Citation Nr: 21000543 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 20-00 897 DATE: January 5, 2021 ORDER Service connection for tinnitus is denied. Service connection for a vestibular disorder is denied. Service connection for a left foot disability is denied. Service connection for a right foot disability is denied. Service connection for arthritis is denied. Service connection for gout is denied. Service connection for hypertension is denied. Service connection for a kidney disability is denied. Service connection for a genitourinary disability, including erectile dysfunction, enlarged prostate, and residuals of prostate cancer, is denied. Service connection for diabetes mellitus, type II, is denied. Service connection for a heart disability is denied. Entitlement to special monthly compensation (SMC) for loss of use of a creative organ is denied. REMANDED The claim for service connection for bilateral hearing loss is remanded. The claim for service connection for a left leg disability, claimed as fluid retention, is remanded. The claim for service connection for a right leg disability, claimed as fluid retention, is remanded. The claim for SMC at the housebound rate is remanded. The claim for SMC at the aid and attendance rate is remanded. FINDINGS OF FACT 1. Tinnitus was not shown during service or for many years thereafter, and the preponderance of the evidence is against a finding that the Veteran’s current tinnitus was incurred in or caused by service. 2. A vestibular disorder was not shown during service or for many years thereafter, and the preponderance of the evidence is against a finding that a current vestibular disorder was incurred in or caused by service. 3. A left foot disability was not shown during service or for many years thereafter, and the preponderance of the evidence is against a finding that a current left foot disability was incurred in or caused by service. 4. A right foot disability was not shown during service or for many years thereafter, and the preponderance of the evidence is against a finding that a current right foot disability was incurred in or caused by service. 5. Arthritis was not shown during service or for many years thereafter, and the preponderance of the evidence is against a finding that arthritis was incurred in or caused by service. 6. Gout was not shown during service or for many years thereafter, and the preponderance of the evidence is against a finding that the Veteran’s gout was incurred in or caused by service. 7. Hypertension was not shown during service or for many years thereafter, and the preponderance of the evidence is against a finding that the Veteran’s hypertension was incurred in or caused by service. 8. A kidney disability was not shown during service or for many years thereafter, and the preponderance of the evidence is against a finding that a current kidney disability was incurred in or caused by service. 9. A genitourinary disability was not shown during service or for many years thereafter, and the preponderance of the evidence is against a finding that a current genitourinary disability was incurred in or caused by service. 10. Diabetes mellitus was not shown during service or for many years thereafter, and the preponderance of the evidence is against a finding that that the Veteran’s diabetes mellitus was incurred in or caused by service. 11. A heart disability was not shown during service or for many years thereafter, and, the preponderance of the evidence is against a finding that a current heart disability was incurred in or caused by service. 12. The Veteran has not, as the result of service-connected disability, suffered the anatomical loss or loss of use of a creative organ. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 2. The criteria for establishing entitlement to service connection for a vestibular disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2020). 3. The criteria for establishing entitlement to service connection for a left foot disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2020). 4. The criteria for establishing entitlement to service connection for a right foot disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2020). 5. The criteria for establishing entitlement to service connection for arthritis have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 6. The criteria for establishing entitlement to service connection for gout have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 7. The criteria for establishing entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 8. The criteria for establishing entitlement to service connection for a kidney disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 9. The criteria for establishing entitlement to service connection for a genito-urinary disability, to include erectile dysfunction, enlarged prostate, and prostate cancer, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 10. The criteria for establishing entitlement to service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 11. The criteria for establishing entitlement to service connection for a heart disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 12. The criteria for establishing entitlement to SMC for loss of use of a creative organ have not been met. 38 U.S.C. § 1114(k) (2012); 38 C.F.R. § 3.350(a)(1) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1961 to March 1965. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board acknowledges that the Veteran has not received a VA examination with respect to any of his claimed disabilities other than hearing loss and tinnitus. However, for the claims being denied, there is no competent evidence of record suggesting an association between a current disability and service. Although the Veteran has suggested that he may have been exposed to some sort of toxic chemical while guarding airplanes and storage areas during service, he testified at the August 2020 Board hearing that he did not know what the substances were, and he did not handle any of the substances. Moreover, there is no evidence of record suggesting an association between any of the Veteran’s claimed disabilities and an in-service exposure. Accordingly, a VA examination or medical opinion is not required with respect to any claimed disability other than hearing loss and tinnitus. See 38 C.F.R. § 3.159(c) (2020); see also McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a conclusory lay statement that a current condition is related to service is insufficient to warrant a medical examination because it would “eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations in virtually every veteran’s disability case”). The Board also notes that the Veteran testified during the August 2020 Board hearing that he sees private physicians for various medical conditions. The record was held open for 90 days to allow time for relevant evidence to be provided; however, no additional evidence was submitted. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § § 1110 1131; 38 C.F.R. §§ 3.303. Generally, 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). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and certain chronic diseases, including tinnitus, arthritis, calculi of the kidney, cardiovascular-renal disease, hypertension, nephritis, diabetes mellitus, and malignant tumors, become manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for tinnitus The Veteran asserts that his current tinnitus was caused by in-service exposure to hazardous noise from jet engines while guarding aircraft. Upon review of the record, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s current tinnitus was incurred in or caused by service. The Veteran has not asserted, and the record does not suggest, that his tinnitus began during service. Indeed, during the August 2020 Board hearing, the Veteran testified that his tinnitus began sometime after service. The Veteran underwent a VA audiological examination in March 2018, during which he reported symptoms of intermittent tinnitus beginning about four or five years earlier. The examiner reviewed the evidence of record and opined that it was less likely than not that the Veteran’s current tinnitus was caused by in-service noise exposure. In support of this, the examiner explained that the Veteran’s description of his symptoms occurring “every once in a while” and lasting for a few seconds at a time is not consistent with noise-induced tinnitus and often occurs in the general population without any auditory damage. Although the Veteran believes that his current tinnitus is related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). While the Veteran is competent to report symptoms of tinnitus, the etiology of tinnitus which began many years after his in-service noise exposure requires medical expertise to determine. Thus, the opinion of the Veteran regarding the etiology of his current tinnitus is not competent medical evidence. As there is no competent evidence of record linking the Veteran’s current tinnitus to service, service connection for tinnitus is denied. 2. Entitlement to service connection for a vestibular disorder The Veteran seeks service connection for loss of balance, which he asserts was caused by in-service exposure to hazardous noise from jet engines while guarding aircraft. Upon review of the record, the Board finds that the preponderance of the evidence is against a finding that a current vestibular disorder was incurred in or caused by service. Service treatment records show no complaints of balance problems or a diagnosis of a vestibular disorder during service. A February 1965 report of medical examination shows that the Veteran’s internal and external ear canals and ear drums were normal upon his discharge from active duty, and he denied any history of dizziness on an accompanying report of medical history. The record shows no complaints of or treatment for balance problems until the Veteran filed a claim for service connection in January 2018. Thereafter, a September 2018 VA treatment record notes that the Veteran’s balance was moderately impaired. Although the Veteran believes that his current balance impairment is related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau, 492 F.3d at 1376-77. While the Veteran is competent to report symptoms of dizziness or balance problems, the diagnosis and etiology of vestibular disorders which began many years after service are not matters capable of lay observation and require medical expertise to determine. Thus, the Veteran’s opinion regarding the etiology of a current vestibular disorder is not competent medical evidence. As there is no competent evidence of record linking a current vestibular disorder to service, service connection for a vestibular disorder is denied.   3. & 4. Entitlement to service connection for left and right foot disabilities The Veteran asserts that a current bilateral foot disability was caused by prolonged standing during service. Specifically, the Veteran has indicated that he was on his feet the majority of the day while guarding aircraft at Elmendorf Air Force Base, resulting in pain and causing his legs and feet to give out at times. Upon review of the record, the Board finds that the preponderance of the evidence is against a finding that a current left or right foot disability was incurred in or caused by service. Service treatment records show no complaints of or treatment for a foot condition during service. A February 1965 report of medical examination shows that the Veteran’s feet were normal upon his discharge from active duty, and he denied any foot trouble on an accompanying report of medical history. Thereafter, the record shows no complaints of or treatment for a foot condition for many years. The earliest treatment record associated with the claims file is dated December 2016 and shows that the Veteran receives treatment from a private podiatrist. Although the Veteran believes that a current foot disability was caused by prolonged standing in service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this regard, the diagnosis and etiology of foot disabilities are not matters capable of lay observation and require medical expertise to determine. Thus, the Veteran’s opinion regarding the etiology of a current foot disability is not competent medical evidence. As there is no competent evidence of record linking a current foot disability to service, service connection for a left and/or right foot disability is denied. 