Citation Nr: 18160796 Decision Date: 12/28/18 Archive Date: 12/27/18 DOCKET NO. 17-03 296 DATE: December 28, 2018 ORDER Service connection for a left ankle disability is denied. REMANDED Entitlement to service connection for bilateral hearing loss. Entitlement to service connection for hypertension. Entitlement to service connection for a cardiac disability, to include an aortic aneurysm. FINDING OF FACT The Veteran does not have a current disability of the left ankle. CONCLUSION OF LAW The criteria for service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1117, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Army from November 1982 to October 1986 and from July 1987 to March 1990. The Veteran served during Peacetime. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Additional VA medical records were received after the last statement of the case in January 2017. However, the evidence is not relevant to the subject of the current Board decision. Thus, a waiver is not necessary, and this matter is properly before the Board. The Veteran filed a notice of disagreement for entitlement to service connection for pes planus in January 2018. This notice of disagreement is in response to a December 2017 rating decision from the RO. A review of the record reflects that the RO has received the notice of disagreement and is addressing this issue. As such, the Board declines to take jurisdiction of this issue at this time. Entitlement to service connection for a left ankle disability Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. The Veteran claims entitlement to service connection for a left ankle. However, as outlined below, the preponderance of the evidence is against this claim. In April 2015 and November 2015, the Veteran was seen by VA for complaints not associated with the Veteran’s left ankle. During those visits, the Veteran had no musculoskeletal complaints and no joint deformities, as assessed by the Veteran’s providers. In July 2016 and November 2016, the Veteran was, again, seen by VA for complaints unrelated to his left ankle. At these visits, the Veteran denied a history of joint pain, muscle aches, or difficulty walking. Upon assessment, the Veteran did not present with either joint aches or edema. The range of motion of all of his joints was grossly intact. The medical records are silent for any medical visits for a left ankle condition of any kind, or for any complaints of loss of motion of the left ankle. There is no evidence that the Veteran has asserted a current disability with any specificity, providing only a claim for a left ankle condition without further expounding upon treatment, symptomatology, or any diagnostics. The Board has considered the Holton elements for service connection and finds that the elements are not met to grant service connection for a left ankle disability. Specifically, there is no evidence in the record that the Veteran has a current left ankle disability of any kind. The Board has also considered any pain-limited function and finds that the evidence of record is silent for any such functional limitation of the left ankle, as outlined above in a discussion of the relevant evidence. As such, the first Holton element is not met. The Board acknowledges that certain orthopedic conditions may be granted service connection via presumptive service connection, if those arise within one year of separation from the service. 38 C.F.R. §§ 3.307, 3.309 (2018). However, there is no evidence that the Veteran has arthritis of the left ankle, or any other current disability of the left ankle. As such, the Board finds that service connection may not be granted for the claimed left ankle disability due to presumptive service connection. Id.; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board also notes that there is a remand for further development, specifically seeking complete service treatment records, to assist in adjudication of the issues of service connection for hypertension and service connection for an aortic aneurysm. The Board finds, however, that service connection for the claimed left ankle disability must be denied regardless of the status of completeness of the Veteran’s service treatment records, because service connection may not be granted based upon any theory of entitlement in the absence of a current disability. Brammer, 3 Vet. App. at 225. As any prior treatment documented in his service treatment records would not provide evidence of a current left ankle disability, the Board finds that this claim must be denied, even if his service treatment records reveal an in-service event, illness, or injury. 38 C.F.R. § 3.303 (2018); Brammer, 3 Vet. App. at 225. The Board has considered all of the evidence of record and finds that the medical evidence holds the greatest probative value. The VA providers are all licensed medical professionals, competent to provide an assessment of the Veteran and determine whether a left ankle disability is present. There is no evidence that they are not credible. Moreover, the evidence is consistent, in that the record is silent for evidence of a current left ankle disability. As such, the Board affords this medical evidence great probative weight. The Board is aware that the Veteran filed both a claim and perfected an appeal for a left ankle disability. See VA Form 9, dated January 2017; Notice of Disagreement, dated October 2015; Veteran’s Application for Compensation or Pension, dated November 2014. The Veteran has not provided a specific disability, nor specific symptomatology, in any of the aforementioned documents. Id. While the Veteran does not have the requisite medical expertise to afford an etiological opinion, he is competent to testify as to current symptomatology and any treatment, including self-care, but has declined to do so. See Jandreau, 492 F.3d at 1376-1377; Barr v. Nicholson, 21 Vet. App. 303, 307-308 (2007); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In light of the above, the Board finds that there is no evidence of a current left ankle disability. The Board has considered the Veteran’s lay statements that he has a left ankle disorder caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer an opinion as to diagnosis or etiology of his claimed disorder due to the medical complexity of the matters involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the examination report and clinical findings than to his statements. As such, the medical records are more probative than the Veteran’s lay assertions of a connection with service. In sum, after a careful review of the evidence, the benefit of the doubt rule is not applicable and the appeals are denied. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-57; 38 C.F.R. § 3.102 (2018). REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss. VA’s duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of severity of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). The Veteran was last afforded a VA audiological examination in January 2015. The VA examiner did not provide an etiological opinion as the Veteran’s hearing did not constitute hearing loss for VA purposes. 