Citation Nr: 21071137 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 14-17 850 DATE: November 29, 2021 ORDER Entitlement to service connection of a back disability is denied. Entitlement to service connection of a right ankle disability is denied. Entitlement to service connection of a left ankle disability is denied. Entitlement to service connection of right lower extremity peripheral neuropathy is denied. Entitlement to service connection of left lower extremity peripheral neuropathy is denied. Entitlement to service connection of a left ear injury is denied. FINDINGS OF FACT 1. The Veteran did not sustain an injury to his low back during active service; his lumbar strain, as diagnosed in January 2020, was less likely than not related to any incident of active service. 2. Prior to his death, the Veteran did not have a right ankle disability or right ankle symptoms resulting in functional loss. 3. The Veteran did not sustain an injury to his left ankle or leg during active service; his left ankle strain, as diagnosed in January 2020, was less likely than not related to any incident of active service. 4. Prior to his death, the Veteran did not have a diagnosis of lower extremity peripheral neuropathy; his subjective neuropathic symptoms did not result in functional loss. 5. Prior to his death, the Veteran did not have a diagnosed left ear disability or any residuals of a left ear injury that would constitute a disability for compensation purposes; the Veteran was separately service-connected for hearing loss and tinnitus affecting the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection of a low back disability have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection of a right ankle disability have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for service connection of a left ankle disability have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. The criteria for service connection for right lower extremity peripheral neuropathy are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 5. The criteria for service connection for left lower extremity peripheral neuropathy are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 6. The criteria for service connection for residuals of a left ear injury are not met. 38 U.S.C. §§ 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1955 to August 1957. The Veteran died in November 2020, during the pendency of his appeal. The appellant is the Veteran's surviving spouse, who has successfully substituted as appellant on the Veteran's claims which were pending at the time of his death. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). As a matter of procedural background, this appeal previously came before the Board in December 2017, at which time the issues remaining on appeal were remanded for further development. They are now returned to the Board for further appellate review. This appeal is limited to the claims which the Veteran had filed and were pursuing prior to his death in November 2020. As such, these appeals are now pursued by the appellant for purposes of entitlement to accrued benefits only. The appellant's claims of service connection for the cause of the Veteran's death and entitlement to dependency and indemnity compensation (DIC) benefits, as claimed in December 2020, were denied in a February 2021 rating decision which is separate and distinct from these appeals which were pending prior to the Veteran's death and have no bearing on the appeals addressed herein. To date, the appellant has not appealed the February 2021 rating decision. She did not claim survivor pension benefits. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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). Generally, establishing service connection requires medical or, in certain circumstances, lay 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 present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, including arthritis or neuropathy, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Regardless of whether a condition is listed as chronic for presumptive purposes, a continuity of symptoms from the time of service is a factor to consider in assessing any claim. A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. When service records are unavailable through no fault of the claimant, the Board has a heightened duty to assist, an obligation to explain its findings and conclusion, and an obligation to carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cueva v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). 1. Entitlement to service connection of a back disability 2. Entitlement to service connection of a right ankle disability 3. Entitlement to service connection of a left ankle disability The Veteran, prior to his death, sought service connection of a back disability, and bilateral ankle disability. The Board finds that the claims should be denied. Initially, the Board recognizes a diagnosis of lumbosacral strain, which was given in January 2020 during a VA examination. Also diagnosed in January 2020 was a left ankle strain. However, the Board finds that the Veteran did not have a right ankle disability prior to his death. The Veteran was afforded a physical examination in January 2020. At that time he denied any major right ankle symptoms or previous injury. On examination, the examiner did not identify or diagnose any right ankle pathology or disability. There was no evidence of pain causing functional loss. The Veteran has not provided any evidence of a disability of the right ankle, to include any private treatment records. As such, the Board does not find that the Veteran had a right ankle disability which could be linked to any incident of active service, and that claim fails the primary criterion of service connection, and that claim must be denied. Turning to the question of the low back and left ankle strains, for his part, the Veteran asserted that his condition was caused when he severely injured his back due to a fall from a tree during active service. The Veteran has provided lay statements of a fall, while stationed in Wertheim, Germany, resulting in a head injury, a leg or ankle injury, and also a low back injury. He reported falling about 25 feet, falling on his back and being knocked unconscious. He asserts when he awakened, he had a climbing spear stuck through his leg. He reported being treated by the medic on duty with no x-rays, casts or stitches, despite bleeding from his head, back and leg. The Veteran's service treatment records and military personnel records are generally unavailable, reportedly due to a fire in which they were destroyed. In light of this fact, the Board exercised the duty to assist in December 2017, and remanded this appeal so that additional development could be conducted in an attempt to confirm any in-service injury. Following that remand, multiple attempts to obtain any corroborating evidence in the form of service records were unsuccessful, and the Veteran was notified of this fact in writing. On multiple occasions the Veteran was requested to provide any additional evidence, in the form of medical records or even lay statements, but did not respond to VA's requests. In short, following the implication of the heightened duty-to-assist requirements, there still remains no evidence of record of any actual low back or left ankle injury during active service. Here, the Board notes that the Veteran, as a lay person, was competent to report evidence of which he had first-hand knowledge, such as an injury and the symptoms thereof. Layno v. Brown, 6 Vet. App. 465, 471 (1994); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). As such, the Veteran was certainly competent to report an in-service incident, as his early lay statements suggested. However, once basic competency is met, the Board must then assess the credibility of the evidence. Credibility is the worthiness of belief or plausibility. It is a factual determination going to the probative value of admitted evidence. Credible evidence is not specifically defined in the statutes or regulations; however the Court of Appeals for Veterans Claims (Court) has provided guidance regarding factors to consider when assessing the credibility of a lay statement. These factors include facial plausibility; internal consistency; consistency with other evidence; self-interest or bias; bad character; malingering and lay statements made during treatment. See Caluza v. Brown, 7 Vet. App. 498 (1995). Other factors include direct personal knowledge or experience, erroneous recollection, time of creation of evidence, validity of statistical data, and combat or non-combat situation. The Board may weigh the absence of contemporaneous medical evidence as a factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). In this matter, there is no evidence in the record of any low back or left ankle injury during service. There is no post-service medical records identified which might support ongoing symptoms of such an injury between the Veteran's separation and his death 63 years later. He asserts in one lay statement that all of his doctors had died, but did not identify any of those doctors or any associated medical institutions where such corroborating evidence might be obtained, despite request to do so (in this regard, the Board notes that despite the heightened duty to assist in this matter owing to the destruction of records, the duty to assist is not a one-way street, and the Veteran or appellant must still make efforts to assist VA in obtaining evidence relevant to his claims Wood v. Derwinski, 1 Board. App. 190 (1991)). Further, upon examination in 2020, the Veteran was not found to have significant injuries to either the low back or his ankle, which is generally inconsistent with the Veteran's assertions of the severity of his injuries in service. Particularly, his lay statements include assertions that he impaled his left leg with a hiking spear, and sustained significant injuries resulting in bleeding to the leg, low back and head. However, no evidence of such an injury, for example a scar, are identified in the examination report, despite a physical evaluation of the Veteran. The identified strains themselves are generally mild disabilities, which are significantly less than might be anticipated by an injury as significant as that reported by the Veteran. The claimed injury was not incurred during a combat operation, was significantly more severe than the disabilities identified in January 2020, and was reported many years following service. Given these discrepancies, as well as the Veteran's own self-interest in the outcome of the claim, and the lack of any corroborating evidence either during service or in the years between separation and the date of the claim, the Board must find that the lay assertions of the purported in-service injury are not credible for purposes of assessing this appeal. The Board is certainly not sympathetic to the Veteran's claims prior to his death, but based on the evidence of record, even affording the heightened benefit-of-the-doubt rule, the Board cannot find that an in-service injury occurred, as reported by the Veteran in his lay statements. As