5. & 6. Entitlement to service connection for arthritis and gout The Veteran asserts that his current arthritis and gout were caused by prolonged standing during service. Specifically, the Veteran has indicated that he was on his feet the majority of the day while guarding aircraft at Elmendorf Air Force Base, resulting in pain and causing his legs and feet to give out at times. In a March 2018 letter, VA asked the Veteran to specify the location of his claimed arthritis. However, the Veteran has not responded. Upon review of the record, the Board finds that the preponderance of the evidence is against a finding that the Veteran has arthritis and/or gout that was incurred in or caused by service. Service treatment records show that the Veteran reported left hip pain while standing in December 1964. A physical examination was negative except for pain on left hip extension, and he was prescribed heat and rest. Service treatment records show no additional reports of left hip pain during service and no diagnosis of or treatment for arthritis or gout during service. A February 1965 report of medical examination shows that the Veteran’s upper and lower extremities, feet, spine, and other musculoskeletal systems were normal upon his discharge from active duty. On an accompanying report of medical history, he denied any arthritis or rheumatism; swollen or painful joints; bone, joint, or other deformity; foot trouble; painful or trick shoulder or elbow; and trick or locked knee. Thereafter, the record shows no complaints of or treatment for arthritis or gout for many years. The earliest treatment record associated with the claims file is dated December 2016 and shows that the Veteran was prescribed allopurinol for gout. The Veteran’s VA treatment records do not show a current diagnosis of arthritis other than gout, nor do they show evidence of a current left hip disability. Although the Veteran believes that he has arthritis and/or gout which was caused by prolonged standing in service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v., 492 F.3d at 1376-77. In this regard, the diagnosis and etiology of arthritis and gout are not matters capable of lay observation and require medical expertise to determine. Thus, the Veteran’s opinion regarding the etiology of his current arthritis and/or gout is not competent medical evidence. As there is no competent evidence of record linking arthritis or gout to service, service connection for arthritis and/or gout is denied. 7. Entitlement to service connection for hypertension Upon review of the record, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s current hypertension was incurred in or caused by service. Service treatment records show no diagnosis of or treatment for hypertension during service. A February 1965 report of medical examination shows that the Veteran’s blood pressure was 110/70 upon his discharge from active duty, and he denied any history of high or low blood pressure on an accompanying report of medical history. Thereafter, the record shows no diagnosis of or treatment for hypertension for many years. The earliest treatment record associated with the claims file is dated December 2016 and shows that the Veteran was on medication for hypertension. Although the Veteran believes that his hypertension is related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v., 492 F.3d at 1376-77. In this regard, the diagnosis and etiology of hypertension are not matters capable of lay observation and require medical expertise to determine. Thus, the Veteran’s opinion regarding the etiology of his current hypertension is not competent medical evidence. As there is no competent evidence of record linking the Veteran’s hypertension to service, service connection for hypertension is denied. 8. Entitlement to service connection for a kidney disability During the August 2020 Board hearing, the Veteran testified that he began having problems with kidney stones within a few years of his discharge from active duty. Upon review of the record, the Board finds that the preponderance of the evidence is against a finding that a current kidney disability was incurred in or caused by service. Service treatment records show no diagnosis of or treatment for a kidney condition during service. A February 1965 report of medical examination shows that the Veteran’s abdomen and viscera were normal upon his discharge from active duty, and he denied any history of kidney stones, sugar or albumin in urine, blood in urine, or frequent or painful urination on an accompanying report of medical history. Thereafter, the record shows no diagnosis of or treatment for a kidney condition for many years. The earliest treatment record associated with the claims file is dated December 2016 and shows that the Veteran had a history of kidney stones, and his problem list noted chronic kidney disease. Although the Veteran believes that a current kidney disability is related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v., 492 F.3d at 1376-77. In this regard, the diagnosis and etiology of kidney disabilities are not matters capable of lay observation and require medical expertise to determine. Thus, the Veteran’s opinion regarding the etiology of a current kidney disability is not competent medical evidence. As there is no competent evidence of record linking a current kidney disability to service, service connection for a kidney disability is denied. 9. Service connection for a genitourinary disability, including erectile dysfunction, enlarged prostate and prostate cancer is denied. The Veteran claimed service connection for enlarged prostate and erectile dysfunction. However, the RO framed the issue as including prostate cancer. Review of the medical evidence of record reveals a diagnosis of benign prostatic hyperplasia (enlarged prostate) but fails to reveal a diagnosis of prostate cancer or even a history of prostate cancer. As there is no evidence of prostate cancer or residuals thereof during the course of the claim, service connection for prostate cancer is denied. Turning to the other genitourinary claims, service treatment records show no diagnosis of or treatment for a genitourinary condition during service. A February 1965 report of medical examination shows that the Veteran’s genitourinary system was normal upon his discharge from active duty, and he denied any history of frequent or painful urination on an accompanying report of medical history. Thereafter, the record shows no diagnosis of or treatment for genitourinary symptoms for many years. The earliest treatment record associated with the claims file is dated December 2016 and shows that the Veteran had a history of benign prostatic hyperplasia. Although the Veteran believes that a current genitourinary disability is related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v., 492 F.3d at 1376-77. In this regard, the diagnosis and etiology of genitourinary disabilities are not matters capable of lay observation and require medical expertise to determine. Thus, the Veteran’s opinion regarding the etiology of a current genitourinary disability is not competent medical evidence. As there is no competent evidence of record linking a current genitourinary disability to service, service connection for a genitourinary disability is denied. 