Citation Nr: 21070256 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 16-13 014 DATE: November 23, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for an ear disorder, to include Meniere's syndrome and a disability manifested by dizziness, is denied. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety disorder, major depressive disorder, and bulimia nervosa, is denied. Entitlement to service connection for an epigastric disorder, to include gastroesophageal reflux disorder (GERD) and a duodenal ulcer, is denied. FINDINGS OF FACT 1. There is no evidence of record showing that the Veteran's current bilateral hearing loss is related to his active service. 2. There is no evidence of record showing that the Veteran's current tinnitus is related to his active service. 3. There is no evidence of a currently diagnosed ear disorder, to include Meniere's syndrome and a disability manifested by dizziness. 4. There is no evidence of a currently diagnosed psychiatric disorder, to include an anxiety disorder, a major depressive disorder, and bulimia nervosa. 5. There is no evidence of a current epigastric disorder, to include GERD and a duodenal ulcer. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38U.S.C. §§1110, 5107; 38C.F.R. §§3.102, 3.303, 3.307, 3.309(a). 2. The criteria for service connection for tinnitus are not met. 38U.S.C. §§1110, 5107; 38C.F.R. §§3.102, 3.303, 3.307, 3.309(a), 3.310. 3. The criteria for service connection for an ear disorder, to include Meniere's syndrome and a disability manifested by dizziness, are not met. 38U.S.C. §§1110, 5107; 38C.F.R. §§3.102, 3.303, 3.307, 3.309(a). 4. The criteria for service connection for an acquired psychiatric disorder, to include an anxiety disorder, a major depressive disorder, and bulimia nervosa, are not met. 38U.S.C. §§1110, 5107; 38C.F.R. §§3.102, 3.303, 3.307, 3.309(a). 5. The criteria for service connection for an epigastric disorder, to include GERD and a duodenal ulcer, are not met. 38U.S.C. §§1110, 5107; 38C.F.R. §§3.102, 3.303, 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1970 to January 1971. In the March 2016 substantive appeal, the Veteran requested a videoconference hearing before a Veterans Law Judge. This hearing was scheduled and rescheduled several times, most recently in June 2021. The Veteran did not appear and has not been responsive to attempts by VA to contact him concerning his appeal. In April 2016, the Veteran's representative filed a Motion to Withdraw as counsel without seeking attorney's fees. VA has not yet granted this motion. VA has sent correspondence to the Veteran concerning the proposed withdrawal of his representative. In January 2019, VA attempted to contact the Veteran by phone, and his spouse indicated that he thought the appeal had been withdrawn. VA continued to attempt to correspond with him to inform him that his appeal was still active and that his requested hearing was scheduled. VA confirmed his address and phone number, but he has been unresponsive to VA's attempts to contact him. In August 2021, VA requested confirmation from the Veteran of his wish to withdraw his appeal. However, to date, he has not responded. In consideration of the April 2016 motion, and the Veteran's failure to respond to correspondence, VA acknowledges and grants the Veteran's representatives Motion to Withdraw, and will proceed with adjudication of his claims. In February 2014, VA notified the Veteran that his complete service records could not be located. VA requested the Veteran submit any relevant documents in his possession including service records, buddy statements, or any other evidence or information to support his claim. In November 2014, he Veteran submitted private treatment records concerning his ear conditions, as referenced below, but did not provide any service records, lay statements, or opinions. The duty to assist is a two-way-street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, the Board finds that VA has met its obligation to assist in the procurement of medical evidence pertinent to the claim. The Veteran was advised by VA of the need for additional evidence and has not indicated any additional outstanding records would assist in his claim. As such, the Board will assess the claim using the evidence currently of record. The Board acknowledges that the Veteran was not afforded VA examinations or medical opinions for his claims. VA is obliged to provide an examination or obtain a medical opinion in a claim when the record contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of a current disability, the record indicates that the disability or persistent or recurrent symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38C.F.R. §3.303(d). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from 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. 38U.S.C. §§1101, 1112, 1113, 1137; 38C.F.R. §§3.307, 3.309(a). While the disease need not be diagnosed within the presumption 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. When there is an approximate balance of positive and negative evidence as to any material issue, the Secretary shall give the benefit of the doubt to the claimant. 38U.S.C. §5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Bilateral Hearing Loss The Veteran contends that he has bilateral hearing loss related to his active service. The Board finds there is insufficient evidence to support a finding of service-connection for bilateral hearing loss, and the claim is denied. In reaching this decision, the Board notes that medical records from the Veteran's active duty are not available. However, that his in-service duties working with rifles and mortars indicate a probable exposure to hazardous noise. Also, an October 1974 post-service audiological evaluation indicated hearing loss for VA purposes. A June 2014 private evaluation revealed bilateral hearing loss for VA purposes. The duty to provide an examination is not limitless. Under the Veterans Claims Assistance Act (VCAA), VA must provide an examination when there is (A) competent evidence of a current disability (or persistent or recurrent symptoms thereof) that (B) may be associated with service, but (C) there is insufficient medical evidence to make a decision on the claim. 