Citation Nr: 21075155 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 18-05 673 DATE: December 17, 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 skin condition claimed as tinea cruris is denied. Entitlement to service connection for bilateral flat feet is denied. REMANDED Entitlement to service connection for right thumb disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that bilateral hearing loss 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 tinnitus began during active service, or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that skin condition 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 bilateral flat feet began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 3. The criteria for entitlement to service connection for skin condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for bilateral flat feet have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1976 and November 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. 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, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. The Board addresses the service connection claims together as they stem from the same factual background and are addressed under the same legal basis. The Veteran contends that he developed bilateral hearing loss due to the noise exposure he experienced while he was in service. During the August 2021 Board hearing, the Veteran reported ringing in his ears. He wears hearing aids. His military occupational specialty (MOS) in service was food service specialist. He recounted that during basic training, a flash bomb went off in his face and blew the helmet off his head while he was in a foxhole. He was also exposed to acoustic trauma at the firing range in boot camp. He was not provided hearing protection in service. He has constant ringing, easier to hear men than women. After service, he worked as a truck driver for propane and then as a high school janitor. The Veteran stated that he was not exposed to loud noises during these occupations. Where the evidence shows a chronic disease in service or continuity of symptoms after service, the disease shall be presumed to have been incurred in service. For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With a chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303 (b). Service connection is presumed when the chronic disease is noted on the Veteran's service treatment records or manifested to a degree of 10 percent within one year of discharge from service. 38 C.F.R. § 3.307(a)(3). For VA purposes, impaired hearing is considered disabling when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. 38 C.F.R. § 3.385 An August 1977 service audiometric evaluation indicated the Veteran's hearing was in within normal limits. May 1976 entrance examination and September 1977 separation examination also indicated that the Veteran had normal hearing. Post-service treatment records indicate bilateral hearing loss did not develop within one year after service. See e.g., June 2015 Mental Health Note (hard of hearing); May 2016 Ukiah Clinic Record (wax in ears, decreased hearing, tinnitus); May 2016 audiology consult (hearing aids ordered). The Veteran's hearing was evaluated in September 2017. Using the Maryland CNC, audiometric results were the following: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 40 60 70 LEFT 10 20 55 65 70 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and left ear. The VA examiner reported the right ear and left ear to have sensorineural hearing loss. The examiner opined it was less likely than not that the Veteran's military noise exposure caused his hearing loss. The examiner explained that review of the claims file notes elevated responses was present at induction and fluctuated during military service. No significant changes noted when in­service audiograms are compared bilaterally. The Veteran's MOS entailed a low probability of hazardous noise exposure. The examiner opined that it was at least as likely as not (50% probability or greater) a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss. However, it was less likely than not (less than 50% probability) caused by or a result of military noise exposure. The examiner explained that the Veteran served in a capacity which entailed a low probability of hazardous noise exposure. Review of in­service audiograms notes no complaints for tinnitus and the Veteran's hearing noted no significant threshold shift. The Board acknowledges the Veteran's contention that he has bilateral hearing loss that is etiologically attributable to in-service noise exposure. The Veteran, as a lay person, is competent to report that he has difficulty hearing; however, he is not competent to diagnose a hearing loss disability for VA compensation purposes. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006). Determining whether military noise exposure is the cause for bilateral hearing loss requires medical and diagnostic testing. The Veteran has not been shown to possess the medical expertise or knowledge to diagnose a disability such as hearing loss. Therefore, his contentions do not constitute competent evidence and do not weigh against the probative value of the relevant objective audiological test results of record. Consequently, the Board gives more probative weight to the competent medical evidence. The medical evidence is consistent in finding that the Veteran's hearing loss is not related to his military noise exposure. Therefore, the Board finds that entitlement to service connection for bilateral hearing loss and tinnitus is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b). 3. Entitlement to service connection for skin condition. The Veteran filed a claim for a skin condition. However, during the August 2021 Board hearing, the Veteran testified that he did not have a skin condition beyond occasional sunburns or flaking. He stated that he could not recall when it started. He was given soap in service and broke out from it. Other than that, he did not have a problem with his skin. He did not take any medication for his skin. STR do not indicate the complaint, treatment, or diagnosis of a skin condition. Post-service treatment records indicate that a skin condition did not develop within one year after discharge from service. See e.g., May 2000 Primary Care Note (complained of three-week itch rash treated with steroids without relief); September 2000 Primary Care Note (skin rash); February 2016 Primary Care Note (denied rash); December 2016 Primary Care Note (patchy erythema). The Board notes that VA must provide a VA medical examination when there is: (1) competent evidence of a current disorder or persistent or recurrent symptoms of a disorder; and, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and, (3) an indication that the disorder, or persistent or recurrent symptoms of a disorder, may be associated with the Veteran's active military service or with another service-connected