38 C.F.R. § 3.385 (2018). The RO denied the Veteran’s claim for service connection for hearing loss, as the Veteran did not have measurements consistent with hearing loss. The Board finds that, as service connection was denied due to the Veteran’s audiometric measures being inconsistent with hearing loss for VA purposes, a new VA examination is appropriate to determine the current severity of the Veteran’s hearing loss. 38 C.F.R. §§ 3.159, 3.303, 3.385 (2018). As such, the Veteran should be afforded another examination upon remand. 2. Entitlement to service connection for hypertension is remanded. 3. Entitlement to service connection for a cardiac disability, to include an aortic aneurysm, is remanded. VA’s duty to assist includes making as many requests as are necessary to obtain relevant records from a Federal department or agency. 38 C.F.R. § 3.159(c)(2) (2018). Upon a review of the file, the evidence regarding the Veteran’s in-service treatment appears to be incomplete. Both of the Veteran’s enlistment examinations are contained in the file, but neither separation evaluation is included, nor are any treatment records contained therein. This information is insufficient to adjudicate this claim. The Board has also considered the elements which require VA to obtain a VA examination to determine the etiology of the Veteran’s current disabilities. The VA must provide an examination when the evidence shows: (1) A current disability; (2) an in-service event, injury, or disease; (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for the VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has a current diagnosis of hypertension, and has treatment for an aortic aneurysm. However, without more complete service treatment records, the Board is unable to assess whether there is an event, injury, or disease in service. As such, if, once received, an in-service event, illness, or injury is found to exist, the Veteran should be scheduled for a VA examination to determine the etiology of such diagnosis. 38 C.F.R. § 3.159 (2018). The matters are REMANDED for the following action: 1. Appropriate efforts should be made to obtain and associate with this case file any outstanding VA medical records and private treatment records, with all necessary assistance from the Veteran. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. Appropriate efforts should be made to obtain and associate with this case file any outstanding service department records, including but not limited to complete service treatment records for all times of active service. If the appellant’s outstanding service department records cannot be obtained, the attempt and inability to obtain these records should be documented in the record. 3. Schedule the Veteran for an examination to determine the nature and etiology of any current hearing loss. The claims folder must be thoroughly reviewed by the examiner in connection with the examination, and such review must be reflected on the examination report. A complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. An explanation for each opinion shall be provided. (a.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current hearing loss is causally or etiologically related to the Veteran’s military service, including asserted noise exposure therein (i.e., did in-service noise exposure cause the Veteran to progressively lose his hearing over the years). (b.) The examiner should also specifically opine as to whether it is at least as likely as not (a 50 percent probability or more) that any current bilateral hearing loss is either caused by or aggravated by the Veteran’s service-connected tinnitus. It should be noted that the Veteran is competent to attest to observable symptomatology. The examiner’s attention is invited to the Veteran’s statements concerning the onset of his claimed disabilities. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the Veteran’s reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation In rendering the above opinions, the examiner is advised that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. If and only if service treatment records reveal an in-service event, illness, or injury, schedule the Veteran for the appropriate examination to determine the nature and etiology of any current cardiac disability, to include an aortic aneurysm. The claims folder must be thoroughly reviewed by the examiner in connection with the examination, and such review must be reflected on the examination report. A complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. An explanation for each opinion shall be provided. (a.) Please provide a list of all cardiac disabilities applicable to the Veteran during the period on appeal. (b.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s cardiac disability, to include an aortic aneurysm, is causally or etiologically related to the Veteran’s military service. (c.) The examiner should also specifically opine as to whether it is at least as likely as not (a 50 percent probability or more) that any current bilateral hearing loss is either caused by or aggravated by the Veteran’s service-connected tinnitus. (d.) The examiner should also specifically opine as to whether it is at least as likely as not (a 50 percent probability or more) the Veteran’s cardiac disability, to include an aortic aneurysm, is either caused by or permanently aggravated by the Veteran’s hypertension. It should be noted that the Veteran is competent to attest to observable symptomatology. The examiner’s attention is invited to the Veteran’s statements concerning the onset of his claimed disabilities. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the Veteran’s reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones, 23 Vet. App. at 382. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 5. If and only if service treatment records reveal an in-service event, illness, or injury, schedule the Veteran for an examination to determine the nature and etiology of his hypertension. The claims folder must be thoroughly reviewed by the examiner in connection with the examination, and such review must be reflected on the examination report. A complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. An explanation for each opinion shall be provided. (a.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s hypertension is causally or etiologically related to the Veteran’s military service. (b.) The examiner should also specifically opine as to whether it is at least as likely as not (a 50 percent probability or more) the Veteran’s hypertension is either caused by or permanently aggravated by the Veteran’s cardiac disabilities, including his aortic aneurysm. It should be noted that the Veteran is competent to attest to observable symptomatology. The examiner’s attention is invited to the Veteran’s statements concerning the onset of his claimed disabilities. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the Veteran’s reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones, 23 Vet. App. at 382. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 6. After the development requested is completed, readjudicate the claims for service connection. If any benefit sought remains denied, furnish the Veteran and his agent a supplemental statement of the case and allow a reasonable period to respond, and then return the case to the Board. K.M. SCHAEFER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. E. Trotter, Associate Counsel