Citation Nr: 21065032 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 17-46 869 DATE: October 22, 2021 ORDER Service connection for bilateral hearing loss is denied. Service connection for bilateral pes planus (flatfeet) is denied. Service connection for varicose veins is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's current sensorineural hearing loss disability was incurred in service or diagnosed within the presumptive period after discharge. 2. Clear and unmistakable evidence that the Veteran had a preexisting bilateral pes planus disability has not been established. 3. The preponderance of the evidence is against a finding that the Veteran's current bilateral pes planus disability was incurred in service. 4. The preponderance of the evidence is against a finding that the Veteran's current varicose veins disability was incurred in service or is secondary to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria to establish service connection for bilateral sensorineural hearing loss have not been satisfied. 38 U.S.C. §§ 1110, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. 2. The criteria to establish service connection for bilateral pes planus have not been satisfied. 38 U.S.C. §§ 1110, 1111, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. 3. The criteria to establish service connection for varicose veins have not been satisfied. 38 U.S.C. §§ 1110, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1965 to May 1967. In November 2019, the Veteran and his spouse testified at a Videoconference hearing before the undersigned Veterans Law Judge. The undersigned noted the issues on appeal and engaged in a colloquy with the Veteran toward substantiation of the claims. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A copy of the hearing transcript is associated with the claims file. The case was remanded in April 2020 for evidentiary development. All actions ordered by the remand have been accomplished. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may be established on a secondary basis 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). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Certain disorders listed as "chronic" in 38 C.F.R. § 3.309 (a) and 38 C.F.R. § 3.303 (b) are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss, as an organic disease of the nervous system, is a "chronic disease" listed under 38 C.F.R. § 3.309 (a). Therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303 (b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensorineural hearing loss, become manifest to a degree of 10 percent or more within one year after the date of separation from 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. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Service connection is also available for a preexisting condition, provided it was aggravated during service beyond the course of its natural progression. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Under VA regulations, every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. §§ 1111, 1137. Only such conditions as are recorded in examination reports are considered as noted at enlistment. 38 C.F.R. § 3.304 (b). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service. However, aggravation may not be conceded where, on the basis of all of the evidence of record, the disability underwent no increase in severity during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In order to rebut the presumption of aggravation, there must be clear and unmistakable evidence that the increase in severity was due to the natural progress of the disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). The Board must analyze the competency and credibility of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept it means that the person or person who makes the statement is qualified by training, education, an occupation, personal experience, or other reason to make the statement. Credibility is a factual determination it involves deciding whether the testimony or other evidence is believable, and the determination is made after the evidence has been found competent. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for bilateral hearing loss VA treatment records indicate the Veteran has been diagnosed with bilateral sensorineural hearing loss since at least 2009. The Veteran contends he was exposed to hazardous noise during basic training and also as a truck driver while stationed in Germany. He reported exposure to weapons fire and grenade explosions during basic training. In a May 2017 statement he also reported that he drove forklifts and supply trucks as part of his duties during active service, and that he performed all his service duties without hearing protection. He also stated he worked around noisy equipment and in noisy shops during service, also without hearing protection. He also testified that he had to shout to hear the person sitting in the truck cab next to him. In a November 2016 statement, the Veteran reported hearing loss over the years since service. He reported that after service he worked in a factory, but that he generally wore hearing protection when needed and that he worked mainly in the laboratory section of the factory. Service treatment records (STRs) do not indicate any complaints, diagnoses, or treatments for hearing loss during service. The Veteran's February 1965 report of medical history at pre-induction indicated he denied ear trouble. His February 1965 audiological examination indicated hearing within normal limits. The Veteran was reexamined in June 1965 at induction and his induction audiological evaluation also indicated hearing within normal limits. On his January 1967 report of medical history at separation, the Veteran denied ear trouble. His clinical audiological evaluation indicated normal hearing. The Veteran was assigned a "1" rating assessing his hearing capability under the PULHES profile system, indicating that the Veteran's hearing was then in a high level of fitness. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992); ((observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the veteran's capacity and stamina ("P"); upper extremities ("U"); lower extremities ("L"); hearing ("H "); eyes ("E") and psychiatric condition ("S"); assessed on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). The Board presumes the credibility of the Veteran's report that he was exposed to acoustic trauma in service. His tinnitus is service connected and implies that he was exposed to acoustic trauma in service. His report of noise exposure while driving a two and one-half ton truck (also known as a "deuce and a half") is consistent with such exposure. However, there is no medical opinion which links the Veteran's hearing loss to any incident of service, including his presumed-credible noise exposure. At a January 2017 VA medical examination for hearing loss, the Veteran reported military noise exposure from weapons fire and explosions during basic training and while serving as a truck driver during active service. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss. However, the examiner opined that the Veteran's current hearing loss disability was not incurred in service because a comparison of the Veteran's induction and separation audiograms did not indicate a significant decline in hearing. The examiner noted that the audiogram was the "gold standard" for objective measurement of hearing loss, to include evidence of acoustic trauma, and that the Veteran's service audiograms did not indicate hearing loss during military service. The examiner also noted that the Institute of Medicine's (IOM's) study "Noise and Military Service: Implications for Hearing Loss and Tinnitus," that was published in 2005 found that there was insufficient scientific support for delayed or late onset noise-induced hearing loss. The examiner specifically highlighted that the study noted that where entrance and separation audiograms were normal, there was insufficient scientific evidence for concluding that hearing loss that developed years later was causally related to military service. Private May 2017 treatment records indicate the Veteran reported ringing, buzzing in his ears, and loss of hearing in both ears since service. He also reported occupational noise exposure starting in 1969 and that occupational hearing examinations showed decreased hearing. The examiner reviewed a May 2000 occupational audiogram that showed asymmetric sensorineural hearing loss at that time. The examiner noted that an April 2017 audiologic evaluation indicated moderate to severe bilateral sensorineural hearing loss. The examiner did not provide an opinion on etiology. At a November 2019 Board hearing, the Veteran testified about his in-service noise exposure, but also testified that he worked at a chemical plant starting in 1969 and that after one year of working in the factory area, which required hearing protection, he moved to the laboratory where he was not required to wear hearing protection. He further testified that occupational hearing examinations showed his hearing decreased over the years. In a June 2021 addendum, a VA examiner reviewed the Veteran's claims file and responded to several requested inquiries. The examiner noted that the Veteran underwent three audiological examinations during service. He noted that the difference between the February 1965 pre-induction audiological examination and the June 1965 induction audiological examination was small and within the range of test-retest reliability. The examiner then noted that a comparison of the Veteran's February 1965 examination and his January 1967 separation examination demonstrated no significant differences at any frequency. Finally, the examiner compared the Veteran's June 1965 examination with his January 1967 separation examination and noted that there was a significant difference at the 500 Hz and 1000 Hz in the right ear. The examiner explained that it was "noteworthy" that the Veteran's separation audiological examination showed no thresholds poorer than 5 decibels, as results less than or equal to 25 decibels were widely considered normal hearing. The examiner noted that although a more conservative view of normal hearing may be 20 decibels, the Veteran's hearing was nonetheless normal when he left military service. The examiner then explained that the significant shift at the 500 Hz and 1000 Hz in the right ear was not consistent with noise-inducing hearing loss. The examiner noted that noise exposure stereotypically affected higher frequencies and most notably demonstrated at 4000 Hz. The examiner opined that the Veteran's hearing during service did not indicate acoustic trauma, and that his hearing loss was not incurred in service but rather in the years following military service. The examiner then quoted the same IOM study as the previous VA examiner to further support his opinion that delayed onset hearing loss was not attributable to earlier noise exposure. The preponderance of the evidence is against finding service connection for bilateral hearing loss. There is no probative medical evidence that indicates the Veteran's current hearing loss disability was incurred in service nor diagnosed within the presumptive period after discharge. The Veteran has continuously asserted throughout the appeal that his current bilateral sensorineural hearing loss diagnosis is a result of hazardous noise exposure during service. The Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis. See Layno, 6 Vet. App. 465, 469; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, while the Veteran has attempted to establish a nexus through his own lay assertions, and those of other lay individuals, the Veteran is not competent to offer opinions as to the etiology of his current sensorineural hearing loss disability. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Sensorineural hearing loss requires specialized training for determinations as to diagnosis and causation and is therefore not susceptible to lay opinions on etiology. Thus, the Veteran is not competent to render such a nexus opinion or attempt to present lay assertions to establish a nexus between his current diagnosis and its relationship to his service. The claim for service connection is denied. The preponderance of the evidence is against the claim, and the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for bilateral pes planus (flatfeet) In a November 2016 statement, the Veteran reported that he had bilateral flatfeet since high school. He also reported that during basic training he complained of feet pain during running and hiking due to military combat boots. Private treatment records indicate the Veteran has bilateral flatfeet. On the February 1965 report of medical history at pre-induction, the Veteran denied foot trouble. The Veteran's report of medical examination at pre-induction indicated he did not demonstrate any foot conditions. His clinical feet evaluation was normal, and he was given a "1" PUHLES rating for his lower extremities. See Odiorne, above, noting that a "one" rating on the "L" designator indicates a high level of physical fitness of the lower extremities. In July 1965, the Veteran reported that both feet hurt. He was advised to soak them. In December 1965 he again complained of sore feet. However, there are no other complaints, diagnoses, or treatment for a foot condition during service. On the January 1967 report of medical history at separation, the Veteran denied foot trouble. His clinical feet evaluation was normal, and he was again given a "1" PULHES rating for his lower extremities. This evidence is significant because it demonstrates that approximately two years after basic training the Veteran did not demonstrate findings indicative of pes planus when evaluated by a medical professional. At a March 2017 VA medical examination for foot conditions, the Veteran reported pain while marching during service and that he continued to have the same intermittent pain since service. He also reported a minor fracture occurring approximately 30 years prior. The examiner diagnosed the Veteran with bilateral pes planus (flatfeet) and noted the Veteran reported an unknown right foot dorsum fracture when roller skates were dropped on his right foot. The Veteran did not demonstrate and denied sole or instep pain bilaterally and the examiner noted no functional loss or limitation of motion for either extremity due to the diagnosed condition. Imaging did not reveal arthritis and the examiner noted the Veteran's condition did not impact his ability to work. The examiner opined the Veteran's condition was less likely than not incurred in service because the Veteran's STRs did not indicate flatfeet during service. In a September 2017 statement, the Veteran explained that his high school gym teacher told him he was flatfooted because his footprint did not show an arch. He also reported having feet and leg pain throughout his childhood but that he did not complain to a doctor about it because he did not know that he should. He also reported that the Selective Service listed several medical conditions that required a medical doctor's examination, but that pes planus was not listed as one of those conditions. He added stated that since no one told him he should report flatfeet during the military induction examination he did not report it. October 2018 x-rays confirmed the Veteran had left foot pes planus. At the November 2019 Board hearing, the Veteran reiterated that his high school gym teacher told him he had flatfeet after looking at his footprints. He testified he did not go to a doctor for a medical evaluation for the condition before service. He also testified that his feet hurt many times during service but that he did not seek treatment because he wanted to appear strong. At an August 2021 VA medical examination for foot conditions, the Veteran reported bilateral pes planus since high school. The examiner noted that medical records indicate he was diagnosed with pes planus in 2017. The examiner opined the Veteran's bilateral pes planus disability was less likely than not incurred in service because there were no records to confirm that the Veteran had pes planus prior to service, and STRs did not indicate pes planus complaints, diagnoses, or treatment. With regards to the Veteran's contention that his military service aggravated his preexisting flatfeet condition, the examiner noted there was no clear and unmistakable objective evidence for or against aggravation of a preexisting pes planus disability during service. The examiner then noted that the Veteran complained twice of foot pain during basic training, and was then assigned a less physically demanding job specialty which would have allowed for minimal foot complaints and issues after basic training. The examiner also noted that the Veteran's combat boots had little support, cushioning, and shock absorbent features when compared to modern combat boots. The examiner also noted the Veteran reported having feet pain during service but did not seek medical treatment. However, the examiner also noted that military medical evaluations were silent for any foot conditions; that the Veteran was assigned a "1" PUHLES profile for his lower extremities; and that there were no medical evaluations soon after service that show foot-related complaints, diagnoses, or treatment. Thus, the examiner opined that while it was "possible" that the Veteran had a preexisting pes planus condition that was aggravated by the early more physical aspects of basic training, he would have to resort to mere speculation to opine on whether the Veteran's current pes planus pain was due to aggravation of a preexisting bilateral pes planus disability during military service because there was not sufficient objective evidence to further determine a clear etiology. There is no clear and unmistakable evidence that the Veteran had a preexisting pes planus disability that was aggravated by service. The Veteran did not relay a contemporaneous medical diagnosis but rather an unsupported observation from his gym teacher that he had pes planus. Furthermore, the Veteran did not report this condition at induction; the condition was not present at the time of the Veteran's induction examinations; and the Veteran was given a high-level fitness rating at induction to service. The presumption of soundness has not been rebutted, and the Veteran entered service without a preexisting pes planus disability. With that determination, the issue is whether the Veteran's current pes planus disability was incurred in service. There is no probative medical evidence that indicates the Veteran's current pes planus disability was incurred in service. Although the Veteran complained of sore feet twice during basic training, he was not diagnosed with flatfeet at either evaluation, and there are no additional complaints, diagnoses, or treatment for bilateral foot conditions after basic training throughout the remainder of his service, to include at separation. Through its PULHES profiling, the service department repeatedly indicated the Veteran was in a high state of physical readiness. There is no post-service medical evidence that supports the Veteran's contention that he experienced intermittent pain from bilateral pes planus since service. The Veteran testified that he underwent repeated occupational medical evaluations once he began working at a chemical plant in 1969 but has not produced any medical record showing complaints, diagnoses, or treatment for bilateral pes planus soon after service. The medical evidence indicates he was diagnosed with pes planus in 2017, approximately 50 years after service. The Veteran has continuously asserted throughout the appeal that his current bilateral pes planus disability was preexisting and was aggravated during service. As noted above, the Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis, but he is not competent to render a nexus opinion or attempt to present lay assertions to establish a nexus between his current bilateral pes planus diagnosis and its relationship to his in-service foot complaints or his overall service. The claim for service connection is denied. The preponderance of the evidence is against the claim, and the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 3. Entitlement to service connection for varicose veins In a November 2016 statement, the Veteran reported his legs hurt "all the time" and that he did not have varicose veins when he was drafted into the military. The Veteran also contends that his varicose vein disability is secondary to his bilateral pes planus disability. A varicose vein is defined as "a dilated tortuous vein, usually in the subcutaneous tissues of the leg, often associated with incompetency of the venous valves." See Dorland's Illustrated Medical Dictionary 2036 (32nd ed. 2012). STRs do not indicate any complaints, diagnoses, or treatments for varicose veins in service. His February 1965 report of medical examination at pre-induction and at induction in June 1965 indicated he demonstrated clinically normal lower extremities. On the January 1967 report of medical history at discharge, the Veteran denied cramps in his legs. His clinical lower extremities evaluation was normal and he was evaluated through the PULHES system as being in an excellent state of physical fitness. In a May 2017 statement the Veteran reiterated that he believed his varicose vein condition was secondary to his flatfeet. In a September 2017 statement the Veteran also reported that he believed he had varicose veins during basic training because he was not allowed to rest his legs when they hurt. He also stated that he did not report his condition to his medical doctors because he heard from several people that there was nothing that could be done about them. At an August 2021 VA medical examination for varicose veins, the Veteran reported "spider veins" on his thighs but did not recall having a diagnosis of varicose veins during service. The Veteran reported noticing varicose veins after basic training, and that his spouse reported the Veteran had "spider veins" throughout their 50-year marriage. The examiner diagnosed the Veteran with varicose veins. However, the examiner opined the Veteran's varicose veins were less likely than not the result of or were being aggravated by his bilateral pes planus disability. The examiner explained that pes planus and varicose veins are unrelated conditions with separate pathophysiological mechanisms. With regards to direct service connection, the examiner also noted that the Veteran's STRs did not indicate a diagnosis of varicose veins and the Veteran reported at the current examination that he noticed varicose veins after service. The preponderance of the evidence is against finding service connection for varicose veins. The Veteran has asserted throughout the appeal that his current varicose veins disability was a result of his bilateral pes planus disability. Although the Veteran is competent to report the appearance of varicose veins or "spider veins" in his lower extremities, he is not competent to diagnose the condition, nor associate any leg pain with this condition. In addition, the record contains inconsistent statements about the onset of symptoms and the diagnosis and treatment of the disease that minimize the probative weight of the Veteran's observations of symptoms. Caluza v. Brown, 7 Vet. App. 498 (1995) (holding the Board has a duty to ascertain the credibility of testimony put before it and may consider multiple factors, including self-interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of witness when weighing credibility.). The Veteran has inconsistently reported the onset of his varicose veins as beginning during service, noting alternatively that he noticed lower extremity leg pain but not necessarily that he had varicose veins. In the most recent VA medical examination, the Veteran reported the onset of varicose veins after separation from service. Thus the Veteran's observations of the onset of his varicose veins disability during service carry little probative weight. (continued on next page) The claim for service connection is denied. The preponderance of the evidence is against the claim, and the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Anwar, Attorney-Advisor The Board's decision is only binding in this case. This action is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.