disability; but, (4) insufficient competent medical evidence on file for the VA Secretary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes that there is no evidence of a skin condition in service, and the evidence does not indicate the Veteran's skin manifested itself within one year after separation from service. Further, despite having a claim on appeal, the Veteran testified during the board hearing that he does not have a current skin disability. Therefore, despite the low bar set by McLendon, a VA examination is not warranted and the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to service connection for bilateral flat feet. The Veteran contends that his flat feet were aggravated by his military service. During the August 2021 Board hearing, the Veteran testified that his flatfeet pre-existed service but worsened while in service. In service, he experienced athlete's foot for one year in service. He was given powder to put in his shoes, but he was not provided orthotics in service. He did not report issues in-service with his feet because he didn't think it was important. Currently, he treats his symptoms by soaking his feet in peroxide and powder them. He was seen by doctors at the Santa Rosa VA. The May 1976 entrance examination noted the Veteran to have abnormal feet. The September 1977 separation examination noted the feet to be normal. The Veteran noted on his September 1977 Report of Medical History to have foot trouble. The Veteran also wrote that he had athlete's foot for one year and four months. No medications worked. Post-service treatment records indicate the Veteran experienced issues with his feet. See e.g., October 2000 Dermatology Note (bilateral feet with moccasin distribution of erythema and scale); December 2000 Primary Care Note (complained that he cannot stand on his feet; fungal infection is better on his feet); June 2016 Social Work Note (complained on growths on both feet); August 2016 Mental Health Note (feet burn); September 2016 Podiatry Note (burning in feet). The Veteran was afforded a VA examination in August 2017. The diagnosis of flat feet was confirmed. The Veteran reported that he was unsure of when the flat feet started but he stated noticing weakness in his left foot when on his knees. The Veteran reported he had to crawl and use a desk for assistance to get himself up. The Veteran gets burning in his feet when walking and numbness after sitting for too long and a tingling sensation on both feet. The examiner notes symptoms of itching when his feet get hot, and sweaty. There was a burning feeling on both feet when he's wearing shoes. The Veteran reported that the numbness and tingling sensation came on and off, from different activities such as sitting too long, standing too long, and walking. The numbness and tingling sensation were daily. The Veteran reports he's had multiple, frequent foot injuries and not realize it until he's seen his toes or his foot was bleeding. The examiner opined that the Veteran's bilateral flat feet (which clearly and unmistakably existed prior to service) were less as likely as not (50 percent or lesser probability) aggravated beyond its natural progression by (the) mild pes planus during service. The examiner wrote that the May 1976 entrance examination noted a mild bilateral pes planus while entering active-duty service. However, further review of file does not include any documented reports or treatment records for bilateral pes planus at any time within the Veteran's active-duty military service which could have been supportive of an aggravation. The Veteran's September 1977 exit examination was silent for any complaints or symptoms associated with the Veteran's bilateral pes planus. The Board acknowledges the Veteran's contentions that his current bilateral flat feet were aggravated by his duties in service. However, the evidence of record did not support the Veteran's contention. Abnormal feet were noted on the entrance examination but it was marked normal on the separation examination. There were no consistent complaints of feet trouble throughout service. Post-service treatment records did not show the developed of a foot disability within in one year after discharge nor does it show continuity of symptomology. In addition, the medical opinion of record found that the Veteran's service did not aggravate his pre-existing pes planus. The record does not contain any medical opinions to contradict this finding. Accordingly, the criteria for entitlement to service connection for bilateral flat feet have not been established, either through medical or lay evidence. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for bilateral flat feet disability, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 5. Entitlement to service connection for right thumb disability is remanded. The Veteran contends that his current right thumb disability was caused by his in-service right thumb injury. During the August 2021 Board hearing, the Veteran testified that he injured thumb while in service. On a rainy day in 1973, he slipped and he caught himself hurting his right thumb. He did not remember when he entered service, but he fractured his thumb at boot camp. Currently, his thumb doesn't hurt unless he overuses it or over activates it. He was never seen by a doctor and the pain was off and on. A May 1976 STR indicated the Veteran complained of sprained right thumb. Post-service treatment records show the Veteran complained of thumb numbness, but a diagnosis was not given within one year after discharge. See e.g., February 2016 Mental Health Note (complained that his thumb goes numb). VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and 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). In this case, the Veteran has not been afforded a VA examination to determine if his current symptoms of pain and numbness is related to his injury in service. Therefore, remand is required to obtain a VA examination. The matters are REMANDED for the following action: 1. Obtain any outstanding medical treatment records related to the claim on appeal and associate them with the file. 2. Then, schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of his right thumb injury. A copy of the claims file, including a copy of this remand, must be provided to the examiner for review. The examiner is asked to review the claims file in its entirety prior to rendering an opinion. The examiner is asked to determine whether the Veteran's right thumb injury was at least as likely as not (50 percent probability or greater) caused by the in-service injury. A clear rationale must be provided for all opinions expressed. The examiner must consider Veteran's lay statements and post-service treatment records. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion. 3. Thereafter, readjudicate the claim on appeal. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Harris, Attorney Advisor 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.