38 U.S.C. § 5103A(d). In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the United States Court of Appeals for the Federal Circuit held that, while there must be competent evidence of a current disability, competent evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Available medical records are devoid of evidence that the Veteran developed hearing loss during service, as a post-service disability that may be associated with service, or within one year of separation from service. This is so even when considering the low nexus threshold for triggering VA's duty to provide an examination. The Veteran does not assert any in-service disease, injury, or event with which his current hearing loss may be associated. In this particular case, an in-service disease, injury, or event is not shown, and the low threshold for purposes of triggering VA's duty to provide an examination is not met with regard to this claim. McLendon, 20 Vet. App. at 79; Locklear, 20 Vet. App. at 410; Waters, 601 F. 3d at 1278. In Bardwell v. Shinseki, 24 Vet. App. 36, 39 (2010), the United States Court of Appeals for Veterans Claims held that, while there must be competent evidence of a current disability (or persistent or recurrent symptoms thereof) and an indication (not necessarily from competent evidence) that the current disability may be associated with service, the in-service event prong of the McLendon test "does not qualify the quality of evidence necessary to meet its threshold." Rather, the evidence must establish that there was a disease, injury, or event in service. Id. Here, for the reasons noted and discussed above, the evidence does not establish there was a disease, injury, or event in service with regard to this claim. In addition, there is no indication that the Veteran's hearing loss may be associated with service other than the Veteran's initial claim. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for hearing loss. The benefit of the doubt doctrine is therefore not for application, and entitlement to service connection for hearing loss is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Tinnitus The Veteran contends that he has tinnitus related to active service. However, the Board finds insufficient evidence to support a finding of that service connection for this disorder is warranted. According to a June 2014 examination report, he described tinnitus, but there was no indication that his tinnitus began during service or is otherwise related to his active duty. Indeed, available medical records are devoid of evidence that he developed tinnitus during service, as a post-service disability that may be associated with service, or within one year of separation from service. This is so even when considering the low nexus threshold for triggering VA's duty to provide an examination. The Veteran does not assert any in-service disease, injury, or event with which his current hearing loss may be associated. In this particular case, an in-service disease, injury, or event is not shown, and the low threshold for purposes of triggering VA's duty to provide an examination is not met with regard to this claim. McLendon, 20 Vet. App. at 79; Locklear, 20 Vet. App. at 410; Waters, 601 F. 3d at 1278. Here, for the reasons noted and discussed above, the evidence does not establish there was a disease, injury, or event in service with regard to this claim. In addition, there is no indication that the Veteran's tinnitus may be associated with service other than the Veteran's initial claim. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for tinnitus. The benefit of the doubt doctrine is therefore not for application and entitlement to service connection for tinnitus is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Ear Disorder, To Include Meniere's Syndrome & Disability Manifested By Dizziness The Veteran contends that he has Meniere's syndrome, claimed as dizziness, related to his active service. Unfortunately, the Board finds there is insufficient evidence to warrant service connection for this disability. As a threshold matter, he must have a current disability to claim service connection. Here, there is no objective medical evidence of a diagnosed Meniere's syndrome or other ear disease manifested by dizziness. While the Board is sympathetic to his symptoms, without a diagnosis or functional loss, there is no basis for service connection. Treatment records are absent of a diagnosis of Meniere's syndromeor a disability manifested by dizziness. Private treatment records dated in June 2014 found no ear disorder or abnormality. The Veteran has not argued otherwise or provided any medical evidence to the contrary. Given the foregoing, the Board finds that the medical evidence outweighs the Veteran's contentions. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In reaching this conclusion, the Board has considered the Veteran's contentions. Although lay persons are competent to provide opinions on some medical issues [see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)], as to the specific issue of a Meniere's syndrome in this case, such assertions fall outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although the Veteran is competent to report his current symptoms, Meniere's syndrome (or indeed a disability manifested by dizziness) is not the type of condition that is amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that specific findings are needed to properly assess and diagnose such a disorder and determine its etiology. Jandreau; Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In sum, the evidentiary requirement of demonstrating a current disability has not been satisfied. There is simply no evidence that Meniere's syndrome has actually been diagnosed at any time during the appeal period. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Without a diagnosis, the claim for service connection fails. Brammer v. Derwinski, 3 Vet. App. 223 (1992). There is no doubt of material fact to be resolved in the Veteran's favor, and the claim for service connection for a Meniere's syndrome, to include a disability manifested by dizziness, must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Acquired Psychiatric Disorder, To Include An Anxiety Disorder, A Major Depressive Disorder, & Bulimia Nervosa The Veteran contends that he has an acquired psychiatric disorderto include an anxiety disorder, a major depressive disorder, and bulimia nervosa, that is related to his active service. Unfortunately, the Board finds there is insufficient evidence to warrant service connection for these disabilities. As a threshold matter, the Veteran must have a current disability in order to claim service connection. Here, there is no objective medical evidence of a diagnosed acquired psychiatric disorder during the appeal period. While the Board is sympathetic to the Veteran's symptoms, without a diagnosis or functional loss, there is no basis for service connection. In a March 1974 medical report (several years after service separation and decades prior to his service connection claim), the Veteran indicated that he experienced mental health symptoms such as frequent trouble sleeping, depression or excessive worry, and nervousness. In all available treatment records during the appeal period, while the Veteran reported a prior history of depression, he denied any psychiatric symptoms, including depression and anxiety, or suicidal thoughts. Also, there is no medical evidence referencing an eating disorder such as bulimia nervosa. The Veteran has not argued otherwise and has not provided any medical evidence contrary to this conclusion. The Board finds that the medical evidence outweighs the Veteran's contentions. Madden, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board has considered the Veteran's contentions. Although lay persons are competent to provide opinions on some medical issues [Kahana, 24 Vet. App. 428, 435 (2011)], as to the specific issue of an acquired psychiatric disorder in this case, such assertions fall outside the realm of common knowledge of a lay person. Jandreau, 492 F.3d 1372 (Fed. Cir. 2007). Although the Veteran is competent to report his current symptoms, this is not the type of condition that is amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that specific findings are needed to properly assess and diagnose of an acquired psychiatric disorder and determine its etiology. Jandreau; Davidson, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert, 21 Vet. App. 456, 462 (2007). In sum, the evidentiary requirement of demonstrating a current psychiatric disability has not been satisfied. There is simply no evidence that a psychiatric disorder has actually been diagnosed at any time during the appeal period. McClain, 21 Vet. App. 319, 321 (2007). Without a diagnosis, the claim for service connection fails. Brammer, 3 Vet. App. 223 (1992). There is no doubt of material fact to be resolved in the Veteran's favor, and the claim for service connection for an acquired psychiatric disorder, including an anxiety disorder, a major depressive disorder, and bulimia nervosa, is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Epigastric Disorder, To Include GERD & A Duodenal Ulcer The Veteran contends that he has an epigastric disorderspecifically, GERD, acid reflux, and duodenal ulcerrelated to his active service. Unfortunately, the Board finds insufficient evidence to warrant service connection for these disabilities. As a threshold matter, he must have a current disability to support service connection. There is no objective medical evidence of a diagnosed epigastric condition during the appeal period. While the Board is sympathetic to his symptoms, without a diagnosis or functional loss, there is no basis for service connection. In a February 1974 medical report, the Veteran was noted to have active duodenal ulcer disease. This was more than one year after his separation from active duty, and decades prior to his claim for service-connection. In all available treatment records during the appeal period, while the Veteran reported a prior history of GERD, no current diagnosis, symptoms, or treatment was noted. The Veteran has not argued otherwise and has not provided any medical evidence to the contrary. Thus, the Board finds that the medical evidence outweighs the Veteran's contentions. Madden, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board has considered the Veteran's contentions. Although lay persons are competent to provide opinions on some medical issues [Kahana, 24 Vet. App. 428, 435 (2011)], as to the specific issue of diagnosed epigastric disorder in this case, such assertions fall outside the realm of common knowledge of a lay person. Jandreau, 492 F.3d 1372 (Fed. Cir. 2007). Although the Veteran is competent to report his current symptoms, this is not the type of condition that is amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that specific findings are needed to properly assess and diagnose an epigastric condition and determine its etiology. Jandreau; Davidson, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert, 21 Vet. App. 456, 462 (2007). In sum, the evidentiary requirement of demonstrating a current disability has not been satisfied. There is simply no evidence that an epigastric disorder, to include GERD and a duodenal ulcer, has actually been diagnosed at any time during the appeal period. McClain, 21 Vet. App. 319, 321 (2007). Without a diagnosis, the claim for service connection fails. Brammer, 3 Vet. App. 223 (1992). There is no doubt of material fact to be resolved in the Veteran's favor, and the claim for service connection for an epigastric disorder, to include GERD and a duodenal ulcer, must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.E. Lee 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.