Citation Nr: 21072094 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 20-17 253 DATE: December 2, 2021 ORDER Entitlement to an effective date prior to October 25, 2018 for the grant of service connection for tinnitus is denied. Entitlement to an effective date prior to October 25, 2018 for the grant of service connection for left ear hearing loss is denied. Entitlement to a rating in excess of 10 percent for tinnitus is denied. Entitlement to a compensable rating for left ear hearing loss is denied. Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for right foot neuropathy and dystrophic toenails is denied. Entitlement to service connection for left foot neuropathy and dystrophic toenails is denied. Entitlement to service connection for lumbosacral strain, degenerative arthritis, and spondylolisthesis of the lower back (lower back disability) is denied. REMANDED Entitlement to service connection for residuals of circumcision is remanded. Entitlement to service connection for left knee rheumatoid arthritis and osteoarthritis (left knee disability) is remanded. Entitlement to service connection for right knee rheumatoid arthritis and osteoarthritis (right knee disability) is remanded. FINDINGS OF FACT 1. The Veteran first filed a claim for service connection for tinnitus on October 25, 2018. 2. The Veteran first filed a claim for service connection for hearing loss on October 25, 2018. 3. The Veteran's service-connected tinnitus disability has been assigned the maximum schedular evaluation for the entire period on appeal. 4. The preponderance of the competent and credible evidence of record indicates that the Veteran's left ear hearing loss has been manifested by no worse than a Level I hearing impairment. 5. The preponderance of the evidence is against finding that the Veteran had a right ear hearing loss disability as defined by regulation. 6. The preponderance of the evidence is against a finding that the Veteran's right or left foot neuropathy and dystrophic toenails began in service or are otherwise related to service. 7. The preponderance of the evidence is against a finding that the Veteran's current lower back disability is related to service, to include the in-service incident of low back strain. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date for the grant of service connection for tinnitus have not been met. 38 U.S.C. §§ 5110, 5107 (2018); 38 C.F.R. § 3.400 (2020). 2. The criteria for an earlier effective date for the grant of service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 5110, 5107 (2018); 38 C.F.R. § 3.400 (2020). 3. The criteria for a rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2018); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2020). 4. The criteria for a compensable rating for left ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2018); 38 C.F.R. § 4.87, Diagnostic Code 6100 (2020). 5. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). 6. The criteria for service connection for right foot neuropathy and dystrophic toenails have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). 7. The criteria for service connection for left foot neuropathy and dystrophic toenails have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). 8. The criteria for service connection a lower back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from February 1977 to March 1980. These matters come to the Board of Veterans' Appeals (Board) on appeal of a January 2019 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to an effective date prior to October 25, 2018 for the grant of service connection for tinnitus is denied. 2. Entitlement to an effective date prior to October 25, 2018 for the grant of service connection for left ear hearing loss is denied. On October 25, 2018, the Veteran submitted a claim for service connection for hearing loss and tinnitus. In the January 2019 rating decision on appeal, the RO granted service connection for left ear hearing loss and tinnitus and assigned an effective date of October 25, 2018. The Veteran appealed and is seeking an effective prior to October 25, 2018. The effective date of a grant of service connection is governed by 38 U.S.C. § 5110 (2018), as implemented by 38 C.F.R. § 3.400 (2020). 38 U.S.C. § 5110 (a) states, "unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." 38 U.S.C. § 5110. The Board concludes that an effective date prior to October 25, 2018, for the grant of service connection for left ear hearing loss and tinnitus is not warranted. Although the Board accepts that the Veteran had a disability prior to that date, there is no communication prior to October 25, 2018, that could be reasonably construed as a claim of entitlement to benefits. Accordingly, the claims for an earlier effective date are denied as they are without legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). 3. Entitlement to a rating in excess of 10 percent for tinnitus is denied. The Veteran contends that he is entitled to an evaluation in excess of 10 percent for his service-connected tinnitus. The Veteran's tinnitus is rated pursuant to Diagnostic Code 6260. 38 C.F.R. § 4.87. For recurrent tinnitus, the maximum schedular evaluation is 10 percent. There has been no argument suggesting that an extraschedular evaluation is being sought in this case. As the Veteran's service-connected tinnitus has been assigned the maximum schedular rating available for the entire rating period on appeal, the Board finds that there is no legal basis upon which to award a higher schedular evaluation for tinnitus. As such, a rating in excess of 10 percent for tinnitus is not warranted on a schedular basis. See Sabonis v. Brown, 6 Vet. App. 426 (1994). 4. Entitlement to a compensable rating for left ear hearing loss is denied. The Veteran asserts that he is entitled to a compensable rating for his left ear hearing loss because the severity of his symptoms is worse than contemplated by the currently assigned rating. Ratings of defective hearing range from noncompensable to 100 percent based on the organic impairment of hearing acuity. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2020). Hearing impairment is measured by the results of controlled speech discrimination tests together with the average hearing threshold levels (which in turn, are measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second (Hertz)). See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (defective hearing is rated on the basis of a mere mechanical application of the rating criteria). The provisions of 38 C.F.R. § 4.85 establish eleven auditory acuity levels from I to XI. Tables VI and VII as set forth in section 4.85(h) are used to calculate the rating to be assigned. If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation of I, unless the hearing impairment in the non-service-connected ear meets the criteria of 38 C.F.R. § 3.385. 38 C.F.R. § 4.385(f) (referencing 38 C.F.R. § 3.383). As noted above, hearing impairment in the Veteran's non-service-connected right ear does not meet the above referenced criteria. Thus, the Veteran's hearing acuity is assigned to Level I for his right ear. The January 2019 VA audiology examination report shows that the Veteran's hearing acuity demonstrated pure tone threshold average of 26 with speech recognition of 100 percent in the left ear. Based on these results, the Veteran's hearing acuity is assigned to Level I hearing for his left ear according to Table VI. For the reasons stated above, the Veteran's non-service-connected right ear hearing acuity is also assigned as Level I. Combining Level I hearing for the left ear and Level I hearing for the right ear according to Table VII reveals a noncompensable rating. 38 C.F.R. § 4.85, Diagnostic Code 6100. Accordingly, an initial compensable evaluation for service-connected left ear hearing loss is not warranted. The Board has considered the doctrine of reasonable doubt, but has determined that it is not applicable because the preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 5. Entitlement to service connection for right ear hearing loss is denied. The Veteran contends that he has hearing loss related to in-service noise exposure during service. The Board concludes that the Veteran does not have right ear hearing loss that is considered a disability for VA purposes, which is required for service connection. 38 U.S.C. §§ 1110, 1131, 5107(b); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The determination of whether a Veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385 (2020). Impaired hearing will be considered to be a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. During the January 2019 VA audiological examination, pure tone thresholds, in decibels, were reported as follows: 15, 20, 15, 20, and 30, in 500, 1000, 2000, 3000, and 4000 Hertz, respectively. Speech audiometry, using the Maryland CNC, revealed speech recognition ability of 96 percent in the right ear. In May 2019, the Veteran underwent an audiological evaluation at his VA medical center. The Veteran reported noticing minimal difficulties hearing when there is excessive background noise. He did not report significant problem hearing. Puretone thresholds were reported as follows: 10, 15, 15, 20, and 30 in 500, 1000, 2000, 3000, and 4000 Hertz, respectively. Speech audiometry showed 100 percent speech recognition ability in the right ear. Considering all of the evidence of record, the Board finds that the Veteran does not have a right ear hearing loss disability for VA benefits purposes. The Board appreciates that the Veteran states that he has hearing loss. However, the Board notes that the majority and preponderance of the probative evidence of record does not show pure tone thresholds or speech recognition scores that meet the numerical standards enumerated by 38 C.F.R. § 3.385. Significantly, none of the examination reports of record show pure tone thresholds or speech recognition scores that meet the numerical standards enumerated by 38 C.F.R. § 3.385 for the right ear. Therefore, the Veteran does not have a right ear hearing loss disability for VA benefits purposes. Without a diagnosis of a current right ear hearing loss disability that meets the standards of 38 C.F.R. § 3.385, service connection cannot be granted for a right ear hearing loss disability. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The level of right ear hearing loss shown by the Veteran does not constitute a disability for VA purposes. 38 C.F.R. § 3.385. The Veteran is competent to report difficulty hearing. However, he is not competent to state that his pure tone thresholds or speech recognition scores arise to levels sufficient to warrant a disability for VA purposes. Accordingly, the Board has placed greater probative value on the contemporaneous medical evidence that does not support a finding of a right ear hearing loss disability for VA purposes. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran has a current right ear hearing loss disability for VA purposes. Therefore, the Veteran's claim for service connection for right ear hearing loss is denied. 38 U.S.C. § 5107 (2018); Gilbert, 1 Vet. App. at 54. 6. Entitlement to service connection for right foot neuropathy and dystrophic toenails is denied. 7. Entitlement to service connection for left foot neuropathy and dystrophic toenails is denied. The Veteran contends that his bilateral foot neuropathy and dystrophic toenails is related to participation in Marine Corps training; specifically, abnormal loading during marching and running. See October 2018 Statement in Support of Claim. Service treatment records (STRs) are devoid of complaints pertaining to the feet. At his March 1980 separation examination, clinical evaluation of the lower extremities was normal. Post service, a June 2018 private treatment record noted that the Veteran complained of bilateral numbness and tingling and a cold sensation involving the distal hands and feet which had been present for several months. The examiner assessed diabetic neuropathy (small fiber) versus leflunomide-induced peripheral neuropathy. A September 2018 VA podiatry note indicated that the Veteran presented for diabetic care. Dermatologic exam revealed dystrophic toenails. Neurologic exam revealed diminished sensation. The Veteran reported numbness and tingling, worse a night. In January 2019, a VA examiner opined that the Veteran's bilateral foot condition, diagnosed as diabetic neuropathy and dystrophic toenails, was less likely than not incurred in or caused by the occupational hazard during service. In so opining, the examiner discussed the relevant evidence of record and noted that the first complaint of bilateral foot pain occurred 38 years after separation from service. Based on the foregoing, the Board finds that service connection for left and right foot neuropathy with dystrophic toenails is not warranted. The weight of the competent and probative evidence shows that the Veteran's peripheral neuropathy first manifested many years after service. Furthermore, he has not submitted any argument or evidence) to show that his neuropathy is related to service. A VA examiner has considered this aspect and concluded that the Veteran's current foot disabilities are less likely than not related to service. The Board finds that the VA opinion is adequate, as it shows adequate consideration of the limited evidence submitted in this case. As such, the weight of the evidence is against a finding that the Veteran's foot disabilities are directly related to service. Rather, the evidence suggests that the neuropathy is secondary to his nonservice-connected diabetes. The criteria for service connection have not been met, and the claims must be denied. 8. Entitlement to service connection for lower back disability is denied. The Veteran asserts that his lower back disability is also related to the strenuous activities performed during Marine Corps training. STRs show that the Veteran was seen for a complaint of lower back pain of a week's duration in January 1980. The examiner assessed possible back strain. On March 1980 separation examination, clinical evaluation of the spine was normal. Post service, a July 2017 private treatment record noted a clinical history of ankylosing spondylitis. A September 2018 VA lumbosacral spine x-ray showed L4-5 degenerative disc disease, L3-4 and L4-5 facet arthropathy, mild L2-3 and L3-4 spondylosis, and Grade 1 anterolisthesis of L4 and L5. An October 2018 VA physical therapy evaluation noted that the Veteran was referred for chronic low back pain that had been progressing for multiple years. The Veteran could not report the specific onset. At a January 2019 VA back conditions examination, the Veteran reported that he had an onset of back pain in 1977 related to training. He was seen by medical in January 1980 and was diagnosed with a strain. Following discharge, he reportedly experienced ongoing back pain and saw a physician on several occasions over the next 15 to 20 years. The back pain had gradually increased. The examiner opined that the Veteran's low back disability was less likely than not incurred in or caused by the in-service injury, event, or illness. The examiner acknowledged the Veteran's report of back pain of a week's duration during service