Citation Nr: 21069640 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 17-49 677 DATE: November 19, 2021 ORDER Entitlement to service connection for a right foot disability is denied. Entitlement to service connection for a left foot disability is denied. Entitlement to service connection for hepatitis C is denied. Entitlement to service connection for a left ear hearing loss disability is denied. REMANDED Entitlement to service connection for a right ear hearing loss disability is remanded. FINDINGS OF FACT 1. A right foot disability was not manifest in service and is not attributable to service. 2. A left foot disability was not manifest in service and is not attributable to service. 3. Hepatitis C was not manifest in service and is not attributable to service. 4. There is no left ear hearing loss disability for VA purposes. CONCLUSIONS OF LAW 1. A right foot disability was not incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. A left foot disability was not incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. Hepatitis C was not incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. A left ear hearing loss disability was not incurred in or aggravated by service, and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1976 to February 1979 and from March 1981 to February 1983. The Veteran received an other than honorable discharge for the period of service from March 1981 to February 1983, and an administrative decision determined that he is barred from receiving benefits for any disabilities related to that period. This case was previously before the Board in April 2019, at which time it was remanded for further development. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Generally, to establish service connection a Veteran must show: "(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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be established for an organic disease of the nervous system if manifest to a compensable degree within one year. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). 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, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." 38 C.F.R. § 3.303 (b). When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. 1. Entitlement to service connection for a right foot disability 2. Entitlement to service connection for a left foot disability The Veteran contends that his right and left foot disabilities are due to his active service. The issue 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 service. The Board concludes that the preponderance of the evidence is against finding that the Veteran's right and left foot disabilities began during active service or are otherwise related to service. The Veteran's service treatment records have not been associated with the file. Post service medical treatment records show complaints of pain in both feet. An April 2007 treatment note states that the Veteran injured his foot at work in November 2006. The note does not specify which foot. A June 2010 note states that the Veteran complained of pain in the right foot for the past couple of weeks. The note also stated the Veteran's left foot was red and swollen due to gout. No medical records reference the Veteran's military service in relation to his foot injuries or disease. In his notice of disagreement, the Veteran stated that his feet would get red and swollen during service due to standing for long periods. The Board notes that the Veteran has not received a VA examination for his feet. VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). However, there is no evidence of record to suggest a link between the Veteran's current foot pain and his reported swelling during service. No medical treatment records have noted or suggested any link between the Veteran's service and his current disabilities. Rather, the treatment records have noted post-service work injuries and gout. Therefore, the Board finds that an examination is not required to fulfill the duty to assist. The Board therefore finds that the evidence weighs against a finding that the Veteran's current foot disabilities are related to his service. The preponderance of the evidence is against the claim, and there is no doubt to be resolved. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to service connection for hepatitis C The Veteran asserts that his hepatitis C is due to his active service, specifically the use of air gun immunization. The issue 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 service. The Board concludes that the preponderance of the evidence weighs against finding that the Veteran's hepatitis C began during service or is otherwise related to service. Post-service treatment records show that the Veteran was diagnosed with hepatitis C in 2007 and completed a course of treatment in 2015. The Veteran received a VA examination in October 2017. The examiner opined that the Veteran's hepatitis C was less likely than not related to his service. The stated rationale was that the only risk factor during service was the air gun immunization, which is only a biologically plausible method of infection with no confirmed cases resulting from this form of inoculation. Additionally, the examiner noted that the Veteran had several other risk factors which were much more likely to have caused his hepatitis C, especially as no known cases have resulted from the air gun immunization. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his hepatitis C is related to his active service. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the October 2017 VA medical opinion. The Board therefore finds that the evidence weighs against a finding that the Veteran's hepatitis C is related to his service. The preponderance of the evidence is against the claim, and there is no doubt to be resolved. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 4. Entitlement to service connection for a left ear hearing loss disability Hearing loss for the purpose of VA disability compensation is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran received a VA audiological examination in July 2015. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 20 20 5 20 35 Speech audiometry revealed speech recognition ability of 96 percent in the left ear. These results do not show a hearing loss disability per VA standards in the left ear. 38 C.F.R. § 3.385. Without a current disability, service connection is not warranted under any theory of entitlement. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran is competent to report a decrease in acuity, but the presence of disability is established by specific testing and regulation. His own opinion is not competent to establish disability and there are no Jandreau type exceptions in this case. REASONS FOR REMAND 1. Entitlement to service connection for a right ear hearing loss disability is remanded. The Veteran received a VA audiological examination in July 2015, which showed a hearing loss disability in the right ear. The examiner opined that the disability was less likely than not related to service because there was no threshold shift between entrance and separation. This is not an adequate rationale, as it is merely a restatement of fact and does not provide any explanation. Remand is necessary for an addendum opinion. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's right ear hearing loss disability is at least as likely as not related to the Veteran's active service. A complete rationale must be provided. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Creegan, Amanda 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.