Citation Nr: 18158775 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 13-19 603 DATE: December 17, 2018 ORDER Service connection for a left knee disorder is denied. Service connection for bilateral hearing loss is denied. Service connection for hypertension is denied. Service connection for a bilateral leg disorder to include varicose veins is denied. Service connection for athlete’s feet is denied. FINDING OF FACT The most probative evidence of record weighs against a conclusion that the Veteran has a left knee disorder, bilateral hearing loss, hypertension, a bilateral leg disorder to include varicose veins, or athlete’s feet that was incurred in service; arthritis of the left knee, sensorineural hearing loss, or hypertension are not shown within one year of service. CONCLUSION OF LAW The criteria for service connection for a left knee disorder, bilateral hearing loss, hypertension, a bilateral leg disorder to include varicose veins, and athlete’s feet have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION Laws and Regulations When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U.S. Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail. The Court has also stated, “It is clear that to deny a claim on its merits, the evidence must preponderate against the claim.” Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, to include arthritis, organic diseases of the central nervous systems, or cardiovascular disorders to include hypertension to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA’s Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The United States Court of Appeals for the Federal Circuit clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to a “chronic” diseases listed under 38 C.F.R. § 3.309(a), such as arthritis, organic diseases of the central nervous systems, or cardiovascular disorders. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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 laws and regulations do not require in service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, as noted by the Court: [W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385 . . . For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for “disability” under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary). Discussion The service treatment reports (STRs) from the Veteran’s active duty from February 1971 to September 1974, to include the reports from the August 1974 separation examination, are silent for the conditions for which service connection is claimed. Of note is that blood pressure was recorded at 120/80 at the separation examination and audiometric testing conducted at that time showed elevated thresholds in each ear limited to readings at 4,000 hertz. After service, the Veteran submitted a formal claim for service connection for the disabilities at issue in November 2010, and the Veteran was afforded VA examinations in connection with these claims in February and March 2011. Each examination reflected consideration of the record and the Veteran’s assertions relating the conditions at issue to service. A very thorough medical history was taken from the Veteran. First with respect to a left knee disorder, arthritis in the   left knee was diagnosed upon VA examination in February 2011, and the examiner found that it was less likely as not that that such was related to military service. The rationale for this opinion was the lack of any documentation of an injury or treatment for the left knee during service and the Veteran’s report that his left knee pain started in the early 1990s, approximately 18 years after service as estimated by the examiner. With respect to hearing loss, a March 2011 VA examination found the audiometric testing results to not be valid for rating purposes based on inconsistent responses; as such, it cannot be said that the Veteran has a hearing loss disability for the purposes of service connection under 38 C.F.R. § 3.385. As for hypertension, the conclusion by the February 2011 VA examiner was that it was less likely as not that this condition was caused by or a result of service. The rationale for this opinion was that hypertension was not shown in service and the Veteran’s indication at separation from service that he was in good health except for his leg (a reference to a right knee injury sustained in service for which service connection was ultimately granted). Turning to a bilateral leg disorder to include varicose veins, the February 2011 VA examiner diagnosed the Veteran with varicose veins, with the conclusion by the examiner that it was less likely as not that this condition was related to service. The rationale for this opinion was that there was no documentation of varicosities during service and that the condition was diagnosed in 2002, 28 years after discharge from service. Finally, with respect to athlete’s feet, the February 2011 VA examiner found that it was less likely as not that this condition was caused by or a result of service. The rationale offered for this opinion was the lack of any evidence of athlete’s feet in the STRs and the Veteran’s comment at separation from service that he was in good health except for his leg.   There is otherwise no positive medical evidence or opinion of record indicating that the Veteran has a left knee disorder, bilateral hearing loss, hypertension, a bilateral leg disorder to include varicose veins, or athlete’s feet that is the result of service that contradicts the negative medical opinions set forth above. To the extent the assertions of the Veteran or his representative are being advanced in an attempt to establish that the Veteran has a current disability due to a left knee disorder, bilateral hearing loss, hypertension, a bilateral leg disorder to include varicose veins, or athlete’s feet and service, such complex medical matters are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the Veteran nor his representative are shown to have appropriate training and expertise, neither are competent to render a persuasive opinion as to such matters. Id. While the Veteran is competent to describe certain symptoms of the disabilities at issue from service to the present time, the Board finds them to not to be credible, in part due to the fact that it was well over 30 years after service that the Veteran filed a claim for service connection for the disabilities at issue. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the appellant failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). As a final matter, because arthritis of the left knee, sensorineural hearing loss, or hypertension is not demonstrated within one year of service, presumptive service connection for these disabilities on the basis of chronic disease, to include by way of continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309; Walker, supra.   In sum, the Board finds that the preponderance of the evidence is against the Veteran’s claims for service connection a left knee disorder, bilateral hearing loss, hypertension, a bilateral leg disorder to include varicose veins, and athlete’s feet. As such, these claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel