multiple symptoms on the form, which means he read through the symptoms and checked yes to those he had experienced and no to those he had not experienced. Additionally, clinical examination of the Veteran’s lower extremities was normal. The April 1971 Report of Medical Examination also shows that the Veteran was assigned a “1” for a high level of fitness in the category of the lower extremities on the Physical Profile Serial (“PUHLES”). See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). These facts tend to establish that the Veteran did not sustain an injury to his right knee and was not having knee problems in service, as he specifically denied an illness or injury and denied trick or locked knee at service discharge. The Board finds the facts documented in the STRs are more probative than the Veteran’s lay statements of an injury or injuries to his right knee in service, as the STRs were created contemporaneously with the time period in question, and the Board finds no reason to question their accuracy. The Veteran’s statements were made decades after his discharge from active duty service, and the Board finds his current statements have lessened probative value than the STRs. Furthermore, the Veteran’s private treatment records do not substantiate treatment for knee pain until May 2008, at which time, the Veteran reported a two-month history of knee pain, and at the Veteran’s June 2016 VA examination, the Veteran reported a history of knee pain for approximately 10 years. Notably, at both of these examinations, the Veteran did not report knee pain dating back to active duty service. Absent an in-service incident or injury, service connection on a direct basis is not warranted. While the Veteran believes his right knee degenerative joint disease is related to active duty service or is secondary to his service-connected right foot disability, he is not competent to provide a nexus opinion in this case, as this requires medical evidence. The Board finds the more probative medical evidence of record, including VA examinations, private treatment records, and contemporaneous STRs, do not support a nexus between the Veteran’s active duty service and his current right knee degenerative joint disease or a nexus between the right knee and the service-connected right foot disability. As such, service connection on a direct and secondary basis is denied. 4. - 5. Entitlement to service connection for a bilateral leg 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 bilateral leg disability, other than the Veteran’s right knee degenerative joint disease as noted above, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. At a November 2012 VA examination, the examiner reported that the Veteran did not have a diagnosis of any left knee disability, bilateral lower leg disability, or bilateral hip or thigh disability. The Veteran reported cramping in his legs since service that would last for a few minutes before going away. The examiner specifically documented that the Veteran did not have functional loss or impairment in his bilateral knees, lower legs, hips, or thighs, other than for the Veteran’s right knee, which is addressed above. The Board acknowledges that the Veteran reports ongoing pain in his legs and hips, and the Veteran’s spouse, in her January 2013 statement, reported the Veteran had pain in his legs and hips. However, while the Veteran and his spouse believe the Veteran has a current diagnosis of bilateral leg disability, they are not competent to provide a diagnosis in this case. The issue is medically complex, and consequently, the Board gives more probative weight to the competent medical evidence, which does not show a diagnosis of a bilateral leg disability or functional impairment due to pain. Absent a current diagnosis of a disability causing functional impairment, service connection for a bilateral leg disability is denied. 6. Entitlement to service connection for a left foot disability, to include as secondary to the service-connected right foot disability The first requirement for service connection is the diagnosis of a current disability. The record is unclear as to whether or not the Veteran has a current diagnosis of a left foot disability. For example, in a May 2012 statement, the Veteran’s spouse supported the Veteran’s contention that he has had ongoing pain in his left foot that was getting worse over time. At a VA examination in November 2012, the Veteran was diagnosed with bilateral calcaneal spurs since 2012 and symmetric degenerative changes at the first metatarsophalangeal joints. However, at subsequent VA examinations in February 2016 and June 2016, VA examiners did not diagnose the Veteran with any left foot disabilities, though the examiner did note that the Veteran reported ongoing pain and flat foot in the Veteran’s left foot with no functional loss at the June 2016 VA examination. Even assuming the Veteran has a current disability in his left foot, the Board finds that service connection is not warranted, including as secondary to the service-connected right foot disability. At the November 2012 VA examination, the examiner noted that the Veteran’s right foot stress fracture of the 3rd metatarsal sustained in service was not an ongoing problem for the Veteran and, as a result, the Veteran’s left foot disability could not be caused or aggravated by the right foot disability. At the June 2016 VA examination, the examiner, after noting the Veteran’s reports of burning in both of his feet, opined that the bilateral nature of the burning suggested that the Veteran’s symptoms were not at least as likely as not associated with the service-connected right foot disability, which was a fracture with no residual symptoms. While the Veteran believes his current left foot pain is caused or aggravated by his service-connected right foot disability, he is not competent to provide a nexus opinion in this case. The issue is medically complex, and consequently, the Board gives more probative weight to the opinion provided by VA examiners in November 2012 and June 2016. The first diagnosis of degenerative changes at the first metatarsophalangeal