Citation Nr: 18152980 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 15-46 760 DATE: November 27, 2018 ORDER Entitlement to service connection for a left foot disability is denied. REMANDED Issue of service connection for a low back disability is remanded. Issue of service connection for a left knee disability is remanded. Issue of service connection for hearing loss is remanded. Issue of service connection for tinnitus is remanded. Issue of service connection for sleep problems is remanded. FINDINGS OF FACT The preponderance of the evidence is against finding that the Veteran has, or has had at any time during the appeal, a current left foot disability. CONCLUSIONS OF LAW The criteria for service connection for a left foot disability have not been met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from June 1981 to September 1981, and active duty from December 1990 to May 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision issued by the Department of Veterans Affairs (VA). The Veteran perfected his appeal. See July 2014 Notice of Disagreement; October 2015 Statement of the Case; December 2015 VA Form 9. The Veteran attended an informal hearing conference with a Decision Review Officer (DRO) in January 2017. A report of the conference is associated with the claims file. While the appeal was pending, additional VA treatment records, dated from January 2015 to January 2017, were received. A March 2017 Supplemental Statement of the Case was issued, which continued the denial of service connection for a left foot disability, low back disability, left knee disability, hearing loss, tinnitus, and sleep problems. The Board notes that the Veteran’s claim for low back disability, left knee disability, left foot disability, hearing loss, and sleep problems were previously denied in an April 2012 rating decision. Any time after VA issues a decision on a claim, VA will reconsider the claim if VA receives or associates relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. See 38 C.F.R. § 3.156(c). The Regional Office (RO) indicated that, at the time the April 2012 rating decision was issued, the Veteran’s service treatment records for his period of active duty from December 1990 to May 1991 could not be obtained. See April 2012 Notification letter. Since the April 2012 rating decision, the Veteran’s service treatment records for his period of active duty have been received and associated with the claims file. This evidence includes medical records showing the Veteran was stationed at Fort Hood during his active duty period and the Reports of Medical Examination on entrance and separation. Thus, relevant official service department records that existed, but had not been associated with the record at the time of the April 2012 rating decision, have now been received. Accordingly, the merits of the Veteran’s claims require reconsideration. Entitlement to service connection for a left foot disability. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection is established when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran initially asserted that his claim of service connection for his left foot is based on an injury to his big toe while in the reserve, and not during active duty. See February 2011 VA 21-0820. The Veteran then indicated that he developed foot pain from physical training, patrolling, and running. See February 2014 Statement in Support of Claim. During the January 2017 informal hearing conference, the Veteran related that his left foot and toes are numb and was told it was a nerve condition caused by his back. The Board concludes that the Veteran does not have a current left foot disability, and has not had one recent to the filing of his claim or at any time during the pendency 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). While the Board has considered the Veteran’s complaint of a left foot disability, the evidence reflects that such complaints of symptoms do not amount to a disability that currently functionally impairs the Veteran. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the symptoms related to a specific body system or joint involved must functionally impair the Veteran to constitute a disability). The lack of treatment for a left foot disability since the time recent to when the Veteran filed his August 2010 claim of service connection for a left foot disability provides highly probative evidence against finding a current left foot disability. A review of the medical evidence shows the Veteran had no treatment for a left foot disability at any time recent to the filing of the claim or while the claim was pending appeal. The only evidence of left foot treatment is in a March 1992 Individual Sick Slip showing the Veteran hurt his left big toe, more than 18 years prior to when he filed his current claim on appeal. The evidence is otherwise absent for even a generic complaint to his medical providers of a left foot problem. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See, e.g., Degmetich v. Brown, 104 F.3d 1328 (1997). However, Congress has specifically limited entitlement to service connection for a disease or injury where such instances have resulted in a disability. 38 U.S.C. §§ 110, 1131. Hence, where the evidence does not support a finding of a current disability of residuals of a cold injury upon which to predicate the grant of service connection, there can be no valid claim for this benefit. See Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Because the first element of service connection, i.e., a current disability, has not been met, service connection for residuals of a cold injury must be denied. In reaching the conclusions below, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 1990). REASONS FOR REMAND As discussed above, the April 2012 rating decision on the Veteran’s claim for a low back disability, left knee disability, left foot disability, hearing loss, and sleep did not become final and that period is currently on appeal. The Board acknowledges that a December 2013 rating decision was issued after VA received the relevant service treatment records, but that decision only considered the Veteran’s claim of service connection for a low back disability and denied the claim on the basis of no new and material evidence rather than adjudicating the claim de novo in accordance with 38 C.F.R. § 3.156(c). 