Citation Nr: 18159372 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 16-63 185 DATE: December 19, 2018 ORDER Entitlement to service connection for a left foot disability is denied. Entitlement to service connection for a left ankle disability is denied. REMANDED Entitlement to a compensable rating for eustachian tube dysfunction is remanded. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis for a left foot disability. 2. The Veteran does not have a current diagnosis for a left ankle disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left foot disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 2. The criteria for entitlement to service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably with active duty service from January 1986 to August 2014. 1. Entitlement to service connection for a left foot and ankle disabilities. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2018). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). The Veteran is seeking service connection for left foot and left ankle disabilities that he claims are the result of injuries sustained during his military service. Service treatment records (STRs) show that the Veteran injured his left foot and left ankle while playing football. He also injured his left ankle, including his tibia and fibula, while playing baseball. Post-service records show that the Veteran received VA examinations for both conditions in February 2015. During his ankle examination, the Veteran reported spraining his ankles, left foot, and calf while playing baseball in service. He reported having pain at the time, but the condition resolved with time. The Veteran denied any symptoms related to his ankles, feet, or shins. Upon examining the Veteran’s left ankle, range of motion findings were normal. There was no evidence of pain, functional loss, instability, crepitus, ankylosis, or any other abnormal conditions. The examiner concluded that there is no subjective or objective evidence to make a diagnosis at this time. The examiner noted that possible calcific density on x-ray of the Veteran’s left ankle is of no clinical significance, and that while the Veteran sustained a sprain in service, the condition has completely resolved. With regards to the Veteran’s left foot examination, the Veteran again reported injuring his left foot while playing sports in service, and that the condition resolved after a few days. The Veteran denied any foot symptoms presently, including pain during the exam, functional loss, or flare-ups. Upon examining the Veteran’s left foot, the examiner found no signs or symptoms pertaining to a left foot condition and concluded that the Veteran does not have a current diagnosis for a left foot condition. Considering the above and remaining evidence, the Board finds that service connection for a left foot or a left ankle disability is not warranted. The probative evidence of record shows that the Veteran does not have a current disability for his left foot or left ankle. The Board recognizes the Veteran’s reports of having current “problems” with his left ankle and left foot as reported in his VA Form 9, and finds the Veteran to be competent and credible in reporting observable symptomatology. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). However, lay assertions do not constitute a competent clinical diagnosis. See 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). The Veteran’s lay assertions cannot constitute competent medical evidence in support of a current diagnosis. Additionally, the Veteran’s reports are contrary to his denial of any symptoms as reported in his VA examinations. Moreover, there is no other medical or lay evidence of record that would substantiate the Veteran’s contentions. Given the above, the Board finds the 2015 VA examinations are the most competent and probative evidence of record. As a result, in the absence of a current diagnosis for a left ankle disability or left foot disability, service connection for either condition cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the preponderance of the evidence is against the claim of service connection for a left ankle and left foot disability, the benefit-of-the-doubt doctrine is not for application, and the claims are denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). REASONS FOR REMAND Entitlement to a compensable rating for eustachian tube dysfunction. The Veteran contends a compensable rating is warranted for his service-connected bilateral ear condition. He reported that his ears feel “stopped up” and “plugged.” Additionally, in his VA Form 9, he reiterated that his left ear always feels clogged, and that he has trouble hearing in his left ear. In February 2015, the Veteran received an examination for his bilateral ear condition where there was no evidence of a middle ear condition during suppuration or with aural polyps; however, the Board notes that during a “tuning fork test,” the examiner found symmetry in both ears, but noted “hearing loss cannot be ruled out.” Although the Veteran received an audiology examination in March 2015, these results have not been associated with the record. As a result, remand is warranted to obtain the results of the March 2015 audiology examination. The Board also finds a new audiology examination is warranted as the Veteran’s ear condition may have worsened given that the Veteran initially reported no complaints of hearing loss in his May 2015 audiology examination and the November 2016 VA examination did not include consideration of worsening hearing. The matters are REMANDED for the following action: 1. Obtain any relevant outstanding VA treatment records that have not been associated with the Veteran’s claims file. 2. Obtain the results of the Veteran’s March 2015 audiology examination and associate the same with the Veteran’s claims file. 3. Schedule the Veteran for a VA audiological examination. The Veteran’s electronic medical records should be made available to and be reviewed by the examiner. Any tests or studies deemed necessary should be conducted, to specifically include audiometric testing, and the results should be reported in detail. If the Veteran has a diagnosis for a right or left ear hearing loss disability, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater), that the Veteran’s right or left ear hearing loss was proximately caused or aggravated by the Veteran’s service-connected eustachian tube dysfunction. 4. Readjudicate the issue on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review. T. BERRY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel