Citation Nr: 21001009 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-41 844 DATE: January 6, 2021 ORDER Service connection for degenerative joint disease of the right knee is denied. Service connection for hallux valgus or bunions on both feet is denied. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. Service connection for hypertension is denied. Service connection for residuals of malaria, to include abnormal liver, is denied. FINDINGS OF FACT 1. Degenerative joint disease of the right knee is not related to service and did not manifest within one year of separation from service. 2. Hallux valgus or bunions are not related to service. 3. Bilateral hearing loss is not related to service and did not manifest within one year of separation from service. 4. Tinnitus is not related to service and did not manifest within one year of separation from service. 5. Hypertension is not related to exposure to herbicide agents, did not manifest within one year of separation from service, is not related to a service-connected disability, and is not otherwise related to service. 6. The Veteran does not have current residuals of malaria. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative joint disease of the right knee are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 2. The criteria for service connection for hallux valgus or bunions on both feet are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 3. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2019). 4. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 5. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2019). 6. The criteria for service connection for residuals of malaria, to include abnormal liver, are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to February 1972. This appeal is before the Board of Veterans’ Appeals (Board) from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2019, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript is included in the claims file. In June 2020, the Board remanded the issues on appeal with instruction to readjudicate the claims considering newly submitted evidence. A supplemental statement of the case was issued in August 2020, and the Board is therefore satisfied that the instructions in its June 2020 remand have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted 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(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). For certain chronic diseases, including arthritis, hypertension, and organic diseases of the nervous system such as sensorineural hearing loss and tinnitus, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. The incurrence or aggravation may be rebutted by clear and convincing evidence to the contrary. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). The standard used to determine whether a veteran engaged in combat with the enemy is reasonable doubt, which is to be resolved in a veteran’s favor. See VAOPGCPREC 12-99. The provisions of 38 U.S.C. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder. See Libertine, 9 Vet. App. at 522-23. The provisions of 38 U.S.C. § 1154(b) do not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for degenerative joint disease of the right knee The Veteran claims service connection for a right knee disability. Service treatment records reflect that in January 1970 the Veteran reported problems with both of his knees. He reported that he injured both his knees approximately one year ago. Physical examination was negative, and he was diagnosed with probable chondromalacia. In June 1970 he reported symptoms in the left knee only. In October 1970 he reported pain in both knees, usually when walking or standing for long periods. Physical examination and x-rays were within normal limits. No knee abnormality was noted at his February 1972 separation examination. In his October 2013 claim, the Veteran stated that his disability began in June 1971. Private treatment records reflect that in November 2013 the Veteran reported bilateral knee pain. X-rays showed mild degenerative changes of the bilateral patellofemoral joints. In January 2014 he reported right knee pain. X-rays showed mild osteoarthritis in the medial joint compartment. In a January 2014 statement, the Veteran stated that his in-service injury caused severe pain and limited his physical movement abilities for the decades since. VA treatment records reflect that in February 2014 the Veteran was diagnosed with degenerative joint disease of the bilateral knees. Private treatment records reflect that in February 2014 the Veteran received injections for his knee disabilities. He received additional injections in July 2014. The Veteran underwent a VA examination in August 2014. He reported significant knee pain requiring steroid injections. He was diagnosed with degenerative joint disease of the right knee. The examiner opined that the disability was less likely than not related to service. This opinion was based on the rationale that while severe knee injuries (usually involving meniscal tears) can cause later degenerative joint disease, the knee injuries described in the Veteran’s service treatment records do not appeal to have been significant enough for this to occur. He had a normal knee examination after his injury in service and at the time of separation, so no continuity is present. Private treatment records reflect that in November 2015 the Veteran reported on-and-off right knee pain since injuring it in 1970 in service. Based on radiology, his orthopedist noted that his problem appeared to be isolated to his anterior cruciate ligament (ACL). In a statement accompanying his August 2016 substantive appeal, the Veteran reported that he injured his right knee in Vietnam in 1970 resulting in a torn ACL and a hairline fracture in his kneecap. At his July 2019 hearing, the Veteran reported that he twisted his knee in service stepping into a hole in Vietnam. He reported that he went to sick call, where he was told that he had torn his ligament a little bit and a cracked kneecap. He was returned to duty and did not follow-up at sick call. The Board finds that the evidence weighs against a finding that the Veteran’s right knee disability is related to service or manifested within one year of separation from service. The August 2014 VA examiner gave a probative opinion that is consistent with the record. While the Veteran reported knee pain in service, x-rays in service were within normal limits and there was no abnormality noted at his February 1972 separation examination. There is no evidence that he received treatment for his current disability until decades after separation. The examiner gave an explanation as to why the type of injury the Veteran experienced in service is unlikely to cause arthritis to develop years later. There is no medical evidence in the record to contradict the examiner’s opinion. Furthermore, while the Veteran claims that his injury in service resulted in a torn ligament, his service treatment records reflect a diagnosis of chondromalacia. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran’s right knee disability is related to service or manifested within one year of separation from service, and service connection is therefore denied. 2. Entitlement to service connection for hallux valgus or bunions on both feet The Veteran claims service connection for a bilateral foot disability. Service treatment records reflect that in April 1970 the Veteran was noted to have open sores and ulceration on the top of his right foot due to irritation from his small boots. There is no subsequent treatment in the record, and no such abnormality was noted at his February 1972 separation examination. In his October 2013 claim, the Veteran stated that the boots issued to him throughout active duty were too narrow, causing severe pain resulting in bunions on both feet. In a January 2014 statement, he stated that he has EEE wide feet and that his bunions are the result of having to wear boots that were too narrow for the entirety of his service. The Veteran underwent a VA examination in August 2014. He reported constant pain, especially when wearing shoes and walking, which developed in service. He was diagnosed with bilateral hallux valgus. The examiner opined that the disability was less likely than not related to service. This opinion was based on the rationale that although there was documentation of an in-service sore caused by his shoes, there was no mention of bunions. The examiner further explained that there is no evidence in medical literature, no consensus in the medical community, and no evidence in this case supporting a causal relationship between tight shoes and hallux valgus. Private treatment records reflect that in July 2015 the Veteran reported to his podiatrist that he had been dealing with bilateral bunions since 1971. He was diagnosed with metatarsalgia, bunions, neuropathy, and pain. In a statement accompanying his August 2016 substantive appeal, the Veteran reported that he was issued regular boots in service that did not fit his wide feet, as a result of which he began to develop bunions. At his July 2019 hearing, the Veteran stated that he developed bunions in 1970 or 1971 in service. He stated that he did not report to sick call. He stated his belief that they were caused by his boots. He stated that he did not discuss this with his civilian doctors. The Board finds that the evidence weighs against a finding that the Veteran’s bunions are related to service. He claims that his military boots caused his current disability. While service treatment records reflect that the Veteran experienced symptoms due to his small boots, such symptoms were described as an ulceration on the top of his foot, not bunions. The VA examiner explained that there is no medical basis for small boots to cause hallux valgus. There is no medical evidence in the record to contradict the examiner’s opinion, and the Veteran has not provided any basis of knowledge for his belief that such a relationship is possible. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran’s hallux valgus is related to service, and service connection is therefore denied. 3. Entitlement to service connection for bilateral hearing loss 4. Entitlement to service connection for tinnitus The Veteran claims service connection for bilateral hearing loss and tinnitus. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. Service treatment records do not reflect any symptoms of or treatment for hearing loss or tinnitus. At the Veteran’s June 1969 enlistment examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 -5 -5 No record -5 LEFT 5 -5 -5 No record 10 Speech audiometry testing was not conducted, and no hearing abnormality was noted. At the Veteran’s February 1972 separation examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 5 15 LEFT 5 5 5 5 10 Speech audiometry testing was not conducted, and no hearing abnormality was noted. Private treatment records include the Veteran’s audiometric testing results from September 1990. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 No record 20 LEFT 5 10 0 No record 5 Speech audiometry testing was not conducted. In November 1997, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 55 55 45 LEFT 5 5 10 No record 5 Speech audiometry testing was conducted, but it is unclear whether it was the Maryland CNC Test. In August 2010 the Veteran reported gradually developing hearing loss and tinnitus in the right ear since 1990 with associated otalgia, aural pressure and fullness, and dizziness and imbalance. He reported military and recreational noise exposure. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 65 75 70 70 80 LEFT 10 10 20 45 60 Speech audiometry testing was conducted, but it is unclear whether it was the Maryland CNC Test. He was diagnosed with hearing loss, tinnitus, and Meniere’s disease. In June 2013 he reported hearing loss, which his primary care physician stated was probably due to exposure to noise in Vietnam. He reported a history of ringing in his right ear, with left ear ringing now occurring. In his October 2013 claim, the Veteran stated that his disabilities began in January 1971. Private treatment records reflect that in December 2013 the Veteran reported hearing loss with onset in 1970 when he was exposed to noise in Vietnam. He reported difficulty hearing the telephone, his wife, in a crowd, noises from the room next door, music, and his doorbell. He reported associated bilateral tinnitus and vertigo. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 70 75 75 No record 90 LEFT 35 25 35 No record 70 Speech audiometry testing was conducted, but it did not utilize the Maryland CNC Test. He was diagnosed with bilateral sensorineural hearing loss. In a January 2014 statement, the Veteran stated that he was exposed to very severe levels of weapons noise in Vietnam and afterwards as basic training instructor. He stated that he worked in an office environment for the rest of his career, until he retired early in 2013 due to his difficulties hearing. In an accompanying statement, his wife stated that he stopped working in part due to his worsening hearing problems. She stated that his audiologists told him that it was due to nerve damage in his ears. The Veteran underwent a VA examination in August 2014. He reported severe unprotected noise exposure in combat while in service. He denied occupational or recreational noise exposure since separation. He reported constant ringing in his right ear since Vietnam. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 65 75 75 70 80 LEFT 20 20 30 45 60 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 40 percent in the left ear. (Simply based on these numbers, it appears probable that via clerical error the speech discrimination scores were reversed.) He was diagnosed with bilateral sensorineural hearing loss. The examiner opined that hearing loss was less likely than not related to service. This opinion was based on the rationale that he had normal hearing upon separation without a statistically significant shift in thresholds for the worse when comparing entrance to exit examinations. Citing medical literature, the examiner explained that delayed-onset hearing loss was unlikely to occur. In addition, the examiner stated that the severity of the Veteran’s asymmetry in hearing is not consistent with noise-induced trauma. The examiner further opined that tinnitus was less likely than not the result of in-service noise exposure. This opinion was based on the rationale that the audiometric evidence of his service treatment records did not support acoustic trauma related to current tinnitus. The examiner noted that tinnitus was most likely related to the Veteran’s hearing loss. VA treatment records reflect that in August 2015 the Veteran’s treating audiologist noted slight worsening of hearing without discussion of etiology. In a statement accompanying his August 2016 substantive appeal, the Veteran reported being exposed weapons noise while serving in combat. He stated that he had always been told by his doctors that his hearing loss and tinnitus had been caused by his in-service noise exposure. He stated that he did not recall ever being provided with a separation examination. At his July 2019 hearing, the Veteran reported that he was still in service when he noticed his hearing was getting worse and he was developing tinnitus. He described the noise that he was exposed to in service. The Board finds that the evidence weighs against a finding that hearing loss or tinnitus are related to service or manifested within one year of separation from service. The Veteran’s hearing loss, for VA ratings purposes, had its onset at some point between his audiological testing conducted in September 1990 and that conducted in November 1997. The August 2014 VA examiner gave a probative opinion explaining that it is unlikely that noise exposure in service caused current hearing loss, given that there was not a significant threshold shift from entrance to separation. There is no medical evidence in the record to contradict the examiner’s opinion, apart from a statement by his primary care physician that is not supported by any rationale. Furthermore, the examiner gave a probative opinion explaining that the Veteran’s tinnitus is likely associated with his hearing loss. There is no evidence in the record contradicting this opinion apart from an alternate etiology of Meniere’s disease diagnosed in August 2010 which does not relate tinnitus to service. For these reasons, the Board finds that the evidence weighs against a finding that hearing loss or tinnitus are related to service or manifested within one year of separation from service. Service connection is therefore denied. 5. Entitlement to service connection for hypertension The Veteran claims service connection for hypertension. VA regulations require that hypertension or isolated systolic hypertension be confirmed by readings taken two or more times on at least three different days. For compensation purposes, hypertension means that the diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101. Service treatment records do not reflect any diagnosis of or treatment for hypertension. No such abnormality was noted at the Veteran’s February 1972 separation examination, at which time his blood pressure was measured at 134/80. In his October 2013 claim, the Veteran stated that his disability began in January 1990. In a January 2014 statement, he stated his belief that his hypertension was the result of his anxiety and stress related to service-connected posttraumatic stress disorder (PTSD), exposure to herbicide agents, and history of malaria. Private and VA treatment records reflect ongoing maintenance treatment for hypertension without reference to etiology. In a statement accompanying his August 2016 substantive appeal, the Veteran stated his belief that his hypertension was secondary to exposure to Agent Orange. At his July 2019 hearing, the Veteran stated that he no longer had hypertension because his Parkinson’s disease had caused hypotension. The Board notes that the Veteran was still medicated for hypertension at the time of his October 2013 claim, and he therefore has a current hypertension disability. The Board finds that the evidence weighs against a finding that the Veteran’s hypertension is related to exposure to herbicide agents, manifested within one year of separation from service, is related to a service-connected disability, or is otherwise related to service. There is no evidence that the Veteran’s hypertension arose prior to 1990, many years after separation from service. Hypertension is not among the disabilities with which VA recognizes a presumptive relationship to herbicide agent exposure. See 38 C.F.R. § 3.309(e). The only indication of any relationship to service is the Veteran’s suggestion that hypertension was caused by his anxiety related to service-connected PTSD, his claimed in-service malaria, or exposure to herbicide agents. The Veteran has not provided any basis of knowledge for any such relationship to exist. As he is not a medical expert, he is not competent to opine on such a relationship. There is no indication in the record that any such relationship exists, and a VA examination is therefore unnecessary. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). For these reasons, the Board finds that the evidence weighs against a finding that the Veteran’s hypertension is related to exposure to herbicide agents, manifested within one year of separation from service, is related to a service-connected disability, or is otherwise related to service. Service connection is therefore denied. 6. Entitlement to service connection for residuals of malaria, to include abnormal liver The Veteran claims service connection for malaria residuals. Service treatment records do not reflect any diagnosis of or treatment for malaria or liver disabilities, and no such abnormality was noted at the Veteran’s February 1972 separation examination. Private treatment records reflect that in December 2006 the Veteran was diagnosed with unspecified liver disease. His physician noted his history of malaria and stated that no etiology of liver dysfunction could be ruled out. In June 2011 he presented to the emergency room with abdominal pain. He was diagnosed with probable pancreatitis secondary to fatty liver and moderate-to-severe alcohol intake. In January 2012, his hepatologist noted a history of abnormal liver function tests and fatty liver and suspected that he had steatohepatitis. A July 2013 CT scan showed hepatic steatosis. In his October 2013 claim, the Veteran stated that his disability began in January 1971. In a January 2014 statement, he stated that in February 1971, one week after returning from Vietnam, he went to a VA hospital and was diagnosed with malaria. He reported that he continues to have frequent headaches and fatigue which is sometimes accompanied by fever and chills. He stated his belief that his fluctuation in his liver lab results is due to his malaria. In a statement accompanying his August 2016 substantive appeal, the Veteran again stated his belief that his liver dysfunction was a residual of malaria. He repeated his theory of service connection at his July 2019 hearing. The Board finds that the evidence weighs against a finding that the Veteran has any current residuals of malaria. There is no medical evidence in the record that the Veteran was diagnosed with malaria while in service. Even if such a diagnosis occurred, however, there is no medical evidence of current residuals. The Veteran has only stated his belief that current headaches, fatigue, fever, and a liver disability are related to his history of malaria. He has not provided any basis of knowledge for any such relationship to exist. As he is not a medical expert, he is not competent to opine on such a relationship. There is no indication in the record that any such relationship exists beyond a physician who stated that no etiology of his liver disability could be ruled out, and a VA examination is therefore unnecessary. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). For these reasons, the Board finds that the evidence weighs against a finding that the Veteran has any current residuals of malaria. Service connection is therefore denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Gallagher, 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.