Citation Nr: 20007801 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 13-03 437 DATE: January 30, 2020 ORDER Service connection for lower back condition is denied. Service connection for tinnitus is denied. Service connection for bilateral hallux valgus, to include as secondary to the service-connected bilateral pes planus, is denied. Service connection for bilateral hammertoes, to include as secondary to the service-connected bilateral pes planus, is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for arthritis of the right wrist, status post fracture (right wrist condition) is remanded. Service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against a finding that the Veteran has, or as had at any time during the appeal, a current diagnosis of a lower back condition. 2. The preponderance of the evidence of record is against a finding that the Veteran has, or as had at any time during the appeal, a current diagnosis of tinnitus. 3. The clinical onset of the Veteran’s bilateral hallux valgus did not occur during or within a year of his separation from service, is not otherwise shown to be related to service, and was not caused or aggravated by his service-connected bilateral pes planus. 4. The clinical onset of the Veteran’s bilateral hammertoes did not occur during or within a year of his separation from service, is not otherwise shown to be related to service, and was not caused or aggravated by his service-connected bilateral pes planus. CONCLUSIONS OF LAW 1. The criteria for service connection for a lower back condition have not been met. 38 U.S.C. §§ 1110, 1111, 5107 (b); 38 C.F.R. §§ 3.102, 3.303 (a). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1111, 5107 (b); 38 C.F.R. §§ 3.102, 3.303 (a). 3. The criteria for service connection for bilateral hallux valgus, to include as secondary to the service-connected bilateral pes planus, have not been met. 38 U.S.C. §§ 1110, 1111, 5107 (b); 38 C.F.R. §§ 3.102, 3.303 (a), 3.310. 4. The criteria for service connection for bilateral hammertoes, to include as secondary to the service-connected bilateral pes planus, have not been met. 38 U.S.C. §§ 1110, 1111, 5107 (b); 38 C.F.R. §§ 3.102, 3.303 (a), 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1976 to December 1979. The issues are on appeal from July 2015 and October 2015 rating decisions. In July 2015, the regional office (RO) granted service connection for a right wrist condition at 10 percent disabling, effective January 26, 2015. In October 2015, the RO denied the remaining service connection claims for lower back condition, bilateral hearing loss, and tinnitus. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Entitlement to service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is competent to report observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Additionally, the Board has no reason to doubt the credibility of his statements. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). For certain chronic disorders, service connection may be granted on a presumptive basis if the disease is manifested to a compensable degree within one year following service discharge. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a) (2016). Additionally, for chronic diseases defined by 38 C.F.R. § 3.309 (a) and shown in service or by a continuity of symptoms after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In order to show a chronic disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Where a chronic disease has been incurred in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required in order to establish entitlement to service connection. Id. 1. Entitlement to service connection for lower back condition 2. Entitlement to service connection for tinnitus The Veteran contends that he suffers from a lower back condition and tinnitus due to his military occupational specialty (MOS) as an infantryman and tow gun runner. As part of his MOS duties, he lifted and loaded gunnery shells weighing over 100 pounds into the tow missile gun. He was also exposed to acoustic trauma from shooting M16s and machine guns. The Board concludes that the Veteran does not have a current diagnosis of a lower back condition or tinnitus and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107 (b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303 (a), (d). The Veteran’s service treatment records are void of any complaints of or diagnosis of a lower back condition or tinnitus, including a July 1979 separation evaluation. In October 2015, the Veteran was afforded a VA examination. He denied experiencing tinnitus. Medical treatment records associated with the claims file also reflect consistent denials of the condition. See i.e. May 2007 Primary Care note (“denies…tinnitus”); June 2009 Primary Care note (“denies…tinnitus). His remaining VA treatment records are silent for any complaints of or diagnosis of a tinnitus and he denied experiencing joint or muscle pain with the exception of one record in May 2007. Here, the Veteran complained of pain in his left flank after lifting heavy bags of cement at work. He denied usually experiencing joint or muscle pain upon physical examination. The physician noted the Veteran had pain on flexion of torso. The physician suggested he wear a back brace. As this is the sole notation of low back pain and there are no further complaints of left flank pain or torso flexion pain, the Board finds that this is an outlier issue that has resolved. While the Veteran believes he has a current diagnosis of a lower back condition or tinnitus, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires a specialized medical knowledge. Jandreau, 492 F.3d at 1377. For direct or presumptive service connection, the first element is a diagnosis. As the record does not reflect a current diagnosis for a lower back condition and tinnitus, the Board determines that a current diagnosis of either of the claims cannot be established. Lacking a current diagnosis, the cornerstone element of service connection has not been met, and service connection for a lower back condition or tinnitus cannot be established on any basis. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, service connections for a lower back condition and tinnitus are denied. Secondary Service Connection Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) that the current disability was either (a) caused, or (b) aggravated by the service-connected disability. See 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). 3. Service connection for hallux valgus and hammertoes (feet conditions), to include as secondary to the service-connected bilateral pes planus A current diagnosis of hallux valgus and of hammertoes have been established. Thus, the remaining question before the Board is whether the Veteran’s diagnosed feet conditions arose in service or is otherwise related to a service-connected disability. Specifically, the Veteran contends that his feet conditions are secondary to his service-connected bilateral pes planus. Turning to the evidence, the Board notes that the Veteran’s service treatment records do not document any episodes of hallux valgus or hammertoes. There is one treatment of an ingrown left toenail with a small infection in July 1978. A July 1979 separation evaluation notes that he was in good health and although he was found to have feet problems, this issue was due to his now service-connected pes planus, and not hallux valgus or hammertoes. Post-separation, the Veteran’s VA treatment records first show diagnosis of bilateral hammertoes in December 2009, right foot hallux valgus in July 2010, and left foot hallux valgus in October 2010. He was afforded VA examinations and addendum medical opinions were obtained in October 2010, August 2015, August 2017, and May 2019. The examiners each provided negative etiology opinions, stating that it was less likely than not that either foot condition was related to service. As rationale, they explained that the Veteran’s service treatment records were silent regarding hallux valgus or hammertoes and note that he was not diagnosed with either condition until 30 years after separation, at the earliest. The July 1978 left ingrown toe nail found in his service treatment records was a small infection, and a separate and distinct condition from hallux valgus or hammertoes. See Maxson v. West, 12 Vet. App. 453 (1999), aff’d, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim, which weighs against the claim). Additionally, the April 2019 examiner declared that no current medical knowledge states that pes planus can cause or aggravate hallux valgus or hammertoes, and therefore, each condition was less likely than not related to the service-connected bilateral pes planus. Thus, the Board concludes that although the Veteran has a current diagnosis of hallux valgus and hammertoes, the preponderance of the evidence weighs against finding that the Veteran’s feet conditions began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107 (b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). The Board also concludes that the medical evidence does not show a secondary service connection linking his feet conditions to his service-connected bilateral pes planus. See 38 C.F.R. § 3.310 (a). Insofar as the Veteran and his representative have asserted that his feet conditions are related to military service, the Board notes that such statements are not credible as neither the Veteran nor his representative have demonstrated that they have the requisite medical experience or expertise to provide such a medical opinion in this case. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for a right wrist condition is remanded. The Veteran was last afforded a VA examination for his right wrist condition in May 2017. While not unduly old, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of the right wrist condition as more recently associated medical documentation indicates a possible worsening of the condition to include referall to a hand surgeon. See i.e. September 2018 VAMC Primary Care note (“b/l wrist arthralgia---seen by hand surgery”). 2. Service connection for bilateral hearing loss is remanded. The Veteran’s service treatment records show an April 1976 entrance and a July 1979 separation audiograms that do not list the threshold results for either ear at 3000 Hertz. The Veteran was afforded a VA examination in October 2015. He reported to the October 2015 examiner that he was provided hearing protection during service. Additionally, his post-separation career was as a forklift driver where he was further exposed to acoustic trauma. The Veteran was diagnosed with bilateral sensorineural hearing loss in the frequency range of 500 to 4000 Hertz. The examiner opined that his bilateral hearing loss was less likely than not related to active duty service, to include the conceded acoustic trauma due to the Veteran’s military occupational specialty, because his hearing was within normal limits at the time of separation. Therefore, the examiner found that his current hearing loss was not caused by or a result of acoustic trauma sustained in service. As noted above, the Veteran’s MOS was as an infantryman and tow gunner, where he shot M16s and machine guns as part of his duties. Pursuant to a recent decision by the United States Court of Appeals for Veterans Claims (Court), the Board finds that a remand is necessary to consider the missing audiogram results because it is theoretically possible that a disability might have existed under 38 C.F.R. § 3.385 if the threshold at that frequency was at 40 decibels or higher. See Highfill v. Wilkie, 2019 U.S. App. Vet. Claims LEXIS 273, *6 (Feb. 25, 2019) (Davis, Chief Judge) (non-precedential) (holding that audiological testing that does not include measurements at 500, 1000, 2000, 3000, and 4000 Hertz could not establish the absence of hearing loss in service because it is possible that the missing threshold at that frequency was at 40 decibels or higher). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right wrist condition. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria and include a discussion of the Veteran’s recent referral to a hand surgeon for bilateral arthralgia. A complete rationale should be submitted for any opinions offered. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his hearing loss disability. The clinician must opine whether it is at least as likely as not that the Veteran’s hearing loss disability is related to an in-service injury, event, or disease, including noise from shooting M16s and machine guns. In rendering the requested opinion, the clinician should consider and discuss: (1) the Veteran’s military occupational specialty; (2) the separation audiological examination showing missing a threshold result at 3000 Hertz, but otherwise normal hearing; (3) post-service occupational and recreational noise exposure; and (4) whether the Veteran’s hearing loss conforms to the natural progression of the disease. A complete rationale should be submitted for any opinions submitted. 3. Readjudicate the appeals. M.J. COLICELLI Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lee 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.