Citation Nr: 21077099 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 19-21 116 DATE: December 28, 2021 ORDER The claim of entitlement to service connection for bilateral pes planus is dismissed. The claim of entitlement to service connection for bilateral plantar fasciitis is dismissed. The claim of entitlement to service connection for a bilateral ankle disorder is dismissed. The claim of entitlement to service connection for diabetic neuropathy in the upper extremities is dismissed. The claim of entitlement to service connection for diabetic neuropathy in the lower extremities is dismissed. Entitlement to service connection for bilateral hearing loss disability is granted. Entitlement to service connection for bilateral vision loss is denied. REMANDED The claim of entitlement to service connection for a low back disorder is remanded. The claim of entitlement to service connection for bilateral knee disorder is remanded. The claim of entitlement to service connection for bilateral shoulder disorder is remanded. The claim of entitlement to service connection for a chronic skin disorder is remanded. The claim of entitlement to service connection for obstructive sleep apnea (OSA) is remanded. The claim of entitlement to service connection for hypertension is remanded. The claim of entitlement to service connection for migraines is remanded. The claim of entitlement to service connection for diabetes mellitus type 2 (diabetes) is remanded. The claim of entitlement to service connection for chronic fatigue syndrome (CFS) is remanded. FINDINGS OF FACT 1. In a statement to the undersigned Veterans Law Judge on November 5, 2020, the Veteran withdrew from appellate consideration claims of entitlement to service connection for bilateral pes planus, bilateral plantar fasciitis, bilateral ankle disorders, diabetic neuropathy in the upper extremities, and diabetic neuropathy in the lower extremities. 2. The evidence is in a state of relative equipoise regarding whether bilateral hearing loss disability relates to service. 3. The evidence indicates that the Veteran did not incur a chronic eye disability during service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal regarding claims of entitlement to service connection for bilateral pes planus, bilateral plantar fasciitis, bilateral ankle disorders, diabetic neuropathy in the upper extremities, and diabetic neuropathy in the lower extremities are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 2. The criteria for service connection for bilateral hearing loss disability are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. 3. The criteria for service connection for an eye disorder are not met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 4.9. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1983 to February 1987. This matter comes to the Board of Veterans' Appeals (Board) on appeal of rating decisions by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran testified in a hearing before the Board. A transcript of the hearing is included in the electronic claims file and has been reviewed. In letters received into evidence in November 2020, a private physician states that the Veteran has a service-related brain mass which in turn relates to several of the disorders underlying claims remanded below. VA treatment records note a neoplasm in the brain. The Board refers this issue to the RO for appropriate consideration. Withdrawn claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn from appeal claims of entitlement to service connection for bilateral pes planus, bilateral plantar fasciitis, bilateral ankle disorders, diabetic neuropathy in the upper extremities, and diabetic neuropathy in the lower extremities. In a statement to the Board during the November 2020 hearing, in the presence of his representative, the Veteran asserted that he did not want to appeal these issues. Hence, there remain no allegations of errors of fact or law for appellate consideration of these issues. Accordingly, the Board does not have jurisdiction to review the claims and each is dismissed. Service Connection The Veteran claims that he incurred hearing and vision disorders during service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The evidence addressing hearing and vision disorders consists of service treatment records (STRs), service personnel records (SPRs), VA and private treatment records, lay statements, and VA examination reports dated in July, August, and September 2018. Hearing loss Impaired hearing will be considered a disability under VA law when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 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. Even though disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Where sensorineural hearing loss becomes manifest to a degree of 10 percent or more within one year from the date of discharge from active duty, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the following reasons, a service connection finding is warranted for bilateral hearing loss disability. First, the evidence establishes that the Veteran has a hearing loss disability. This is demonstrated in a September 2018 VA audiology examination report, which notes auditory thresholds of at least 40 decibels in each ear. Second, the record establishes that the Veteran was exposed to acoustic trauma during service. During his testimony before the Board, he described exposure to weapons fire while attached to an infantry unit. Moreover, these assertions are reflected in the August 2018 VA report. As a layperson, he is competent to report observable symptoms such as loud noises. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, his assertions are supported by the SPRs, which show that he was attached to an infantry unit during service as a food specialist. The Board also notes that the RO granted entitlement to service connection for tinnitus based on the in-service noise exposure, and on the September 2018 VA examiner's finding that the tinnitus relates to the noise exposure. Third, the evidence is in a state of relative equipoise regarding whether, as is the case with tinnitus, hearing loss relates to service. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. On the one hand, certain evidence counters the claim. Available STRs are negative for hearing loss. Hearing loss is not indicated in an August 1989 audiogram and August 1989 reports of medical examination and history, which were conducted following active duty during reserve service. The earliest evidence of record of hearing loss is noted in the late 2010s, over 30 years after service. See Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). And in the only medical nexus opinion of record addressing the claim, the September 2018 VA examiner found it unlikely that hearing loss related to service. The examiner reasoned that the STRs showed normal hearing after service. On the other hand, certain evidence favors the claim. The VA opinion is not probative. It is based solely on the absence of evidence of a hearing loss problem during service. See Hensley, supra. The opinion addressed noise exposure during service. But the examiner did not address the Veteran's claims of experiencing reduced hearing acuity during and following service, or the question of whether hearing loss had its onset in the years following service as the result of service. Further, the opinion is in stark contrast to the opinion regarding tinnitus, which is given in the same report. That opinion connects tinnitus to service based on likely exposure to loud noises during service and on the Veteran's lay assertions regarding tinnitus during and following service. Indeed, the rationale underlying the supportive opinion for tinnitus tends to favor a grant for hearing loss as well because the same basic facts apply for each claim. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). Moreover, the record indicates that STRs pertaining to service may be missing. It is possible that service records supporting the claim are missing. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991) (in a case in which a claimant's service records are unavailable through no fault of their own, there is a heightened obligation for VA to assist the claimant in the development of the claim and to provide reasons or bases for any adverse decision rendered without these records). The Veteran's lay assertions are of evidentiary value as well. He has described that he noticed hearing loss as well as tinnitus during service and in the years following service. Again, his statements are probative because diminished hearing acuity is an observable symptom. See Jandreau, supra. Further, his statements are consistent with the nature of his service. See Smith v. Derwinski, 1 Vet. App. 235 (1991). Based on the foregoing evidentiary background and in light of the grant of entitlement to service connection for tinnitus based on lay evidence detailing ringing in the ears following acoustic trauma during service, the Board cannot find that a preponderance of the evidence is against the claim that current hearing loss disability is due to acoustic trauma during service. Indeed, there is an approximate balance of positive and negative evidence regarding whether hearing loss was incurred in service. As such, this is an appropriate case in which to invoke VA's doctrine of reasonable doubt, grant the Veteran the benefit of the doubt, and grant the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Eyes The Veteran also claims that service caused a vision problem. The VA medical evidence shows that the Veteran has refractive error for which he uses corrective lenses and has "mild cataracts" as noted in the July 2018 VA report. The August 1989 reports of medical examination and history note diminished visual acuity and the use of contact lenses. However, a service connection finding is unwarranted for these problems. First, refractive error is not evidence of a disability for VA compensation purposes. VA considers refractive error of the eye to be a congenital or developmental defect. Service connection may not be allowed for such refractive errors as myopia, presbyopia, or astigmatism, even if visual acuity decreased in service. None of these eye problems is a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303 (c), 4.9. As such, a service connection finding is unwarranted for the documented vision problem. Second, there is no medical evidence of record connecting "mild" cataracts to service. The available STRs are negative for cataracts as are the August 1989 reports of medical examination and history. The earliest evidence of record of cataracts is noted in the late 2010s, over 30 years after service. See Horn, supra. And in the only medical nexus opinion of record addressing the claim, the VA examiner found it unlikely that cataracts related to service. In assessing the claim, the Board has considered the Veteran's lay assertions that he experienced blurry vision during service which amounts to a disability. His statement is of probative value because as a layperson he is competent to describe observable symptomatology such as difficulty seeing. See Jandreau, supra. However, he is not a medical professional who is competent to determine matters such as diagnosis and etiology. The question of whether he has an eye disability, or developed such a disorder due to service, is a complex medical issue involving an internal matter beyond his capacity for observation. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). For this reason, the weight of the VA opinion preponderates against the Veteran's. Indeed, the VA opinion, and the objective medical evidence backing it, is more credible than the Veteran's assertions regarding the question of whether he now has a service-related eye or vision problem. See Smith, supra. Based on the foregoing, the evidence of record preponderates against the claim of entitlement to service connection for a vision disorder. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND A remand is warranted for medical inquiry into the claims remaining on appeal claims of entitlement to service connection for a low back disorder, a bilateral knee disorder, a bilateral shoulder disorder, a chronic skin disorder, OSA, hypertension migraines, diabetes, and CFS. As noted, STRs are missing, so VA examinations should be conducted to assess the Veteran's lay assertions regarding the ways in which he believes he incurred these disorders during service. Moreover, several of the claims are intertwined with the issue referred to the RO regarding a brain mass. See Smith v. Gober, 236 F.3d. 1370 (Fed. Cir. 2001). Private medical evidence dated in November 2020 links several claimed disorders to the brain mass, which the private examiner found related to service. The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Undertake appropriate development to obtain any outstanding records pertinent to the claims. Include in the claims file any outstanding VA treatment records, the most recent of which are dated in May 2020. 3. Schedule examinations to assess the nature and etiology of the disorders underlying the Veteran's remanded claims. After reviewing the electronic claims file, interviewing the Veteran, and examining him, the respective examiners should answer the following questions: Back: (a) What back disorders does the Veteran have? (b) Is it at least as likely as not (i.e., probability of 50 percent or more) that a diagnosed back disorder had its onset during service or is related to a disease, event, or injury during service? (c) If not, is it at least as likely as not that any diagnosed back disorder is due to or caused by service-connected disability? (d) If not, is it at least as likely as not that any diagnosed back disorder has been aggravated (i.e., permanently or temporarily worsened beyond the natural progress) by service-connected disability? Knee: (a) What knee disorders does the Veteran have? (b) Is it at least as likely as not (i.e., probability of 50 percent or more) that a diagnosed knee disorder had its onset during service or is related to a disease, event, or injury during service? (c) If not, is it at least as likely as not that any diagnosed knee disorder is due to or caused by service-connected disability? (d) If not, is it at least as likely as not that any diagnosed knee disorder has been aggravated (i.e., permanently or temporarily worsened beyond the natural progress) by service-connected disability? Shoulder: (a) What shoulder disorders does the Veteran have? (b) Is it at least as likely as not (i.e., probability of 50 percent or more) that a diagnosed shoulder disorder had its onset during service or is related to a disease, event, or injury during service? (c) If not, is it at least as likely as not that any diagnosed shoulder disorder is due to or caused by service-connected disability? (d) If not, is it at least as likely as not that any diagnosed shoulder disorder has been aggravated (i.e., permanently or temporarily worsened beyond the natural progress) by service-connected disability? Skin: (a) What skin disorders does the Veteran have? (b) Is it at least as likely as not (i.e., probability of 50 percent or more) that a diagnosed skin disorder had its onset during service or is related to a disease, event, or injury during service? (c) If not, is it at least as likely as not that any diagnosed skin disorder is due to or caused by service-connected disability? (d) If not, is it at least as likely as not that any diagnosed skin disorder has been aggravated (i.e., permanently or temporarily worsened beyond the natural progress) by service-connected disability? Sleep: (a) Is it at least as likely as not (i.e., probability of 50 percent or more) that a diagnosed sleep disorder had its onset during service or is related to a disease, event, or injury during service? (b) If not, is it at least as likely as not that any diagnosed sleep disorder is due to or caused by service-connected disability? (c) If not, is it at least as likely as not that any diagnosed sleep disorder has been aggravated (i.e., permanently or temporarily worsened beyond the natural progress) by service-connected disability? Diabetes: (a) Is it at least as likely as not (i.e., probability of 50 percent or more) that diabetes had its onset during service or is related to a disease, event, or injury during service? (b) If not, is it at least as likely as not that diabetes is due to or caused by service-connected disability? (c) If not, is it at least as likely as not that diabetes has been aggravated (i.e., permanently or temporarily worsened beyond the natural progress) by service-connected disability? Hypertension: (a) Is it at least as likely as not (i.e., probability of 50 percent or more) that hypertension had its onset during service or is related to a disease, event, or injury during service? (b) If not, is it at least as likely as not that hypertension is due to or caused by service-connected disability? (c) If not, is it at least as likely as not that hypertension has been aggravated (i.e., permanently or temporarily worsened beyond the natural progress) by service-connected disability? Migraines: (a) Is it at least as likely as not (i.e., probability of 50 percent or more) that migraines had their onset during service or are related to a disease, event, or injury during service? (b) If not, is it at least as likely as not that migraines are due to or caused by service-connected disability? (c) If not, is it at least as likely as not that migraines have been aggravated (i.e., permanently or temporarily worsened beyond the natural progress) by service-connected disability? CFS: (a) Does the Veteran have CFS? (b) Is it at least as likely as not (i.e., probability of 50 percent or more) that diagnosed CFS had its onset during service or is related to a disease, event, or injury during service? (c) If not, is it at least as likely as not that diagnosed CFS is due to or caused by service-connected disability? (d) If not, is it at least as likely as not that diagnosed CFS has been aggravated (i.e., permanently or temporarily worsened beyond the natural progress) by service-connected disability? 4. To each examiner: The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In rendering the requested opinions, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. (Continued on the next page) Please explain in detail any opinion provided and the supporting rationale. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher McEntee 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.