Citation Nr: 18161210 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 17-08 107 DATE: December 31, 2018 ORDER Service connection for tinnitus is denied. Service connection for bilateral hearing loss is denied. Service connection for a right foot disability (claimed as a broken right foot) is denied. FINDINGS OF FACT 1. The Veteran has tinnitus and a bilateral hearing loss disability; neither disability is shown to have been incurred in service. 2. The Veteran does not have a current disability of the right foot. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for tinnitus have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for an award of service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 3. The criteria for an award of service connection for a right foot disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1979 to January 1988. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The RO furnished the Veteran a statement of the case relative to the matters herein decided in January 2017. Although additional evidence has been added to the record since that time, none of it bears meaningfully on the outcome of the present appeal. As such, there is no need to return the case to the agency of original jurisdiction (AOJ) for consideration of the new evidence or, alternatively, to solicit a waiver of AOJ review from the Veteran. See 38 C.F.R. §§ 19.31, 20.1304(c). Issues in addition to those currently being decided have been certified to the Board. The Veteran has requested a Board hearing on those issues, however. Consequently, they will be addressed in a future decision, following the hearing. In August 2018, a new power of attorney (POA) was received in favor of Paralyzed Veterans of America. However, it was received more than 90 days after certification and transfer of the issues currently being decided, without any explanation of good cause for the delay. 38 C.F.R. § 20.1304(a), (b). As such, the prior POA is being recognized for purposes of the current appeal. Service Connection The Veteran seeks to establish service connection for hearing loss, tinnitus, and a right foot disability. He says that he was engaged in a field training exercise at night when a sergeant threw a device in his vicinity that exploded. He says that the impact broke the crystal on his watch; that it seemed like the explosion “blew my left ear out”; that there was a loud ringing in his left ear afterwards; and that the ringing toned down after he stood for a while. He also maintains that he broke his right foot during service. Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Specific to claims for service connection for hearing loss, impaired hearing is considered a “disability” for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the thresholds for at least three of these 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. If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases—including tinnitus and sensorineural hearing loss—to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff’d sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran’s present condition (e.g., whether the Veteran’s present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Merits of the Veteran’s Tinnitus and Hearing Loss Claims In the present case, there is no dispute that the Veteran has a current bilateral hearing loss disability as defined by VA. The report of a January 2017 VA audiology examination clearly reflects, among other things, that he has auditory thresholds above 26 decibels at all tested frequencies, bilaterally. The report also reflects that he has tinnitus. The Board also concedes that the Veteran was exposed to noise during service. His statements in that regard are credible. The real question here is whether there is a nexus, or link, between the Veteran’s hearing loss and/or tinnitus and any event, injury, or disease in service, to include his conceded in-service exposure to noise. The evidence pertaining to nexus includes the Veteran’s service treatment records. Those records reflect, among other things, that his hearing was within normal limits on audiometric testing in August 1979, July 1980, February 1981, July 1983, November 1985, and June 1986. Separation documents do not indicate any hearing loss or compromised hearing. In January 2017, a VA examiner (an audiologist) performed an in-person exam and reviewed the claims file. She opined that it was unlikely that the Veteran’s hearing loss and tinnitus were caused by or a result of an event in service. The examiner noted that the Veteran’s service treatment records documented normal hearing sensitivity from 500 to 6000 Hertz, bilaterally, and were negative for any complaints of tinnitus. The examiner also noted that the Veteran had normal hearing at separation. She cited a medical treatise for the proposition that it was unlikely that delayed effects of noise exposure occur and she noted the Veteran’s reports of noticeable onset of tinnitus six months prior to the exam—at least 26 years after service. A. Tinnitus Following review of the evidence in this case and the applicable law and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for tinnitus. As noted previously, the Veteran has asserted that an incident during a field-training exercise caused ringing in his ear. However, he also indicated that the ringing diminished shortly thereafter. He has not claimed to have ringing in his ears on a continuous or recurring basis since service. To the contrary, upon examination in January 2017, the Veteran stated that the onset of noticeable tinnitus symptoms was six months prior. While the Veteran is competent to testify as to the onset, presence, and continuity of tinnitus symptoms, which are observable by a lay person, he has not claimed that his current tinnitus symptoms had their onset in service or that he has had continuity of tinnitus symptoms since that time. Nor is there any evidence that tinnitus was manifested to a compensable degree within one year of service. In addition, the only medical opinion evidence is against the claim. Based on the foregoing, the Board finds that the Veteran’s tinnitus is not causally or etiologically related to service. The claim must be denied. B. Bilateral hearing loss With respect to service connection for bilateral hearing loss, the Board also finds that the preponderance of the evidence is against that claim. The January 2017 VA medical opinion contains clear conclusions with supporting data, and a reasoned medical explanation connecting the two, including citation to a medical treatise. As such, the Board finds the opinion highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). To the extent the Veteran purports to contend on his own behalf that his hearing loss is medically related to service, the Board notes that lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and are within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno, 6 Vet. App. at 469-70. Lay evidence may also be competent to establish medical etiology or nexus. Davidson, 581 F.3d at 1316. However, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to.” Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Here, the evidence does not support that hearing loss had its onset in service nor has the Veteran alleged that he has had continuity of hearing loss since that time. There is no evidence that hearing loss was manifested to a compensable degree within one year of service. In such cases, the Board is presented with the question of whether hearing loss, first documented many years after service, is etiologically related to service, to include in-service exposure to noise. That question is complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, while the Veteran is competent to describe symptomatology he experienced or observed, he cannot, as a layperson, provide competent medical evidence with regard to whether hearing loss is related to service. In any event, as noted previously, the opinion from the January 2017 VA examiner is predicated on a detailed review of the Veteran’s history, as set out in his service records and in records of post-service examination and treatment, and contains clear conclusions with supporting data as well as a reasoned medical explanation connecting the two. As such, the Board accords greater probative weight to the VA examiner’s opinion than to that of the Veteran. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim for service connection for bilateral hearing loss, the doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. 2. Right foot disability claimed as a broken foot The Veteran also seeks to establish service connection for a right foot condition claimed as a broken foot. The Veteran’s service treatment records reflect that the Veteran was treated for pain of the right foot after kicking another person in March 1985. X-rays revealed no fracture to the foot. The Veteran was examined for VA compensation purposes in January 2017. The examiner noted the Veteran’s report that his foot began bothering him in 1990, after service. The examiner found that the Veteran had a gait disorder due to multiple sclerosis, unrelated to any foot injury in service, and that there was no functional loss attributable to the condition for which he was seeking service connection. The final diagnostic assessment was that the Veteran had a normal bilateral foot examination with no evidence of residuals from any prior foot injury in service. The foregoing evidence indicates that the Veteran does not have a current right foot disability. In this regard, the Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. §§ 1110, 1131; see also 38 C.F.R. § 3.310. Thus, where, as here, medical evidence does not establish that the Veteran has the disability for which service connection is sought, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the instant case, the claim for service connection for a right foot condition, claimed as a broken foot, must be denied because the first essential criterion for a grant of service connection—evidence of a current disability upon which to predicate a grant of service connection—has not been met. For all the foregoing reasons, the Board finds that the claim for service connection for a right foot condition, claimed as a broken foot, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against this claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD F. Lanton, Associate Counsel