Citation Nr: 1815296 Decision Date: 03/14/18 Archive Date: 03/23/18 DOCKET NO. 11-15 762 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for an esophageal disorder, to include acid reflux. 2. Entitlement to service connection for a left leg disability. 3. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D.M. Casula, Counsel INTRODUCTION The Veteran had active service from September 1979 to December 1989, with subsequent service in the Army National Guard. The current matter comes before the Board of Veterans Appeals (Board) from a January 2010 rating decision in which the RO denied service connection for an esophageal disorder, to include acid reflux; a left leg disorder (claimed as thigh near groin); and bilateral hearing loss. FINDINGS OF FACT 1. At no time during the appeal period has the Veteran had an esophageal disorder, to include acid reflux, that had an onset in service, or that is otherwise related to service. 2. At no time during the appeal period has the Veteran had a left leg disability, or a disability manifested by left leg pain, that had an onset in service, or that is otherwise related to service. 3. At no time during the appeal period has the Veteran had bilateral hearing loss disability for VA purposes. CONCLUSIONS OF LAW 1. An esophageal disorder, to include acid reflux, was not incurred in or aggravated by a period of active service. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). 2. A left leg disability was not incurred in or aggravated by a period of active service. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). 3. Bilateral hearing loss was not incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. For the issue decided in the instant document, VA provided adequate notice in a letter sent to the Veteran in April 2009. The Board also finds that VA has satisfied its duty to assist the Veteran in the development of the claim. VA has obtained all identified and available service and post-service treatment records. While there are numerous service treatment records (STRs) from the Veteran's Army National Guard service, a separation examination and report of medical history, dated in November 1989, are the only STRs from his initial period of active duty. The Veteran was advised of the unavailability of these STRs in a letter dated in July 2009. The Board notes it has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision" when service records are lost or missing. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, no presumption, either in favor of the claimant or against VA, arises when there are lost or missing service records. Id. Also, as explained below, what is missing for the issues on appeal is competent evidence of current disabilities. Thus, the unavailability of STRs is not prejudicial to the Veteran. The Board acknowledges that a VA examination was conducted in September 2009 with regard to the claims for service connection for a left leg condition and for bilateral hearing loss. As set out in 38 C.F.R. § 3.159(c)(4), a VA examination to address the question of etiology as related to service is required when a veteran presents a service connection claim in which there was a pertinent event, injury, or disease in service; there is evidence of current disability; the medical evidence of record does not contain sufficient competent evidence to decide the claim; and the Veteran indicates that the claimed disability or symptoms may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With regard to the claim for service connection for acid reflux, as there is no competent evidence of record of a current disability, even under the low threshold established by McLendon, without any indication of a current disability, a VA examination on this issue is not warranted or necessary. Thus, it appears that all obtainable evidence identified by the Veteran relative to his claims has been procured and that neither he nor his representative has identified any other pertinent evidence which would need to be obtained for a fair disposition of this appeal. Neither the Veteran nor his representative has raised any issues with the duty to notify or assist. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). In summary, the Board finds that appellate review may proceed without prejudice to the Veteran with respect to his appeal. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Laws and Regulations Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). VA is not generally authorized to grant service connection for symptoms alone, such as pain, without an identified basis for the symptoms. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). The United States Court of Appeals for Veterans Claims has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011); Jandreau v. Nicholson, supra. III. Analysis A. Esophageal Disorder, To Include Acid Reflux The Veteran contends that in 1987 he started to experience an upset stomach, nausea, and burning in his throat and that he began taking antacids thinking it was just something he had eaten. He reported that after taking these medications for a few years they no longer helped his symptoms and that he was eventually diagnosed with gastric reflux and had to take a more costly medication as well as alter his diet. The Veteran's separation examination dated in November 1989, showed no report or finding of an esophageal disorder. On a VA treatment record dated in September 2013, objective testing of the Veteran's gastrointestinal system was negative for heartburn, abdominal pain, history of peptic ulcer disease, bloating, nausea or vomiting, constipation, diarrhea, blood in stool, tarry stools, rectal pain or bleeding, incontinence. As noted above, the threshold requirement for service connection to be granted is competent medical evidence of the current existence of the claimed disorder at some time during the current appeal. Brammer, supra. Here, however, the record does not show that the Veteran has, or has had, a diagnosis of acid reflux or any other esophageal condition at any time during the appeal period. Id. Full consideration has been given to the Veteran's own assertions that he has had reflux/esophageal symptoms during and since service. Lay statements may serve to support a claim by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Jandreau v. Nicholson, supra; Buchanan v. Nicholson, supra. If the Veteran here had complaints or symptoms of upset stomach, nausea, and burning in his throat in service for which he took antacids, he would certainly be competent to report these circumstances as well as his symptoms thereafter. However, the diagnosis and probable etiology of acid reflux or other esophageal condition is not subject to lay diagnosis. The Veteran, as a lay person, is not competent to report he has any such disorder related to service. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a). The preponderance of the evidence is therefore against the claim of service connection for an esophageal disorder, to include acid reflux, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. B. Left Leg Disability The Veteran essentially contends that he has a left leg disability that had an onset during service. He reported that in approximately June 1988, at Fort Eustis, he was injured while repairing a tire on a Humvee. He reported that he was pressurizing the tire when it exploded and that the force of the explosion sent parts of the tire throughout the motor pool, a metal ring went into his upper thigh area, and he was knocked to the ground. He reported he was unable to stand on his feet and was transported to a medical facility where he was treated and released. He contends that as a result of this injury he was only able to stand on his own for short periods of time, he required crutches for several weeks, and he needed medication to treat severe bruising, swelling, and unbearable pain. He reported that recovering from his injuries was very difficult and that he had incorporated a combination of oral medications, creams, salves, heat and cold in attempt to manage the pain, cramping, and spasms he often experienced. As noted above, the only STR available from the Veteran's initial period of active duty is his separation examination dated in November 1989, which showed no report or finding of a left leg disability. On a VA examination in September 2009, it was noted that the Veteran sustained a left leg/thigh injury in 1988 when his left inner thigh was hit by an exploding tire, and he was seen in the emergency room, given pain medication and crutches, and underwent physical therapy. He reported that he had been seen by his primary care provider for this condition, but was not currently under treatment for his leg injury. He took Ibuprofen as needed every other week and reported constant shooting pain in the leg. A history of trauma to the muscles and to the nerve of the inner thigh was noted, occurring at the time the tire blew up and hit his left inner thigh in 1988. An EMG was conducted and revealed a normal study. The diagnosis was left leg/thigh injury, but there was no diagnostic or clinical evidence to suggest a diagnosis at that time. The examiner opined that the Veteran's current left thigh condition was not caused by or a result of his in-service injury to the left inner thigh, noting that there was no specific documentation while in service and there was no diagnostic evidence to suggest a diagnosis of any leg injury at that time. The Board notes that the threshold requirement for service connection to be granted is competent medical evidence of the current existence of the claimed disorder at some time during the appeal period. Brammer v. Derwinski, supra. In this case, however, the record does not show that the Veteran has, or has had, a diagnosis of any left leg condition at any time during the appeal period. Id. Full consideration has been given to the Veteran's own assertions that he injured his left leg in 1988 in service when a tire exploded and that he has experienced left leg symptoms since then. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Jandreau v. Nicholson, supra; Buchanan v. Nicholson, supra. If the Veteran sustained an injury to his left leg, and had complaints or symptoms thereafter, he would certainly be competent to report the circumstances of any injury and his symptoms thereafter. However, the diagnosis and probable etiology of a chronic left leg disability is not subject to lay diagnosis as it requires analysis of diagnostic studies and knowledge of the musculoskeletal system and various disorders that affect this system. Accordingly, the Veteran, as a lay person, is not competent to report that he has any such disorder related to service. Id.; 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a). The preponderance of the evidence is therefore against the claim of service connection for a left leg disability, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). C. Bilateral Hearing Loss For VA purposes, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 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. In the current appeal, the Veteran has contended that service connection for bilateral hearing loss is warranted, based on his exposure to excessive noise during active military service. It appears that VA has conceded his noise exposure in service, as service connection for tinnitus has been granted on the basis of conceded in-service acoustic trauma. What is missing from the record is evidence demonstrating that he has hearing loss disability pursuant to 38 C.F.R. § 3.385. Despite his contentions, the competent medical evidence shows that he does not have current hearing loss disability in either ear, as prescribed by VA standards. 38 C.F.R. § 3.385. In this regard, the reported pure tone thresholds and speech recognition scores made on the VA examination in September 2009 did not meet the regulatory requirements. Full consideration has been given to the Veteran's assertions regarding his bilateral hearing loss being related to service. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case, the presence of a hearing loss disability for VA purposes, falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). Although the Veteran is competent to report diminished hearing, he is not competent to report the specific results of audiometric and word recognition testing, as required by 38 C.F.R. § 3.385, nor is there any indication that he is competent to provide a diagnosis of sensorineural hearing loss, or that he received any special training or acquired any medical expertise in evaluating hearing disorders. King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Regardless, even if competent, his lay statements are outweighed by the medical evidence of record which is specific and contains both audiometric and word recognition testing. As the Veteran has not had a bilateral hearing loss disability, as defined by regulation, at any time during the appeal period, the preponderance of the evidence is against the claim for service connection for such disability. The claim for service connection for bilateral hearing loss is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. ORDER Service connection for an esophageal disorder, to include acid reflux, is denied. Service connection for a left leg disability is denied. Service connection for bilateral hearing loss is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs