Citation Nr: 21023383 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-35 098 DATE: April 20, 2021 ORDER Entitlement to service connection for a left hip disorder is denied. Entitlement to service connection for bilateral or unilateral hearing loss is denied. FINDINGS OF FACT 1. The appellant was not disabled by a left hip disorder during a period of ACDUTRA or INACDUTRA. 2. The appellant was not disabled by hearing loss during a period of ACDUTRA or INACDUTRA. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left hip disorder are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2021). 2. The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant had no active duty service. He served periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) with the National Guard from January 1977 to January 1983. This appeal comes before the Board of Veterans’ Appeals (Board) from a February 2019 Order of the United States Court of Appeals for Veterans’ Claims (Veterans Court). The appeal originated from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In a May 2018 decision, the Board denied these issues. The appellant filed an appeal of that decision to the Veterans Court. In a February 2019 Order, pursuant to a January 2019 Joint Motion for Remand, the Veterans Court vacated the Board’s decision, and remanded these issues to the Board for additional development consistent with the Joint Motion. In August 2019 and September 2020, the Board remanded these issues for additional evidentiary development. The appeal has since been returned to the Board for further appellate action. Service Connection—Law and Regulations VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the appellant’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Before becoming entitled to status as a claimant for VA benefits, an appellant must demonstrate by a preponderance of the evidence (1) that he or she is a “veteran,” or (2) “veteran” status for the person upon whose military service the claim for VA benefits is predicated. Laruan v. West, 11 Vet. App. 80, 84-86 (1998) en banc. The term “veteran” means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101(2) (West 2014). The term “active military, naval, or air service” includes (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty; and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty; or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24) (West 2014). As noted above, the appellant had no active duty service but had only periods of ACDUTRA and INACDUTRA. The appellant asserts that he was called for duty one weekend per month and two weeks per year to perform food service duties. The Board emphasizes the more restrictive requirements applicable to periods of ACDUTRA and INACDUTRA as compared to active duty service. The law applicable to active duty service establishes “veteran” status without further requirements. Moreover, it permits a grant of service connection simply by evidence establishing an etiological relationship between an injury or disease in service and a post-service disability. The law pertaining to periods of ACDUTRA and INACDUTRA requires that the claimant have become disabled “during” the period of ACDUTRA or INACDUTRA in which the injury or disease occurred, and specifically requires that the disease and/or injury have been incurred in the line of duty. Moreover, the claimant bears the burden of establishing that this sequence of events has occurred before “veteran” status is granted. 38 U.S.C. § 101(24). Certain presumptions are generally available to claimants to assist in substantiating various elements of a claim for service connection. The presumption of soundness (38 U.S.C. § 1111; 38 C.F.R. § 3.304(b)) applies to “every veteran.” Therefore, establishing “veteran” status is a prerequisite to application of the presumption of soundness. Smith v. Shinseki, 24 Vet. App. 40, 45–46 (2010). The presumption of aggravation (38 U.S.C. § 1153 (West 2014); 38 C.F.R. § 3.306(a)) and the presumption of service connection for specific chronic diseases (38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309), including arthritis, can never apply to periods of ACDUTRA and INACDUTRA. Here, “veteran” status does not attach to any verified period of ACDUTRA. The only qualifying period is the period of INACDUTRA that includes August 8, 1981, during which the appellant was disabled by a hand injury, for which service connection has been granted. Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr, 21 Vet. App. at 308-09. A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 (‘sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer’); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to service connection for a left hip disorder. Entitlement to service connection for bilateral hearing loss. These issues were remanded by the Veterans Court because the appellant’s VA treatment records noted several documents that were contained in VISTA imaging, but were not included in the record before the Board. Those documents have since been obtained and are not relevant to the issues on appeal. The Board finds that its remand instructions were substantially complied with. The Agency of Original Jurisdiction (AOJ) obtained the specific treatment records identified in the Joint Motion and attempted to obtain a better copy of illegible service treatment records. The AOJ received a negative response from the service department regarding this