Citation Nr: 18154649 Decision Date: 12/03/18 Archive Date: 11/30/18 DOCKET NO. 16 47-494 DATE: December 3, 2018 ORDER Entitlement to service connection for retinal disease, to include as due to herbicide exposure, is denied. Entitlement to service connection for hypertension, to include as due to herbicide exposure, is denied. Entitlement to service connection for kidney disease, to include as due to herbicide exposure, is denied. Entitlement to service connection for skin cancer, to include as due to herbicide exposure, is denied. Entitlement to service connection for Parkinson's, to include as due to herbicide exposure, is denied. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is denied. Entitlement to an initial evaluation greater than 20 percent for hearing loss, prior to October 26, 2017, and greater than 50 percent thereafter is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has retinal disease, due to a disease or injury in service. 2. The preponderance of the evidence is against a finding that the Veteran has hypertension, due to a disease or injury in service. 3. The preponderance of the evidence is against a finding that the Veteran has kidney disease, due to a disease or injury in service. 4. The preponderance of the evidence is against a finding that the Veteran has skin cancer, due to a disease or injury in service. 5. There is no competent and credible evidence that the Veteran currently suffers from Parkinson's. 6. There is no competent and credible evidence that the Veteran currently suffers from an acquired psychiatric disorder, to include PTSD. 7. Prior to October 26, 2017, the Veteran’s left ear hearing loss was no worse than Level VI, and right ear hearing loss was no worse than Level V. 8. From October 26, 2017, the Veteran’s left ear hearing loss was no worse than Level VIII, and right ear hearing loss was no worse than Level VIII. CONCLUSIONS OF LAW 1. The criteria for service connection for retinal disease have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 3. The criteria for service connection for kidney disease have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 4. The criteria for service connection for skin cancer, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 5. The criteria for service connection for Parkinson’s have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 6. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 7. The criteria for entitlement to an evaluation higher than 20 percent prior to October 26, 2017, and higher than 50 percent thereafter, for bilateral hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.10, 4.85, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from December 1953 to December 1955. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The issue of entitlement to service connection for tinnitus was also on appeal and addressed in an August 2016 statement of the case; however, service connection was granted in a December 2017 rating decision, representing a full grant of the benefit sought on appeal. As such, this issue is no longer in appellate status. Additional VA clinical records were associated with the record that have not been considered by the Agency of Original Jurisdiction (AOJ). However, with respect to the service connection issues decided herein, these records are duplicative and/or redundant of prior VA clinical records. As such, waiver of AOJ consideration of these records is not necessary. However, with respect to the issue of an initial higher rating for hearing loss, the Board recognizes that additional VA examinations were associated since the last statement of the case. The appellate scheme set forth in 38 U.S.C. § 7104 (a) contemplates that pertinent evidence will first be reviewed at the AOJ so as not to deprive the claimant of an opportunity to prevail with a claim at that level. When the AOJ receives evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case or a supplemental statement of the case (SSOC), it must prepare a SSOC reviewing that evidence. 38 C.F.R. §19.31 (b)(1). In this case, although the AOJ did not issue a SSOC, the issue was readjudicated with the additional evidence considered in a December 2017 rating decision. As the AOJ did review the additional evidence, the Board finds no prejudice to the Veteran in the issuance of a decision on the merits with respect to this issue 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, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The Veteran has not been afforded an examination in connection with the service connection issues decided herein; however, the Board finds that such is not necessary in the instant case. Specifically, again, the Veteran’s service treatment records are silent as to complaints, findings, or diagnoses of retinal disease, hypertension, kidney disease, skin cancer, Parkinson’s or a psychiatric disorder. Moreover, there is no competent evidence that the Veteran was exposed to herbicide agents while in service; nor have any of his in-service stressors been corroborated. The Court has held that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Additionally, a mere conclusory generalized lay statement that service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, the Board finds that a VA examination and/or opinion is not necessary to decide the claims. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Entitlement to service connection for retinal disease, hypertension, kidney disease and skin cancer, to include as due to herbicide exposure The Veteran claims his retinal disease, hypertension, kidney disease, and skin cancer, are a result of his time in service. He contends exposure to herbicides led to the development of the claimed conditions. 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 is against finding that the Veteran’s retinal disease, hypertension, kidney disease, and skin cancer, is related to an in-service injury, event, or disease. 