Citation Nr: 21062366 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-50 277A DATE: October 7, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for skeletal arthritis all joints is denied. Entitlement to service connection for gastroesophageal reflux disease (GERD) is denied. Entitlement to service connection for erectile dysfunction is denied. REMANDED Entitlement to service connection for diabetes mellitus type II is remanded. Entitlement to service connection for depression is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a bilateral eye conditions is remanded. Entitlement to service connection for a bilateral hip condition is remanded. Entitlement to service connection for a bilateral knee condition is remanded. Entitlement to service connection for a bilateral foot condition is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a bilateral hearing loss disability at any time during or proximate to the pendency of the claim. 2. The preponderance of the evidence of record is against finding that the Veteran has had skeletal arthritis at any time during or proximate to the pendency of the claim. 3. The preponderance of the evidence is against finding that the Veteran's GERD began during his active service or is otherwise related to an in-service injury or disease. 4. The preponderance of the evidence is against finding that the Veteran's erectile dysfunction began during his active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for entitlement to service connection for skeletal arthritis all joints have not been met. 38 U.S.C. §§ 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. The criteria for entitlement to service connection for GERD have not been met. 38 U.S.C. §§ 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. 4. The criteria for entitlement to service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1979 to March 1983. The Veteran requested a hearing before a Veterans Law Judge in his substantive appeal. However, in August 2021 he withdrew that request. Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues denied in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In that regard, the Board notes that the development directed in the Remand section below pertains to the remanded issues, and there is no indication that evidence developed as part of those actions may be relevant to the issues denied in this decision. In particular, the Board notes that the additional evidence received since issuance of the statement of the case is relevant to the remanded issues, but is not relevant to the issues denied in the decision. Accordingly, a remand for issuance of a supplemental statement of the case as to the denied issues is not necessary, and the Board may proceed with appellate consideration of those issues. See 38 C.F.R. § 19.37. The analysis in the decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in the decision. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Entitlement to service connection for bilateral hearing loss The Veteran seeks entitlement to service connection for bilateral hearing loss. At a December 2016 VA examination, he reported that during his active service he was exposed to noise from mortars, gunfire, and heavy equipment through his work as a mortar man and as a construction worker. 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 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In this case, the record does not show that the Veteran had a bilateral hearing loss disability for VA purposes, as defined by 38 C.F.R. § 3.385, at any time during the appeal period or in proximity to the claim for service connection. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Specifically, the results of audiological testing at the December 2016 VA examination were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 10 15 LEFT 10 10 10 10 10 Speech audiometry revealed speech recognition scores of 100 percent in the right ear and 96 percent in the left ear. Such audiometric and speech recognition findings do not reflect a hearing loss disability for VA purposes, as defined in 38 C.F.R. § 3.385. Accordingly, the evidence of record, to include the December 2016 VA examination, does not reveal a right or left ear hearing loss disability for VA purposes, as defined by 38 C.F.R. § 3.385. As such, the evidence does not show that the Veteran has been diagnosed with a bilateral hearing loss disability for VA purposes. The Board acknowledges the Veteran's contention that he has bilateral hearing loss that is etiologically attributable to in-service noise exposure. The Veteran, as a lay person, is competent to report that he has difficulty hearing; however, he is not competent to diagnose a hearing loss disability for VA compensation purposes. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006). Diagnosing a hearing loss disability for VA purposes requires specialized diagnostic testing. The Veteran has not been shown to possess the medical expertise or knowledge to diagnose a hearing loss disability. Therefore, his contentions do not constitute competent evidence of a current bilateral hearing loss disability for VA purposes, and do not weigh against the probative value of the relevant objective audiological test results of record. In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, without evidence of a current bilateral hearing loss disability for VA purposes, the Board need not address the other elements of service connection for a bilateral hearing loss disability. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to service connection for skeletal arthritis all joints The Veteran seeks entitlement to service connection for skeletal arthritis of all joints. He also has not presented any particular theory as to how the claimed disability is related to his active service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of arthritis and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky, 26 Vet. App. at 294; McClain, 21 Vet. App. at 321. The Board has carefully reviewed the Veteran's medical treatment records and finds that they do not show that the Veteran has been diagnosed with arthritis of any joint. The Board acknowledges the Veteran's contention that he has skeletal arthritis. The Veteran, as a lay person, is competent to report that he has joint pain; however, he is not competent to diagnose arthritis. See Layno, 6 Vet. App. at 469); Kahana, 24 Vet. App. at 435; Buchanan, 451 F.3d at 1336-37. Diagnosing arthritis requires knowledge and understanding of complex medical testing and imaging. The Veteran has not been shown to possess the medical expertise or knowledge to diagnose such a condition. Therefore, his contentions do not constitute competent evidence of a current disability of skeletal arthritis, and do not establish such a current disability. In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer, 3 Vet. App. at 225. Accordingly, without evidence of a current disability of skeletal arthritis, the Board need not address the other elements of service connection for skeletal arthritis. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to service connection for GERD 4. Entitlement to service connection for erectile dysfunction The Veteran seeks entitlement to service connection for GERD and erectile dysfunction. He has not presented any particular theory as to how the disabilities are related to his active service. The question for the Board in each claim is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, although the record shows the Veteran may have had GERD and erectile dysfunction during or in temporal proximity to the appeal period, the preponderance of the evidence weighs against finding that those current disabilities began during the Veteran's active service or are otherwise related to an in-service injury, event, or disease. The service treatment records do not show a diagnosis of GERD or erectile dysfunction. They also do not show complaint of or treatment for symptoms consistent with GERD or erectile dysfunction. The medical treatment evidence of record shows that the Veteran was not diagnosed with GERD or erectile dysfunction until many years after his separation from active service. Furthermore, as noted above, the Veteran has not presented any particular theory as to how the claimed GERD and erectile dysfunction are related to his active service. In summary, there is no probative evidence of record showing that the Veteran's GERD and erectile dysfunction began during his active service or are otherwise related to an in-service event, injury, or disease. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claims for entitlement to service connection for GERD and entitlement to service connection for erectile dysfunction. Because the preponderance of the evidence is against the claims, the doctrine of reasonable doubt is not for application, and the claims must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus type II is remanded. A May 2016 VA treatment note indicates that the Veteran's diagnosed diabetes mellitus type II is probably secondary to his use of prednisone to treat his service-connected chronic obstructive pulmonary disease with asthma. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for diabetes mellitus type II because no VA examiner has opined whether the disability may be secondary to the service-connected respiratory disability (or its medications). A remand is required to obtain such an opinion. 2. Entitlement to service connection for depression is remanded. The Veteran's VA mental health treatment provider wrote in an August 2016 letter that the Veteran "is struggling at this time due to medical problems that have not allowed him to work". The Veteran's medical treatment records also indicate that the Veteran's depression is due to his physical health problems. However, the August 2016 letter and the medical treatment records do not specify which of the Veteran's physical health problems have caused his depression. Therefore, the issue must be remanded so that an opinion as to whether the Veteran's depression may be secondary to his service-connected disabilities may be obtained. 3. Entitlement to service connection for hypertension is remanded. 4. Entitlement to service connection for a bilateral eye conditions is remanded. 5. Entitlement to service connection for a bilateral hip condition is remanded. 6. Entitlement to service connection for a bilateral knee condition is remanded. 7. Entitlement to service connection for a bilateral foot condition is remanded. Records relevant to the other issues remaining on appeal, to include additional VA treatment records and the Veteran's Social Security Administration records, were received since the agency of original jurisdiction (AOJ) last adjudicated the appeal in an August 2017 statement of the case. The issues must be remanded so that the AOJ may consider the additional evidence in the first instance and issue a supplemental statement of the case. See 38 C.F.R. §§ 19.37, 20.1305(c). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his claimed diabetes mellitus type II. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran's diabetes mellitus type II at least as likely as not (50 percent probability or greater) proximately due to his service-connected chronic obstructive pulmonary disease with asthma, to include the prednisone he has taken for that disability? If not, is the Veteran's diabetes mellitus type II at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected chronic obstructive pulmonary disease with asthma, to include the prednisone he has taken for that disability? The opinion must address the May 2016 VA treatment note that states the Veteran's diabetes mellitus type II is probably secondary to his use of prednisone to treat his service-connected chronic obstructive pulmonary disease with asthma. 2. Schedule the Veteran for a VA examination for his claimed depression. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran's depression at least as likely as not (50 percent probability or greater) proximately due to his service-connected broken big toe on the left foot, bilateral tinnitus, and/or chronic obstructive pulmonary disease with asthma? If not, is the Veteran's depression at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected broken big toe on the left foot, bilateral tinnitus, and/or chronic obstructive pulmonary disease with asthma? The opinion must address the August 2016 letter from the Veteran's VA mental health treatment provider and the VA treatment records that indicate the Veteran's physical health problems have caused his depression. 3. Review the expanded record, including the evidence entered since the statement of the case, and determine whether the benefits sought may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned to the Board. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. J. Anthony, 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.