Citation Nr: 20007728 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 17-54 634 DATE: January 29, 2020 ORDER New and material evidence has been submitted and the claim to reopen service connection for headaches is granted. New and material evidence has been submitted and the claim to reopen service connection for balance conditions is granted. New and material evidence has been submitted and the claim to reopen service connection for right knee degenerative joint disease (right knee disability) is granted. New and material evidence has been submitted and the claim to reopen service connection for a left knee disability is granted. New and material evidence has been submitted and the claim to reopen service connection for right ear hearing loss is granted. New and material evidence has been submitted and the claim to reopen service connection for hypertension is granted. New and material evidence has not been submitted and the claim to reopen service connection for diabetes mellitus (diabetes) is denied. New and material evidence has not been submitted and the claim to reopen service connection for neuropathy of the right upper extremity is denied. New and material evidence has not been submitted and the claim to reopen service connection for neuropathy of the left upper extremity is denied. New and material evidence has not been submitted and the claim to reopen service connection for neuropathy of the right lower extremity is denied. New and material evidence has not been submitted and the claim to reopen service connection for neuropathy of the left lower extremity is denied. New and material evidence has not been submitted and the claim to reopen service connection for sleep apnea is denied. New and material evidence has not been submitted and the claim to reopen service connection for a neck disability (cervical spine disability) is denied. Service connection for a right knee disability is denied. Service connection for a left knee disability is denied. Service connection for hypertension is denied. Service connection for a back disability (lumbar spine disability) is denied. Service connection for ankylosis of the right hip (right hip disability) is denied. Service connection for ankylosis of the left hip (left hip disability) is denied. Service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD) is denied. REMANDED The claim for an increased rating for left ear hearing loss is remanded. The service connection claim for headaches, to include as secondary to service-connected left ear hearing loss, is remanded. The service connection claim for balance conditions, to include as secondary to service-connected left ear hearing loss, is remanded. The service-connection claim for right ear hearing loss is remanded. The claim for an entitlement to special monthly compensation (SMC) is remanded. FINDINGS OF FACT 1. New and material evidence submitted since the last, final, June 2013 rating decision, which denied service connection for headaches, includes and is not limited to, a June 2019 private medical report, which reflects a current diagnosis of headaches. 2. New and material evidence submitted since the last, final, June 2013 rating decision, which denied service connection for balance conditions, includes and is not limited to, a June 2019 private medical report, which reflects current manifestations, including vertigo, dizziness and disequilibrium. 3. New and material evidence submitted since the last, final, June 2013 rating decision that denied service connection for a right knee disability, includes and is not limited to, a hardship letter from the Veteran, which reflects lay evidence of an in-service accident that may be related to his right knee disability. 4. New and material evidence submitted since the last, final, June 2013 rating decision that denied service connection for a left knee disability, includes and is not limited to, a hardship letter from the Veteran, which reflects lay evidence of an in-service accident that may be related to his left knee disability. 5. New and material evidence submitted since the last, final, June 2013 rating decision that denied service connection for right ear hearing loss, includes and is not limited to, lay evidence from the Veteran, in which he asserts that his right ear hearing loss is secondary to his service-connected left ear hearing loss. 6. New and material evidence has been submitted, since the last, final June 1988 rating decision that denied service connection for hypertension, includes and is not limited to, treatment records that reflect a diagnosis of hypertension. 7. No new and material evidence has been submitted, since the last, final June 2013 rating decision that denied service connection for diabetes. 8. No new and material evidence has been submitted since the last, final June 2013 rating decision that denied service connection for neuropathy of the right upper extremity. 9. No new and material evidence has been submitted since the last, final June 2013 rating decision that denied service connection for neuropathy of the left upper extremity. 10. No new and material evidence has been submitted since the last, final June 2013 rating decision that denied service connection for neuropathy of the right lower extremity. 11. No new and material evidence has been submitted since the last, final June 2013 rating decision that denied service connection for neuropathy of the left lower extremity. 12. No new and material evidence has been submitted since the last, final June 2013 rating decision that denied service connection for sleep apnea. 13. No new and material evidence has been submitted since the last, final June 2013 rating decision that denied service connection for cervical spine disability. 14. The evidence does not show that right knee osteoarthritis manifested to a compensable degree within one year of his separation from service; and additionally, there is no probative evidence of a chronicity and/or continuity of a right knee disability, from the Veteran’s active service, to correlate and/or establish a causal link to his current right knee osteoarthritis. 15. The medical evidence has not shown that the Veteran had right knee arthritis that manifested to a compensable degree within one year of his separation from service; and additionally, there is no probative evidence of an in-service left knee disability that is causally related to the Veteran’s left knee disability. 16. The evidence does not show that hypertension manifested to a compensable degree within one year of his separation from service; and additionally, there is no probative evidence of high blood pressure readings, symptoms and or any other related illnesses that may be causally related to the Veteran’s hypertension. 17. There is no probative evidence of an in-service treatment, injury, or event pertaining to a back injury or associated disability that may be causally related to the Veteran’s lumbar spine disability. 18. The Veteran does not have a current diagnosis and/or right hip disability. 19. The Veteran does not have a current diagnosis and/or left hip disability. 20. The Veteran does not have a current diagnosis of COPD and/or any other chronic respiratory disease. CONCLUSIONS OF LAW 1. The criteria for reopening the service-connection claim for headaches have been met. 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2019). 2. The criteria for reopening service connection for balance conditions have been met. 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 3. The criteria for reopening service connection for a right knee disability have been met. 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 4. The criteria for reopening service connection for a left knee disability have been met. 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 5. The criteria for reopening service connection for right ear hearing loss have been met. 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 6. The criteria for reopening service connection for hypertension have been met. 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 7. The criteria for reopening service connection for diabetes have not been met. 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 8. The criteria for reopening service connection for neuropathy of the right upper extremity have not been met. 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 9. The criteria for reopening service connection for neuropathy of the left upper extremity have not been met. 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 10. The criteria for reopening service connection for neuropathy of the right lower extremity have not been met. 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 11. The criteria for reopening service connection for neuropathy of the left lower extremity have not been met. 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 12. The criteria for reopening service connection for sleep apnea have not been met. 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 13. The criteria for reopening service connection for a cervical spine disability have not been met. 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 14. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 1154 (West 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2019). 15. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 1154; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 16. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 1154; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 17. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1131, 1154; 38 C.F.R. §§ 3.303, 3.304. 18. The criteria for service connection for a right hip disability have not been met. 38 U.S.C. §§ 1131, 1154; 38 C.F.R. §§ 3.303, 3.304. 19. The criteria for service connection for a left hip disability have not been met. 38 U.S.C. §§ 1131, 1154; 38 C.F.R. §§ 3.303, 3.304. 20. The criteria for service connection for a respiratory disability, to include COPD have not been met. 38 U.S.C. §§ 1131, 1154; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable service in the Missouri Army National Guard, on active duty for training, from September 1978 to February 1979. The Veteran also served from January 1980 to December 1980, but was discharged from service under “other than honorable conditions.” This appeal comes before the Board of Veterans’ Appeals (Board) from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. New and Material Evidence VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156(a) (2018); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is new. New evidence is that which was not of record at the time of the last final disallowance on any basis of the claim, and is not merely cumulative of other evidence that was then of record. 38 C.F.R. § 3.156(a). The Veteran’s service connection claims for headaches, balance conditions, right knee disability, left knee disability, right ear hearing loss, neuropathy of the right and left upper extremities and right and left lower extremities (bilateral upper and lower extremities), cervical spine disability and sleep apnea, were last denied in June 2013 rating decision. His service connection claim for hypertension was last denied in a June 1988 rating decision. Following both decisions, the Veteran did not perfect an appeal or submit additional, relevant evidence within one year of the rating decisions. Pertinently, the Veteran submitted new claims to reopen these issues, as opposed to a notice of disagreement, within one year of the June 2013 rating decision. Thus, the rating decisions became final. 38 U.S.C. § 7105(c) (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). 1. Headaches & Balance Conditions In the June 2013 rating decision, the RO denied the Veteran service-connection claims for headaches and balance conditions because it determined that the Veteran did not have a current diagnosis of headaches; and that the Veteran’s balance conditions are not service connected and/or connected to service on a secondary basis. Evidence received since this June 2013 rating decision includes, and is not limited to, a January 2019 correspondence/private medical report from a physician, Dr. S.E.M., which reflects complaints and/or headaches which constitute a current disability, as well as evidence of an in-service event and/or evidence of symptoms and/or associated manifestations of balance conditions that may be secondary to the Veteran’s service-connected tinnitus and/or hearing loss. This evidence is “new” because it had not been previously submitted and considered by VA. It is material because it is entails evidence of current headaches, as well as an in-service event and/or service-connected disabilities that may be related to the Veteran’s balance conditions. This January 2019 private medical report, specifically, provides previously unestablished, unproven elements from the June 2013 rating decision for the Veteran’s headaches and balance conditions. The Board recognizes that this additional piece of evidence is presumed to be credible for the purpose of reopening the claims. Justus, 3 Vet. App. at 512 – 13. Therefore, this additional piece of evidence, when considered in conjunction with the record as a whole, raises a reasonable possibility of substantiating the Veteran’s claims. Accordingly, since new and material evidence has been received, the service connection claims for headaches and balance conditions are reopened. 2. Right & Left Knee Disabilities In the June 2013 rating decision, the RO denied the Veteran service-connection claims for a right and left knee disability (claimed as bilateral knee arthritis) because it determined that the bilateral knee arthritis was not incurred in, or caused by service. Evidence received since this June 2013 rating decision includes, and is not limited to, a lay statement from the Veteran, which constitutes as lay evidence, in which the Veteran asserted that he underwent a total knee replacement for his right knee, and that he will need to have the same procedure undertaken for the left knee; and that this is a direct cause of his fall from a 12 foot wall during basic training. See January 2019 Hardship Letter. This evidence is “new” because it had not been previously submitted and considered by VA. It is material because it serves as evidence of an in-service injury that may be correlated with the Veteran’s current bilateral knee disability, and specifically, is the previously unestablished, unproven element from the June 2013 rating decision. The Board recognizes that this additional piece of evidence is presumed to be credible for the purpose of reopening the claims. Justus, 3 Vet. App. at 512 – 13. Therefore, this additional piece of evidence, when considered in conjunction with the record as a whole, raises a reasonable possibility of substantiating the Veteran’s claim. Accordingly, since new and material evidence has been received, the service connection claims for the right knee and left knee disabilities are reopened. 3. Right Ear Hearing Loss In the June 2013 rating decision, the RO denied the Veteran service-connection claims for right ear hearing loss because it determined that the Veteran’s right ear hearing loss was not incurred in or caused by his active service. Evidence received since this June 2013 rating decision, includes and is not limited to, a lay statement from the Veteran, which constitutes as lay evidence, in which the Veteran asserted that ear damage has caused loss of hearing, which has affected his right ear. This evidence is “new” because it had not been previously submitted and considered by VA. It is material because this evidence suggests that the Veteran’s right ear hearing loss is secondary to his service-connected left ear hearing loss, and as the RO had not considered or addressed this contention in its prior decision, this serves as a previously unestablished element from the June 2013 rating decision. The Board recognizes that this additional piece of evidence is presumed to be credible for the purpose of reopening the claim. Justus, 3 Vet. App. at 512– 13. Therefore, this additional piece of evidence, when considered in conjunction with the record as a whole, raises a reasonable possibility of substantiating the Veteran’s claim. Accordingly, since new and material evidence has been received, the service connection claim for right ear hearing loss is reopened. 4. Hypertension In the June 1988 rating decision, the RO denied the Veteran service-connection claim for hypertension because it determined that the Veteran did not have a current diagnosis of hypertension. Evidence received since the June 1988 rating decision, includes medical evidence showing a current diagnosis of hypertension in numerous treatment records, including current, active prescriptions for lowering the Veteran’s high blood pressure. See e.g. November 2013 Treatment Notes. This evidence is “new” because it had not been previously submitted and considered by VA. It is material because it is evidence of a current diagnosis of hypertension, and specifically, the previously unestablished, unproven element from the June 1988 rating decision. The Board recognizes that this additional piece of evidence is presumed to be credible for the purpose of reopening this claim. Justus, 3 Vet. App. at 512 – 13. Therefore, this additional piece of evidence, when considered in conjunction with the record as a whole, raises a reasonable possibility of substantiating the Veteran’s claim. Accordingly, since new and material evidence has been received, the service connection claim for hypertension is reopened. 5. Diabetes In the June 2013 rating decision, the RO denied the Veteran service-connection claims for diabetes because it determined that the Veteran’s diabetes was not incurred in and/or caused by his active service. Related to this claim, evidence received since the June 2013 rating decision includes, medical treatment records, which confirm and document the Veteran’s history of diabetes; an August 204 claim to reopen diabetes; a March 2016 notice of disagreement (NOD) to the March 2015 rating decision that denied the Veteran’s diabetes claim; an October 2017 substantive Board appeal; and a January 2019 private medical report, which reflects that he is diabetic and on several medications. Although new, as these pieces of evidence were not previously submitted and/or considered by VA, none of these pieces of evidence presented any evidence of an in-service illness, disease, symptoms and/or event associated with diabetes. Further, the Veteran did not present any other evidence, including lay statement, of an illness, symptoms and/or a disease associated with diabetes during his active service. Thus, specifically, these additional pieces of evidence are not material, as they are not proof of an unestablished fact from the June 2013 rating decision, namely, evidence of treatment, complaints or a diagnosis of diabetes in service, or an indication that the disability is related to his service. Thus, as the new evidence submitted is not material, the claim to reopen service connection for diabetes must be denied. 6. Neuropathy of the Right Upper, Left Upper, Right Lower, and Left Lower Extremities (Neuropathy of the Bilateral Upper & Lower Extremities); Sleep Apnea; and Cervical Spine Disability In the June 2013 rating decision, the RO denied the Veteran’s service-connection claims for neuropathy, sleep apnea, and a cervical spine disability because it determined that there was no evidence that his neuropathy, sleep apnea and cervical spine disability were incurred in or aggravated by his military service; that secondary service connection for neuropathy could not be established because the Veteran’s diagnosis of diabetes is not service-connected (and/or related to his service); and that the Veteran’s cervical spine disability and sleep apnea were not secondary to his service-connected left ear hearing loss. Related to these claims, evidence received since the June 2013 rating decision includes, medical treatment records, an August 2014 claim to reopen the claims for neuropathy of the bilateral upper and lower extremities, sleep apnea and a cervical spine disability; a March 2016 NOD to the March 2015 rating decision that denied the Veteran’s claims for neuropathy of the bilateral upper and lower extremities, sleep apnea and a cervical spine disability; and an October 2017 substantive Board appeal. Although new, as these pieces of evidence were not previously submitted and/or considered by VA, none of these pieces of evidence present any evidence of an in-service illness, disease, symptoms and/or event associated with neuropathy of the bilateral upper and lower extremities; sleep apnea or a cervical spine disability. Further, the Veteran did not present any other evidence, including lay statement, of an illness, symptoms and/or a disease associated with any of these disabilities while he was in active service. Thus, as these additional pieces of evidence are not material, as they are not proof of unestablished facts from the June 2013 rating decision, namely, evidence of treatment, complaints or a diagnosis of neuropathy, sleep apnea and/or a cervical spine disability in service. Thus, as no new, material evidence has been submitted, the claims to reopen service connection for neuropathy, sleep apnea and a cervical spine disability must be denied. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110 (West 2012); 38 C.F.R. § 3.303 (2018). That determination requires a finding of a current disability that is related to an injury or disease in service. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2018). Generally, to establish 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). Alternatively, service connection may also be established on a presumptive basis for certain chronic diseases, including and not limited to arthritis (or degenerative joint disease), when manifested to a compensable degree within the initial post-service year. See 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2018). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2018); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). 1. Right Knee Disability The Veteran asserts that his right disability is a direct cause of his fall from a twelve-foot wall in basic training. See January 2019 Hardship Letter from the Veteran. Service treatment records (STRs) include an October 1978 clinical record which indicates that the Veteran fell on his right knee, and that an assessment of the knee indicated that the Veteran had ingrown hair and a bruised knee. However, no other treatment records in his STRs indicated any chronic and/or on-going follow up reports, complaints, treatment, and/or diagnosis for the right knee disability. Although medical treatment records reflect a current diagnosis of right knee arthritis, see e.g. September 2014 MRI Report, treatment records do not show that the Veteran manifested right knee arthritis, to a compensable degree, within one year of his separation from service. Thus, the Board finds that presumptive service connection has not been established, and thus, is not warranted for his right knee disability. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309 (2019). Nonetheless, the Board has considered whether the Veteran’s current right knee disability establishes a direct, causal relationship to his service. In February 2015, the Veteran underwent a VA examination for his right knee. In a February 2015 VA opinion, a VA examiner opined that the Veteran’s right knee disability, to include right knee pain and osteoarthritis, was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. As the rationale for this opinion, the VA examiner explained that the Veteran had no personal memory of seeking medical care for any injury in 1978. He explained that the Veteran recalled having knee pain during physical training, but was told to “suck it up”, and that he did not remember consulting a medical team. The VA examiner clarified that while a September 1977 clinical record noted that the Veteran was seen for abscess in his groin, and a bruise on his right knee, neither condition seems to have required follow up, as there were no subsequent notes documented in the Veteran’s STRs. He explained that although it is possible that a fall on the knee would force the patella backward against the femur, and could potentially be the impetus for the later development of patellofemoral compartment arthritis, it is less likely that that not that an injury so minor, which did not require follow up, would have been the trigger. The Veteran has not submitted any other probative lay or medical evidence, to show chronicity, continuity of symptoms, and/or any other factors that may establish a correlation between his right knee osteoarthritis and his active service. Thus, as the preponderance of the evidence is against this claim, service connection for a right knee disability must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C. § 5107 (West 2012); 38 C.F.R. § 3.102 (2019). 2. Left Knee Disability The Veteran asserts that his left knee disability, which he expects to undergo a total knee replacement, is a direct cause of his fall from a twelve-foot wall in basic training. See January 2019 Hardship Letter from the Veteran. STRs have not shown any complaints, illness, and/or diagnoses of a left knee disability. Furthermore, treatment records have not shown that a diagnosis of left knee osteoarthritis and/or degenerative joint disease of the left knee manifested to a compensable degree within one year of his separation from service. Thus, the Board finds that presumptive service connection has not been established, and thus, is not warranted for his left knee disability. Nonetheless, the medical evidence reflects a current left knee disability, including and not limited to left knee pain, as well as a mild narrowing of the medial compartment of the joint space in the left knee. See August 2014 Radiologic Report of the Left Knee. Thus, even though presumptive service connection is not established for the left knee disability, the Board has also considered whether service connection for the Veteran’s left knee disability is warranted, on a direct basis. The Veteran has not submitted any other evidence, including lay statements, and/or private treatment record, which show a diagnosis, treatment, or complaints related to a left knee disability in service, that may be related to his current disability. The Board acknowledges that the Veteran has not been afforded a VA examination for his left knee disability. However, given the fact that there is no probative evidence indicating that the conditions occurred in service, or that there is no indication that the Veteran’s left knee disability may be associated with his service, or another service-connected disability, the Board finds that VA’s duty to obtain a medical examination is not triggered. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (holding that an examination and medical nexus opinion is required for a service connection claim when there is evidence of current disability or persistent or recurrent symptoms of a disability, evidence establishing in-service event, injury, or disease, or a disease manifested in accordance with presumptive service connection regulations, and an indication that the current disability may be related to an in-service event, injury, or disease; but insufficient evidence to decide the claim). Therefore, the preponderance of the evidence is against this claim and service connection for a left knee disability must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C. § 5107 (West 2012); 38 C.F.R. § 3.102 (2019). 3. Hypertension In August 2014, the Veteran submitted a fully-developed claim for hypertension. The Veteran, however, did not provide any lay statements or assertions about the onset, duration, and/or history of his hypertension. Although the medical evidence reflects a current diagnosis of hypertension, in which the Veteran takes medication to control his high blood pressure, STRs lack evidence of high blood pressure readings, complaints, symptoms, and/or treatment relating to hypertension. Additionally, treatment records have not shown that a diagnosis hypertension was present and that it manifested to a compensable degree within one year of his separation from service. Thus, the Board finds that presumptive service connection has not been established, and thus, is not warranted for hypertension. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309 (2019). Even though presumptive service connection is not established for hypertension, the Board has also considered whether service connection is warranted, on a direct basis. However, the Veteran has not provided any other evidence of an in-service injury, illness or event relating to hypertension. The Board acknowledges that the Veteran has not been afforded a VA examination for hypertension. However, given the fact that there is no probative evidence of hypertension occurring in service, or there is no indication that the Veteran’s hypertension may be associated with his service, or another service-connected disability, the Board finds that a VA medical examination is not warranted under the duty to assist. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (holding that an examination and medical nexus opinion is required for a service connection claim when there is evidence of current disability or persistent or recurrent symptoms of a disability, evidence establishing in-service event, injury, or disease, or a disease manifested in accordance with presumptive service connection regulations, and an indication that the current disability may be related to an in-service event, injury, or disease; but insufficient evidence to decide the claim). Moreover, the Secretary is not obligated to grant a claim for benefits simply because there is no evidence disproving it. See 38 U.S.C. § 5107(a) (explaining that “a claimant has the responsibility to present and support a claim for benefits.”); Skoczen v. Shinseki, 564 F.3d 1319, 1323 – 29 (2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA’s duty to assist, and recognizing that “[w]hether submitted by the claimant or VA . . . . the evidence must rise to the requisite level set forth in section 5107(b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination); Fagan v. Shinseki, 573 F.3d 1282, 1286 (2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility). Therefore, the preponderance of the evidence is against this claim and service connection for hypertension must be denied. Gilbert, 1 Vet. App. at 53; 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Lumbar Spine Disability In August 2014, the Veteran submitted a fully-developed claim for a lumbar spine disability. The Veteran, however, did not provide any lay statements or assertions about the onset, duration, and/or history of his lumbar spine disability. The medical evidence reflects a current lumbar spine disability, to include low back pain and minimal disc bulging at L3-L4. See e.g. September 2014 MRI of the Lumbar Spine; see also February 2015 Physician Emergency Dept. Note. However, STRs lack evidence of complaints, treatment, and/or a diagnosis for a lower back or lumbar spine disability and/or associated illnesses. Furthermore, the Veteran has not asserted and/or reported having any in-service back injuries and/or complaints, nor has he provided any other evidence of an in-service injury, illness or event relating to a lower back disability that may be casually related to his current lumbar spine disability. The Board acknowledges that the Veteran has not been afforded a VA examination for his lumbar spine. However, given the fact that there is no probative evidence of a back injury or disability occurring in service, or there is no indication that the Veteran’s lumbar spine disability may be associated with his service, or another service-connected disability, the Board finds that a VA medical examination is not warranted under the duty to assist. See McLendon, 20 Vet. App. at 83. Moreover, the Secretary is not obligated to grant a claim for benefits simply because there is no evidence disproving it. See 38 U.S.C. § 5107(a) (explaining that “a claimant has the responsibility to present and support a claim for benefits.”); Skoczen, 564 F.3d 1319 at 1323 – 29 (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA’s duty to assist, and recognizing that “[w]hether submitted by the claimant or VA . . . . the evidence must rise to the requisite level set forth in section 5107(b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination); Fagan v. Shinseki, 573 F.3d 1282, 1286 (2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility). Therefore, the preponderance of the evidence is against this claim and service connection for a lumbar spine disability must be denied. Gilbert, 1 Vet. App. at 53; 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 5. Right & Left Hip Disabilities In August 2014, the Veteran submitted a fully-developed claim for right and left hip disabilities (bilateral hip disabilities). The Veteran, however, did not provide any lay statements or assertions about the details of his claimed bilateral hip disability. Pertinently, the medical evidence has not shown that the Veteran has a right and/or left hip disability. Thus, as the evidence does not show a current disability for either left or right hip, these service connection claims must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that “[i]n the absence of proof of a present disability there can be no valid claim.”). 6. Respiratory Disability, to Include COPD The Veteran asserts that he developed a respiratory condition, including COPD, as a result of “going through [a] gas chamber” while he was in active service. See e.g. January 2016 Notice of Disagreement (NOD); see also March 2016 NOD. However, the service treatment records do not show any event or injury in service resulting in any respiratory symptoms or treatment. Moreover, the current medical evidence does not show that the Veteran has a current, chronic respiratory disability, including COPD. VA treatment records associated with the claims file do not list a respiratory disability as an active problem. Rather, they show a past history requiring the prescription of Albuterol, but note that no current pulmonary function tests are of record. Thus, as the evidence does not show a current disability for COPD or any other chronic respiratory condition, this service connection claim must be denied. See Brammer, 3 Vet. App. at 225 (holding that “[i]n the absence of proof of a present disability there can be no valid claim.”). REASONS FOR REMAND The Board regrets further delay, but additional development is necessary before a decision may be rendered on the remaining issues on appeal. 1. Increased Rating Claim for Left Ear Hearing Loss In August 2017, the Veteran was issued a statement of the case (SOC) for all of the issues on appeal. Particularly, the RO issued two separate SOCs. Pertinently, the second of the two SOCs addressed the Veteran’s appeal for an increased rating claim for his service-connected left ear hearing loss. However, the Veteran’s claims file reflects that both SOCs were undeliverable. In an October 2017 correspondence, the RO notified the Veteran, using an updated mailing address for the Veteran, that the first SOC, regarding all of the issues on appeal, except for his increased rating claim for left ear hearing loss, was undeliverable. However, there is no indication that the RO apprised the Veteran of its issuance of the second SOC, which pertains to his increased rating claim for left ear hearing loss, and that it was also undeliverable. Therefore, a remand is required for the RO to fulfil its duty to assist, and reissue the SOC for the Veteran’s left ear hearing loss increased rating claim, and to afford the Veteran an opportunity to timely respond and/or appeal this issue. 2. Service Connection Claims for Headaches and Balance Conditions The Veteran asserts that his headaches and balance conditions are related to his service, and/or are secondary to his tinnitus and/or hearing loss. Service treatment records (STRs) reflect that his separation examination noted that the Veteran had several episodes of mild dizziness of unknown cause, which may be related to the Veteran’s balance conditions, and in his report of medical history for separation from service, the Veteran also reported having headaches and dizziness. See January 1979 Report of Medical Examination for Separation from Service; see also Report of Medical History for Separation from Service. Notwithstanding evidence of current disabilities of headaches and balance conditions, and in-service illnesses and an event, based on the Veteran’s testimony, the Veteran has not been afforded VA examinations for headaches and balance conditions. Therefore, a remand is required for the RO to schedule the Veteran for a VA examination, and additionally, to obtain an opinion on the etiology of the Veteran’s headaches and balance conditions. 3. Service-Connection Claim for Right Ear Hearing Loss The Veteran asserts that he has a right ear hearing loss which is related to his active service, and/or a result of his service-connected left ear hearing loss. However, the medical evidence does not clearly determine whether the Veteran has a right ear hearing loss disability. In an August 2017 VA examination, an audiologist (VA examiner) failed to provide the audiometric results for the Veteran’s right ear. The VA examiner reported that previous “test results [indicate] that the Veteran does have some hearing loss, but not to the degree that he was admitting” and that there “was poor interest reliability across [this] examination.” The VA examiner therefore concluded that test results are considered invalid and invaluable. Given that this medical opinion and or findings are inadequate for determining this claim, a remand a required for a new VA examination on the presence, and if any, etiology of the Veteran’s right ear hearing loss. 4. SMC In his claim, the Veteran asserted that his headaches and balance conditions, among other disabilities listed, are the basis of his need for special monthly compensation. Thus, as this claim is intertwined with the pending claims for headaches and balance conditions, an adjudication of the SMC claim is deferred and remanded, pending the outcome of the Veteran’s service-connection claims for headaches and balance conditions. The matters are REMANDED for the following action: 1. Obtain a verification of the Veteran’s current and updated address and reissue the SOC for the increased rating claim for left ear hearing loss. Advise the Veteran that a failure to timely respond, and/or specifically, submit a VA Form 9—Board appeal, would result in the dismissal of this appeal. 2. Also, schedule the Veteran for a new VA examination to determine the nature and etiology of the Veteran’s headaches and balance conditions. The VA examiner must review the claims file and must note that review in the report. A copy of this REMAND must be made available to the VA examiner. The VA examiner must undertake the following: a. Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s headaches were incurred in service; a result of his active service; a result of an injury, illness, or event in service; and/or is otherwise related to his active service. b. Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s headaches, are a cause of a service-connected disability, including and not limited to, left ear hearing loss and/or tinnitus. c. Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s headaches, are aggravated by a service-connected disability, including and not limited to, left ear hearing loss and/or tinnitus. d. Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s balance conditions were incurred in service; a result of his active service; a result of an injury, illness, or event in service; and/or is otherwise related to his active service. e. Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s balance conditions are a cause of a service-connected disability, including and not limited to, left ear hearing loss and/or tinnitus. f. Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s balance conditions are aggravated by a service-connected disability, including and not limited to, left ear hearing loss and/or tinnitus. g. “Aggravation” means an increase in severity of the disorder beyond any medically established baseline. h. By rendering each opinion, the VA examiner must consider all lay statements from the Veteran about onset, continuity and/or symptomatology. A detailed explanation is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. 3. Also, schedule the Veteran for a new VA examination to determine the presence, and if any, nature and etiology of the Veteran’s right ear hearing loss, with an audiologist (VA examiner) who has not yet evaluated the Veteran. The VA examiner must review the claims file and must note that review in the report. A copy of this REMAND must be made available to the VA examiner. The VA examiner must undertake the following: a. Determine whether the Veteran has right ear hearing loss, for purposes of VA compensation, pursuant to 38 C.F.R. § 3.385 (2018). b. If the Veteran has right ear hearing loss, opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s is a result of an in-service injury, illness, disease, or event; and/or is otherwise related to his active service, including and not limited to, exposure to acoustic trauma. c. If the Veteran has right ear hearing loss, also opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s right ear hearing loss is caused by a service-connected disability, including and not limited to, left ear hearing loss and tinnitus. d. If the Veteran has right ear hearing loss, also opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s right ear hearing loss is aggravated by a service-connected disability, including and not limited to, left ear hearing loss and tinnitus. e. “Aggravation” means an increase in severity of the disorder beyond any medically established baseline. f. By rendering each opinion, the VA examiner must consider all lay statements from the Veteran about onset, continuity and/or symptomatology. A detailed explanation is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. 4. After a readjudication of the claims for right ear hearing loss, migraines and balanced conditions, readjudicate the claim for SMC. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Vanessa-Nola Pratt The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.