Citation Nr: 19123716 Decision Date: 04/02/19 Archive Date: 03/29/19 DOCKET NO. 17-19 336 DATE: April 2, 2019 ORDER Service connection for left ankle disability is denied. Service connection for right ankle disability is denied. Service connection for left foot disability is denied. Service connection for right foot disability is denied. Service connection for hearing loss is denied. Service connection for tinnitus is granted.   FINDINGS OF FACT 1. The Veteran’s left ankle disability did not begin during active service, or is otherwise related to an in-service injury or disease. 2. The Veteran’s right ankle disability did not begin during active service, or is otherwise related to an in-service injury or disease. 3. The Veteran does not have a left foot disability. 4. The Veteran does not have a right foot disability. 5. The Veteran does not have hearing loss. 6. The Veteran’s tinnitus is related to his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left ankle disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a right ankle disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a left foot disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a right foot disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for hearing loss are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 6. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2005 to February 2010. The case is on appeal from a February 2016 rating decision. The Veteran limited his appeal to these six issues. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Additionally, certain chronic diseases, including arthritis and organic diseases of the nervous system such as sensorineural hearing loss and tinnitus, are presumed to be incurred in or aggravated by service if manifest to a compensable degree within one year of separation from service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258 (2015). In hearing loss claims, VA regulation provides that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 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. See 38 C.F.R. §3.385. It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Analysis 1. Service connection for left ankle disability. 2. Service connection for right ankle disability. The Veteran contends he is entitled to service connection for a bilateral ankle degenerative arthritis condition as a result of his military service. In a March 2017 statement submitted with his substantive appeal, the Veteran reported that during boot camp and his advance individual training (AIT), he hurt both of his ankles numerous times. He asserts that he was “frowned upon” going to sick call, which would have extended his period in boot camp. He further stated that “[he] didn’t want to be the guy who was just trying to get out of PT or duty assignments.” As a result, his ankles are extremely vulnerable to rolls and sprains. The Veteran added that he wears a brace whenever he hikes or runs. In a May 2016 statement submitted with his notice of disagreement (NOD), the Veteran asserted that his knees and ankles sore every day and that his activities are limited due to pain. The Veteran partially attributed his claimed conditions to his weight gain. A review of the Veteran’s service treatment records (STRs) reflects no ankle injuries or complaints during service. An October 2009 post deployment medical examination reflects that the Veteran reported to be in “very good health” without any worries regarding any condition(s) that could be related to his deployment to Iraq. During his December 2009 separation medical examination, the Veteran reported no foot troubles nor swollen or painful joints. Post-service VA treatment records are silent as to any treatment regarding bilateral ankle conditions or complaints since his discharge from active duty. The Veteran was afforded a Gulf War Medical Examination (GWME) in November 2015. The examiner noted that the Veteran reported having an ankle condition. The VA examiner pointed out that the Veteran “recently established medical care in VA- Denver. Before that, he only went one time to the ER in TX, when he accidentally [cut] his left hand about 2 years ago. No other clinic- ER or urgent care visit related to any claimed condition since his discharge from service” were noted on his records. As part of his GWME, a separate VA examination for his claimed ankle condition was afforded on the same date. The radiographies ordered revealed that the ankle’s mortise was intact bilaterally. A small os trigonum was found bilaterally, as well as minimal degenerative changes and hindfeet with tiny bilateral Achilles calcaneal heel spurs. As a result, the VA examiner diagnosed the Veteran’s condition as minimal degenerative arthritis. Nonetheless, he noted that as per the interview with the Veteran and a review of the entire file, no reports of direct injury, falls, or swelling in the ankles were ever reported while in service. The examiner added that “currently, [the Veteran] may have occasional rolled ankle (to outside) when he walks a lot, or hikes,” and the mild pain after rolling resolves very soon when he sits somewhere.” The VA examiner confirmed that the Veteran has worn a brace for many years when he plans for hiking or running. Lastly, the