such, the claims fail the second criterion of service connection. Additionally, following the Board's prior remand, the Veteran was afforded VA examinations of both the low back and ankles. The examiner reviewed the complete medical record, to include the Veteran's lay statements of an injury in service. The examiner then concluded that both disabilities were less likely than not related to any incident of active service. In support of this the examiner noted the complete lack of any corroborating evidence of the Veteran's lay assertions, or evidence of any low back or ankle symptoms or injury in the intervening years after service. The Board finds this opinion persuasive. It was given by a medical specialist in contemplation of the complete medical record, to include the lay assertions of the Veteran. There is no medical evidence or opinion of record to contradict this opinion. The Board does recognize the Veteran's, and by-proxy the appellant's firmly held beliefs that his low back and left ankle strains were related to active service, but finds this of limited probative value. While lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause of his low back and left ankle strains, especially in light of the VA examiner's conclusions to the contrary and the fact that the evidence fails to demonstrate the onset of either condition prior to his claim in 2012. Indeed, as discussed above, there is no competent and credible evidence that the Veteran ever sustained an injury in service See id. In sum, the Board finds that he Veteran, prior to his death, did not have a right ankle disability. He did not sustain an injury to his low back or left ankle/leg in service and his left ankle and lumbar strains, as diagnosed in January 2020, were less likely than not related to any incident of active service. As such, these claims must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 4. Entitlement to service connection of right lower extremity peripheral neuropathy 5. Entitlement to service connection of left lower extremity peripheral neuropathy The Veteran sought service connection of bilateral lower extremity peripheral neuropathy. The Board finds that the claims should be denied. The Veteran was afforded a VA examination in January 2020, as ordered in the Board's prior remand. He appeared in person, and reported developing neuropathy symptoms after injuring his back during service in the 1950s, or later. He reported to the examiner that he was diagnosed with neuropathy, and had taken medication for it in the past, although was not presently taking any medication. He reported that the course of the symptoms, from the time of onset to the present was the same, with no progression. The only current symptom he reported was pain. On examination, the Veteran showed some reduced muscle strength in the lower extremities, although still showing active movement against resistance. His subjective reports of pain were recorded, although no objective evidence was noted. Reflexes were all normal. Sensory testing was all normal. The examiner found that all of the nerves were normal. The Veteran reported using a cane due to his back and ankle conditions, but not for his reported neuropathy. No other pertinent findings. The examiner found that any symptoms did not interfere with the Veteran's ability to obtain or maintain employment, and did not result in functional loss. The examiner reviewed the complete medical history and considered the physical examination and concluded that the Veteran's subjective complaints, were annotated on the examination report, but were not supported by the medical evidence. There was no evidence in the record of any medical diagnosis of neuropathy. There was no medical evidence of any symptoms of neuropathy. The physical examination did not reveal any clear evidence suggestive of peripheral neuropathy. His muscular weakness, the only objective evidence noted on examination, was symmetric and appeared to be age related. In short, there was no evidence of a peripheral neuropathy condition, and a diagnosis could not be given. The Board finds this diagnosis, or lack thereof, to be particularly persuasive in this matter. The non-diagnosis was given following a physical evaluation of the Veteran, which included a review of the complete medical record, and consideration of the Veteran's own lay history and statements regarding his symptoms. It considered the complete medical profile, and applied the facts as found in the examination to known medical principles. In short, there is no evidence of any peripheral neuropathy condition prior to the Veteran's death. As such, the claim fails the primary criterion of service connection, namely, a present disability. The Board does recognize the Veteran's, and by-proxy the appellant's firmly-held belief that he suffered from neuropathy prior to his death, but finds this of limited probative value in assessing the claim. While certainly competent to report observable symptomatology, the Veteran and the appellant, as lay persons, are not competent to provide the complex diagnosis of peripheral neuropathy. Layno v. Brown, 6 Vet. App. 465, 471 (1994); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In this case, the Board does not discount the Veteran's assertions of neuropathic pain in the past. However, whether that pain constituted peripheral neuropathy or some other diagnosed condition is a complex medical conclusion, and cannot be provided by a lay person. Additionally, while the Board recognizes that pain alone may constitute a disability for VA compensation purposes, the Board finds that it does not meet that standard in this matter. Pain may constitute a disability when it results in functional loss. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In this matter, the Veteran has asserted some neuropathic pain, without progression, over the course of 60 years. He did not assert that it caused his functional loss of his lower extremities, and the examiner in January 2020 did not find any functional loss due to his pain. His pain did not result in the loss of use of his legs or even limited use of his legs. It did not contribute to his need for a cane. The examiner did not find that it interfered in his ability to obtain or maintain employment. As such, the Board does not finds that any symptoms, as they existed without an associated diagnosis, constituted a "disability" for VA compensation purposes. The Board has reviewed the evidence, to include any available medical evidence, but does not find any that would suggest a present disability manifested by neuropathic pain in the lower extremities. As such, the Board finds that the claims must be denied for lack of a present disability which may be etiologically linked to any incident of active service. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 6. Entitlement to service connection of a left ear injury The Veteran, prior to his death, sought service connection of a left ear injury, which he asserts occurred when he ruptured his ear drum while landing in an unpressurized aircraft. After careful consideration, the Board finds that the claim should be denied. As noted above, the Veterans' personnel and military treatment records are not available, most likely destroyed in a fire. As such, the Board must carefully consider the benefit-of-the-doubt doctrine in assessing this claim. For his part, the Veteran asserted that he ruptured his ear drum during an aircraft landing, due to a depressurization incident. There is no record of such an incident in the available evidence. The Veteran was notified of this, and offered multiple opportunities to supplement the claims file with further proof of this incident, but did not provide any further evidence beyond his lay statements. The Board does note that a January 2020 physical examination did identify a scar on the tympanic membrane of the left ear, however, that scar does not sp However, even presuming that the Veteran did suffer a ruptured ear-drum during active service, the Board does not find that the claim should be granted, as there is no evidence of residuals of an inner-ear injury constituting a presently diagnosed disability for compensation purposes. In support of his claim, the Veteran provided a March 2012 progress note, indicating a complaint of left ear pain, identified as secretory otitis media, treated with allergy medication. The date of onset of the condition was three days earlier, in March 2012. He did not report a prolonged history of ear pain, but rather an isolated incident. There is no indication in the record that the condition did not improve with treatment or that it required any follow-up. The Veteran was afforded a VA examination of his ear in January 2020. At that time the Veteran reported hearing loss and tinnitus, which the Board notes have been granted service connection as secondary to noise exposure in service. He stated that his primary symptoms are hearing loss and tinnitus, with occasional left ear pain. He reported the symptoms staying consistent from the time of onset roughly 63 years earlier. On examination he did not have any symptoms of a vestibular condition, inflammatory condition, or infectious condition. On physical examination, his external ear and ear canal were both normal. His tympanic membrane showed an old scar. He did not have any tumors or neoplasms of the ear. No other pertinent physical findings were identified. Functionally, the examiner found no interference with the ability to work. The examiner stated that the primary concern was the service-connected hearing loss. The scar of the left tympanic membrane was clinically insignificant for an ear condition, and there was no objective evidence of any ear disability. As such, no diagnosed condition could be identified. The Board finds this evidence persuasive of whether or not the Veteran sustained a disability of the left ear beyond his hearing loss and tinnitus. It was given by a medical specialist in contemplation of the complete medical record, to include the Veteran's own lay assertions of symptoms and history. It applied the facts of this specific case to known medical principles. The Board does recognize that the Veteran, and by-proxy the appellant firmly believed he suffered from a left ear injury beyond the claimed hearing loss and tinnitus, but finds this of limited probative value. Much like the neuropathy above, an inner-ear injury is a complex medical diagnosis beyond which must be provided by a person with medical expertise. As a lay person, neither the Veteran nor the appellant were competent to provide such a diagnosis, particularly given the lack of diagnosis provided by the VA specialist in January 2020. Layno v. Brown, 6 Vet. App. 465, 471 (1994); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In sum, even presuming the Veteran did sustain a ruptured eardrum during active service, there is no evidence in the record of a presently diagnosed disability, other than the now-service-connected hearing loss and tinnitus, during the appeal period. As such, the claim fails the primary criterion of service connection, and must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Pryce, Counsel