Citation Nr: 18159484 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 14-19 318 DATE: December 20, 2018 ORDER Entitlement to service connection for bilateral pes planus is denied. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a diagnosis of bilateral pes planus. 2. The preponderance of the evidence is against finding that bilateral hearing loss began during active service or within one year of service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral pes planus are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from January 1960 to April 1967. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in April 2017. A transcript of that hearing has been associated with the claims file. At the time of the June 2017 Board remand, the appeal included the issues of entitlement to service connection for a hyperkeratosis and an eye disorder. As a result of the Board remand, the Regional Office (RO) granted service connection for bilateral foot hyperkeratosis, right eye cataract, and left eye pseudophakia. The Board finds that this grant of service connection constitutes a full award of benefits sought on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The record currently available to the board indicates that the Veteran did not initiate an appeal with the initial rating or effective date. Thus, these matters are not in appellate status. See Grantham, 114 F.3d at 1158. Service Connection 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; 38 C.F.R. § 3.303(a). 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, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge 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). In addition, service connection for certain chronic diseases, including sensorineural hearing loss, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2018); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Federal Circuit has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic. See Walker, supra; 38 C.F.R. § 3.309(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469. When there is an approximate balance of positive and negative 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. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for bilateral pes planus. The Veteran asserts that he has a current diagnosis of bilateral pes planus. See Board Hearing Transcript (T.) at 3. 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 Veteran does not have a current diagnosis of bilateral pes planus and has not had one at any time during the pendency of the claim or recent to the filing 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). On the January 1960 enlistment examination, the medical provider indicated that the Veteran had asymptomatic bilateral pes planus. On the March 1967 separation examination, the Veteran’s feet were observed to be normal. On the March 1967 report of medical history, the Veteran indicated that he did not experience foot trouble. On a November 2010 VA treatment record, the medical provider observed the Veteran’s feet to be normal. In March 2011 the Veteran reported frequent aching and cramps in the feet. On the January 2012 VA examination, the examiner indicated that there was a diagnosis of bilateral pes planus in January 1960. The Veteran stated that he has had flat feet for “as long as he can remember” and stated that he had occasional discomfort. However, he stated that “his feet do not bother him.” The examiner performed imaging of the Veteran’s feet and observed the Veteran to have normal medial arch with weight bearing. The examiner concluded that the Veteran’s examination was normal and that he does not have flat feet. This finding was echoed in an addendum opinion obtained in January 2013, at which time the examining podiatrist concluded that the Veteran did not have pes planus. The November 2017 VA examiner evaluated the Veteran and determined that, while the Veteran asserts that he had bilateral pes planus during service and after service, he did not have a diagnosis of bilateral pes planus. The examiner noted that the Veteran did not have bilateral pes planus on VA examinations or foot radiographs in January 2012 or November 2017. The examiner noted that the Veteran was diagnosed with bilateral pes planus in January 1960 in error due to subsequent examinations and imaging in 2012 and 2017. Further, VA treatment records do not contain a diagnosis of or treatment for bilateral pes planus. While the Veteran believes he has a current diagnosis of pes planus, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has bilateral pes planus for which benefits are being claimed. Because the evidence does not establish that the Veteran has bilateral pes planus, or has had pes planus at any point during the appeal period, the Board finds that the Veteran is not entitled to service connection for bilateral pes planus. The claim must be denied. 