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 treatment records are fire related, however some records were located and made available. Notably, his December 1955 discharge examination is of record and is negative for any complaints or reports of retinal disease, hypertension, kidney disease, or skin cancer. At the discharge examination, it was noted the Veteran had no complaints. The Veteran did not serve in Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; or in Korea between April 1, 1968, and August 31, 1971 and, thus, is not presumed to have been exposed to herbicides during service; nor does the evidence show that he was otherwise exposed to herbicide agents. See 38 U.S.C. § 1116(f). Military records note the Veteran had overseas service in Bremerhaven, Germany. The VA has not recognized the use of herbicide agents in Germany, or anywhere the Veteran served during his period of service. VA and private treatment records, note a history of retinal disease, hypertension, kidney disease, and skin cancer. Records from Dermatology Associates of Kentucky, P.S.C., detail a history of skin cancer recurrences dating back to 1998. The first mention of hypertension is from 1998. He stated that ever since coming out of service, he has had skin cancer. He reported having hypertension for 40 plus years. Lexington VAMC records show a diagnosis of chronic renal impairment, bilateral cataracts and hypertension. There is no question the Veteran has these current disabilities, but he does not meet the criteria for service connection because the most probative evidence of record does not show an in-service event, injury, or disease leading to these disabilities. Although the Veteran believes his of retinal disease, hypertension, kidney disease, and skin cancer, are proximately due to service, he is not competent to provide a nexus opinion in this case; nor is he competent to opine as to whether he was exposed to herbicides in service. The issues are medically complex, as each requires knowledge of the interaction between multiple organ systems in the body/interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). He is not competent to relate his retinal disease, hypertension, kidney disease, and skin cancer to service. Although the Board recognizes the Veteran’s sincere belief that his disorders are related to herbicide exposure in service, there is no competent evidence showing that the Veteran was exposed to herbicides in service. Finally, service treatment records do not show treatment for of retinal disease, hypertension, kidney disease, or skin cancer, or symptoms related to these disorders, with the first indication of any condition not being shown for over forty years post service. In other words, the most probative evidence of record does not show that the Veteran was exposed to herbicides in service, or that his claimed retinal disease, hypertension, kidney disease, or skin cancer are directly due to service. Entitlement to service connection for Parkinson's, to include as due to herbicide exposure Service treatment records are negative for any reports of Parkinson’s. Post service medical records are also negative for any complaints of or treatment for Parkinson’s. To date the Veteran has submitted no evidence of Parkinson’s. He has submitted no description of symptoms related to Parkinson’s. He has simply filed a statement that he suffers from Parkinson’s, with no supporting evidence. Although the Veteran is competent to describe his symptoms, it is now well established that lay persons without medical training, such as the Veteran, are not competent to opine on matters requiring medical expertise, such as the diagnosis of a skin condition or bilateral lower extremity peripheral neuropathy. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, medical testing and expertise is required to determine a diagnosis of Parkinson’s. The Veteran has not been shown to have medical expertise to render a competent medical opinion as to the diagnosis of Parkinson’s. In any event, the Board concludes that the medical evidence, which reveals no findings of Parkinson’s is of greater probative value than the Veteran’s contentions. VA records show the Veteran’s contacts with health professionals have been numerous, during which time no diagnosis or treatment of Parkinson’s is shown. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See U.S.C §1110. In the absence of proof of a present disability, there can be no valid claim. Although there is medical evidence of record dating from over 40 years ago to the present, the preponderance of the competent evidence of records shows no findings of Parkinson’s during the appeal period. Accordingly, in the absence of competent and credible evidence of Parkinson’s, during the period of the claim, service connection is not warranted on any basis and the claim must be denied. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD Service connection for PTSD generally requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The Veteran filed a claim for service connection for PTSD. The Veteran has asserted that during service he witnessed fellow soldiers severely beaten. He stated that he was taken away from his family against his will, and started basic training at Fort Knox, Kentucky. At that time, he reported seeing many fights. He stated that while stationed in Germany, he witnessed soldiers and Europeans beat on each other, so severely that it often resulted in death. In July 2016, a Formal Finding of a lack of information required to corroborate stressors associated with a claim for service connection for PTSD. The Veteran did not provide sufficient details to corroborate the stressful events. The Veteran’s service treatment and service personnel records are silent with respect to any incidents of traumatic encounters. Moreover, such records are negative for evidence of a psychiatric disorder. Importantly, post-service medical records are silent with respect to any