Citation Nr: 21023786 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-41 988 DATE: April 21, 2021 ORDER Entitlement to service connection for a cervical spine/neck disorder is denied. Entitlement to service connection for a lumbar spine/back disorder is denied. Entitlement to service connection for a right knee is denied. Entitlement to service connection for a right ankle disorder is denied. Entitlement to service connection for a right thumb disorder is denied. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The appellant did not become disabled due to a cervical spine/neck disorder in the line of duty during a period of ACDUTRA or INACDUTRA. 2. The appellant did not become disabled due to a lumbar spine/back disorder in the line of duty during a period of ACDUTRA or INACDUTRA. 3. The appellant did not become disabled due to a right knee disorder in the line of duty during a period of ACDUTRA or INACDUTRA. 4. The appellant did not become disabled due to a right ankle disorder in the line of duty during a period of ACDUTRA or INACDUTRA. 5. The appellant did not become disabled due to a right thumb disorder in the line of duty during a period of ACDUTRA or INACDUTRA. 6. The appellant did not become disabled due to bilateral hearing loss in the line of duty during a period of ACDUTRA or INACDUTRA. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a cervical spine/neck disorder are not met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2021). 2. The criteria for entitlement to service connection for a lumbar spine/back disorder are not met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2021). 3. The criteria for entitlement to service connection for a right knee are not met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2021). 4. The criteria for entitlement to service connection for a right ankle disorder are not met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2021). 5. The criteria for entitlement to service connection for a right thumb disorder are not met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2021). 6. The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant had no active duty service. The appellant had periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) with the National Guard. This appeal comes before the Board of Veterans’ Appeals (Board) from March 2017 and February 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the appellant presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law Judge, and he accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e). At the Board hearing, the appellant was informed of the basis for the denial of his claims, and he was informed of the information and evidence necessary to substantiate each claim. 38 C.F.R. § 3.103. A transcript of the hearing is associated with the claims file. The appellant separately appealed a denial of entitlement to service connection for tinnitus. However, he did not perfect the appeal following issuance of a Statement of the Case in June 2018. 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). Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310(a), (b); Wallin v. West, 11 Vet. App. 509, 512 (1998). Before becoming entitled to status as a claimant for VA benefits, an appellant must first 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 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. 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. While the appellant was examined at entry into a period of ACDUTRA for basic training, and was found to be clinically normal with respect to his neck, spine, ears and hearing, upper extremities, and lower extremities, the presumption of soundness does not attach to that period as the appellant is not a “veteran” by reason of that period. 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. 1. Entitlement to service connection for a cervical spine/neck disorder. 2. Entitlement to service connection for a lumbar spine/back disorder. 3. Entitlement to service connection for a right knee disorder. 4. Entitlement to service connection for a right ankle disorder. 5. Entitlement to service connection for a right thumb disorder. 6. Entitlement to service connection for bilateral hearing loss. The appellant had one confirmed period of ACDUTRA, from August 17, 1982, to December 2, 1982. When examined at entry into that period of ACDUTRA, all systems, including ears and hearing were normal. Pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 15 15 LEFT 15 10 10 15 15 The appellant was seen in September 1982 for complaint of right knee pain. He was having problems with walking and running. He reported stepping in a hole. There was no diagnosis other than rule-out functional stress (Record 08/26/1992 at 55). A report of medical examination performed on October 20, 1982, at the end of ACDUTRA, reveals normal findings for the upper extremities, lower extremities, feet, ears, neck, and spine. The highest physical profile ratings of “1” were assigned regarding the upper extremities, lower extremities, and hearing (Record 08/26/1992 at 44). Pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 5 10 0 LEFT 0 0 0 10 0 A report of medical history completed by the appellant on October 20, 1982, reveals his statement that he had no history of, or current, ear trouble, recurrent back pain, arthritis, trick knee, or locked knee. He denied any trauma or disease (Record 08/26/1992 at 47). After the initial period of ACDUTRA, the appellant had service in the National Guard. A report of medical examination performed on January 12, 1986, reveals normal findings for the upper extremities, lower extremities, feet, ears, neck, and spine. Again, physical profile ratings of “1” were assigned (Record 08/26/1992 at 38). Pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 15 10 LEFT - 5 5 20 15 A June 22, 1986, Emergency Department Note reveals the appellant was seen with back pain from lifting. The diagnosis was myofascial pain syndrome, right neck and low back (Record 08/26/1992 at 31). A July 1986 Line of Duty report notes that a back injury occurred in the line of duty during a period of ACDUTRA (Record 08/26/1992 at 40). A report of medical examination performed on December 1, 1990, reveals normal findings for the upper extremities, lower extremities, feet, ears, neck, and spine. Physical profile rating of “1” were assigned (Record 08/26/1992 at 21). Pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 10 10 15 LEFT 5 5 5 15 15 A report of medical history completed by the appellant on December 1, 1990, reveals his statement that he had no history of, or current, ear trouble, recurrent back pain, arthritis, trick, or locked knee (Record 08/26/1992 at 23). A March 29, 1991, Clinical Note reveals complaint of a sore neck from a motorcycle accident 2 years prior. The diagnosis was torticollis (Record 08/26/1992 at 25). A report of medical examination performed on July 17, 1994, reveals normal findings for the upper extremities, lower extremities, feet, ears, neck, and spine. Physical profile rating of “1” were assigned (Record 08/26/1992 at 10). Pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 5 10 15 LEFT 0 0 5 10 15 A report of medical history completed by the appellant on July 17, 1994, reveals his statement that he had no history of, or current, ear trouble, recurrent back pain, arthritis, trick, or locked knee. The appellant noted that he had fractured his right thumb 2 years prior and fractured his right ankle 7 years prior (Record 08/26/1992 at 11). A December 13, 2016, private Clinical Note reveals the appellant was treated for right knee pain. He stated his symptoms had been chronic and non-traumatic (Record 01/09/2017). A February 2017 VA examination for hearing loss provided no usable results as to current hearing loss. The reason, according to the examiner, was that the appellant was unable and/or unwilling to provide consistent and reliable responses. Additionally, the pure tone thresholds and speech reception thresholds were in poor agreement. Due to inconsistencies between test measures, the test results carried poor reliability and were not suitable for medical determination of a hearing disability/impairment. Nevertheless, the examiner opined that, if the appellant currently had hearing loss, it was deemed less likely as not (less than 50/50 probability) caused by or a result of military noise exposure. The rationale was that, although he had hearing loss in the right ear, this hearing loss appears to have resolved, as the 1994 audiogram shows normal hearing with no significant threshold shifts as compared to the enlistment audiogram. The audiogram is the objective standard for noise injury, and because there were no permanent significant threshold shifts having occurred during active duty service, there is no evidence that the appellant’s military noise exposure caused a permanent noise injury affecting hearing sensitivity (Record 02/03/2017). A February 2017 VA examination of the right knee reflects a diagnosis of knee strain, with date of diagnosis in 2016. According to the appellant’s account, he thinks he developed knee problems due to bumping his knees on tanks. He reported having problems ever since (Record 02/03/2017). The examiner opined that it is less likely than not (50 percent or greater probability) that the appellant has a diagnosis of right knee strain that was incurred in or caused by the twisted knee during service. The rationale was that the appellant was evaluated for an acute right knee condition in September 1982. There was no indication in this evaluation that the condition was severe in nature, so as to cause chronic symptoms. There were negative indications at examinations after this injury as to knee or joint pain. There was also no objective medical evidence that this right knee condition became chronic in nature (Record 03/07/2017). A private audiogram dated in March 2017 reveals a diagnosis of hearing loss, which may be due to wax build up or damage to the ears (Record 03/29/2017). Pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 55 65 75 75 LEFT 55 65 70 75 70 A VA examination for hearing loss in February 2018 (Record 02/09/2018) reveals the following pure tone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 30 40 40 LEFT 20 20 40 45 40 Speech recognition was 90 percent in the right ear and 92 percent in the left ear. The examiner opined that the appellant’s current hearing loss is deemed less likely as not (less than 50/50 probability) caused by or a result of military noise exposure. The rationale was that the appellant had normal hearing sensitivity at enlistment. The separation audiogram revealed a mild hearing loss at 6000 Hz; however, the last available audiogram in 1994 revealed normal hearing in the right ear. Therefore, the hearing loss measured at separation was only a temporary condition, as it was not present on the 1994 audiogram. When comparing enlistment to the 1994 audiogram, there were no significant threshold shifts. Because there were no permanent threshold shifts having occurred during service, there is no evidence the appellant’s military noise exposure caused a permanent hearing loss. The appellant’s spouse wrote in September 2017 that she had been with the appellant since 2004 and he had hearing problems during the time of their relationship (Record 09/29/2017). The appellant testified at the Board hearing that he injured his neck by hitting it on a tank hatch (Record 06/05/2020 at 3). He testified that he injured his back when “the safe hatch fell out thinking I jumped out and reached out, which at that time, the thing probably weighed more than I did. And that’s where the back—when I jumped out and tried to catch the thing up, that’s where that came into play” (Record 06/05/2020 at 4). The appellant testified that that he injured his right knee when a round kicked out of the gun tube and hit him on the top of the knee (Record 06/05/2020 at 6). He injured it again on a PT test. He testified that he injured his right ankle when he fell off the side of a cliff in North Carolina or South Carolina (Record 06/05/2020 at 8). He maintains that they flew him home because he could not finish the training, and then flew him back to finish it. He also testified that he dropped a tank track on his right thumb and injured it. After a review of all of the evidence, the Board finds that the criteria for entitlement to service connection for the claimed hearing loss, neck disorder, back disorder, right knee disorder, right ankle disorder, and right thumb disorder, are not met. The appellant was advised at the Board hearing of the additional evidence necessary to substantiate his claims. He agreed to submit evidence of current disorders of the right ankle and thumb, and of the low back and neck. He did not submit any additional evidence. Although the appellant clearly complained of back and neck pain during a period of ACDUTRA, and there was a positive line-of-duty finding, these complaints were not attributed to a chronic disability at the time. Rather, they were attributed to myofascial pain syndrome (essentially muscle pain). In the context of the current claim, the appellant has not introduced or identified evidence of a current low back or neck disability. He was afforded the opportunity to present such evidence at the Board hearing. He has not done so. The appellant was also treated for right knee pain in service, although there is no line-of-duty finding. He currently has a right knee disorder; however, the evidence does not establish that he became disabled due to a right knee disorder during a period of ACDUTRA or INACDUTRA. The only medical opinion addressing this claim is against any nexus to service. While the appellant maintains that the VA examination was inadequate, this allegation pertains to the manner of physical examination, i.e., that the examiner “physically forced my knee back up, you know. And that’s all she done. I mean it wasn’t no x-ray taken. It wasn’t nothing. That’s all they did” (Record 06/05/2020 at 10). The February 2017 VA examiner found that there was a current right knee strain. Thus, the examination verified a current disability. The appellant did not specify why he believes an X-ray would have been necessary. The reason for the denial of his claim is that the evidence does not substantiate that he became disabled due to right knee disability during a period of ACDUTRA, and that such disability was incurred in the line of duty during such period. It is unclear from the appellant’s assertions how the manner of physical examination renders the medical opinion inadequate. Regarding the right thumb and ankle, the evidence does not substantiate a current disability of the right ankle or thumb. The report of medical history completed by the appellant on July 17, 1994, indicates that the appellant fractured his right thumb 2 years prior (1992) and fractured his right ankle 7 years prior (1987). However, both injuries are well after the only verified period of ACDUTRA. The appellant was notified that he should submit evidence regarding these claims at the Board hearing, but he did not do so. Regarding hearing loss, while the appellant currently has a hearing loss disability for VA purposes, the evidence does not establish that he became disabled due to hearing loss during a period of ACDUTRA or INACDUTRA. It also does not establish that he incurred acoustic trauma in the line of duty during a period of ACDUTRA or INACDUTRA. The only medical opinion addressing this claim is against any nexus to service. The mere occurrence of symptoms during ACDUTRA is not sufficient to meet the criteria for establishing “veteran” status, even if those symptoms represent the initial occurrence of symptoms. Unlike the criteria for establishing service connection for claimants who have already established “veteran” status, a claimant who has no active duty service bears the burden of establishing that (s)he actually became disabled during this period. In other words, (s)he must establish that the disability actually began during a period of ACDUTRA. It is not enough simply to show that an injury occurred during ACDUTRA, or that symptoms were noted during ACDUTRA, or even that a diagnosis was rendered during ACDUTRA. It must be shown that the service member became disabled due to an injury or disease incurred in the line of duty during such period. This is a higher burden than is established for active duty service. For active duty, it is not required that the disability actually began on active duty, only that a post-service diagnosis is related to an injury or disease in service. In sum, establishing entitlement to service connection for disabilities associated with National Guard service, where there is no active duty service, requires a greater evidentiary showing than basing the equivalent claims on active duty service. The appellant has not met his burden with respect to any of these claims. To reiterate, the Board finds that the appellant did not become disabled due to the claimed hearing loss, neck disorder, back disorder, right knee disorder, right ankle disorder, or right thumb disorder, in the line of duty during a period of ACDUTRA or INACDUTRA. 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.