and the Veteran's current report of continuing back pain after service, but found that there was no nexus. The examiner noted that the Veteran worked fulltime in the postal department and had chronic obesity. Based on the foregoing, the Board finds that service connection for a lower back disability is not warranted. The weight of the competent and probative evidence shows that the Veteran's current low back disability manifested many years after service. Furthermore, he has not submitted any argument or evidence to show that his lower back disability is related to service. The Veteran has submitted treatment records dating back to 2007 that pertain to musculoskeletal disabilities; however, complaints pertaining to the back were not noted until 2017. This evidence negates the Veteran's current assertion that he suffered ongoing low back pain since service. Finally, a VA examiner has opined that the Veteran's current lower back disability is less likely than not related to service. The Board finds that the VA opinion is adequate, as it shows adequate consideration of the limited evidence submitted in this case. As such, the weight of the evidence is against a finding that the Veteran's lower back disability is directly related to service. The criteria for service connection have not been met, and the claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for residuals of circumcision is remanded. The Veteran claims that he suffers from residuals of an in-service circumcision, including small sores after intercourse and lack of sensation. STRs confirm that the Veteran received a circumcision in service after complaints of phimosis (tight foreskin). Following a January 2019 VA examination, the examiner opined that the Veteran 's "claimed circumcision is less likely than not related to active duty." The examiner noted that the Veteran did not have any current condition on examination, and that there were "no records in relation to a surgery during service." Despite the fact that the Veteran's claimed sores were not present on examination, the examiner failed to address whether such sores would be related to an in-service circumcision. Additionally, the examiner's opinion appears to be based on an inaccurate factual predicate, as there is evidence in the STRs that the Veteran underwent a circumcision. Finally, subsequent VA treatment records note that the Veteran received treatment for chronic patchy numbness on the glans penis. Consequently, an addendum opinion is warranted to address whether the Veteran has current residuals of the confirmed in-service circumcision. 2. Entitlement to service connection for left knee disability is remanded. 3. Entitlement to service connection for right knee disability is remanded. The Veteran claims that he has right and left knee disabilities resulting from his Marine Corps training activities. A January 2019 VA examiner provided a negative opinion, reasoning that there were no complaints of knee pain until 38 years after active duty. The examiner further noted that a June 2018 treatment report did not note a specific diagnosis or a left or right knee condition, and an October 2018 report attributed pain and stiffness to rheumatoid arthritis and osteoarthritis. Contrary to the examiner's findings, the Board notes that the Veteran sought treatment for right knee osteoarthritis in June 2007. Thereafter, he sought treatment for a superior patella spur of the left knee in June 2008. Finally, a September 2010 treatment record contained a diagnosis of mild degenerative joint disease bilaterally. This suggests that the examiner relied on an inaccurate factual predicate, and an addendum opinion is warranted. The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding the nature and etiology of the Veteran's claimed residuals of circumcision. (A full VA examination should not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence.) Review of the claims file should be noted in the examiner's report. The examiner should opine as to whether it is at least as likely as not that the Veteran's reported penile sores and/or loss of sensation in the glans penis is related to service, to include his in-service circumcision? The examiner should provide a comprehensive medical rationale for any opinion offered. 2. Obtain an addendum opinion regarding the nature and etiology of the Veteran's claimed right and left knee disabilities. (A full VA examination should not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence.) Review of the claims file should be noted in the examiner's report. The examiner should opine as to whether it is at least as likely as not that the Veteran's current left and right knee disabilities are related to service. In forming an opinion, the examiner must address all evidence of record, including treatment reports dated from 2007-2010. (Continued on the next page) 3. Then, readjudicate the claims. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claims to the Board. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Roya Bahrami, Counsel 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.