Citation Nr: 21070425 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 19-17 771 DATE: November 23, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, to include generalized anxiety disorder, is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for bilateral plantar fasciitis and Achilles tendonitis is denied. Entitlement to service connection for a left hip disability is denied. Entitlement to service connection for a right hip disability is denied. Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for a back disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that an acquired psychiatric disability, to include generalized anxiety disorder, began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that bilateral hearing loss began during active service or within one year of service or is otherwise related to an in-service injury or disease, to include in-service noise exposure. 3. The preponderance of the evidence is against finding that bilateral plantar fasciitis or Achilles tendonitis began during active service or is otherwise related to an in-service injury or disease. 4. The preponderance of the evidence is against finding that a left hip disability began during active service or is otherwise related to an in-service injury or disease. 5. The preponderance of the evidence is against finding that a right hip disability began during active service or is otherwise related to an in-service injury or disease. 6. The preponderance of the evidence is against finding that any current left shoulder disability began during active service or is otherwise related to an in-service injury or disease. 7. The preponderance of the evidence is against finding that a back disability began during active service or within one year of service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disability, to include generalized anxiety disorder, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.384. 2. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 3. The criteria for entitlement to service connection for bilateral plantar fasciitis and Achilles tendonitis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for a left hip disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for entitlement to service connection for a right hip disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 6. The criteria for entitlement to service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for entitlement to service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1968 to December 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2018 by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in September 2019, at which time all issues were denied. The Veteran appealed that decision to the United States Court of Appeals for Veteran's Claims (Court) which in April 2021, inter alia, remanded the issues of entitlement to service connection for bilateral hearing loss, bilateral plantar fasciitis with Achilles tendonitis, and a left shoulder disability for failure to provide adequate reasons and bases regarding the adequacy of VA examinations cited in support of the prior decision and a lack of consideration of the Veteran's explanation for the absence of documented post-service treatment for these conditions. The issues of entitlement to service connection for an acquired psychiatric disorder, bilateral hip disability, and back disability were also found to be inextricably intertwined with the aforementioned claims and were remanded as well. Accordingly, these claims are back before the Board for further adjudication. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including arthritis and sensorineural hearing loss may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service-connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. In cases of aggravation of a veteran's non-service-connected disability by a service-connected disability, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322. Service connection may 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). 1. Acquired Psychiatric Disability The Veteran is seeking entitlement to service connection for an acquired psychiatric disability, which he has variously described as anxiety and depression. He contends that he is anxious and depressed because of pain and disability due to injuries he claims are service connected. The Board concludes that, while the Veteran has been diagnosed with generalized anxiety disorder and panic disorder by a private treatment provider, St. Joseph Family Medicine Clinic, the preponderance of the evidence is against finding that it began during active service or is otherwise related to an in-service injury or disease. The Veteran's service treatment records are negative for any complaints of or treatment for anxiety or depression. A September 1969 separation physical found no current psychiatric disability. The Veteran also specifically denied any current or history of trouble sleeping, nightmares, depression or excessive worry or nervous trouble on his separation report of medical history. Post-service, there is no evidence that the Veteran was treated for a psychiatric disability until decades after his separation from service and his current treatment provider has not related his current anxiety to service. 38 C.F.R. § 3.303. While the Veteran has claimed that he experiences depression and anxiety because he experiences pain in his feet, knees, hips, and back because of an in-service foot injury, the Veteran is not service-connected for any such disability by the agency of original jurisdiction or by this decision. Accordingly, service connection cannot be granted on a secondary basis. 38 C.F.R. § 3.310. As the preponderance of the evidence is against a finding that the Veteran's acquired psychiatric disability had onset in service or is related to the Veteran's active service, to include as due to a service connected disability, entitlement to service connection must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 2. Bilateral Hearing Loss The Veteran is seeking entitlement to service connection for bilateral hearing loss, which he has claimed had onset during his active service. The Board concludes that, while the Veteran has a current diagnosis of bilateral hearing loss, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of bilateral hearing loss began during service or is otherwise related to an in-service injury or disease. In this case, a May 2018 VA examination determined that the Veteran has a current hearing loss disability in his right and left ears as defined by VA regulations. 38 C.F.R. § 3.385. The Veteran's service treatment records show that the Veteran's hearing was normal at both enlistment and separation from service and there was no change in the Veteran's hearing acuity during his active service. Additionally, the Veteran's service personnel records show that he was a mail clerk during his active service, not an occupation associated with hazardous noise exposure. He has not provided any details about what specific in-service noise exposure he believes caused hearing loss. Concerning a nexus, the May 2018VA examiner opined that the Veteran's hearing is not at least as likely as not related to an in-service injury or disease, including any in-service noise exposure. The examiner noted the Veteran had normal hearing in service, there is no evidence of a significant permanent threshold shift between his enlistment and separation from service, and the Veteran had no complaints of hearing problems noted in his service treatment records. 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). Additionally, the Board finds that the examiner's reasoning is adequate, as it was explained, in accordance with established medical research and knowledge that, had the Veteran sustained an acoustic injury leading to his currently diagnosed bilateral hearing loss in service, this would have been shown within the established hearing thresholds at that time. Because such thresholds were normal, it makes it less likely that any current bilateral hearing loss would have been the result of such acoustic trauma. While the Veteran claimed in his notice of disagreement that his hearing loss began during basis training, this contention is not supported by his service treatment records, which show that the Veteran had normal hearing at both enlistment and separation from service and that he did not complain of hearing problems at any time during his active service. The Board gives greater weight to the contemporaneous medical evidence, compared to the Veteran's subjective claim made decades after his separation from service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). A diagnosis of hearing loss requires an interpretation of diagnostic medical testing. 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 in-service audiograms that show that the Veteran had normal hearing at enlistment and separation from service. Further, the Board notes that the Veteran specifically denied any issues with hearing loss on his September 1969 separation report of medical history. As the Veteran's current contentions are directly contradicted by his statements made at the time of his separation, the Board finds that the Veteran's statements asserting that his hearing loss began in service and has continued since are not credible and therefore are entitled to no probative weight. Caluza v. Brown, 7 Vet. App. 498, 51112 (1995). As such, the only competent and credible evidence of record concerning the presence of a nexus is the VA medical opinion. Based on the foregoing, direct service connection is not warranted in this case. 38 C.F.R. §§ 3.102, 3.303. There is no evidence that the Veteran's bilateral hearing loss manifested in service or to a compensable degree within one year of separation, or that the hearing loss has been persistent since service. As noted, the Veteran's separation audiogram was within normal limits and the Veteran specifically denied any issues with hearing loss at separation. There is no objective evidence of hearing loss for VA purposes within the one year following the Veteran's separation. As such, service connection based on the presumption in favor of chronic diseases or continuity of symptomatology is not warranted. 38 C.F.R. §§ 3.303 (b), 3.309(a); see Walker, 708 F.3d 1331. As the preponderance of the evidence weighs against a finding that the Veteran's bilateral hearing loss had onset in service or within one year following service or was caused by or related to his active service, entitlement to service connection must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. 49; 38 C.F.R. § 3.102. 3. Bilateral Plantar Fasciitis and Achilles Tendonitis The Veteran is seeking entitlement to service connection for bilateral plantar fasciitis and Achilles tendonitis, which he attributes to an in-service injury to the right and left heels. The question 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 an in-service injury or disease. The Board concludes that, while the Veteran has a current diagnosis of bilateral plantar fasciitis and Achilles tendonitis, and evidence shows that a bilateral heel fracture occurred in service, the preponderance of the evidence weighs against finding that the Veteran's current plantar fasciitis and Achilles tendonitis began during service or are otherwise related to an in-service injury or disease. The Veteran's service treatment records show that in January 1968, the Veteran complained of leg pain. He was given crutches and an ace bandage and restricted to light duty for 72 hours. In February 1968, he complained of ankle pain, although it was noted that past x-rays and examination of the ankle were normal. He was again x-rayed and diagnosed with bilateral os calcis (heel bone) fracture. In September 1968, he complained of bilateral heel pain. An x-ray was negative, and the impression was possible minor muscle or ligament strain. He was prescribed two days light duty and aspirin. No further complaints of or treatment for foot, ankle, or leg pain are recorded. At the Veteran's September 1969 separation physical, an examination of the feet and lower extremities was normal. The Veteran also specifically denied any current foot trouble on the corresponding report of medical history. VA and private treatment records show the Veteran was not treated for any foot problems until decades after his separation from service. Although the Board recognizes the Veteran's argument the absence of earlier records may be accounted for by medical provider's practice of destroying records after 7 years when not an active patient, this still does not adequately address other factors that weigh against this claim. Notably, the lack of findings at service separation contradicts the Veteran's statements of continuous pain since leaving military service. Further, while the Veteran is competent to report having experienced symptoms of pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of an in-service injury that produced the current disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The May 2018 VA examiner opined that the Veteran's bilateral plantar fasciitis and Achilles tendonitis are not at least as likely as not related to an in-service injury or disease, including his in-service bilateral heel fracture. 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). Additionally, the Board is persuaded by the examiner's opinion in that the Veteran's foot condition documented in service was merely "acute," as demonstrated by the timing and his subsequent absence of complaints at service exit. The examiner was a competent medical professional who reviewed the entirety of the record and made the opinion based upon established medical research and knowledge to determine the character of the Veteran's disability in service as it was consistent with the record. As such, the examiner is probative. While the Veteran believes his current plantar fasciitis and Achilles tendonitis are related to his in-service injury, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions. This connection or etiology is not amenable to observation alone. Rather relationships are the subject of extensive research by scientific and medical professionals. See Jandreau, 492 F.3d at 1377; Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Hence, the Veteran's opinion of the etiology of his current disability is not competent evidence and is entitled to low probative weight. The Veteran has not submitted any medical evidence that supports his contention that there is a nexus between his current disability and service. As the preponderance of the evidence weighs against finding that the Veteran's bilateral pes planus and Achilles tendonitis are related to an in-service injury, entitlement, entitlement to service connection must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. 49; 38 C.F.R. § 3.102. 4. Left and Right Hip Disability The Veteran is seeking entitlement to service connection for disabilities of the left and right hip. He contends that these disabilities developed secondary to an in-service injury to his bilateral feet, specifically that pain in his feet has altered the way he walked, causing pain in other joints, including his hips. The Board concludes that, while the Veteran has been diagnosed with bilateral trochanteric bursitis by Capital Pain Institute, the preponderance of the evidence is against finding that it began during active service or is otherwise related to an in-service injury or disease. The Veteran's service treatment records are negative for any injury to either the left or right hip or any complaints of or treatment for hip pain. The Veteran's September 1969 separation examination was normal, and the Veteran denied any current or history of any orthopedic issues on his separation report of medical history. Post-service, there is no evidence of any left or right hip disability until decades after separation from service nor is there evidence that any of the Veteran's treatment providers has related his current bilateral hip disability to service. While the Veteran has argued that his bilateral hip disability is related to an in-service injury to his feet, as the Board has explained above, the Veteran is not service connection for any disability of the feet or ankles. Indeed, the Veteran is not service connected for any disability. Accordingly, service connection for a left or right hip disability cannot be granted on a secondary basis. 38 C.F.R. § 3.310. As the preponderance of the evidence weighs against a finding that the Veteran's left and right trochanteric bursitis had onset in service or was caused by or related to service, entitlement to service connection must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. 49; 38 C.F.R. § 3.102. 5. Left Shoulder Disability The Veteran is seeking entitlement to service connection for a left shoulder disability. It is possible that the Veteran is attempting to argue that his current left shoulder condition is related to an in-service left shoulder injury, but the Veteran has somewhat confusingly claimed that he actually injured his right shoulder in service. The question 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 an in-service injury or disease. The Board concludes that, while the Veteran has a current diagnosis of left shoulder strain and evidence shows that the Veteran sustained a left shoulder contusion in a motorcycle accident in service, the preponderance of the evidence weighs against finding that the current left shoulder strain began during service or is otherwise related to an in-service injury or disease. The Veteran's service treatment records show that in February 1969, the Veteran was treated for a left shoulder pain associated with being thrown from a motorcycle and hitting a boat with his left shoulder in January 1969. He was diagnosed with a contusion and prescribed heat therapy and aspirin. An x-ray of the left shoulder was normal. The Veteran's service treatment records are negative for any additional left shoulder complaints, and his September 1969 separation physical noted a normal examination of the upper extremities. In addition, the Veteran specifically denied on his separation report of medical history that he had any issues with painful or trick shoulder. Post-service, there is no evidence that the Veteran was treated for any left shoulder problems until decades after separation from service. Although the Board recognizes the Veteran's argument the absence of earlier records may be accounted for by medical provider's practice of destroying records after 7 years when there is not an active patient, this fact is not supported by any documentation, and the Veteran is not shown himself to possess any expertise concerning rules for maintaining medical records. In addition, the lack of findings at service separation contradicts any assertion of experiencing continuous pain since service. Likewise, he is not competent to establish any discomfort over the years he may have experienced is related to his current diagnosis or to any in-service injury. The Veteran was examined for VA purposes in May 2018. The examiner opined that the Veteran's left shoulder strain is not at least as likely as not related to an in-service injury or disease, including his in-service motorcycle accident. The examiner's evaluation of the record left him with the impression the in-service injury was acute, and while that conclusion was bolstered by the lack of any record of treatment for many years after service (which may or may not show a lack of symptoms), it corresponds with the findings at service separation, and when combined with the Veteran's insistence at the time of the 2018 examination that he injured his right shoulder in service, it adequately addresses the question presented. As it is against the claim, and no competent evidence links current left shoulder disability with service, the preponderance of the evidence is against a finding that the Veteran's current left shoulder strain is related to service. Accordingly, the claim for service connection for left shoulder disability is denied. 6. Back Disability The Veteran is seeking entitlement to service connection for a back disability. He contends that this disability developed secondary to an in-service injury to his bilateral feet, specifically that pain in his feet has altered the way he walked, causing pain in other joints, including his low back. The Board concludes that, while the Veteran has been diagnosed with lumbar spondylosis and neuritis NOS by Capital Pain Institute, the preponderance of the evidence is against finding that it began during active service or is otherwise related to an in-service injury or disease. The Veteran's service treatment records are negative for any back injury or any complaints of or treatment for back pain. A September 1969 separation examination documented a normal spine, with the Veteran specifically denying and current or history of back pain on the corresponding report of medical history. Post-service, there is no evidence of any back disability until decades after separation from service nor is there evidence that any of the Veteran's treatment providers has related his current back disability to service. While the Veteran has argued that his back disability is related to an in-service injury to his feet, as the Board has explained above, the Veteran is not service connection for any disability of the feet or ankles. Indeed, the Veteran is not service connected for any disability. Accordingly, service connection for a back disability cannot be granted on a secondary basis. 38 C.F.R. § 3.310. As the preponderance of the evidence weighs against a finding that the Veteran's lumbar spondylosis and neuritis had their onset in service or was caused by or related to service, entitlement to service connection must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. 49; 38 C.F.R. § 3.102. M. E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dodd, Ryan 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.