Veteran reported not experiencing rolling ankles when he is barefoot or wearing tennis shoes, but only at work while wearing steel toe boots. The VA examiner opined that the Veteran’s ankles condition is a disease with a clear and specific etiology and diagnosis and that “it is less likely as not” related to a specific exposure event experienced by the Veteran during service. The examiner added that this is based to the fact that these types of conditions are not medically considered to be due to exposure to toxins but rather due to biomechanical factors. The Board notes that during a November 2015 VA examination for a claimed GERD condition the VA examiner noted a significant weight gain of about 70 lbs. since his discharge from military service. A review of the VA treatment records reflects that during a routine examination in December 2016, the Veteran was referred for a weight management program at the El Paso VAMC. The Board also notes that during that visit it was noted that the Veteran’s gait was normal. A PTSD VA medical examination was afforded in December 2016. At that time, the Veteran reported to the VA examiner that “he does not believe he suffers from any chronic physical issues other than minor pain issues.” See VA examination for PTSD dated December 4, 2015. The Board has carefully considered the Veteran’s lay statements as to the onset of his claimed ankles condition. In that regard, the Board acknowledges the Veteran’s competent contentions and does not doubt the credibility of the Veteran’s reports in regard to his bilateral ankle symptoms as he can attest to factual matters of which he had first-hand knowledge. However, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion as to the etiology of his claimed condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). That is especially so when additional evidence of record suggests that there are other intercurrent causes, such as the Veteran’s significant weight gain. The Board has weighed all the evidence and finds that the November 2015 VA examination is persuasive and probative towards the etiology of the claimed condition. The examiner provided adequate rationale in determining that the Veteran’s bilateral ankle condition was not related to an in-service event or injury, as no reports or complaints were ever made to that extent during the Veteran’s military service. Significantly, the examiner concluded that the Veteran’s ankles condition is a disease with a clear and specific etiology and diagnosis and that it is less likely as not related to a specific exposure event experienced by the Veteran during service. Additionally, STRs and post-service VA treatment records are silent as to any in service injury, in-service complaints, or a manifestation to a compensable degree within one year after separation for bilateral ankle degenerative arthritis. The Board notes that it was not until the November 2015 VA examination when the Veteran was diagnosed with minimal degenerative arthritis on both of his ankles. That is approximately six years after his separation, for which the presumption of a chronic disease cannot be applied. Therefore, the Board finds the November 2015 examination report is adequate for deciding the claim, especially when considered with the additional evidence of record. In sum, as the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not applicable, and service connection for a left and right ankle disability is not warranted. See 38 U.S.C. §5107(b); 38 C.F.R. §3.102. 3. Service connection for left foot disability. 4. Service connection for right foot disability. The Veteran contends he is entitled to service connection for bilateral foot injuries as a result of his military service. In a March 2017 statement submitted with his substantive appeal, the Veteran reported being “frowned upon” reporting to sick call to complaint, among other things, about his feet condition. A review of the Veteran’s STRs reflects no feet injuries or complaints during his military service. In his December 2009 separation medical examination, the Veteran reported no foot troubles nor swollen or painful joints. Similarly, post-service VA treatment records are silent as to any treatment regarding feet pain or complaints since his discharge from active duty. Nonetheless, the Veteran was afforded a VA examination in November 2015. He reported that since approximately November 2013, “when he sits for a long time like watching TV, then he has sleeping feet, [and when] he moves his feet the condition resolves.” The examiner noted that there were no reports of weakness, pain, tingling or numbness in the feet. “He wears steel toe boots during his work and [] mostly tennis shoes during activity and does not have any issues during either his work or when he goes to the gym.” It was also noted that there were no past or present reports of falls or injuries to the feet. The VA examiner found no evidence of a feet disability. Therefore, a current diagnosis could not be provided for any claimed bilateral feet condition. The examiner stated that the Veteran’s reports of sleeping feet is a normal physiological response to immobility that happens to most individuals. He further stated that there was no medical finding