finding of diagnosed psychiatric condition. The Veteran is competent to describe his symptoms, but he has not been shown to have medical expertise to render a competent medical opinion as to a diagnosis or etiology of what he observes. The Board concludes that the medical evidence, which reveals no findings of a diagnosis of or treatment for an acquired psychiatric disorder, is of greater probative value than a lay contention. VA and private treatment records show the Veteran’s contacts with health professionals have been numerous, during which no complaints or treatment for an acquired psychiatric disorder was shown. As indicated above, Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See U.S.C. §1110. In the absence of proof of a present disability, there can be no valid claim. Accordingly, in the absence of competent and credible evidence of an acquired psychiatric disorder during the period of the claim, service connection is not warranted on any basis and the claim must be denied. In reaching the above conclusion, 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. Increased Rating Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Entitlement to an initial higher evaluation for hearing loss, greater than 20 percent prior to October 26, 2017, and greater than 50 percent thereafter is denied. Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests (Maryland CNC) combined with the average hearing threshold levels as measured by pure tone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. 38 C.F.R. § 4.85(a), (d). To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85(h), Tables VI, VIA. To establish entitlement to a compensable rating for hearing loss, certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss must be met. The results of the pure tone audiometric test and speech discrimination test are charted on Table VI, Table VIA, in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. Table VIA will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when an exceptional pattern of hearing loss is shown, specifically when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. When the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more in a particular ear, determination of the level of hearing acuity in that ear will be made using either Table VI or Table VIA, whichever results in the higher numeral. Id. In September 2015, the Veteran underwent a VA examination. His pure tone thresholds, as tested at that time, were as follows: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 55 60 65 70 63 LEFT 50 60 70 75 64 Word recognition testing revealed speech recognition ability of 0 percent for the right ear and 4 percent for the left ear. The Veteran stated his wife must speak at a loud volume with him in order to communicate. The examiner noted, the use of word recognition score is not appropriate for the Veteran as a result of language difficulties, cognitive problems, inconsistent word recognitions, that make combined use of the puretone average and word recognition score inappropriate. As word recognition scoring is not being used, Table VIA is utilized resulting in Level V hearing in the right ear and Level V in the left ear. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in VIA, Level V hearing in the right ear and Level V hearing in the left ear results in a 20 percent disability rating. 38 C.F.R. § 4.85. In July 2016, the Veteran underwent a VA examination. His pure tone thresholds, as tested at that time, were as follows: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 55 60 65 70 63 LEFT 50 60 70 65 61 Word recognition testing revealed speech recognition ability of 68 percent for the right ear and 64 percent for the left ear. The examiner noted, the use of word recognition score is appropriate. These audiometry test results equate to Level V hearing in the right ear and Level VI in the left ear using Table VI. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, Level V hearing in the right ear and Level VI hearing in the left ear results in a 20 percent disability rating. 38 C.F.R. § 4.85. In October 26, 2017, the Veteran submitted a statement that his hearing had worsened. In December 2017, the Veteran underwent a VA examination. His pure tone thresholds, as tested at that time, were as follows: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 55 60 70 75 65 LEFT 55 60 70 70 64 Word recognition testing revealed speech recognition ability of 48 percent for the right ear and 44 percent for the left ear. The examiner noted, the use of word recognition score is appropriate. These audiometry test results equate to Level VIII hearing in the right ear and Level VIII in the left ear using Table VI. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, Level VIII hearing in the right ear and Level VIII hearing in the left ear results in a 50 percent disability rating. 38 C.F.R. § 4.85. Based on the evidence of record, the Board finds that prior to October 26, 2017, an initial rating in excess of 20 percent is not warranted. Prior to October 26, 2017, his right ear hearing loss was at worse V, and left ear hearing loss at worse VI, which corresponds to a 20 percent rating, and no more. He filed for an increase stating his hearing had worsened, October 26, 2017. The first evidence of a more severe disability picture was at the December 2017 examination, at which time his hearing Level’s had progressed to Level VIII bilaterally. From October 26, 2017, the Veteran has no worse than Level VIII in the right ear and Level VIII in the left ear. As such, he is not entitled to an increased evaluation, higher than 50 percent.   The Board has also considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim for an increased evaluation higher than 20 percent prior to October 26, 2017, and higher than 50 percent thereafter. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. J.N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Skiouris, Associate Counsel