joint was documented in the November 2012 VA examination report, which is decades following the Veteran’s service discharge. There is no competent evidence it was manifested within one year following service discharge, and thus service connection on a presumptive basis is not warranted. Service connection may also be granted on a direct basis, but the preponderance of the evidence is also against finding that the Veteran’s left foot disability is related to an in-service injury, event, or disease. The preponderance of the evidence in the Veteran’s STRs is against a finding that the Veteran had a left foot injury or reported symptoms of left foot pain while in service. For example, at the Veteran’s separation examination in April 1971, he specifically denied ever having or having then “foot trouble.” When asked on the form if he had ever had an illness or injury other than those already noted on the form, the Veteran checked no. The Veteran checked yes to multiple symptoms on the form, which means he read through the symptoms and checked yes to those he had experienced and no to those he had not experienced. Additionally, clinical examination of the Veteran’s feet was normal. These facts tend to establish that the Veteran did not sustain an injury to his left foot and was not having left foot problems in service, as he specifically denied an illness or injury and denied foot trouble. The Board finds the facts documented in the STRs are more probative than the Veteran’s lay statements of an injury to his left foot in service, as the STRs were created contemporaneously with the time period in question, and the Board finds no reason to question their accuracy. The Board acknowledges that the Veteran and his spouse report the Veteran has had ongoing pain in his left foot. However, the Board finds the Veteran’s contemporaneous STRs to be more probative of the Veteran’s left foot symptomatology than the Veteran and his spouse’s lay statements, which were made decades after the Veteran’s discharge from active duty service. As the more probative evidence of record is against a finding that the Veteran’s left foot disability had its onset in service and that the Veteran’s left foot disability was not at least as likely as not caused or aggravated by the service-connected right foot disability, service connection for a left foot disability on a direct and secondary basis is denied. 7. Entitlement to service connection for retained foreign object in the chest and right hand The Veteran contends that he got shrapnel in his right hand and chest while traveling in a vehicle that was attacked while he was serving in Vietnam. 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 preponderance of the evidence in the Veteran’s claims file does not document a foreign object in the Veteran’s right hand or chest. While the Veteran believes he suffered a wound in service resulting in shrapnel or another foreign object remaining in his right hand or chest, the evidence of record does not support the Veteran’s contentions. The clinical findings in the medical records do not document shrapnel injuries to the Veteran’s chest and right hand. Consequently, the Board gives more probative weight to the competent medical evidence that does not document a current disability. 8. Entitlement to service connection for bilateral hearing loss disability The Veteran contends that he has a bilateral hearing loss disability that he attributes to exposure to acoustic trauma during service. The Veteran served as a cook, including service in Vietnam. For the purpose 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 (Hz) is 40 decibels or greater; or when 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. The Veteran meets the requirements of a current hearing loss disability for VA purposes. On the authorized VA audiological evaluation in December 2015, pure tone thresholds, in decibels, for the Veteran’s ears were as follows: HERTZ 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 15 15 25 50 60 LEFT 25 15 25 65 60 The Veteran’s speech recognition scores were 96 percent in both the right and left ear. The Veteran’s VA audiology treatment records from October 2014 also show that the Veteran had mild sensorineural hearing loss at 2000 Hz and moderate sensorineural hearing loss at 8000 Hz in both the right ear and left ear. The Veteran’s speech recognition scores were 96 percent in both the right and left ear. Sensorineural hearing loss (organic disease of the nervous system) is a chronic disease listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.309(b) based on chronic in-service symptoms and continuous post-service symptoms apply. Walker, 708 F.3d at 1331. The Veteran’s service treatment records (STRs) do not reflect any complaints, treatments, or diagnosis of hearing loss disability. Additionally, an April 1971 separation examination report, conducted just five months prior to the Veteran’s August 1971 discharge from service, shows that clinical evaluation of the ears was normal. The audiological evaluation shows pure tone thresholds, in decibels, for the Veteran’s ears were as follows: HERTZ 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 5 5 5 - 5 LEFT 15 5 5 - 5 The Veteran’s own Report of Medical History from April 1971 also showed he specifically denied a history of hearing loss. The Board accords this report by the Veteran along with the Veteran’s separation examination high probative value, as they were both completed contemporaneously with his service and the Board finds no reason to question their accuracy. The Veteran’s October 2014 audiological testing and December 2015 VA examination, both of which were conducted over 40 years after discharge from service, are the first indications that the Veteran has a diagnosis of bilateral hearing loss disability. As a result, service connection for bilateral hearing loss disability cannot be presumed as the preponderance of the probative evidence is against a finding of sensorineural hearing loss within one year following service discharge. The preponderance of the evidence is also against a finding of continuity of symptomatology. The STRs do not substantiate any complaints of hearing loss in service, and at his exit examination, the Veteran’s hearing was assessed as normal. Additionally, the Veteran denied hearing loss at discharge from service. As noted above, the Veteran’s treatment records do not show a diagnosis of a bilateral hearing loss disability until October 2014, over 40 years after discharge from service. When a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, his claim must still be reviewed to determine whether service connection can be granted on another basis. As such, the Board will adjudicate the claim on a theory of direct entitlement to service connection. The Board finds the preponderance of the evidence is against a nexus between the Veteran’s active duty service and the Veteran’s current bilateral hearing loss disability. The Veteran was afforded a VA examination in December 2015 to determine the nature and etiology of his hearing loss disability. At this VA examination, the examiner opined, after a complete review of the Veteran’s claims file, that the Veteran’s current bilateral hearing loss disability was less likely than not attributable to his service as the Veteran did not exhibit hearing loss at his separation examination in April 1971. The examiner explained that as damage from noise exposure occurs at the time of the exposure, and, because the Veteran’s audiogram immediately prior to discharge from service was normal, the Veteran’s audiogram from April 1971 is evidence that the Veteran had recovered from any noise exposure in service without permanent loss. The Veteran’s allegation of hearing loss being due to in-service noise exposure is outweighed by the more probative medical evidence, including the April 1971 separation examination, which showed normal hearing, the April 1971 Report of Medical History, wherein he specifically denied a history of hearing loss, his October 2014 VA audiological testing, and his December 2015 VA examination. Absent competent and credible evidence of a nexus between the in-service acoustic trauma and the Veteran’s current bilateral hearing loss disability, service connection cannot be granted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence. Thus, the claim for service connection for bilateral hearing loss disability is denied. 9. Entitlement to service connection for CAD, to include as due to exposure to herbicides/AO 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 CAD or any other heart disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. At a December 2015 VA examination, the examiner evaluated the Veteran and determined that the Veteran did not have a diagnosis of CAD, ischemic heart disease, or any other heart disability. The Board acknowledges that the Veteran asserts that he has a heart disability that is due to in-service exposure to herbicides and AO. The Board notes that the Veteran’s military personnel records document service in Vietnam, and the presumption of service connection would apply. 38 C.F.R. §§ 3.307, 3.309. However, absent a current diagnosis of ischemic heart disease, service connection must be denied. 10. Entitlement to service connection for right foot cellulitis 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 acknowledges that the Veteran’s STRs show that the Veteran was treated for right foot cellulitis in October 1969 while on active duty service. However, the Board concludes that the Veteran does not have a current diagnosis of right foot cellulitis or residuals of cellulitis stemming from the Veteran’s instance of right foot cellulitis in service throughout the appeal period, including in close proximity to the appeal period. At a March 2016 VA examination, the examiner evaluated the Veteran and reported that he did not have a diagnosis of a skin disability, and the Veteran reported that he did not remember having a skin infection while in service. Absent a current diagnosis of right foot cellulitis, service connection must be denied. 11. Entitlement to service connection for a TDIU rating A TDIU rating may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 C.F.R. § 4.16(a). There are minimum disability rating percentages that must be shown for the service-connected disabilities, alone or in combination, to even qualify for consideration for a TDIU award under § 4.16(a). Indeed, if there is only one such disability, it must be rated at 60 percent or more; if instead there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. If a veteran does not meet the aforementioned criteria, a total disability may still be assigned, but on a different basis. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, the rating boards are required to submit to the Director, Compensation Service, for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage of standards set forth in 38 C.F.R. § 4.16(a). Id. In determining whether a veteran is unemployable for VA purposes, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A veteran need not show 100 percent unemployability in order to be entitled to a TDIU rating. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The U.S. Court of Appeals for Veterans Claims (Court) has held that the central inquiry in determining whether a veteran is entitled to a TDIU rating is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether a veteran, as a result of his or her service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his or her educational and occupational experience. 38 C.F.R. § 3.340, 3.341, 4.16. The Board also notes that the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran is currently service connected for posttraumatic stress disorder (PTSD) at a rate of 50 percent; tinnitus at a 10 percent rate; and stress fracture of the right foot, 3rd metatarsal at a noncompensable rate. The Veteran’s combined rating is 60 percent from November 17, 2015. As the Veteran does not have a combined total rating over 70 percent, the schedular criteria for a TDIU rating have not been met. Regardless, the Board will consider whether referral for extraschedular consideration for a TDIU rating is warranted. The Veteran’s military personnel records show that he served as a cook. On the Veteran’s first application for entitlement to a TDIU rating, submitted in July 2010, he reported that his PTSD was the main cause of his unemployability. The Veteran also reported that he had completed high school, but had no other education. The Veteran reported only one job working as a heavy machinery mechanic at a lumber company from December 1989 to December 2008. The Veteran reported that he did not leave the lumber company due to his disability, but rather he was laid off. He also reported that he had not tried to obtain additional employment since that time. In October 2010, the Veteran’s employer submitted a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, confirming that the Veteran had worked at the lumber company from December 1989 to December 2008 as a diesel mechanic, wherein he worked 8 hours a day and 40 hours on a weekly basis. The employer wrote there were no concessions made by reason of age or disability and that the Veteran had stopped working due to lack of work due to inventory. In January 2015, the same employer submitted another VA Form 21-4192, wherein it provided the same facts (worked as diesel mechanic, hours worked, no concessions made), although, this time, the employer wrote that the Veteran had worked from April 1989 to December 2008 and had quit the job. The Veteran’s initial claim for a TDIU rating was denied in November 2010, but the Veteran submitted a new claim in November 2015. In January 2013, the Veteran’s spouse submitted a statement indicating that the Veteran was too disabled to work due to his physical disabilities, specifically noting that the Veteran takes steroid shots and pain pills for his back and shoulder. The Veteran’s records from the Social Security Administration (SSA) show that the Veteran filed for SSA disability benefits, noting that his PTSD and his knee disability were the reason he was unable to maintain employment. The Veteran continued to report that he was laid off and did not quit his job due to his disabilities, but he reported that since that time his disabilities had gotten worse and he no longer felt he was able to maintain employment. The Veteran reported that his knee pain began impacting his employment in May 2008. In a September 2010 psychological examination done in connection with the Veteran’s claim for SSA disability benefits, the psychologist determined that the Veteran could understand and remember one or two stage instructions with mild to moderate difficulty. The psychologist determined that the Veteran’s capacity to sustain attention to complete tasks was mildly to moderately limited. He added that social interaction was generally impaired as a consequence of social withdrawal and isolation to a moderate degree. The psychologist concluded that the Veteran’s overall capacity to adapt to pressure of normal daily work activity was probably moderately limited at that time. The Board notes that the Veteran’s SSA records and the lay statements of the Veteran and his spouse suggest that the Veteran’s physical disabilities, specifically pain in his back, knees, and shoulder, significantly impact the Veteran’s ability to obtain and maintain substantially gainful employment. For VA purposes, only the Veteran’s service-connected disabilities may be considered when determining whether the Veteran is unemployable, and the Veteran’s back, shoulder, and knee disabilities are either not service connected for have been found to be not related to the Veteran’s active duty service. In this case, only the Veteran’s PTSD seems to have an impact on employability as the Veteran’s numerous VA examinations detailed above show the Veteran’s right foot disability does not currently cause functional impairment or residual disability. Furthermore, at the Veteran’s most recent audiological examination in December 2015, it was noted that the Veteran’s tinnitus does not impact ordinary conditions of daily life or his ability to work. The Veteran is currently in receipt of a 50 percent rating for PTSD, which suggests that the Veteran’s PTSD causes some occupational and social impairment with reduced reliability and productivity. At the Veteran’s most recent VA mental health examination in December 2015, the Veteran reported that his symptoms had actually increased after he quit working, as he was less busy, and he reported that when he was working, he liked to work overtime and he never missed work due to his symptoms of PTSD. At this examination, the Veteran reported that he retired after his right knee replacement, and he did not report that he had been laid off. The examiner noted that the Veteran was oriented, though easily distracted, but stated the Veteran’s thought processes were logical and goal-directed, his judgment and intelligence were average, and his memory was normal, other than his immediate memory, which was only mildly impaired. It was noted that the Veteran was capable of managing his finances. When asked which description best summarized the Veteran’s level of occupational and social impairment due to the Veteran’s service-connected psychiatric disorder, the examiner checked the criteria that falls under the 50 percent rating, which contemplates reduced reliability and productivity in an occupational setting. Based on a review of the evidence of record, the Board finds the preponderance of the evidence is against a finding that Veteran’s PTSD would cause impairment that could not be reasonably accommodated by employers, and the Veteran’s PTSD does not prevent him from obtaining and maintaining substantially gainful employment. Neither the September 2010 private psychologist or the December 2015 VA psychologist found that the Veteran’s PTSD prevented him from securing and maintaining a substantially gainful employment. The current combined 60 percent rating contemplates the Veteran’s impairment in earning capacity. As the Veteran is not unable to obtain and maintain gainful employment based on his service-connected disabilities, referral for extraschedular consideration for a TDIU rating is not warranted. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Keninger, Associate Counsel