Citation Nr: 21064990 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 17-48 274A DATE: October 22, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for right knee instability is denied. Entitlement to service connection for residuals of a sexually transmitted disease is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that prior to his death the Veteran had a bilateral hearing loss disability for VA purposes at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence is against finding that prior to his death the Veteran had right knee instability any time during or approximate to the pendency of the claim. 3. The preponderance of the evidence is against finding that prior to his death the Veteran had residuals of any sexually transmitted disease any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.6. 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for service connection for right knee instability have not been met. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for residuals of a sexually transmitted disease have not been met. 38 U.S.C. §§ 101, 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty for training (ACDUTRA) in the Army Reserves from July 1986 to October 1986, and he had active duty in the Army from June 1987 to June 1990 but had no foreign or overseas service. His military occupational specialty was food service specialist. The appeal comes before the Board of Veterans' Appeals (Board) from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). During this appeal, a March 2017 rating decision granted service connection for degenerative joint disease of the lumbar spine with intervertebral disc syndrome (IVDS), radiculopathy of the right lower extremity, and tinnitus, as having been incurred in 1986 (during ACTURA). Thus, as the RO granted in full the benefits sought by the appellant in these matters, there is no remaining allegation of error of fact or law for appellate consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). Moreover, this confers veteran status for his period of ACDUTRA. See Hill v. McDonald, 28 Vet. App. 243 (2016) (service connection establishes "veteran status," but only for the period of ACDUTRA or INACDUTRA during which the service-connected disability was incurred). As a result, the only issues remaining in appellate status are as stated on the title page. During the appeal, the Veteran died in May 2017, and his surviving spouse has been substituted in his place. See VBMS entry of October 9, 2019. SERVICE CONNECTION Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curium, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as arthritis and a sensorineural hearing loss, as an organic disease of the nervous system, will be presumed related to service, absent an intercurrent cause, if shown as chronic in service; or, if manifested to a compensable degree within a presumptive period following separation from service; or, if noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection will be granted on a secondary basis for disability that is proximately due to or the result of, or aggravated by, an already service-connected condition. 38 C.F.R. § 3.310(a) and (b). This requires (1) evidence of a current disability; (2) a service-connected disability; and (3) evidence establishing a nexus between the service-connected disability and the claimed disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6(a), (d); Biggins v. Derwinski, 1 Vet. App. 474 (1991). Certain evidentiary presumptions, such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence or aggravation for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.304(b), 3.306, 3.307, 3.309. Generally, no presumptions (including the presumptions of soundness, aggravation, or for presumptive diseases) attach to periods of ACDUTRA and INACDUTRA unless those periods are also active service periods. See Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995); see also Smith v. Shinseki, 24 Vet. App. 40 (2010) (presumption of soundness and presumption of aggravation not applicable to ACDUTRA). Also, some presumptions will not apply to certain periods of ACDUTRA and INACDUTRA. Smith, 24 Vet. App. at 45-46. The Court held in Hill, 28 Vet. App. 243, that "once a claimant has achieved veteran status for a single disability incurred or aggravated during a period of ACDUTRA, veteran status applies to all disabilities claimed to have been incurred or aggravated during that period of ACDUTRA." The Court distinguished Hill from prior cases in which it had held that the presumption of aggravation was not applicable to a claim based on a period of ACDUTRA. In this regard, the Court noted that the veterans in those cases sought benefits only for a single disability based on the specified period of ACDUTRA, in contrast to the claimant's claims for multiple disabilities incurred during one period of ACDUTRA, and where service connection had already been granted for one disability incurred during the ACDUTRA period at issue. See, e.g., Smith, 24 Vet. App. 40; Donnellan v. Shinseki, 24 Vet. App. 167 (2010). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Reasonable doubt will be favorably resolved if there is an approximate balance of favorable and unfavorable evidence but if the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001). Initial Consideration The Board notes that the service treatment records (STRs) are incomplete because they do not contain the reports of the examinations for entrance into and discharge from the Veteran's period of active duty. Where the SMRs are incomplete, the obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). But, this does not lower threshold for an allowance of a claim, for example where the evidence almost but not quite reaches the positive-negative balance. In other words, the legal standard for proving a claim is not lowered; rather, the obligation to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, the absence of some of the service records does not create an adverse-presumption rule. Cromer v. Nicholson, 19 Vet. App. 215 (2005). 1. Entitlement to service connection for bilateral hearing loss 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, 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 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The appellant contends that the Veteran had a bilateral hearing loss due to inservice acoustic trauma. The Board concludes that at no time during the appeal process or recent to the filing of the claim did the Veteran have a hearing loss disability in either ear by VA standards. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). On examination for enlistment in the Army Reserves in June 1986 audiometric testing revealed the Veteran's thresholds, in decibels, at all relevant frequencies were 15 decibels or less in each ear. There are no reports of audiometric testing during the Veteran's period of active duty. Nevertheless, on VA audiology examination on September 4, 2015 audiometric testing revealed that the Veteran's thresholds, in decibels, at all relevant frequencies were 25 decibels or less in each ear and discrimination ability, using the Maryland CNC Wordlist, was 96 percent in each ear. The diagnosis was that the Veteran had normal hearing acuity in each ear. The Veteran reported that during service he had been a "food service specialist/airborne trooper" and had fired weapons without using hearing protection but had not participated in combat activity. He also complained of having tinnitus which began in 1986 after being at a shooting range. It was opined that his tinnitus was at least as likely as not due to inservice military noise exposure. While the Veteran and the appellant are competent to report hearing loss, neither is not competent to say that it meets the VA standard for a hearing loss disability, which is required to establish a claim for service connection for hearing loss. The presence of a hearing loss disability is made through an audiological examination conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a Puretone audiometry test. 38 C.F.R. § 4.85. Any medical opinion of either the Veteran or the appellant are not predicated on any testing that meets the VA requirements, and the presence of disability due to hearing loss as defined by VA is not susceptible to lay observation. Jandreau, 492 F.3d at 1377 n.4. Therefore, any such lay medical opinions of the Veteran or the appellant have no probative value. Although acknowledging that the Veteran was service connected for tinnitus due to inservice acoustic trauma, it does not necessarily follow that he had a hearing loss due to any inservice acoustic trauma. Rather, the Board gives more probative weight to the 2015 VA audiological examination, which showed that the Veteran did not meet the criteria for a hearing loss disability in either ear for VA purposes. This is more probative than the uncorroborated opinions of the Veteran or the appellant, as it was obtained by a state-licensed audiologist and included a controlled speech discrimination test (Maryland CNC) and a Puretone audiometry test. In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, the Veteran did not meet the criteria for a hearing loss disability in either ear prior to his death, as defined by VA regulations at 38 C.F.R. § 3.385. The appellant has neither identified nor provided a favorable medical opinion to weigh in this matter. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 2. Entitlement to service connection for right knee instability The appellant contends that prior to his death the Veteran had right knee disability of service origin. The Board concludes that at no time during the appeal process or recent to the filing of the claim did the Veteran have right knee instability. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The STRs are negative for any disability of the Veteran's right knee, including instability. Moreover, the postservice evidence is also negative for any disability of the Veteran's right knee, including instability. During his lifetime the Veteran never stated why he believed that he had right knee instability or even why, if it existed, that it was related in any manner to his military service. To the extent that it can be inferred, by having filed a claim, that he presented lay evidence of right knee instability, this alone is not sufficient to establish the actual medical existence of such a disability and, again as noted, he never reported how, if it existed, that it was related in any manner to his military service. In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, the Veteran presented no corroboration, lay or clinical, of his reported right knee instability and never, in his lifetime, reported how he believed that any such right knee instability was of service origin. The appellant has neither identified nor provided a favorable medical opinion to weigh in this matter. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 3. Entitlement to service connection for residuals of a sexually transmitted disease The appellant contends that prior to his death the Veteran had had sexually transmitted diseases during service. However, the Board concludes that at no time during the appeal process or recent to the filing of the claim did the Veteran have any chronic disabling residuals of his acute and, after proper treatment, transitory inservice sexually transmitted diseases. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). In July 1988 the Veteran was given medication for "GC." In November 1988 the Veteran had an infection, diagnosed as "GC." In June 1989 he had painful urination and penile discharge. He had not used a condom when he had intercourse with a female friend. In February 1990 he was seen for follow-up for an infection. It was reported that he had penile lesions after having had intercourse without using a condom. He had been given antibacterial medication. On VA examination on March 14, 2017, of the Veteran's reproductive system it was noted that in the past, in about 1990, the Veteran had been diagnosed as having syphilis and nongonococcal urethritis. The examiner, after reviewing the evidence of record, stated that during military service the Veteran had been diagnosed with both syphilis and nongonococcal urethritis. The conditions were treated appropriately and resolved. There has been no recurrence, and no residuals. On physical examination his penis, testes, and epididymis were normal. The examiner stated that both the syphilis and nongonococcal urethritis were acute transient infections acquired during service. Appropriate treatment eradicated these infections. There was no residual disability or deformity due to these infections. In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The appellant has neither identified nor provided a favorable medical opinion to weigh in this matter. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Fussell, 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.