1. Issue of service connection for low back disability is remanded. The Board cannot make a fully-informed decision on the issue of service connection for a low back disability because no VA examiner has opined whether there is a medical nexus between the Veteran’s current low back disorder and an in service injury or event. The Veteran was assessed with low back pain related to disc pathology during his February 2017 VA treatment. The Veteran asserts that the low back disability is due to a back injury during training at Fort Hood, when was rear ended in a Bradley vehicle by another track vehicle, causing him to hit his back on an iron seat. See February 2014 Statement in Support of Claim; January 2017 Conference Report. Service treatment records show the Veteran was stationed at Fort Hood in January 1991, during his period of active duty. In addition, a fellow service member related in a July 2012 buddy statement that the Veteran also complained of back pain while carrying ammunition. The above evidence suggests that the Veteran has a current low back disorder, which may have had its onset in military service. Thus, the Board finds the Veteran should be afforded a VA examination to determine its nature and etiology. See McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). 2. Issue of service connection for a left knee disability is remanded. The Board cannot make a fully-informed decision on the issue of service connection for a left knee disability because no VA examiner has opined whether there is a medical nexus between the Veteran’s current knee disability and an in service injury or event. The Veteran has asserted that he injured his left knee from physical training, patrolling, running, when he was rear-ended in the Bradley vehicle at Fort Hood, and when he was in full gear, stepped on a rock, and fell on his left knee. See February 2014 Statement in Support of Claim; July 2014 Notice of Disagreement; January 2017 Conference Report. The Board notes that the evidence does not show current medical treatment specifically for the Veteran’s left knee. A July 1999 service treatment record, after the Veteran’s period of active duty, indicates the Veteran has had chronic right knee pain since 1987, with no mention of his left knee. Likewise, a November 2013 VA treatment record shows the Veteran reported right lateral knee pain after getting on his knees and hearing a pop, but no mention of his left knee. However, there are several treatment notes referencing chronic knee pain without specifying which knee or if it is a bilateral condition. See December 2009 VA treatment record. The evidence also contains a single reference to left knee pain during a February 2017 VA treatment record for his back. In giving the Veteran the full benefit of the doubt, the Board finds that the available evidence shows a current left knee disorder. As the above evidence suggests that the Veteran has a current left knee disorder which may have had its onset in military service, the Board finds the Veteran should be afforded a VA examination to determine its nature and etiology. See McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). 3. Issue of service connection for hearing loss is remanded. The Board cannot make a fully-informed decision on the issue of hearing loss because no VA examiner has opined if there is a shift of auditory acuity thresholds found in the Veteran’s service treatment records. The June 2011 VA examiner opined that the Veteran has mild to moderate sensorineural hearing loss, but that it was not caused by noise exposure while in the military. The VA examiner indicated the claims file was reviewed in rendering the opinion, but the Board notes that the claims file at the time did not contain the Veteran’s service treatment records during his active duty period. These service treatment records include the hearing test findings during the Veteran’s enlistment and separation from active duty. The auditory testing results in the June 1990 Report of Medical Examination during the Veteran’s enlistment and April 1991 Report of Medical Examination on separation shows the Veteran had a 40-decibel acuity threshold at 4000 hertz, but hearing loss was noted only during the separation report. Clarification is needed on whether the auditory testing at enlistment show hearing loss pre-existed his active duty service. The Reports also show a 0 to 10 decibel change at the 500, 1000, 2000, and 3000 hertz frequencies during enlistment and separation. See June 1990 Report of Medical Examination; April 1991 Report of Medical Examination. Therefore, the Board finds that a new VA examination is needed due to the relevant evidence received since the June 2011 VA examination and the clarification needed regarding the relevancy of shifts of auditory acuity thresholds, if any. 4. Issue of service connection for tinnitus is remanded. The Board cannot make a fully-informed decision on the issue of service connection for tinnitus because clarification of its nature and etiology, if any, is needed. The June 2011 VA examiner diagnosed the Veteran only with sensorineural hearing loss, but then suggested the Veteran had a current diagnosis of tinnitus by opining that his tinnitus is not due to service. A December 2010 VA treatment record indicates that the Veteran related to a history of hearing loss for three years with occasional tinnitus, but his treatment provider assessed only sensorinural hearing loss. Likewise, the lay evidence shows inconsistent complaints of tinnitus. The Veteran asserts that he hears ringing sound in his ear all day. See December 2015 VA Form 9. However, a September 2011 VA treatment record indicates the Veteran denied having tinnitus. The Board finds than a new VA examination to further develop the Veteran’s claim of service connection for tinnitus is needed. 