2. Entitlement to service connection for bilateral hearing loss. For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies 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. It has been established that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between the Veteran’s in-service exposure to loud noise and current disability. See Hensley v. Brown, 5 Vet. App. 155 (1993). The Board notes that the directives in Hensley are consistent with 38 C.F.R. § 3.303(d). The Veteran’s service treatment records (STRs) document that his hearing was normal at enlistment and separation from service. Although the enlistment examination did not indicate puretone thresholds in decibels, the Veteran’s March 1967 separation examination found puretone thresholds, in decibels, as: HERTZ 1000 2000 3000 4000 Avg RIGHT 0 0 0 0 0 LEFT 0 0 0 0 0 In a November 2010 VA treatment record, the Veteran denied experiencing hearing loss. On the January 2012 VA examination, the Veteran stated that he had difficulty in ability to hear the phone ringing. The Veteran stated that in service as an Air police, he was exposed to jets, firearms, motors, and grenades. He stated that he wore ear protection when he could. The January 2012 VA audiological examination found puretone thresholds, in decibels, as: HERTZ 1000 2000 3000 4000 Avg RIGHT 40 35 50 80 51 LEFT 25 30 45 75 44 The average thresholds were 51 decibels in the right ear and 44 decibels in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. The January 2012 VA examiner found that the Veteran did meet the criteria for hearing loss according to VA regulations. However, the examiner opined that the Veteran’s hearing loss was less likely than not caused by service. The examiner reasoned that the Veteran’s hearing was within normal limits at entrance and separation from service and there is no scientific basis for concluding that hearing loss developed afterward is causally related to military to service. At the April 2017 Board hearing, the Veteran stated that the hearing loss began after separation from service. See T. 3. On the October 2017 VA examination, Veteran stated that he required speech repetition in conversation with others. The Veteran also reported being exposed to noise from jet engines and weapons fire in service. The October 2017 VA audiological examination found puretone thresholds, in decibels, as: HERTZ 1000 2000 3000 4000 Avg RIGHT 50 45 60 80 59 LEFT 35 45 55 75 53 The average thresholds were 59 decibels in the right ear and 53 decibels in the left ear. Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 96 percent in the left ear. In the August 2018 VA opinion by the October 2017 examiner, the examiner opined that the Veteran’s hearing loss was less likely than not caused by service. She reasoned that a prolonged delay in the onset of noise-induced hearing loss was unlikely. She further stated that there was an insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. Therefore, she concluded that as there was no significant shift in hearing levels and no record of complaint or treatment of hearing loss in service, it is less likely as not that the Veteran’s hearing loss is related to military noise exposure. Upon review of the record, the Board finds that there is no competent and credible evidence that the Veteran’s bilateral hearing loss was manifested in service or to a compensable degree in the first year following his separation from service. Consequently, service connection for bilateral hearing loss on the basis that such became manifested in service and persisted or on a presumptive basis is not warranted. Notably, the Veteran has not submitted competent evidence to show that he has suffered from bilateral hearing loss since service, with symptoms of hearing loss first reported over 44 years after separation from service. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). The Board also finds that the January 2012 VA medical opinion reasoned that the Veteran had normal hearing sensitivity in both ears at the time of separation from service. This rationale is legally insufficient. In Hensley v. Brown, the Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability merely because hearing was within normal limits on audiometric testing at separation from service. Therefore, the Board finds that the January 2012 VA opinion is inadequate with respect to the question of nexus. Despite the inadequacy of the January 2012 VA opinion, there is still no evidence that the Veteran’s bilateral hearing loss is otherwise related to service. The Veteran’s post-service VA treatment records are silent for an opinion relating his bilateral hearing loss to service. The only competent evidence in the record that addresses this question is the August 2018 VA medical opinion, which provided a thorough rationale for the finding that the Veteran’s bilateral hearing loss was not related to his service. As there is no other evidence to the contrary, and given that the August 2018 VA medical opinion was based on a full review of the record as well as an interview and examination of the Veteran, the Board finds it persuasive. The Veteran’s own statements relating his bilateral hearing loss to service are not competent evidence, as he is a layperson and lacks the training to opine regarding medical etiology. The question of whether bilateral hearing loss is related to service is one that is medical in nature and may not be resolved by mere lay observation. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board finds that these statements are outweighed by the medical evidence of record, which suggests that the Veteran’s bilateral hearing loss began after separation from service, and specifically after November 2010, more than 44 years after separation. In sum, the competent and probative evidence of record shows that the Veteran is not entitled to service connection for bilateral hearing loss. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. As the evidence preponderates against the claim, there is no reasonable doubt to be resolved, and entitlement to service connection for bilateral hearing loss is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Thompson, Associate Counsel