10. Entitlement to service connection for diabetes mellitus, type II Upon review of the record, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s diabetes was incurred in or caused by service. Service treatment records show no diagnosis of or treatment for diabetes during service. A February 1965 report of medical examination shows that the Veteran’s endocrine system was normal upon his discharge from active duty. Thereafter, the record shows no diagnosis of or treatment for diabetes for many years. The earliest treatment record associated with the claims file is dated December 2016 and shows that the Veteran had a history of diabetes mellitus, type II. Although the Veteran believes that his diabetes is related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v., 492 F.3d at 1376-77. In this regard, the diagnosis and etiology of diabetes are not matters capable of lay observation and require medical expertise to determine. Thus, the Veteran’s opinion regarding the etiology of his diabetes is not competent medical evidence. As there is no competent evidence of record linking the Veteran’s diabetes to service, service connection for diabetes is denied.   11. Entitlement to service connection for a heart disability Upon review of the record, the Board finds that the preponderance of the evidence is against a finding that a current heart disability was incurred in or caused by service. Service treatment records show no diagnosis of or treatment for a heart condition during service. A February 1965 report of medical examination shows that the Veteran’s heart, lungs, and chest were normal upon his discharge from active duty, and he denied any palpitation or pounding heart, pain or pressure in the chest, or shortness of breath on an accompanying report of medical history. Thereafter, the record shows no complaints of or treatment for a heart condition until the Veteran filed a claim for service connection in January 2018. Although the Veteran believes that he has a current heart condition that is related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v., 492 F.3d at 1376-77. In this regard, the diagnosis and etiology of heart disabilities are not matters capable of lay observation and require medical expertise to determine. Thus, the Veteran’s opinion regarding the etiology of a current heart disability is not competent medical evidence. As there is no competent evidence of record linking a current heart disability to service, service connection for a heart disability is denied. Special Monthly Compensation 12. Entitlement to special monthly compensation (SMC) for loss of use of a creative organ is denied. SMC is payable to a veteran who, as the result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a)(1). As service connection is not in effect for any disability, and service connection has been denied for a genitourinary condition including erectile dysfunction, the criteria for establishing entitlement to SMC for loss or loss of use of a creative organ have not been met. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded The Veteran underwent a VA audiological examination in March 2018, during which he reported decreased hearing beginning about ten years earlier. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss and opined that it was less likely than not caused by in-service noise exposure. In support of this, the examiner relied solely on the fact that the Veteran’s hearing was within normal limits during service, and his hearing loss began many years after separation. However, a hearing loss disability need not be shown in service for service connection to be established; rather, service connection may be established for a current hearing loss disability with evidence that the current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Therefore, the Board finds that a remand is necessary in order to obtain another medical opinion. 2. Entitlement to service connection for a left leg disability, claimed as poor circulation, is remanded 3. Entitlement to service connection for a right leg disability, claimed as poor circulation, is remanded The Veteran asserts that he has poor circulation and fluid retention in the legs, which were caused by prolonged standing during service. Specifically, the Veteran has indicated that he was on his feet the majority of the day while guarding aircraft at Elmendorf Air Force Base, resulting in pain and causing his legs give out at times. Service treatment records show that the Veteran reported left hip pain while standing in December 1964. A physical examination was negative except for pain on left hip extension, and he was prescribed heat and rest. During his hearing, the Veteran testified that his legs gave out several times during service, and that he currently experiences swelling in his legs. The Board finds a VA examination is needed. 4. Entitlement to special monthly compensation at the housebound rate 5. Entitlement to special monthly compensation based on the need for regular aid and attendance As the Veteran does not currently have a service-connected disability, these claims are intertwined with the claims for service connection being remanded. The matters are REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed bilateral leg circulation disability. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. Provide the claims file to an appropriate examiner to obtain an addendum opinion with respect to the Veteran’s service connection claim for bilateral hearing loss. After a review of the claims file, the examiner should explain why the Veteran’s current hearing loss is or is not merely a delayed residual of in-service noise exposure. 3. Schedule the Veteran for a VA vascular examination to determine the nature of his claimed circulation problem/fluid retention in his legs and to obtain an opinion as to whether such is possibly related to service. The claims file should be reviewed by the examiner in conjunction with the examination. After review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current circulation/fluid retention disability of the legs arose during service or is otherwise related to service, to include the hip pain noted during service and the Veteran’s reports of his legs giving out several times during service. A rationale for all opinions expressed should be provided. 4. If the claims remain denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banister, Counsel 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.