record. See Stegall v. West, 11 Vet. App. 268 (1998). See also See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board’s remand). The appellant’s service treatment records are largely unreadable. The AOJ attempted to obtain a complete set of the appellant’s service treatment records, but was unsuccessful. The AOJ tried to obtain service treatment records from sources such as the National Personnel Records Center and the Kansas Adjutant General’s Office. Negative responses were received. The appellant was notified of the missing records and asked to submit any in his possession. No response was received. The AOJ issued a formal finding on the availability of service records in September 2011. A report of medical history completed by the appellant on September 19, 1982, just prior to the end of his service obligation, reveals his account that he had no history of, or current, hearing loss (Record 09/20/2011 at 8). Post service records confirm that the appellant has osteoarthritis of the left hip and bilateral hearing loss. A VA examination for hearing loss in August 2013 (Record 08/20/2013) reveals the following pure tone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 25 40 40 45 30 LEFT 25 50 50 55 55 Speech recognition was 88 percent in the right ear and 84 percent in the left ear. The examiner opined that condition claimed was less likely than (less than 50 percent probability) related to service. The examiner reasoned that the appellant reported that he was called for duty one weekend per month and two weeks per year to perform food service duties. He reported that the reverberation from the pots and pans he worked with caused hearing loss. He denied performing any regular weapons training during military service. An audiometric evaluation was performed in the service and was found in the service medical record; however, the copy was very difficult to read. It appeared that his hearing was within normal limits in 1980, however the scan was not clear enough to confirm all thresholds. It was the opinion of the examiner that food service specialist duties would not expose the appellant to significant noise. The appellant’s MOS is not consistent with exposure to noise and are “low” for noise exposure according to the DoD Noise Exposure listing. Hearing loss configuration on audiometric evaluation is not consistent with exposure to acoustic trauma. The appellant was not provided a medical opinion regarding the left hip. The Board finds that, as the appellant has not identified a specific left hip injury or disease occurring in the line of duty during a period of ACDUTRA or a specific left hip injury occurring in the line of duty during a period of INACDUTRA, an examination and/or medical opinion is not necessary to decide the claim. After a review of all of the evidence, the Board finds that the criteria for entitlement to service connection for a left hip disorder and bilateral or unilateral hearing loss are not met. The appellant contends that his current left hip disorder is related to the stress of lifting heavy objects during his food service duties. He contends that his hearing loss is related to the noise associated with his food service duties. There is no record of a specific injury or disease of the left hip during the appellant’s service. He does not contend that there was a specific injury or disease. There is no record of an ear injury or disease. He does not contend that there was a specific injury or disease. There is no line-of-duty investigation for either claim. The Board acknowledges that establishing acoustic trauma is essentially a medical question, as “trauma” implies not only exposure to sound, but a residual or residuals of such exposure. For this reason, the appellant was provided a VA examination and a medical opinion was requested. That opinion is against the incurrence of acoustic trauma, i.e., injury or disease to hearing acuity. The appellant also does not contend that he incurred a left hip disability or bilateral hearing loss during the same period of INACDUTRA in August 1981 during which he injured his right hand. Rather, he asserts that both disorders are related to the ongoing stresses and sounds associated with his service. The mere occurrence of symptoms during ACDUTRA or INACDUTRA is not sufficient to meet the criteria for establishing “veteran” status or to substantiate a claim of entitlement to service connection for, even if those symptoms represent the initial occurrence of symptoms. A claimant who has no active duty service bears the burden of establishing that he actually became disabled during a qualifying period of service, and that the disability resulted from injury or disease incurred in the line of duty during such period. The appellant has not met his burden with respect to either of these claims. To reiterate, the Board finds that the appellant did not become disabled due to the claimed hearing loss, or left hip disorder, during a period of ACDUTRA or INACDUTRA; and that he did not incur a related injury or disease in the line of duty during such period. The Board also finds that the claimed hearing loss and left hip disorder are not related to the period of INACDUTRA in August 1981 for which “veteran” status applies. In light of these findings of fact, the Board concludes that service-connected for the claimed disorders is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Cramp 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.