Citation Nr: 21062638 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 16-11 483 DATE: October 8, 2021 ORDER Service connection for bilateral hearing loss is denied. Service connection for bilateral tinnitus is denied. Service connection for a low back disability is denied. Service connection for hypertension is denied. Service connection for a right foot disability is denied. Service connection for a left foot disability is denied. Service connection for a right hip disability is denied. Service connection for a left hip disability is denied. Service connection for a right leg disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that reported bilateral hearing loss and tinnitus, a low back disability, reported right and left foot disabilities, and reported right and left hip disabilities began during the Veteran's active military service or are otherwise related or attributable to his service. 2. The preponderance of the evidence is against finding that his hypertension and reported right leg disability began during his active military service or are otherwise related or attributable to his service including caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to service connection for reported bilateral hearing loss and tinnitus, a low back disability, reported right and left foot disabilities, and reported right and left hip disabilities. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria also are not met for entitlement to service connection for hypertension and a reported right leg disability including secondary to any service-connected disability. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from July 1966 to July 1969, including in the Republic of Vietnam. He received the Purple Heart Medal and Combat Infantryman Badge (CIB), among other decorations and commendations. Service Connection Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) current disability; (2) in-service incurrence or aggravation of a relevant disease or injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). If the evidence establishes the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, the Veteran's lay statements alone may establish occurrence of the claimed in-service stressor, in the absence of clear and convincing evidence to the contrary, provided the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f); Zarycki v. Brown, 6 Vet. App. 91 (1993). In Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012), the Federal Circuit Court held that the combat presumption contained in 38 U.S.C. § 1154(b) [and by extension in the implementing VA regulation, 38 C.F.R. § 3.304(d)] not only applied to a combat injury, but also to the consequences of that injury, at least in service. See Reeves, 682 F.3d at 999 (holding that the Board was required to apply the § 1154(b) presumption to the Veteran's claimed acoustic trauma during service and to the separate question of whether he suffered permanent hearing loss while on active duty). According to the holding in Reeves and that line of precedent cases, when the injury in question is alleged to have occurred in combat, there does not have to be documentation of it in the service treatment records (STRs) (indeed, this is not considered to be a reasonable expectation since injuries sustained in combat often are not or, in fact, cannot be reported because of the very nature of the situation, i.e., hostile environment). Thus, as held in Reeves, in this circumstance a Veteran would then only have to show that the disability he incurred in service was a chronic condition that persisted in the years following active duty. This basically establishes that the injury in service resulted in permanent disability. See generally Reeves. When a disease is first diagnosed after service, service connection is still permissible for that condition if the evidence, including that pertinent to service, shows it was incurred in service. 38 C.F.R. § 3.303(d). In this case at hand, as already alluded to, the evidence clearly shows the Veteran engaged in combat while stationed in Vietnam, as confirmed by the very awards he received specifically acknowledging this. But, certainly while commendable, § 1154(b) and § 3.304(d) do not absolve him of still needing probative evidence establishing the required correlation between the disorders now being claimed and what occurred in combat. See Clyburn v. West, 12 Vet. App. 296 (1999). The application of 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d) is not equivalent to a statutory presumption that the claimed disorder is service connected. Instead, this statute and VA regulation only operate to provide the combat Veteran with a presumption that the claimed in-service events occurred as he or she reported. Thus, it is still necessary for the claimant to demonstrate both the presence of a disability and competent evidence of a nexus between the in-service event and the disability in question. Dalton v. Nicholson, 21 Vet. App. 23 (2007). 1. Service connection for bilateral hearing loss is denied. 2. Service connection for bilateral tinnitus is denied. The Veteran contends that he suffers from bilateral hearing loss and tinnitus because of his service, especially owing to his combat service. However, after a review of the evidence, the Board finds that the preponderance of it is against these claims for service connection. Most significantly, there is no current diagnosis of hearing loss or tinnitus. The Veteran underwent a VA examination in June 2015 in response to these claims. Following that evaluation, the examiner concluded that audiometric testing for hearing loss resulted in invalid responses such that the results were inaccurate. This was due to poor cooperation by the Veteran. Thus, a diagnosis of hearing loss and/or tinnitus could not be made. The Board sees that, at the time of that evaluation, the Veteran reported tinnitus beginning some 20 plus years earlier, which would date the onset of this disease still to many decades following his separation from service and even accepting that it is the type of condition that is amenable to even lay diagnosis. See Charles v. Principi, 16 Vet. App. 370 (2002); Layno v. Brown, 6 Vet. App. 465, 469 (1994). In December 2018, the Board remanded these claims back to the Agency of Original Jurisdiction (AOJ), i.e., local Regional Office (RO), to have the Veteran undergo another VA examination for an opinion concerning whether he has hearing loss (it must meet the requirements of 38 C.F.R. § 3.385 to be considered a "ratable" disability) and tinnitus and, if so, whether these disabilities are related or attributable to his service. However, in May 2021, he cancelled his examinations and stated that he did not want to be scheduled for a new examination. The duty to assist him in fully developing his claims is not a one-way street, and he has declined to cooperate in the needed further development of these claims. See Olsen v. Principi, 3 Vet. App. 480 (1992); Wood v. Derwinski, 1 Vet. App. 406 (1991). According to 38 C.F.R. § 3.655, when, as here, a claimant does not report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. This is significant because the record on appeal does not otherwise show a diagnosis of bilateral hearing loss or tinnitus, much less the required attribution of these conditions to the Veteran's military service including to his experiences in combat in Vietnam. See Watson v. Brown, 4 Vet. App. 309, 314(1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). The VA treatment records dated throughout the appeal do not reference reports of hearing loss or tinnitus or otherwise show a diagnosis of either disability. The Veteran has not provided any further statements in support of his claims, such as a description of current symptoms or report of how long these symptoms have occurred in relation to his time in service. Again, his report of tinnitus provided on 2015 VA examination does not relate it back to his service, even accepting the history he recounted. Thus, the elements of service connection have not been met. 3. Service connection for a low back disability is denied. The Veteran also attributes his low back disability to his service. As already explained, due to the Veteran's combat service, there is satisfactory lay evidence to support the finding of an injury to his low back while in service. His service treatment records (STRs) also show that, in July 1967, he reported experiencing two months of back pain. The diagnosis was a mild back strain. An accompanying X-ray of his back was negative. On separation examination in 1969, there was no report or indication of a low back disability. There is a far more recent diagnosis of a low back disability namely, of a lumbar strain and chronic low back pain, as evidenced by the VA treatment records and the report of a May 2015 VA examination. Also notably, however, during that May 2015 VA examination, the VA examiner considered the Veteran's report of back pain while carrying a machine gun in Vietnam. The examiner also did a physical examination of the Veteran and reviewed the file, including the Veteran's STRs and lay statements, but ultimately concluded that it is less likely than not the Veteran's current low back disability is the result of his service. The examiner found that the notation in service of a low back strain appeared to resolve, as there were no further records documenting a back disability or complaints of back pain in service or for many years following the Veteran's separation from service. The examiner surmised that, absent any evidence of a persistent back condition since service (meaning chronic disability), the current low back disability could not be etiologically linked to the single report of back pain in service. The Veteran is not competent to attribute his current low back disability to his service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, the VA examiner's opinion concerning this determinative issue of causation is more probative. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Moreover, the Veteran's VA treatment records reference an intervening ("intercurrent") injury to his low back in 1981 or thereabouts, when a car apparently fell on his back. Indeed, even he twice referenced that additional injury as the cause of his current back pain while obtaining treatment from VA during the appeal period. For these reasons and bases, when reviewing the evidence of record in its entirety, the Board finds that probative medical evidence weighs against the claim. While there is evidence of a back injury in service, there is no indication of continuity of symptoms since service, either in the medical evidence or by way of lay testimony, nor is there a medical nexus relating the current disability to service. On top of that, there appears to be a significant injury to the back that happened following service in 1981 or thereabouts. Thus, the preponderance of the evidence is against this claim, so it must be denied. 4. Service connection for hypertension is denied. The contends that his hypertension is related to his service-connected mental disorder which is characterized as other specified stressor or trauma related disorder but initially was claimed as posttraumatic stress disorder (PTSD). The Veteran cancelled his VA examination concerning this claim in May 2021, therefore, a medical opinion concerning this claim could not be obtained. The record does not otherwise suggest a relationship or correlation between his hypertension and his PTSD or otherwise show that his hypertension is related to his service. He is not competent to directly attribute his hypertension to his service, or to show that it initially manifested within a year of his discharge from service to warrant presuming it was incurred during his service, or that it is otherwise related or attributable to his service. See 38 C.F.R. § 3.159(a)(1) and (2). Hence, the preponderance of the evidence is against this claim, so it must be denied. 5. Service connection for a right leg disability is denied. The Veteran contends that he has a right leg disability that is secondary to his service-connected left leg disability (residuals of a shrapnel wound). So, this claim is predicated on the notion that his service-connected left knee disability is causing or aggravating his right leg disability, including from overcompensating. 38 C.F.R. § 3.310(a) and (b); see also Allen v. Brown, 7 Vet. App. 439 (1995). The STRs and the post-service treatment records, however, do not reference symptoms or diagnosis of a right leg disability. The Board is cognizant of the ruling in Saunders v. Wilkie, which found that pain alone sometimes can constitute a ratable disability. 886 F.3d 1356, 1368 (Fed. Cir. 2018). But, in contrast to Saunders, the evidence in this case does not tend to demonstrate that the Veteran's right leg symptoms result in any impairment of his earning capacity. That being so, more importantly, there is no medical evidence of record tending to show the Veteran's right leg symptoms, described as a slight limp in his right leg and right lower leg pain, are etiologically related to his service-connected left leg disability, either in the way of causation or aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). The Veteran declined to appear for a VA examination in connection with this claim. Thus, there is no medical evidence of record supporting this claim. And, while he is competent to report symptoms of a right leg limp and right lower leg pain, he is not competent to in turn relate these impairments to his left leg shrapnel wound because this requires medical understanding of the interplay of the musculoskeletal system. See Kahana, supra. Therefore, as the preponderance of the evidence is against this claim, it must be denied. 6. Service connection for a right foot disability is denied. 7. Service connection for a left foot disability is denied. 8. Service connection for a right hip disability is denied. 9. Service connection for a left hip disability is denied. The Veteran contends that he injured his feet and hips while in combat in Vietnam and that he suffers from jungle rot of his feet also because of that service. However, his STRs are grossly unremarkable for suggestion of injury or skin symptoms referable to his feet or hips. As well, his post-service treatment records similarly are unremarkable for relevant symptoms or diagnosis. And, although these records generally list arthritis as a diagnosis, they do not specify this diagnosis is in relation to his hips or feet and attribute it to his service. Also, just as in the case of his several other claims, the Veteran declined to appear for a VA examination concerning these claims. Therefore, there is no supportive medical evidence linking a disability involving his feet or hips to his service, including to his combat service in Vietnam. Rather, the medical evidence does not reflect diagnoses of these disabilities or an etiological relationship between a functional impairment of earning capacity owing to these disabilities and his service. Thus, even when applying the combat presumption, the elements of service connection for feet and/or hip disabilities have not been met. There is no evidence of current disability to relate to his service, nor is there evidence of continuous symptoms since his service or of arthritis in his feet or hips within a year of his separation from service. Accordingly, as the preponderance of the evidence weighs heavily against these claims, they, too, must be denied. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals R. Erdheim, Attorney for the Board Department of Veterans Affairs 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.