5. Issue of service connection for sleep problems is remanded. Finally, because a decision on the remanded issue of service connection for a low back disability could significantly impact a decision on the issue of service connection for sleep problems, the issues are inextricably intertwined. A remand of the claim of service connection for sleep problems is required. The Veteran asserted that he suffers from sleep apnea, but later clarified that he does not have sleep apnea and has sleep problems secondary to depression and his back disorder. See February 2014 Statement in Support of Claim; January 2017 informal hearing conference. A December 2010 VA treatment record shows the Veteran has problems falling asleep. If the Veteran’s low back disability is found to be service connected on remand, the Board finds that a VA examination is needed as to whether his current sleep problems are secondary to a service connected low back disability. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the provider(s) of any evaluations and/or treatment received for his low back, left knee, hearing loss, tinnitus, and sleep problems, and provide authorizations for VA to obtain records of any such identified private treatment. Obtain complete clinical records of all pertinent evaluations and treatment (records of which are not already associated with the claims file) from the providers identified. If any records sought are unavailable, the reason for their unavailability must be noted in the claims file. If a provider does not respond to VA’s request for the identified records sought, the Veteran must be so notified and reminded that it is ultimately his responsibility to ensure that private treatment records are received. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any low back disability. The examiner should respond to the following: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s low back disorder (1) began or is otherwise related to an in service injury, event, or disease (2) manifested within a year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? The examiner should consider and discuss the Veteran’s lay testimony and assertions regarding any pertinent complaints and symptoms. A detailed explanation (rationale) is requested, including citing to supporting clinical data (and/or medical literature), as appropriate. If his low back disorder is deemed to be unrelated to service, the examiner should, if possible, identify the cause considered more likely and explain why that is so. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left knee disability. The examiner should respond to the following: If a left knee disorder is found, is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s knee disorder began or is otherwise related to an in service injury, event, or disease. The examiner should consider and discuss the Veteran’s lay testimony and assertions regarding any pertinent complaints and symptoms, including the Veteran’s lay statement that he injured his knee after being rear-ended in a Bradley vehicle and that he was in full gear and fell on his left knee. A detailed explanation (rationale) is requested, including citing to supporting clinical data (and/or medical literature), as appropriate. If a left knee disorder is found and deemed to be unrelated to service, the examiner should, if possible, identify the cause considered more likely and explain why that is so. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his hearing loss and asserted tinnitus. The examiner should respond to the following: Does the Veteran have a current diagnosis of tinnitus? Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s hearing loss and tinnitus (if found to be a diagnosed condition) began or is otherwise related to an in service injury, event, or disease? The examiner should consider and discuss the Veteran’s lay testimony and assertions regarding any pertinent complaints and symptoms. A detailed explanation (rationale) is requested, including citing to supporting clinical data (and/or medical literature), as appropriate. If hearing loss is found to have existed prior to his active duty service from December 1990 to May 1991, is there evidence of aggravation (permanent worsening beyond the natural course of a disease) during that period of duty? The examiner should consider and directly address any shifts of acuity thresholds found in the service treatment records even if the shifts do not amount to a hearing loss disability under 38 C.F.R. § 3.385. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The examiner should ideally consider and reconcile any conflicting audiograms and opinions. The examiner should consider and directly address the Veteran’s lay statements regarding continuity of hearing loss symptoms through the years. The examiner should consider and directly address both in service noise exposure and post service noise exposure. If his hearing loss or tinnitus is deemed to be unrelated to service, the examiner should, if possible, identify the cause considered more likely and explain why that is so. 5. After the above development has been completed, review the record and ensure that all development sought in this remand has been completed. Arrange for any further development indicated by the results of the development requested above (e.g., an VA examination for a nexus opinion regarding service connection for a sleep disorder on a secondary basis, if deemed warranted by the AOJ), and re-adjudicate the claims. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. The case should be returned to the Board, if in order, for further appellate review. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Lin, Associate Counsel