Citation Nr: 18154396 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 15-12 138 DATE: November 29, 2018 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied Entitlement to service connection for a right wrist condition is denied. Entitlement to service connection for a left wrist condition is denied. Entitlement to service connection for a right foot disability is denied. Entitlement to service connection for a left foot disability is denied. Entitlement to service connection for a back disability is denied. REMANDED Entitlement to service connection for a lung condition is remanded. FINDINGS OF FACT 1. The preponderance of the competent evidence of record is against finding a bilateral hearing loss disability for VA compensation purposes. 2. The preponderance of the competent evidence of record is against finding diagnosis of a right wrist disability proximate to the claim, or during the appeal period. 3. The preponderance of the competent evidence of record is against finding diagnosis of a left wrist disability proximate to the claim, or during the appeal period. 4. The Veteran’s bilateral pes planus, was noted at entrance to service and pre-existed service; the preponderance of the competent evidence of record indicates that his pes planus was not aggravated during active service. 5. The preponderance of the competent evidence of record is against finding that the Veteran has a right foot disability, other than pes planus, that is etiologically related to an in-service injury, event or disease. 6. The preponderance of the competent evidence of record is against finding that the Veteran has a left foot disability, other than pes planus, that is etiologically related to an in-service injury, event or disease. 7. The preponderance of the competent evidence of record is against finding that the Veteran has a back disability etiologically related to an in-service injury, event or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for entitlement to service connection for a right wrist condition, have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). 3. The criteria for entitlement to service connection for a left wrist condition, have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). 4. The criteria for entitlement to service connection for a right foot disability, have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). 5. The criteria for entitlement to service connection for a left foot disability, have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). 6. The criteria for entitlement to service connection for a back disability, have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1996 to August 1997. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The RO recharacterized the Veteran’s service connection claim for shortness of breath more broadly to include lung conditions. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (holding that a claimant may adequately identify the disability for which compensation benefits are sought by referring to a body part or system that is disabled, or by describing the symptoms of that disability). Service Connection Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, (2012); 38 C.F.R. § 3.303 (2018). To establish service connection for a disability, the Veteran must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 as requiring the existence of a current disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 1. Entitlement to Service Connection for Bilateral Hearing Loss The Veteran contends that he currently has a bilateral hearing loss disability that began during his active service. See VA Form 9, received April 2015. For the purposes 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 (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2018). Thus, a hearing loss disability for VA purposes is defined by 38 C.F.R. § 3.385 and is based on objective audiometric and speech recognition testing. In this case, the record is absent for evidence of current hearing loss disability of either ear as defined under 38 C.F.R. § 3.385 at any time during the appeal period or in proximity to the claim for service connection. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Specifically, the March 2014 VA examination includes an audiogram report revealing the following audiometric findings, measured in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 15 15 25 LEFT 20 20 20 20 20 The Veteran had 100 percent speech discrimination in the right and left ears and r using the Maryland CNC word list. Thus, the audiological testing conducted in conjunction with the March 2014 VA examination did not reveal findings that would indicate a hearing loss disability for VA purposes under 38 C.F.R. § 3.385 in either ear. There are no other audiological measurements of record dated any time during the appeal period or in proximity to the claim for service connection that show a hearing loss disability for VA purposes in either ear. The Board has considered the Veteran’s contention that he has hearing loss that began during his active service. The Veteran, as a lay person, is competent to report that he has difficulty hearing; however, he is not competent to diagnose a hearing loss disability for VA purposes. See Kahana, 24 Vet. App. at 435; Buchanan, 451 F.3d at 1336-37. Diagnosing a hearing loss disability for VA purposes involves diagnostic medical testing and requires medical expertise and knowledge the Veteran has not been shown to possess. Therefore, the Veteran’s reports of hearing loss do not constitute competent evidence of bilateral hearing loss disability for VA purposes under 38 C.F.R. § 3.385 (2018). As noted above, in the absence of proof of a current disability, there can be no valid claim. Brammer, 3 Vet. App. at 225. In this case the record is absent for competent evidence of bilateral hearing loss disability for VA purposes during or in proximity to the appeal period. Without evidence of current bilateral hearing loss disability for VA purposes, the Board need not address the other elements of service connection. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b) (2012); see also Gilbert, 1 Vet. App. 49. 2. Entitlement to Service Connection for Right and Left Wrist Conditions and The Veteran contends that he has a bilateral wrist condition that is directly related to his active service. Specifically, the Veteran stated that he injured his bilateral wrists during service. See Notice of Disagreement, received July 2014. In this case, the evidence of record does not contain probative evidence of a bilateral wrist disability at any time proximate to, or during, the claim. Specifically, private and VA treatment records are silent for any evidence of a right or left wrist disability. Additionally, the Veteran’s VA treatment records reflect that he was provided a physical examination in January 2015. During the examination, the Veteran had full range of motion of the wrist, hand, and fingers without pain. Thus, the most probative evidence is against finding that the Veteran has a current bilateral wrist disability that had its onset during active service. As such, service connection for a bilateral wrist condition is not warranted. Degmetich, 104 F. 3d at 1333. The Board acknowledges that the Veteran was not afforded a VA examination relating directly to his bilateral wrist condition. On these facts, however, an examination is not required. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A(d) (2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the claim does not meet these requirements for obtaining a VA medical opinion. Because the weight of the evidence demonstrates no indication of a current disability, no examination is required. Absent evidence that indicates that the Veteran has a current claimed disability that is related to an injury or symptoms in service, the Board finds that a VA examination or opinion is not necessary for disposition of the claim. Accordingly, the Board finds that VA’s duty to assist with respect to obtaining a VA examination or opinion with respect to the Veteran’s claim for entitlement to service connection for a bilateral wrist condition have been met. 38 C.F.R. § 3.159 (c) (4). The Board acknowledges the Veteran’s assertions that he has a current bilateral wrist condition. However, he has not been shown to have the medical training and knowledge required to diagnose such conditions. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37. Therefore, his assertions are not considered competent and do not weigh against the probative value of the medical treatment records, which do not show evidence of a bilateral wrist disability or recurrent symptomatology consistent with a wrist disability. As noted above, the threshold requirement for service connection is competent medical evidence of the existence of the claimed disability at some point during the course of the appeal or in proximity to the claim. See Degmetich, 104 F. 3d at 1332; Brammer, 3 Vet. App. at 225; see also McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Board is cognizant of the recent holding in Saunders v. Wilkie which stated that where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). In sum, pain alone resulting in functional impairment is in fact a disability, and should not be summarily discounted as a bar to benefits based on a finding of no current diagnosis. However, the Veteran does not claim, nor do his medical records show that he experiences, any functional impairment due to his claimed bilateral wrist condition. As such, the Veteran’s bilateral wrist condition does not amount to a functional impairment of earning capacity, and Saunders is not applicable in this case. In the absence of proof of a current disability, there can be no valid claim. Brammer, 3 Vet. App. at 225. In this case there is no proof of a wrist disability during or in proximity to the appeal period. Without evidence of a current bilateral wrist disability the Board need not address the other elements of service connection. The preponderance of the evidence is therefore against the claim, the benefit-of-the-doubt doctrine is not for application, and the claims must be denied. 38 U.S.C. § 5107(b) (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to Service Connection for a Bilateral Foot Condition The Veteran contends that he has a current bilateral foot disability that is directly related to his active service. Specifically, the Veteran stated that he has documented bilateral foot conditions in his service treatment records. See Notice of Disagreement, received July 2014. The evidence of record demonstrates that the Veteran reported that activities are limited by foot pain. See VA treatment record dated July 2014. Pain can be considered a disability where it causes functional impairment, even in the absence of an underlying diagnosis. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Therefore, there is evidence of a current disability. The Board notes that the Veteran’s August 1996 report of medical examination indicates that asymptomatic mild pes planus was noted at induction. If a Veteran seeks service connection for a preexisting disorder noted upon entry into service, the Veteran has the burden of showing that there was an increase in disability during service to establish the presumption of aggravation. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (stating that the Veteran bears the burden of establishing that there was an increase in the disability during service). If the Veteran meets his burden of demonstrating an increase in service, the disability is presumed to have been aggravated in service, and the burden is on the Secretary to rebut that presumption. Horn v. Shinseki, 25 Vet. App. 231, 234 (2012); 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (2018). To rebut that presumption, the Secretary must show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease. Id. at 235 n. 6; 38 U.S.C. § 1153 (2012). After reviewing the Veteran’s service treatment records, the Board finds that the preponderance of the evidence indicates that the Veteran’s preexisting pes planus was not aggravated during his military service. Specifically, his service treatment records do not reflect any symptoms, complaints, or treatment for pes planus or any foot symptoms. In light of the above, the Board finds that the Veteran has not met his threshold burden of establishing that there was an increase in his preexisting pes planus disability during service. As such, the presumption of aggravation is not triggered and the claim must be denied. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); see also Horn v. Shinseki, 25 Vet. App. 231, 234 (2012); 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (2018). Regarding a foot disability other than pes planus, the Veteran’s service treatment records do not reflect any symptoms, complaints, or treatment for foot pain or any foot condition. The earliest indication in the record of a bilateral foot disability is a June 2014 VA treatment record, which noted that the Veteran reported bilateral foot pain. In the absence of an in-service, event, injury or disease, to which the current bilateral foot disability may be medically attributed, the claim must be denied. The only evidence indicating an association between the current bilateral foot disability and his active service are the Veteran’s own assertions. In his July 2014 notice of disagreement, the Veteran stated that he has a bilateral foot disability that is related to his active service. It is well established that a layperson without medical training is not qualified to render a medical opinion regarding the diagnosis or etiology of certain disorders and disabilities. See 38 C.F.R. § 3.159 (a) (1). In certain instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). However, the origin or cause of bilateral foot pain is not a simple question that can be determined based on personal observation by a lay person. It is not shown that the Veteran is qualified through specialized education, training, or experience to offer a medical opinion as to the etiology of bilateral foot pain. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Hence, the Veteran’s lay statement is not competent to establish medical etiology or nexus. Id. As such, the Board finds the question of whether the Veteran’s current bilateral foot disability does not lie within the range of common experience or common knowledge but requires special experience or special knowledge. The Board acknowledges that the Veteran was not afforded a VA examination relating directly to his bilateral foot disability. On these facts, however, an examination is not required. In this case, the claim does not meet these requirements for obtaining a VA medical opinion. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Because the weight of the evidence demonstrates is against finding that the Veteran’s pre-existing pes planus was aggravated during service and there is no evidence of bilateral foot disability, other than pes planus, during service, or evidence of a bilateral foot disability for many years thereafter, no examination is required. Absent evidence that indicates that the Veteran has a current claimed disability that may be related to an injury or symptoms in service, the Board finds that a VA examination or opinion is not necessary for disposition of the claim. Accordingly, the Board finds that VA’s duty to assist with respect to obtaining a VA examination or opinion with respect to the Veteran’s claim for entitlement to service connection for a bilateral foot disability has been met. 38 C.F.R. § 3.159(c)(4) (2018). In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for a bilateral foot disability. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to Service Connection for a Back Disability The Veteran contends that he has a back disability that is directly related to his active service. Specifically, the Veteran contends that he injured his back lifting heavy artillery shells. See February 2014 VA examination. The evidence of record shows that the Veteran has a current diagnosis of lumbosacral strain. See, e.g., February 2014 VA examination. Therefore, there is evidence of a current disability. As to an in-service event, injury or disease, the Veteran’s service treatment records reveal a January 1997 complaint of low back pain, which was assessed as a low back strain. Accordingly, there is also evidence of an in-service injury, and the issue remaining for consideration is whether the Veteran’s current back disability is etiologically related to the in-service injury. With respect to a nexus between the current disability and in-service event, the only competent medical opinion of record is the February 2014 VA opinion, which weighs against the Veteran’s claim. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The VA examiner noted that the Veteran’s service treatment records contain a notation of low back pain after heavy lifting. The VA examiner noted there was no indication of follow-up treatment or record of duty limitations. During the VA examination the Veteran did not recall visits or treatment for a specific back injury. The VA examiner opined that it is less likely than not that the Veteran’s current low back disability is related to the in-service treatment for a low back strain. As rationale, the VA examiner stated there is no evidence of sequelae or persistent low back symptoms during service. Additionally, the VA examiner stated that the Veteran’s current low back disability is more likely due to activity after the Veteran’s separation from active service, to include a motor vehicle accident. The Board finds the February 2014 VA opinion to be highly probative and therefore afforded great weight, as it was based on a review of the Veteran’s relevant medical history, took into consideration the Veteran’s contentions, and was supported by an adequate rationale. The only evidence indicating an association between the current low back disability and active duty are the Veteran’s own assertions. It is well established that a layperson without medical training is not qualified to render a medical opinion regarding the diagnosis or etiology of certain disorders and disabilities. See 38 C.F.R. § 3.159(a)(1). In certain instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). However, as the origin or cause of lumbosacral strain is not a simple question that can be determined based on personal observation by a lay person, the Veteran’s lay statements are not competent to establish medical etiology or nexus. Id. As such, the Board finds the question of whether the Veteran’s current lumbosacral strain had its onset during active duty does not lie within the range of common experience or common knowledge but requires special experience or special knowledge. It is not shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical opinion as to the etiology of lumbosacral strain. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As such, the lay statements provided by the Veteran are not competent evidence as to whether the Veteran’s current lumbosacral strain, is related to active service. Moreover, such a finding is not supported by the record. Specifically, the February 2014 VA examiner opined that the Veteran’s low back disability is more likely related to a motor vehicle accident. Additionally, the medical records contain a December 2011 private treatment record indicating that the Veteran was involved in a bus accident and complained of back pain after the accident occurred. In summary, the most probative evidence of record does not support a finding that it is at least as likely as not that there is a causal relationship between the Veteran’s current low back disability and his active military service. In light of the above, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not for application. The claim therefore must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). VA’s Duty to Notify and Assist With respect to the Veteran’s claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2018); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). REASONS FOR REMAND 1. Entitlement to service connection for a lung condition is remanded. The Veteran was provided a VA respiratory conditions examination on February 18, 2014. The VA examiner noted that the Veteran’s service treatment records contain four episodes of care for respiratory problems. The VA examiner further noted that the Veteran admitted to continuous one to two pack per day cigarette smoking since he was twelve years old. The VA examiner opined that there is no currently diagnosable respiratory condition, despite the Veteran’s documented in-service treatment for pneumonias. Pulmonary function tests (PFT) subsequent to the VA examination, indicated a markedly-abnormal Flow-Volume Loop pattern. VA treatment records from April 2014 continue to note the Veteran’s abnormal PFT and history of wheezing. In light of the above, a remand for another VA examination is warranted to determine whether the Veteran’s abnormal PFT results are evidence of a lung condition and, if so, to obtain an opinion regarding whether such disability is related to service. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed lung condition. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any respiratory condition, to include the Veteran’s abnormal PFT results and reported history of wheezing. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran documented treatment for respiratory problems and pneumonia, and reported exposure to tear gas. A complete rationale should be provided for all opinions and conclusions expressed. J. A. Anderson Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Counsel