to support a diagnosis for an alleged feet condition. As per a December 2018 brief, the Veteran’s representative stated, in part, that according to 38 C.F.R. §3.303(d), he should be entitled to the claimed condition since “service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.” In that regard, the Board finds that the VA examination revealed that there is no current disability. While pain without a diagnosis can potentially satisfy this element of a claim, the VA examination revealed no pain and, significantly, no functional loss or functional impact. See Saunders, 886 F.3d at 1361. Without sufficient evidence of a current disability, that element of the claim is not established and obtaining further nexus opinion evidence is not necessary. Thus, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and entitlement to service connection for a left and right foot disability is not warranted. See 38 U.S.C. §5107(b); 38 C.F.R. §3.102. 5. Service connection for hearing loss. The Veteran seeks entitlement to service connection for hearing loss as a result of his duties as a diesel/hydraulic mechanic, providing ground support for a Marine aviation logistics squadron. He contends that his duties constantly exposed him to loud noise from running engines. The Veteran also asserts that hearing protection was not always available. A review of the Veteran’s STRs shows multiple hearing tests throughout service. None of them showed hearing impairment for VA purposes. Further, it is noted that during his December 2009 separation medical examination, the Veteran reported not having hearing loss problems. Post-service treatment records do not account for hearing loss complaints or treatment. The Veteran was afforded a VA examination in November 2015. An audiology test revealed that the Veteran’s pure tone thresholds for his right ear were 15, 10, 15, 15, and 20, at 500, 1,000, 2,000, 3,000, and 4,000 Hertz. Pure tone thresholds for his left ear were 10, 10, 15, 15, and 20 at 500, 1,000, 2,000, 3,000, and 4,000 Hertz respectively. Additionally, a speech discrimination test was performed resulting in a 100 percent score for both ears. This evidence fails to show hearing impairment for VA purposes. See 38 C.F.R. § 3.385. In a December 2018 brief, the Veteran’s representative stated that the Veteran has complained of hearing loss and provided evidence which shows noise exposure while in service. The representative further requested a new audiology examination since the last audiology exam from November 2015 is outdated. Here, the evidence does not establish the current disability element of the claim. Without an allegation of worsening, passage of time is not sufficient to trigger a new VA examination. See, e.g., Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007). Thus, a new VA examination is not necessary. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and service connection for hearing loss is not warranted. See 38 U.S.C. §5107(b); 38 C.F.R. §3.102. 6. Service connection for tinnitus. The Veteran similarly contends that he is entitled to service connection for tinnitus due to noise exposure during service. He stated that while serving in the Marine Corps, he was exposed to the constant noise of aircraft running engines with little hearing protection. In a May 2016 statement submitted with his NOD, the Veteran stated that he gets “high pitch ringing in both ears on a daily basis.” In a March 2017 statement submitted with his substantive appeal, the Veteran reported that during training there were constant bangs and explosions without him “wearing or having proper protection at hand.” This included many trips to the rifle range while conducting shooting exercises. He further stated that he currently gets high pitch ringing in his left ear at least five times a day. During his November 2015 VA examination, the VA examiner conceded noise exposure based on the STRs, the Veteran’s MOS, and his duties while in service. The examiner opined that as the evidence of record does not show that there was a significant threshold shift beyond normal measurement, it clearly and convincingly rebuts, if so stated, the Veteran’s subjective report of hearing loss and tinnitus while in service. Based on the evidence of record, and despite the negative VA opinion with regard to the etiology of tinnitus, the Board determines that the Veteran’s statements are competent and credible regarding the onset of the condition as he can attest about the symptoms of which he has first-hand knowledge. See Charles v. Principi, 16 Vet. App. 370 (2002). Unlike the hearing loss claim, there is no negative evidence similar to the in-service or post-service normal audiometric tests. Therefore, the evidence is at least in equipoise regarding whether or not the Veteran’s current tinnitus had its onset during military service and has continued since. Given the Veteran’s in-service exposure to loud noise; his competent, credible reports of the onset of his tinnitus symptoms, and resolving reasonable doubt in his favor, the Board finds that his current tinnitus had its onset during service. Accordingly, service connection for tinnitus is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD William Pagan, Associate Counsel